Judicial Notice (06.30.24): Chevron v. NRDC, RIP

Major new SCOTUS rulings, Robbie Kaplan’s departure from Kaplan Hecker & Fink, a $4.7 billion verdict against the NFL, and significant hires by Gibson Dunn.

The Supreme Court of the United States, July 2022 (photo by David Lat).

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 here. Thanks!

We’re officially into summer (in case the brutally hot weather left any doubt on that score), and our 6-year-old son Harlan had his first day of summer camp. He seems to be enjoying it, even if we’re short on particulars; he seems to think that the first rule of summer camp is that you don’t talk about summer camp.

In addition to faithfully logging on to SCOTUSblog on Wednesday, Thursday, and Friday mornings—hey, did you hear that Chevron got overruled?—I did make time for fun. On Wednesday night, I saw Merrily We Roll Along, my first Broadway musical in ages. It’s closing soon (July 7), so if you’re hoping to check it out, don’t delay.

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A quick programming note: I might take next weekend off from Judicial Notice, in honor of the Fourth of July holiday. I’d then make the subsequent installment a double edition, as I occasionally do around big holidays. It will depend in part on the news—to which we now turn.

Lawyer of the Week: Roberta Kaplan.

On Wednesday, the New York legal world was rocked by the news that Roberta “Robbie” Kaplan, the superstar litigator who founded Kaplan Hecker & Fink (KHF) seven years ago this month, would be leaving the firm. She announced her departure after The New York Times informed her lawyers that it would be publishing an exposé containing allegations that she mistreated colleagues at KHF—issues that had previously led her to step down from the firm’s management committee last fall.

The Times article containing the claims about Kaplan, written by Katie J.M. Baker, appeared on Friday. I won’t repeat all the allegations here, which are literally juicy; there’s a subhead in the piece titled “The Meatball Incident.” But you can read the piece for yourself here (gift link), then draw your own conclusions.

Where is Robbie Kaplan going next? Together with Tim Martin, her former KHF colleague, she’s launching Kaplan Martin, a smaller boutique focused on civil litigation, internal corporate investigations, and strategic advisory work. They’ll be joined at their new firm by Steven M. Cohen and Mitra Hormozi, two former federal prosecutors who previously served as top lawyers at MacAndrew & Forbes Holdings and Revlon Inc., respectively.

While it’s unusual and surprising to see a founding partner ousted from her firm, I wasn’t shocked to hear that some lawyers at Kaplan Hecker & Fink—now Hecker Fink, per its website—had issues with Kaplan. Although I hadn’t heard specifics, I was generally aware of her reputation as sometimes challenging to work for—and even asked about it in our podcast interview. She denied the rumors, telling me that while she was stressed out a lot as a young partner at Paul Weiss, “I don't think anyone today—you can ask them yourselves—has a problem with me as a boss.”

Speaking for myself, I’ve had only pleasant interactions with Robbie Kaplan—and not just as a journalist (because people tend to be nice to folks who write about them). During my two-year detour from journalism into legal recruiting, I worked for a number of firms, including KHF—and Kaplan and her then-colleagues, including Sean Hecker and Julie Fink, treated me as a respected partner in the search for talent. In other words, I never felt like the “hired help,” which is how certain other firms and partners treat recruiters. (Disclosure: I made a placement at KHF, for which Lateral Link and I were paid a standard commission.)

And I’m not alone in having no issues with Kaplan. I’ve spoken—over the years, and over the past few days—with clients and colleagues who admire and enjoy working with her. They have not had experiences like the ones described in The Times, and I wouldn’t be surprised if some or even many of them follow her to Kaplan Martin. This is not to question the accuracy of the anecdotes about Kaplan. It’s simply to say—regarding not just Kaplan, but any other reportedly difficult boss—YMMV. (See also Judge Aileen Cannon, whose clerks have had diverse experiences.)

Runner-up for Lawyer of the Week: Barry J. Pollack. A reader wrote to me, “You should consider Barry Pollack at Harris St. Laurent & Wechsler for Lawyer of the Week. He represented Julian Assange in last week’s plea deal (and for years before that), and earlier this month, he got an acquittal in D.C. Superior Court in the highly publicized sexual-assault trial of lawyer Jonathan Jeffress. That’s a pretty impressive couple of weeks.”

[UPDATE (7/1/2024, 9:46 a.m.): “Saw your praise for Barry Pollack, which was great. Lead counsel Sara Kropf deserves a big shout-out, too.  She did the opening, cross-examined the complainant for three days, and hammered home in a very effective way how little sense the complainant’s version of events actually made. And it was clear that the jury absolutely loved her.”]

Judge of the Week: Justice Neil Gorsuch.

