Judicial Notice (04.20.25): All Fed Up
A rebuke of the Trump administration from a leading conservative jurist, an extraordinary order from SCOTUS, and notable new clients of Quinn Emanuel.
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Happy Easter and happy Passover, to everyone who celebrates either or both holidays. Our family spent Passover in sunny Scottsdale, Arizona, on vacation for our son Harlan’s spring break, then returned home to New Jersey in time for Easter Sunday. As Harlan wisely observed, “The worst part of vacation is how you’re sad when it ends—but it’s better than no vacation at all.”
I did find time to speak with Noam Scheiber of The New York Times for his great article, Why Big Law Firms Aren’t Standing Together Against Trump’s Assault (gift link). It’s one of the most comprehensive discussions to date of the legal industry’s response to Donald Trump’s executive orders, situating it in the context of broader economic and cultural changes in Biglaw, and definitely worth reading.
Speaking of things that are worth your time, it’s not too late to register for The Future of Adjudication. Taking place on April 29, it features former federal judge Katherine Forrest, now a partner at Paul Weiss; Professor Frank Pasquale, of Cornell Law; and yours truly, as moderator. It’s free and open to the public, and lunch will be provided.
Now, on to the news—of which there’s no shortage, as the second Trump administration hits the three-month mark (although it feels like much longer).
Lawyers of the Week: Lee Gelernt and his colleagues at the ACLU Immigrants’ Rights Project.
Late Thursday night and early Friday morning, lawyers at the ACLU Immigrants’ Rights Project learned that an unknown number of Venezuelan migrants in a Texas immigration detention center were about to be removed from the United States under the Alien Enemies Act (AEA). Specifically, these migrants were accused of being members of Tren de Aragua (TdA), a transnational criminal organization, and informed that they could be deported in the next 24 hours—presumably to El Salvador, which previously received planeloads of alleged TdA members and sent them to a notorious prison, the Terrorism Confinement Center (CECOT).
I’m not sure how they did this, but within five hours on Friday, Lee Gelernt and his ACLU colleagues filed legal challenges in three different courts. They sued to block the deportation of the migrants—named (or actually pseudonymous) plaintiffs, as well as a putative class consisting of “[a]ll noncitizens in custody in the Northern District of Texas who were, are, or will be subject to” deportation under the AEA.
To make a long story short—for more details, check out Professor Steve Vladeck’s excellent explainer at One First—the case wound up before the U.S. Supreme Court, via its emergency aka “shadow” docket. And on Friday night—technically Saturday, around 1 a.m.—the justices issued a brief order in A.A.R.P. v. Trump, directing the government “not to remove any member of the putative class of detainees from the United States until further order of this Court.” Justices Clarence Thomas and Justice Samuel Alito dissented, with a “[s]tatement from Justice Alito to follow.”
As suggested by its timing—SCOTUS isn’t known for moving so quickly or acting in the middle of the night—as well as the fact that the justices didn’t wait for Justice Alito to draft his dissent, this was no run-of-the-mill order. Rather, for reasons explained by Vladeck, Adam Liptak of The Times, Mark Joseph Stern of Slate, Ian Millhiser of Vox, and other analyses collected by Howard Bashman of How Appealing, it was “unusual,” “extraordinary,” “remarkable”—pick your adjective.
For those of you inclined to dismiss them as lefty legal journalists, you don’t have to take their word for it. Check out the dissent of Justice Alito, joined by Justice Thomas, published around midnight on Saturday night (per Professor Josh Blackman of The Volokh Conspiracy). After marching through seven bullets outlining his disagreements with the majority, Justice Alito concluded as follows:
[L]iterally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order. I refused to join the Court’s order because we had no good reason to think that, under the circumstances, issuing an order at midnight was necessary or appropriate.
Both the Executive and the Judiciary have an obligation to follow the law. The Executive must proceed under the terms of our order in Trump v. J.G.G., 604 U. S. ___ (2025) (per curiam), and this Court should follow established procedures.
See also Solicitor General John Sauer’s brief, filed on Saturday afternoon, opposing the ACLU’s “extraordinary” request for an “unprecedented” injunction.
