Judicial Notice (05.04.25): Imagine Dragons
Lisa Blatt v. Roman Martinez, a Trump appointee v. the Trump administration, Judge Katsas v. Judge Rao, and... a purple dragon?
This week’s Judicial Notice is sponsored by
With a presence in over a dozen cities across the United States and Asia, Lateral Link boasts an expert recruiting team of former practicing attorneys dedicated to sourcing top-tier legal talent for a diverse clientele, including major international law firms and Fortune 500 companies. To learn more about Lateral Link, please visit our website.
Last week was busy for me—in a good way. On Tuesday, I enjoyed moderating “The Future of Adjudication,” part of the Law2050 event series sponsored by Texas A&M School of Law. On Thursday, I went back into Manhattan to cover the Rally for the Rule of Law—where I spotted a cleverly repurposed Above the Law T-shirt.
On Friday, I watched Harlan in his school’s talent show, where he played a piano piece he wrote himself. And no, I didn’t leave after Harlan was done; I dutifully sat through the other 179.5 minutes of the show, in a packed, sweltering, smelly school gym. I was impressed by the young performers’ excellent efforts—but Zach left at intermission, quipping that Dante himself couldn’t have devised such an experience. (Harlan, I deserve something better than a “World’s Greatest Dad” mug this Father’s Day.)
Another highlight of my week was joining Advisory Opinions to debate cameras at the Supreme Court—where Amy Howe and I argued the pro-camera position, against Sarah Isgur and David French. It’s part of my new role in the expanded legal universe of The Dispatch, after its recent acquisition of SCOTUSblog (which is, by the way, looking to hire a new managing editor).
Now, on to the news.
Lawyers of the Week: Lisa Blatt and Roman Martinez.
When Lisa Blatt of Williams & Connolly and Roman Martinez of Latham & Watkins go up against each other at the U.S. Supreme Court, expect sparks to fly. The two shared Lawyer of the Week honors back in October 2022, after their feisty, funny oral argument in Andy Warhol Foundation, Inc. v. Goldsmith.
The two crossed paths again on Tuesday in A.J.T. v. Osseo Area Schools, a complicated case about the standard that students with disabilities must satisfy when claiming that they’ve been discriminated against in their education. But you don’t need to understand the underlying legal issues to appreciate the drama that unfolded at oral argument, nicely described by Ronald Mann at SCOTUSblog:
The argument heated up when Lisa Blatt, representing the school district, accused Martinez and [Assistant to the Solicitor General] Nicole Reaves, who appeared for the government, of “lying” when they said Blatt had changed her position….
Justice Neil Gorsuch was incensed by Blatt’s tone, and he immediately interrupted her to ask: “You believe that Mr. Martinez and the Solicitor General are lying? Is that your accusation?” When Blatt responded, “Yes, absolutely,” Gorsuch replied: “I think you should be more careful with your words, Ms. Blatt.” Not backing down, Blatt replied “Well, they should be more careful.…”
Gorsuch allowed the argument to continue for several minutes, but he soon returned to the topic to say that he was “still troubled by your suggestion that your friends on the other side have lied…, and I’d ask you to reconsider that phrase.… People make mistakes. You can accuse people of being incorrect, but lying is another matter.”
What followed was the most heated exchange between a justice and an advocate that I’ve heard in my decades of experience at the court. Feeling himself interrupted, Gorsuch admonished Blatt: “If I might finish.” He then proceeded for several minutes to read long quotations from her filings in the case, which he regarded as tending to “suggest you [were] arguing for a unique rule” in the education context, as Martinez and Reaves had stated. After a protracted sequence of those readings, he ended by asking Blatt: “Then would you withdraw your accusation?” When she said: “I’ll withdraw it,” Gorsuch concluded: “Thank you. That’s it.”
You can listen to the Gorsuch-Blatt exchange here (starting around 1:05:09). I’m a huge fan of Lisa Blatt (see generally our podcast interview), but I found this section of the argument hard to listen to.
But to her credit, Blatt did withdraw the accusation—and that wasn’t all. After the argument, she called Roman Martinez to issue a personal apology, which he graciously accepted. So as Sarah Isgur reported on Advisory Opinions, “All is well between Roman and Lisa. This was not meant to be some personal beef, a la Drake and Kendrick Lamar.”
Fair enough. But might it instead be a little bit like… Margo Channing and Eve Harrington in my favorite movie of all time, All About Eve?
According to a recent study by Professors Tracey George, Albert Yoon, and Mitu Gulati, Lisa Blatt boasts the highest win rate among the top 15 lawyers in private practice with the most Supreme Court arguments. During the period covered by the study (1970-2023), she won a staggering 88.9 percent of her argued SCOTUS cases—comfortably ahead of Paul Clement, at 75.8 percent..
