Judicial Notice (09.02.23): No Holds Barred
Justice Thomas v. his critics, Elon Musk v. Biglaw (again), two wins for free speech, and other legal news from the week that was.
Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!
Happy Labor Day. I hope you’re enjoying a respite from your labors. I took the liberty of taking it easy this weekend, spending it barbecuing, baking, and boating with Harlan, which is why this edition of Judicial Notice is a bit late. But presumably you had better things to do this holiday weekend than wait for my roundup of legal news.
The highlight of last week for me was joining David French to co-host Advisory Opinions (AO) on Tuesday and Thursday, while Sarah Isgur is out on parental leave. Like the readers of Original Jurisdiction, the listeners of AO are a lovely group—smart, sophisticated, and civil. Who knew that such existed on the internet? I also published a new Supreme Court clerk hiring roundup, featuring an updated ranking of feeder judges and linking to an interesting list by Firm Prospects of the law firms that hire the most law clerks—not just SCOTUS clerks, but circuit, district, and state-court clerks.
Now, on to the news.
Lawyer of the Week: Elliot Berke.
On Thursday morning, Justices Clarence Thomas and Samuel Alito released their financial disclosures for 2022, for which they had requested extensions. Justice Alito’s disclosure wasn’t exciting, but Justice Thomas’s disclosure was. As I previously explained, Justice Thomas went back through years of past disclosures and either provided additional information or explained why it wasn’t required. He was aided in this effort by an accounting firm, Flynn Abell Nixon LLC, and a law firm, the D.C. boutique of Berke Farah LLP—specifically, founding partner Elliot Berke. A graduate of Emory Law, former partner at McGuireWoods, and former lawyer on Capitol Hill, Berke is Chambers-ranked in “Political Law.” His retention by Justice Thomas might reflect how the justice himself views the matter: as a political one.
As a member of the Supreme Court, Justice Thomas had to show restraint in responding to the ethics allegations against him, but his lawyer didn’t. On his website, Elliot Berke posted a lengthy statement that Jess Bravin of the Wall Street Journal described as “a blistering attack on the justice’s critics.” Berke laced into “left-wing ‘watchdog’ groups” for their “calumny,” condemning their attacks on Justice Thomas as “nothing less than ridiculous and dangerous,” which “set a terrible precedent for political blood sport through federal ethics filings.” [UPDATE (9/5/2023, 5:28 p.m.): As Steven Lubet pointed out on Slate, the statement “was pointedly released ‘On behalf of Client Justice Clarence Thomas.’ A lawyer as accomplished as Berke would never issue such a statement without his client’s specific approval, which makes Thomas responsible for both its language and tone.”]
Justice Thomas’s financial disclosure and Berke’s statement came out around the same time as a letter signed by 112 former Thomas clerks—which I’m guessing Berke either orchestrated or was heavily involved with. Defending their former boss, the Thomas alumni declared that “[h]is integrity is unimpeachable,” “his independence is unshakable,” and the “malicious” attacks on him “are part of a larger attack on the Court and its legitimacy as an institution.” As noted by Fox News, the 112 signatories included three circuit judges—Judges James Ho (5th Cir.), David Stras (8th Cir.), and Allison Rushing (4th Cir.)—as well as current and former solicitors general, general counsel, law firm partners, and law professors.
Not surprisingly, Berke’s efforts didn’t win over his client’s critics. Virginia Canter of Citizens for Responsibility and Ethics in Washington (CREW) told Bloomberg Law that Justice Thomas “had to go out and hire somebody to defend the indefensible.” Over at Slate, Dahlia Lithwick and Mark Joseph Stern wrote, “Berke alleges that the new report ‘utterly refutes’ all criticism of Thomas’ ethics, when it actually validates them: If the justice had been following the law this whole time, there would be no need for pages and pages of major corrections!” But I’m guessing that Elliot Berke—a veteran of numerous Beltway battles, whose other controversial clients include House Speaker Kevin McCarthy (R-Cal..)—isn’t sweating it.
On the subject of SCOTUS ethics, here’s a perhaps surprising aside: if you’re assuming it’s Justices Thomas and Alito who oppose the Court’s adoption of a code of ethics, that’s not necessarily correct, at least as to Justice Alito. Per the WSJ, when Legal Counsel of the Supreme Court Ethan Torrey prepared a draft ethics code last year, Justice Alito offered proposed revisions, instead of trying to kill it altogether.
Another lawyer in the news: acclaimed Supreme Court advocate (and Original Jurisdiction podcast guest) Neal Katyal. He was one of thousands to have the misfortune of attending this year’s Burning Man festival, hit with epic rain and mud. Fortunately, he made it out safely (although his taste in shirts and footwear did not). If you haven’t already, check out his great new podcast, Courtside.
In memoriam:
Keep reading with a 7-day free trial
Subscribe to Original Jurisdiction to keep reading this post and get 7 days of free access to the full post archives.