Justice Neil Gorsuch was a force to be reckoned with at One First Street last week, writing opinions for the Court in three of its most important and high-profile cases:

• Harrington v. Purdue Pharma L.P. In a 5-4 decision, the Court rejected the Chapter 11 reorganization plan of Purdue Pharma, maker of the prescription painkiller OxyContin—a plan that would have provided billions of dollars to address the opioids crisis, but would also have provided the billionaire Sackler family, which previously controlled Purdue, with broad protection from opioids-related civil liability. Joined by Justices Thomas, Alito, Barrett, and Jackson, Justice Gorsuch held that “the Bankruptcy Code does not authorize a release and injunction that, as part of a plan of reorganization under Chapter 11, effectively seeks to discharge claims against a nondebtor [the Sacklers] without the consent of affected claimants [plaintiffs suing the Sacklers].” Justice Kavanaugh—who parts ways with Justice Gorsuch more often than you might expect, given their similar backgrounds—wrote the dissent.

• Ohio v. Environmental Protection Agency. By another 5-4 vote, the Court temporarily blocked the EPA’s “good neighbor” plan, an attempt to address air pollution drifting across state lines. Justice Gorsuch was joined by all the conservatives except Justice Barrett, whose dissent was joined by all the liberals.

• City of Grants Pass v. Johnson. In a 6-3 decision along ideological lines, the Court held that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not prevent cities from enforcing generally applicable laws against camping on public property. Justice Sotomayor dissented, arguing that these ordinances unconstitutionally punish people simply for being homeless.

And although the Court’s opinion in Loper Bright Enterprises was written by Chief Justice Roberts, Justice Gorsuch deserves some credit (or blame) for the overruling of Chevron v. Natural Resources Defense Council, the 40-year-old precedent directing courts to defer to agencies’ reasonable interpretations of ambiguous statutes. As discussed in my recent podcast interview of Evan Wolfson, who played a key role in bringing about marriage equality, major SCOTUS rulings don’t happen in a vacuum. Instead, they result from years-long efforts to change hearts and minds—and Justice Gorsuch was a leader in efforts to overturn Chevron.

Of course, judges are judges, not litigants or advocates. As Professor Kristin Hickman said to Lydia Wheeler of Bloomberg Law, “These are real people with real legal concerns at stake here and they’re the ones who win or lose cases, not judges or justices.” Professor Michael McConnell agreed, telling Wheeler, “I tend not to think about things as personal wins for [judges].” But McConnell acknowledged that “you can’t deny [Gorsuch has] been the champion of reining back Chevron”—dating back to when McConnell and Gorsuch served together on the Tenth Circuit.

For lower-court judges, especially ones with SCOTUS ambitions, criticizing Supreme Court precedents can be risky. But then-Judge Gorsuch wasn’t afraid to “go there” in attacking Chevron—an effort he continued as Justice Gorsuch, including in a 2022 opinion when he wrote that Chevron “deserves a tombstone no one can miss.” Echoing that language in his Loper Bright concurrence, he couldn’t resist taking a victory lap: “Today, the Court places a tombstone on Chevron no one can miss.” Chevron, rest in peace.

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Ruling of the Week: Loper Bright Enterprises v. Raimondo.

The Supreme Court issued nine opinions last week, including rulings in the following noteworthy cases:

• Murthy v. Missouri. Splitting 6-3, with the three most conservative justices in dissent, the Court turned away this lawsuit alleging that the Biden Administration unconstitutionally pressured social-media companies to censor content. In an opinion by Justice Barrett, the Court held the plaintiffs lacked standing.

• Moyle v. United States. The Court dismissed this case as improvidently granted—as Adam Liptak put it in The Times, the SCOTUS version of “never mind”—which means that, for the time being, emergency abortions remain available in Idaho. (In a bit of an “oops” moment, the Court accidentally posted this decision a day early, as first reported by Bloomberg Law.)

• Fischer v. United States. By a 6-3 vote—but not a party-line 6-3, with Justice Jackson joining Chief Justice Roberts’s majority opinion, and Justice Barrett writing the dissent—the Court gave a relatively narrow reading to 18 U.S.C. §1512(c)(1), the obstruction statute used to charge more than 300 defendants in January 6-related cases.

Chief Justice John Roberts announced that Monday will be the last day of the Term, which means that we’ll (finally) get the Trump immunity decision. Buckle up.

The biggest decision of last week was Loper Bright Enterprises v. Raimondo, in which the Court overruled its landmark decision in Chevron v. NRDC (1984). There has been—and will be—an immense amount of journalistic and scholarly commentary on the demise of Chevron. I won’t (and can’t) summarize it all here; as usual, I refer you to invaluable sources like SCOTUSblog and How Appealing, which have been collecting much of it. For now, I’ll just make three brief points.