But do you know who currently has a win rate of 85.7 percent as a SCOTUS advocate in private practice? Roman Martinez. Based on my review of his Oyez page, I believe he’s currently 6-1 in his high-court arguments since leaving the Office of the Solicitor General in 2016—with the Warhol case as his only loss.
Of course, Blatt has argued far more SCOTUS cases than Martinez (who’s not in the top 15), and the numbers quoted above don’t constitute an “apples to apples” comparison of their win rates using the same periods of time. But it’s fair to say that Lisa Blatt and Roman Martinez have very high win rates, and I suspect they like to keep it that way—which raises the stakes whenever they face off against each other.
Other lawyers in the news:
Speaking of SCOTUS advocates, congratulations to Roman Martinez’s colleague at Latham, former U.S. solicitor general Gregory Garre, who recently joined Lisa Blatt in the elite “50 or more SCOTUS arguments” club; Michael McGinley of Dechert, who argued three cases this Term, his debut Term before the Court; and Tacy Flint of Sidley Austin, a two-time cancer survivor who just made her own SCOTUS argument debut.
Former U.S. attorney (W.D. Tex.) and current Quinn Emanuel partner John Bash withdrew from the race for Texas Attorney General, explaining in a post on X that his family recently “had a health scare that threw into sharp focus how I should prioritize my time right now, and that is not running for office.” (I hope that this issue is now safely behind the Bash family.)
Another leading lawyer from the Lone Star State, Gibson Dunn partner Allyson Ho, was selected by Donald Trump to serve on a newly created Religious Liberty Commission. (If the Ho family is in da (White) House, might this bode well for the SCOTUS prospects of Allyson Ho’s husband, Fifth Circuit Judge James Ho?)
Speaking of presidential picks, Trump nominated Donald Korb, currently a partner at Sullivan & Cromwell, to serve as chief counsel of the Internal Revenue Service—a role he previously held, during the George W. Bush administration.
Speaking of S&C partners, co-chair Robert “Bob” Giuffra is receiving scrutiny from Democratic lawmakers over his role in helping to negotiate Paul Weiss’s deal with the Trump administration.
Principal Associate Deputy Attorney General Emil Bove III is aggressively investigating student protesters at Columbia, while Assistant Attorney General Harmeet Dhillon is reshaping the mission of the Civil Rights Division—in ways that aren’t sitting well with some longtime career lawyers at the U.S. Department of Justice (DOJ), according to reporting by Devlin Barrett of The New York Times.
High-profile litigator Abbe Lowell—who recently left Winston & Strawn, as discussed in these pages last week—is rapidly growing his new boutique, Lowell & Associates. He’s already hired at least five lawyers, including two former Skadden Arps associates who resigned in protest over Trump-related issues: Rachel Cohen and Brenna Trout Frey.
It seems that everything these days is about being pro- or anti-Trump, including the D.C. Bar election—in which Paul Hastings partner Brad Bondi, brother of U.S. Attorney General Pam Bondi, is running for president. Writing in National Review (gift link), Dan McLaughlin argues that D.C. bar members should vote based on Bondi’s qualifications and platform, not “guilt by family association.”
In memoriam: Robert Monks—a Harvard Law School graduate and former Goodwin partner, who became well-known for his work in corporate governance and shareholder activism—passed away at 91. May he rest in peace.
Judge of the Week: Judge Fernando Rodriguez Jr.
Can Donald Trump invoke the Alien Enemies Act of 1798 (AEA) to deport Venezuelan nationals deemed to be members of Tren de Aragua (TdA), a transnational gang that his administration has declared a “designated Foreign Terrorist Organization”? No, according to a federal district judge—and a conservative Trump appointee, no less.
On Thursday, Judge Fernando Rodriguez Jr. issued a permanent injunction blocking the Trump administration from deporting Venezuelan nationals in the Southern District of Texas based on the AEA and a March 15 presidential proclamation invoking the Act. In his 36-page opinion in J.A.V. v. Trump, Judge Rodriguez wrote that “the historical record renders clear that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms.”
Under the AEA, “alien enemies” who are 14 years or older can be “removed” from the United States by the President “[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event.” Keeping that text in mind, here’s the core of Judge Rodriguez’s reasoning:
“At the time of the AEA’s enactment, the plain, ordinary meaning of ‘invasion’ was an entry into the nation’s territory by a military force or an organized, armed force, with the purpose of conquering or obtaining control over territory. In a similar vein, the common usage of ‘predatory incursion’ and, to a lesser degree, ‘incursion,’ referenced a military force or an organized, armed force entering a territory to destroy property, plunder, and harm individuals, with a subsequent retreat from that territory.”
“Based on the plain, ordinary meaning of those terms in the late 1790’s, the Court concludes that the factual statements do not [describe an ‘invasion’ or ‘predatory incursion’ for purposes of the AEA]. The Proclamation makes no reference to and in no manner suggests that a threat exists of an organized, armed group of individuals entering the United States at the direction of Venezuela to conquer the country or assume control over a portion of the nation. Thus, the Proclamation’s language cannot be read as describing conduct that falls within the meaning of ‘invasion’ for purposes of the AEA.”