Because justices aren’t required to reveal their votes on emergency applications, it’s possible other members of the Court agreed with Justices Alito and Thomas. Blackman speculated that Justices Neil Gorsuch and Brett Kavanaugh “agreed with the dissenters, but could not be seen ruling for Trump” (although I might disagree on Justice Gorsuch—he can be a stickler for due process, including for immigrants).
There’s a lot we don’t know. But here’s what we do know: it’s a remarkable order, in terms of both substance and timing; a remarkable rebuke of the administration, suggesting the justices might be losing their patience with Trump (at least in the AEA context); and a remarkable result for the ACLU. And while the case still has “a long way to go,” as Gelernt told The Times, “for now, we are relieved that the court has not allowed the Trump administration to hurry [our clients] away in secret.”
Other lawyers in the news:
The head of the Federal Housing Finance Agency sent a criminal-referral letter to the U.S. Department of Justice (DOJ), suggesting that New York Attorney General Letitia “Tish” James “appeared to have falsified records” related to residential properties she owns in Virginia and New York. The letter was dated April 14, a day after Trump posted a story about the claims against James and called her a “crook” on Truth Social. Trump is not a fan of James because back in 2022, she filed a civil-fraud case against him that resulted in penalties that could exceed $450 million (assuming Trump doesn’t succeed in his pending appeal).
Speaking of the DOJ, the Department fired Erez Reuveni, ending his almost 15-year career there. Reuveni was previously suspended, after apparently failing to “zealously advocate” for the government in Abrego Garcia v. Noem (discussed in more detail below).
Still on the DOJ, Senate Minority Leader Chuck Schumer (D-N.Y.) is withholding his blue slips for aka blocking Jay Clayton and Joseph Nocella Jr., nominated to serve as the U.S. attorneys for the Southern and Eastern Districts of New York, respectively. While Senator Schumer’s desire to protest Trump’s treatment of the DOJ is understandable, I agree with the Wall Street Journal editorial board: Clayton isn’t the best pick for this purpose, since he’s “a fine choice” and “isn’t a patsy, unlike some of Mr. Trump’s nominees.”
If D.C. had senators, those (surely Democratic) legislators wouldn’t return their blue slips for Ed Martin, Trump’s pick to serve as U.S. Attorney for the District of Columbia. He made more than 150 appearances on Russian state-controlled media outlets over an eight-year period, which he failed to disclose to the Senate Judiciary Committee (along with four Trump-related coloring books). Izvini!
Martin continues to post prolifically on Twitter, even though his past posts have led to calls for him to be investigated by the D.C. Bar. See, e.g., this open letter from members of the Society for the Rule of Law Institute, a group of conservative lawyers deeply concerned about attacks on the rule of law. Meanwhile, rank-and-file attorneys at the DOJ must be more careful than ever, under the Department’s updated social-media policy.
Protesting their firms’ deals with the Donald, associates continue to quit Biglaw: Sam Wong left Latham & Watkins, while Jacqui Pittman kicked Kirkland & Ellis to the curb.
Speaking of the Biglaw agreements with Trump, can someone in the know answer a very simple question for me: have these deals been memorialized in detailed, written agreements, i.e., something more formal than Trump’s pronouncements on Truth Social? I’ve heard conflicting things—and as noted in this Times article (gift link), “[i]t is unclear whether the firms even signed formal written deals spelling out the terms, or if they were essentially handshake agreements.”
In memoriam: Dale Sanders—a longtime advocate for LGBTQ rights, especially for people living with HIV/AIDS—passed away at 75. May he rest in peace.
Judge of the Week: Judge J. Harvie Wilkinson.
My last Judge of the Week was Judge Paula Xinis (D. Md.), presiding over Abrego Garcia v. Noem. As you might recall, this case involves Kilmar Armando Abrego Garcia, an undocumented immigrant from El Salvador who was living with his family in Maryland before he was erroneously sent back to El Salvador, where he’s now locked up in CECOT. (Abrego Garcia was temporarily released in order to meet with Senator Chris Van Hollen (D. Md.), who flew down to El Salvador—and who, upon returning to the U.S., accused the Trump administration of “outright defying” court orders.)
