Judicial Notice (10.05.25): Shutdown
A major win for free speech, the Chief’s 20th anniversary, the sentencing of Sean Combs, a notable new litigation boutique, and an interesting sports-law hire.
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Zach and I just returned from a brief, hectic visit to Washington, D.C., where we attended Georgetown Law’s reunion weekend. We had a fun time, catching up with old friends and making new ones, and the fall weather was lovely (although a tad too warm during the day). Thanks to my parents for watching the kids this weekend, which made our trip possible. Aren’t grandparents the best?
Not surprisingly, the federal government shutdown, which began on Wednesday, loomed large as a topic of conversation at the reunion. Many of Zach’s classmates from the Georgetown Law class of 2015 still live in the D.C. area and work in government or for other employers affected by the shutdown.
Now, on to the news.
Lawyers of the Week: the attorneys for the plaintiffs in AAUP v. Rubio.
In American Association of University Professors (AAUP) v. Rubio, Judge William G. Young ruled as follows, following a nine-day bench trial:
[T]his Court finds as fact and concludes as [a] matter of law that Secretaries [Kristi] Noem and [Marco] Rubio and their several agents and subordinates acted in concert to misuse the sweeping powers of their respective offices to target noncitizen pro-Palestinians for deportation primarily on account of their First Amendment protected political speech. They did so in order to strike fear into similarly situated non-citizen pro-Palestinian individuals, proactively (and effectively) curbing lawful pro-Palestinian speech and intentionally denying such individuals (including the plaintiffs here) the freedom of speech that is their right. Moreover, the effect of these targeted deportation proceedings continues unconstitutionally to chill freedom of speech to this day.
That’s the bottom line—and it’s actually some of the more restrained writing in Judge William Young’s 161-page opinion, which news outlets described as “blistering.”
It’s a big win for the First Amendment. And it represents “a hard-fought win for a coalition of academic and civil-rights organizations that had sued to block future deportations of foreign students, arguing that the government had used the threat of ‘ideological deportation’ to punish people for criticizing Israel’s government and its war in Gaza,” according to The New York Times.
So my latest Lawyers of the Week are the plaintiffs’ counsel in AAUP: Ramya Krishnan, Jameel Jaffer, Alex Abdo, Scott Wilkens, Carrie DeCell, Xiangnong (George) Wang, Talya Nevins, Jackson Busch, and Stephany Kim of the Knight First Amendment Institute; Ahilan Arulanantham; Michael Tremonte, Noam Biale, Alexandra Conlon, and Courtney Gans of Sher Tremonte; and Edwina Clarke and David Zimmer for Zimmer, Citron & Clarke.
While there’s no disputing that the attorneys for the plaintiffs did an excellent job, commentators expressed conflicting views about Judge Young’s opinion. He opened it in unorthodox fashion, by including a postcard that an anonymous sender mailed to his chambers. The sender wrote, “Trump had pardons and tanks. What do you have?” Judge Young responded, “I have nothing but my sense of duty. Together, We the People of the United States—you and me—have our magnificent Constitution. Here’s how that works out in a specific case.”
What to make of this move? Some observers who spoke to The National Law Journal viewed it positively, as an effort at civic education—but I suspect your politics and priors will affect your evaluation. For example, the conservative Washington Free Beacon criticized the opinion as self-indulgent, complaining about Judge Young’s “rambling personal attacks against the president” throughout the opinion.
You don’t need to read all 161 pages to get a sense of the Trump-related commentary. I’d suggest starting at page 150, at the heading “President Donald J. Trump,” and reading from there to the end. My own view is that the opinion is too pointed—and the occasionally over-the-top tone might be counterproductive for Judge Young, at least if he’s trying to win over undecided readers. But again, check it out for yourself and reach your own conclusion.
Other lawyers in the news:
Stephen Miller (who’s not a lawyer) gets plenty of attention, but the influence within the Trump administration of Russell Vought—director of the Office of Management and Budget (OMB), and a lawyer by training (GW Law, class of 2004)—should not be overlooked. To learn more about Vought (pronounced “vote”), check out this Times profile (gift link) by Coral Davenport, “The Man Behind Trump’s Push for an All-Powerful Presidency.”
Carlos Portugal Gouvea, a visiting professor at Harvard Law School, was arrested by local police in Brookline, Massachusetts, after allegedly firing a pellet gun near Temple Beth Zion on Beacon Street. Authorities don’t believe he was targeting the synagogue—he told police that he was hunting rats with the pellet gun (still not recommended)—but Harvard has placed him on administrative leave while it “seeks to learn more about this matter.”
How many senior career leaders have left Main Justice since the start of Donald Trump’s second term? At least a third, according to Bloomberg Law.
As for Department of Justice (DOJ) lawyers working out in U.S. attorney’s offices, at least four lawyers have left the Eastern District of Virginia (E.D. Va.) in recent days—voluntarily, involuntarily, or somewhere in between—in connection with what some see as the Trump administration’s attempt to inject politics into prosecutorial decisions.
One of the former AUSAs in the E.D. Va., Michael Ben’Ary, wrote quite the departure memo. Here’s an excerpt: “The [office] leadership is more concerned with punishing the president’s perceived enemies than they are with protecting our national security. Justice for Americans killed and injured by our enemies should not be contingent on what someone in the Department of Justice sees in their social media feed that day.”
Moving west, Judge David G. Campbell (D. Ariz.) ruled that Sigal Chattah, appointed by the Trump administration as acting U.S. attorney for the District of Nevada, is “not validly serving as acting U.S. attorney,” making her involvement in cases “unlawful.” While he did not dismiss any specific cases handled by Chattah’s office, he said that “the government attorneys handling these cases shall, within seven days of this order, file statements in the docket that they are not being supervised by Ms. Chattah in their prosecution of these cases.”
