Judicial Notice (05.31.26): Underneath Her Robes
A federal judge’s sex scandal, a controversial motion by 35 ex-judges, and a leading conservative lawyer’s high-powered new job.
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.
On Tuesday morning, I lost my cellphone on a New Jersey Transit train. Fortunately, I was reunited with it around 12 hours later. For the whole saga, as well as practical advice if you ever find yourself in this situation, please see my post on LinkedIn (where I’m always happy to connect with readers, so feel free to add me).
On Thursday morning, I participated in the SCOTUSblog live blog of the Supreme Court issuing new opinions. Please join us for live blogs over the next few Thursdays at 9:30 a.m., as we analyze the justices’ latest rulings in real time. At this point in the Term, the Court generally hands down new opinions on Thursdays—and then, closer to the end of June, it will start scheduling multiple hand-down days a week.
A few hours after the live blog, I joined Sarah Isgur on Advisory Opinions to delve more deeply into the Court’s latest opinions. I had a great time speaking with Sarah, one of the smartest—and funniest—commentators on the Court. (Apologies if I sounded odd; the anesthesia from that morning’s apicoectomy hadn’t fully worn off.)
Speaking of Sarah, she and David French have been added to the line-up for Soapbox, an exciting new conference presented by the Foundation for Individual Rights and Expression (FIRE), where they’ll record a live episode of Advisory Opinions. If you can make it to Philadelphia in early November, please join us. And speaking of free-speech events, if you’ll be in D.C. this coming Tuesday, please attend a lively panel discussion I’ll be moderating, “A More Perfect Union: Free Speech, DEI, and America at 250.” (There’s no charge to attend, but registration is required.)
Now, on to the news.
Lawyers of the Week: Michael Luttig, Nancy Gertner, and the 33 other former federal judges who filed a motion to reopen Trump v. Internal Revenue Service.
On Wednesday, 35 former federal judges filed a motion to reopen Trump v. Internal Revenue Service, the $10 billion lawsuit that Donald Trump filed against the Internal Revenue Service over the leak of his tax returns. After the parties reached a settlement requiring the establishment of a $1.776 billion “Anti-Weaponization Fund,” Judge Kathleen Williams (S.D. Fla.) closed the case. But in their motion, the former judges—led by Judges J. Michael Luttig (4th Cir.) and Nancy Gertner (D. Mass.), and represented by Susman Godfrey, Platkin LLP, Democracy Defenders, and Rivero Mestre—argued as follows:
“[t]he purported ‘settlement’ that the parties never placed before this Court raises profound questions about the parties’ candor toward the Court and manipulation of the judicial system”;
“a non-party may raise a challenge of fraud on the court through Rule 60 even when the non-party’s interests are not directly affected by the judgment”; and
“[t]he Court indisputably has the authority under Rule 60 to reopen a proceeding sua sponte,” i.e., of its own accord.
I’m discussing this under Lawyer of the Week because these former judges—who have retired from the bench completely, as opposed to taking senior status—are no longer judges (even if some folks might address them as such, out of politeness—e.g., as I did when I interviewed Gertner on my podcast). As Professor Orin Kerr tweeted, “Being a judge is an extraordinary public service…. But when a judge retires, they’re just a lawyer again. They’re not judges anymore.”
Their status as former judges, however, gave rise to criticism of their motion. Conservatives such as Michael Fragoso and Jesse Panuccio argued that it’s “unseemly at best” (Fragoso) or even “improper” (Panuccio) for the ex-judges “to be trading on the prestige of their former office for this kind of lazy partisanship,” according to Fragoso. On a more substantive level, commentators like Sarah Isgur (on our episode of AO) and Eric Wessan contended that these former judges, as nonparties, don’t have standing to seek reopening of a closed case—and their trying to get the courts involved in this mess actually politicizes the judiciary.
But not everyone had a problem with the ex-judges’ motion—including, most importantly, Judge Williams (an Obama appointee, in case you were wondering). On Friday, she effectively reopened the case, issuing a four-page order requiring Trump and his administration to address the issues raised in the motion. She then provided that “[t]he non-party movants may, if they choose, file a reply on or before June 19, 2026”—making clear that her order was issued in response to their motion.