“As for ‘predatory incursion,’ the Proclamation does not describe an armed group of individuals entering the United States as an organized unit to attack a city, coastal town, or other defined geographical area, with the purpose of plundering or destroying property and lives. While the Proclamation references that TdA members have harmed lives in the United States and engage in crime, the Proclamation does not suggest that they have done so through an organized armed attack, or that Venezuela has threatened or attempted such an attack through TdA members. As a result, the Proclamation also falls short of describing a ‘predatory incursion’ as that concept was understood at the time of the AEA’s enactment.”
Five other district judges have temporarily blocked some deportations based on the AEA, but Judge Rodriguez’s ruling is the most sweeping and substantive so far. It’s certainly more meaty than the Supreme Court’s narrow, procedural ruling in Trump v. J.G.G., holding that (1) “[c]hallenges to removal under the AEA… must be brought in habeas” (not under the Administrative Procedure Act), and (2) a detainee under the AEA is entitled to judicial review as to “questions of interpretation and constitutionality” of the Act.
Judge Rodriguez’s opinion provides the judicial review that the Court alluded to in J.G.G.—employing a textualist, originalist approach. This is what you’d expect from a judge who was nominated by Donald Trump, received support from Texas’s two conservative senators, and is known among immigration practitioners as “the more conservative, more strict judge” in his Brownsville courthouse.
So if a jurist like Judge Rodriguez ruled against the Trump administration in J.A.V., there’s a decent chance that if the issue went to SCOTUS, opponents of the current AEA deportations could get at least two votes from a group of five justices—i.e., the conservatives, but excluding Justices Thomas and Alito—to form a majority when combined with the three liberal justices. But time will tell.
Other judges in the news (with a focus on the issue of judicial independence):
Justice Ketanji Brown Jackson delivered a speech at the First Circuit Judicial Conference in which she condemned “relentless attacks” on judges that “seem designed to intimidate those of us who serve in this critical capacity.” For more, including the full text of her remarks, see Howard Bashman’s How Appealing.
Around 20 former federal judges have formed an organization, the Article III Coalition, to defend the “independence and integrity of the judiciary” amidst growing threats. And yes, the threats are growing—not just against judges but against their families, as detailed in a disturbing Reuters special report.
Judicial independence also came up at the formal unveiling of the judicial portrait of Judge John Bates (D.D.C.), who was hit with impeachment articles after ruling that the Trump administration had to restore health-related webpages that were suddenly taken offline to comply with an executive order on gender. Four sitting Supreme Court justices—including Chief Justice Roberts, who praised Judge Bates as a “model trial judge”—attended the ceremony in his honor. In his own remarks, Judge Bates emphasized that judges “do not practice judging as a partisan enterprise” and “are not defined by the presidents who appoint them.”
Last week’s Judge of the Week, Milwaukee County Judge Hannah Dugan, was suspended by the Wisconsin Supreme Court, after being accused in a federal criminal complaint of helping a migrant from Mexico evade arrest. She can now focus her time and attention on fighting her criminal case—with the help of two high-powered lawyers who served in the George W. Bush administration, former U.S. solicitor general Paul Clement and former U.S. attorney Steven Biskupic (E.D. Wis.).
In nominations news:
Trump named his first judicial nominee, for a seat on the Sixth Circuit: Whitney Hermandorfer, who leads the Strategic Litigation Unit in the Tennessee Attorney General’s Office. For collected coverage—including a Wall Street Journal editorial (gift link) expressing relief that she appears to be a conventional, Federalist Society-style pick, not a MAGA ideologue—see How Appealing. I flagged Hermandorfer back in March as a contender, noting that she clerked for not one, or two, but three Supreme Court justices: then-Judge Brett Kavanaugh (D.C. Cir.), Justice Samuel Alito, and Justice Amy Coney Barrett (during her first Term on the Court).
More than a dozen candidates are interviewing for federal judgeships in Texas’s Southern District, which includes Houston, and its Western District, which includes Austin.
Job of the Week: an opportunity for a junior to midlevel bankruptcy associate.
Lateral Link is working with a highly regarded, Chambers-recognized boutique firm in St. Louis in search of a junior- to midlevel associate for its bankruptcy and restructuring group. This firm has been respected in the St. Louis community for several decades and is a great option for associates seeking an alternative to Biglaw. Attorneys at the firm enjoy a collegial and collaborative culture, a lower billable-hour target than large firms, and competitive compensation, without sacrificing complex, sophisticated work. Candidates with strong credentials and a desire to relocate to St. Louis are encouraged to apply by contacting Director Ashleigh Goldberg at agoldberg@laterallink.com.
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.