On Friday, the Senate confirmed Brittany Bull Panuccio, 51–46, to serve as a commissioner of the U.S. Equal Employment Opportunity Commission (EEOC). According to a blog post by Ogletree Deakins, a leading labor and employment firm, Panuccio’s confirmation “provides Republicans with a majority on the Commission and positions the agency to realign its enforcement and policy priorities with President Donald Trump’s America First agenda.” [UPDATE (10/12/2025, 7:19 p.m.): Actually, the vote on Friday was a procedural one; Panuccio was confirmed on Wednesday, October 7, along with more than 100 other (non-judicial) nominees.]
On the lighter side—nothing to do with the Trump administration—congratulations to Ashley Hollis. A Georgetown Law grad and A&O Shearman associate, she just won season 27 of Big Brother—along with a $750,000 prize.
In memoriam:
Otto Obermaier, who served as U.S. attorney for the Southern District of New York from 1989 to 1993, passed away at 89.
Ann Fagan Ginger, a prominent progressive lawyer who defended civil rights and civil liberties, passed away at 100.
May they rest in peace.
Judge of the Week: Chief Justice John Roberts.
Last Monday, Chief Justice John Roberts celebrated his 20th anniversary as Chief Justice. This coming Monday, the Court will begin its new Term, October Term 2025—the Chief’s 21st Term in the center of the bench at One First Street. So it’s an opportune time to evaluate his legacy (thus far, acknowledging that he could still have decades ahead of him as Chief).
For a positive take on Chief Justice Roberts see, e.g., The Wall Street Journal editorial page (gift link via Howard Bashman’s How Appealing). From the WSJ editorial board’s perspective, the Roberts Court has made significant progress “toward restoring the founding vision of the Constitution”—progress that accelerated after Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg in 2020, “creating a 6-3 majority able to withstand a single idiosyncratic swing vote.” The WSJ proceeded to praise the Roberts Court’s rulings in areas like the First Amendment, in terms of both the speech and religion clauses; race and the law, in terms of advancing “the colorblind Constitution”; and the separation of powers.
For a critical take, see, e.g., Professor Vladeck of One First. In his view, “if John Roberts’s goal was to leave the Supreme Court stronger and more popular than how he found it (versus, say, enshrining almost every major analytical plank of the conservative legal movement), then it’s impossible to look at recent events and conclude that he’s succeeded—or that he isn’t largely responsible for the position in which the Court finds itself today.” After noting the Court’s historically low approval rating, he wondered, “Is it that the Chief Justice doesn’t accept that the Court is losing credibility on a daily basis; that he thinks the Court doesn’t need that credibility in order to fulfill its intended role in our constitutional system; or that he doesn’t care?”
I just discovered that Substack has a polling feature—and I’d like to give it a whirl. Do you approve of how Chief Justice Roberts is doing his job? Vote below.
Of course, how you answer this question depends on what you think his job is. For a meta-debate on that topic before you cast your vote, feel free to read this lively online NYT conversation (gift link), featuring Professors Will Baude (a former Roberts clerk), Kate Shaw, and Steve Vladeck.
[UPDATE (10/6/2025, 1:11 p.m.): Adam Feldman of Empirical SCOTUS wrote a very interesting piece for SCOTUSblog, “Ranking the modern chief justices.” He evaluated the past five chief justices according to three metrics: (1) consensus (share of unanimous decisions); (2) leadership (rate of when the chief was in the majority in divided cases, assignment rate (all cases), assignment rate in 5–4 decisions, and authorship in one-vote cases); and (3) impact (precedent alteration and reversal of the lower court decisions). He then created composite scores for the chiefs and ranked them—and the chief with the highest score on Feldman’s scale was Chief Justice Roberts.]
Here’s another reason to think of Chief Justice Roberts right now: as Chief Justice of the United States (as opposed to just the Supreme Court), he has responsibility for overseeing the federal judiciary. So with the shutdown threatening to disrupt the operations of the federal courts, he could be called upon to come up with solutions or make (or at least sign off on) difficult decisions.
The Administrative Office of the U.S. Courts estimates that “available fees and balances” can fund the judiciary’s operations through October 17. After that, court employees, including law clerks, would not get paid. (Judges and justices will still get paid; the Constitution provides that their “Compensation… shall not be diminished during their Continuance in Office.”)
In other news about judges—or actually justices:
In remarks delivered at an academic conference at Scalia Law, Justice Samuel Alito spoke about Obergefell v. Hodges, the 2015 ruling that made marriage equality the law of the land. Specifically, Justice Alito said, “In commenting on Obergefell, I am not suggesting that the decision in that case should be overruled”—then went on to repeat his criticisms of the decision, set forth in his dissent. Note his careful wording: he’s not “suggesting” that Obergefell be overruled, but that’s not the same as saying he’d vote against overruling Obergefell in a case presenting that issue. (For a deeper dive into Justice Alito’s speech, tune into this coming Tuesday’s episode of Advisory Opinions, featuring yours truly and Sarah Isgur—who attended the speech.)
Speaking of Obergefell, its author, Justice Anthony M. Kennedy, has a memoir coming out on October 14. I have not yet had the chance to read Life, Law & Liberty, but other legal journalists have read and written about it—including Nina Totenberg of NPR and Seth Stern of Bloomberg Law.
If you’d like to listen to Justice Barrett being interviewed by Judge Patrick Bumatay (9th Cir.) at the SCOTUSblog Summit, the audio is now online, as a bonus episode of Advisory Opinions—and it’s well worth a listen.
Job of the Week: an opportunity for a midlevel to senior corporate associate—in entertainment law.
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