Judge Williams’s order doesn’t explicitly enjoin the Trump administration from taking steps to set up the fund. But in Floyd v. Department of Justice—a lawsuit challenging the Anti-Weaponization Fund brought by Andrew Floyd, a former federal prosecutor who worked on January 6 cases—Judge Leonie Brinkema (E.D. Va.) ordered that while the parties brief and argue Floyd’s motion for a temporary restraining order, the defendants “are ENJOINED from taking any further action [to advance] the creation or operation of the Anti-Weaponization Fund.”
As a policy matter, I think paying $1.8 billion in taxpayer money to January 6 rioters and their ilk is outrageous (among many other things). But I share some of the concerns articulated above about looking to the courts for rescue. As Professor Steve Vladeck wrote (before the ex-judges’ brief was filed), “the Anti-Weaponization Fund is not principally a legal problem awaiting a judicial fix.” Instead, it’s “a shockingly egregious political abuse,” and “the Constitution’s answer to political abuses of this kind and magnitude is a political remedy, not a legal one.”
And there are signs that a political solution could be on the way. As reported by The Wall Street Journal (gift link), more than a dozen Republican senators have privately urged the Trump administration to kill the fund—which it might be willing to do in exchange for securing passage of its immigration-enforcement bill.
Perhaps one could say, in defense of both the ex-judges’ motion and lawsuits like Floyd v. DOJ, that by throwing obstacles in the way of establishing the fund, they’re playing a useful role by increasing the pressure on the Trump administration to reach a political resolution. But I very much hope that any political remedy comes quickly—before judges have to engage with any matters of legal substance.
Other lawyers in the news:
On May 22, Jeffrey Whitley and Mary Harris of Fox Rothschild were shot outside a county courthouse in Raleigh, North Carolina. They had just emerged from a hearing in which they represented the city of Rolesville and its police department against Gwendolyn White, a 57-year-old woman with mental-health issues, who has been charged with attempted murder in connection with the shootings. Whitley and Harris were taken to a local hospital and are recovering.
Congratulations to Jennifer Bennett of Gupta Wessler, my recent podcast guest, who represented the winning worker in Flowers Foods, Inc. v. Brock. In an opinion by Justice Neil Gorsuch, a unanimous Supreme Court held that Flowers Foods couldn’t use the Federal Arbitration Act to force truck driver Angelo Brock into arbitration (i.e., to deny him his day in court). Bennett has now won five SCOTUS cases—all unanimous—on behalf of plaintiffs and workers, while litigating before a conservative, generally pro-business high court.
Speaking of victories by my former podcast guests, David Oscar Markus and his law partner, Margot Moss of Markus/Moss, won a directed verdict in a racketeering case that Florida hospitals brought against their client, Walmart, and other pharmacies. After a jury deadlocked, Broward County Chief Judge Carol-Lisa Phillips ruled that no reasonable jury could find, by clear and convincing evidence, that the pharmacies’ actions were the direct proximate cause of the hospitals’ increased costs in treating opioid patients. Other firms that prevailed on the defense side included Bartlit Beck, Hilgers, Jones Day, Lawson Huck Gonzalez, and Zuckerman Spaeder.
There’s no litigation yet, but the U.S. Attorney’s Office for the Northern District of Illinois (Chicago) is reportedly investigating the funding behind E. Jean Carroll’s lawsuits against Donald Trump—and the investigation is being overseen by U.S. Attorney Andrew Boutros, profiled by The New York Times (gift link).
Speaking of federal prosecutors, NOTUS reported that Phil Alito, son of Justice Samuel Alito, is currently working as a lawyer at the Treasury Department (detailed from the U.S. Attorney’s Office for the Eastern District of Virginia).
Daniel Kaiser—counsel to former JPMorgan Chase investment banker Chirayu Rana, who alleges in a lawsuit that a female colleague sexually assaulted him—is trying to withdraw from representing Rana.