After the Supreme Court held that (1) Judge Xinis “properly require[d] the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador,” and (2) the Trump administration “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps,” Judge Xinis asked the government what it had done on this front. The answer: nothing.
Or maybe worse than nothing: President Nayib Bukele said in a White House meeting with Trump that El Salvador would not be releasing Abrego Garcia—and one can’t help wondering whether Trump, who holds great sway over Bukele, nudged him in that direction. As David French put it on Advisory Opinions, “We all know that if Trump wanted [Abrego Garcia] back, he comes back…. We all know the kind of power that Trump exercises in this relationship and how much Bukele values this relationship.”
Unsurprisingly, this did not sit well with Judge Xinis, who ordered two weeks of expedited discovery into the Trump administration’s intransigence—with contempt as a possibility. The administration appealed (again) to the Fourth Circuit, asking it to slam the brakes on Xinis’s inquiry—and in a benchslap of an opinion by Judge J. Harvie Wilkinson, the court said, to use a legal term of art, NFW:
While we fully respect the Executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.
It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.
This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
Joyce Vance wrote about Judge Wilkinson’s opinion over at Civil Discourse:
Judge Wilkinson’s remarkable opinion today seems to have been written for the public as much as for the parties. It exemplifies the best part of the legal profession, of our commitment to the rule of law and justice. It’s worth a moment of time to read what he has to say, so sit down with a cup of coffee, or whatever, and remind yourself of what we aspire to be in this country. That’s what Judge Wilkinson’s opinion does for us, and I’m very grateful.
Vance, a former U.S. attorney (N.D. Ala.) during the Obama administration, comes from the left side of the aisle. But Judge Wilkinson’s opinion, which was joined by Judges Robert King and Stephanie Thacker, won praise from conservative commentators as well, including Ed Whelan and the WSJ editorial board (gift link). And it’s not surprising that Judge Wilkinson has some right-of-center admirers: he’s a Reagan appointee with “strong conservative bona fides,” per The Times—which is why he was considered for SCOTUS during the George W. Bush administration.
What does the Trump administration have to say for itself? Officials contend that Abrego Garcia is “not the upstanding ‘Maryland Man’ the media has portrayed him as,” alleging that he belongs to the MS-13 criminal gang, might have engaged in human trafficking, and committed acts of domestic violence against his wife (who acknowledged that she sought a protective order against him, before they “work[ed] through this situation privately as a family”). But as noted by Judge Wilkinson, “The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process.”
That process could end with Abrego Garcia returning to the U.S. only to be deported again; after all, he was previously denied asylum and determined to be removable (just not to El Salvador). But at least he would receive due process—and if you believe in the rule of law, then you should believe in due process.
Other judges in the news:
For a different view from Judge Wilkinson’s on district judges ruling in Trump-related cases, see Judge James Ho’s solo concurrence (with his own majority opinion) in In re Westcott. According to Judge Ho, “When a district court exceeds its limited role under our Constitution and violates our Founders’ commitment to self-government and popular sovereignty, it threatens the credibility of the federal judiciary—and demands the active and aggressive intervention of the appellate court.” Exhibit A, per Judge Ho: Chief Judge James “Jeb” Boasberg in JGG v. Trump (D.D.C.), aka the “turn the planes around” case, in which “a district court presumed to seize control over a case of profound public interest that it had no lawful business deciding, because it belonged in another court.”
Does the D.C. Circuit agree with Judge Ho? Stay tuned. After Judge Boasberg issued a 46-page opinion concluding that “probable cause exists to find the Government in criminal contempt,” the administration appealed—and the D.C. Circuit issued an administrative stay, pausing the contempt proceedings for now.
Judges Boasberg and Xinis aren’t the only jurists with harsh words for the Trump administration. Issuing a temporary restraining order (TRO) blocking most of the executive order against Susman Godfrey, Judge Loren AliKhan (D.D.C.) condemned the EO as “based on a personal vendetta,” opining that “the framers of our Constitution would view it as a shocking abuse of power.”
In memoriam: George Levi Russell Jr., Maryland’s first Black circuit-court and later appellate judge, passed away at 96. He is survived by his son, Chief Judge George L. Russell III (D. Md.), and two grandchildren. May he rest in peace.
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