In memoriam: Daniel J. Gibbons—a former colleague of mine in the U.S. Attorney’s Office (D.N.J.), where he served as an assistant U.S. attorney for 36 years—passed away at 73. His family is well-known here in the Garden State legal community: his late father, John Gibbons, served as chief judge of the Third Circuit; his sister, Mary Gibbons Whipple, was a New Jersey state appellate judge; and his brother-in-law, John Whipple of Whipple Azzarello, is a top trial lawyer. Dan Gibbons, rest in peace.
Judge of the Week: Judge Eleanor Ross.
By now, many of you have heard about the scandal swirling about Judge Eleanor Ross (N.D. Ga.), an Atlanta-based trial judge who was appointed to the federal bench by President Obama in 2014. I chronicled it on Twitter—where I sometimes discuss breaking news, before I get the chance to write it up here—and it was all over the media, from legal outlets like Law.com and Law360 to nonlegal outlets like the Associated Press and The New York Post. (Over at How Appealing, Howard Bashman has been all over this story—like a rumored stain on the judicial couch—and I thank him for flagging many of the stories linked herein.)
For those of you who are just learning about the misadventures of Judge Ross, we must regrettably get “underneath her robes,” if you will. Since launching Original Jurisdiction five years ago—this month marks OJ’s fifth anniversary, at least as a paid newsletter—I’ve been trying to transcend my tabloid past and focus on more high-minded fare. But what can I say? Federal judges—like former judge Joshua Kindred (D. Alaska), still-sitting Judge Thomas Ludington (E.D. Mich.), and now Judge Ross—keep dragging me back into the gutter.
So here’s the background on Judge Ross. After receiving a complaint of judicial misconduct about a U.S. district judge within the Eleventh Circuit, Chief Judge William “Bill” Pryor appointed a special committee to investigate. That committee produced a detailed report of its findings—issued back in December 2025 but made public only now, after the Eleventh Circuit Judicial Council issued an order adopting the report’s recommendations, and the Judicial Conference of the United States affirmed that order earlier this month. The committee’s findings are shocking:
[T]he special committee finds that the Subject Judge engaged in three instances of judicial misconduct. Those are: (1) the Subject Judge engaging in an extramarital affair with a high-ranking [law enforcement] officer and, in the course of that affair, having sexual intercourse (and other intimate contact) in the judge’s office, during business hours, and within hearing distance of staff [including multiple clerks]; (2) the Subject Judge’s attendance at a partisan political event; and (3) the Subject Judge’s making false statements to Chief Judge Pryor and to the Chief District Judge that were material to the investigation of misconduct allegations and to the administration of the district court.
Here’s what the committee recommended in terms of discipline, a recommendation adopted by the Eleventh Circuit Judicial Council and, ultimately, the Judicial Conference’s Committee on Judicial Conduct and Disability:
[T]he special committee recommends that the Judicial Council issue the Subject Judge a private reprimand. The Subject Judge informed Chief Judge Pryor that the Subject Judge would not oppose or challenge this sanction. The Subject Judge has also agreed to (1) issue letters of apology to the six former law clerks interviewed by investigation counsel (with the special committee to provide to the Subject Judge a list of those law clerks); (2) forego [sic] service as chief judge should the Subject Judge be otherwise eligible to serve in that capacity; and (3) indefinitely refrain from service on any Judicial Conference committee.
I found this punishment excessively lenient—and I wasn’t alone. Bloomberg Law interviewed multiple experts, and while there wasn’t agreement on whether this warranted impeachment, pretty much everyone opined that at least a public reprimand was warranted.
Of course, keeping a private reprimand truly private in 2026 is difficult, if not impossible. Based on the trove of information in the special committee’s 22-page report, it took only a few days for multiple outlets and observers—from Marco Polo to Professor Josh Blackman to Bloomberg Law—to finger Judge Ross. [UPDATE (6/1/2026, 11:41 a.m.): Bloomberg Law was the first to confirm Ross’s identity with reporting, citing “a person familiar with the situation.”] Meanwhile, my former colleague Joe Patrice explained, in a fascinating Above the Law post, how he figured out it was Judge Ross within a few hours, with the help of AI agents.
What does this suggest? The notion of a private reprimand is, as a practical matter, no longer an option in judicial disciplinary proceedings. If the misconduct is minor, don’t issue a reprimand—which is what happens in the vast majority of judicial-misconduct investigations, for better or worse—and if the conduct is serious, issue a public reprimand. But trying to keep a reprimand private, while at the same time providing enough information to satisfy the public that a thorough investigation was conducted, is virtually impossible in the AI age. (Cf. how consumer DNA testing has made it similarly challenging to guarantee anonymity to sperm or egg donors or birth parents who choose closed adoption.)
What do I think should happen next? First, I agree with Aliza Shatzman of the Legal Accountability Project: Judge Ross should resign. Second, if she doesn’t, I agree with Gabe Roth of Fix the Court: the House Judiciary Committee should at least open an impeachment inquiry (even if it ultimately decides against impeachment).
Having sex in chambers, standing alone, would be one thing; I can live with disrespecting the judicial sofa (although this wasn’t a one-time thing—the affair lasted for years, which is why six clerks, from multiple terms, were exposed to it).1 The far more serious offense, as I emphasized when discussing Couch-gate on Advisory Opinions, is that Judge Ross lied about her misdeeds, to both Chief Judge Pryor and Chief Judge Leigh Martin May (N.D. Ga.). And as Mike Davis pointed out, Judge Ross even badmouthed the whistleblowing clerk, claiming that she “had repeatedly chastised Law Clerk A for performance issues” and that “Law Clerk A might have made allegations as a means of retaliating” against Judge Ross.
Setting the couch to one side—and for the record, the acid phosphate test of the supposedly stained cushion returned a negative result—the investigation into Judge Ross raises an issue of broader import for the federal judiciary. As I explained in a detailed LinkedIn post, clerks also alleged that Judge Ross failed to supervise them adequately, essentially checking out from her civil docket—and causing multiple clerks to tell the committee that “given their inexperience, they were uncomfortable with the level of discretion they appeared to exercise in handling civil cases.”
For my next Bloomberg Law column, I’m writing about the problem of excessive judicial reliance on clerks. If you’re a current or former judge or clerk who'd be willing to speak about this subject, please email me at davidlat@substack.com, and we can set up a time to talk. You can also send me a substantive email if that’s easier than speaking by phone—but in that case, please indicate how you want it attributed (e.g., “a former S.D.N.Y. clerk”).
In other news about judges and the judiciary:
On Tuesday morning, Justice Sonia Sotomayor reported for jury duty at the D.C. Superior Court—but by noon, she was informed that she wasn’t needed.
Last Wednesday night, Justice Amy Coney Barrett was the target of a “swatting” incident, as reported by Amy Howe of SCOTUSblog (and originally by Andrew Leyden on Twitter). Fortunately, the police “quickly realized it was a swatting call,” and nobody was injured. But the fact that judges and justices are subjected to this should be depressing, anger-inducing, or both.
Speaking of Justice Barrett, after I published my latest SCOTUS clerk hiring roundup—which got nice shoutouts in the newsletters of SCOTUSblog and Adam Liptak, to which you should subscribe if you don’t already—I learned about two more ACB hires, whom I’ll include in the next roundup. But I still have only one Alito clerk for the upcoming Term (which might mean something, or might not).
In an opinion by Judge Theodore “Ted” McKee, the Third Circuit criticized certain language in an opinion by Chief Judge Matthew Brann (M.D. Pa.)—specifically, Brann’s “inappropriate attempted witticisms” and “ill-conceived attempts at levity,” in an opinion issued in a case arising out of a highway collision in which two children were killed.
In nominations news, Trump announced Judge Matthew Byrne of the Ohio Twelfth District Court of Appeals as his pick for a vacant seat on the U.S. District Court for the Southern District of Ohio. Byrne came recommended by Vice President JD Vance, a senator from the Buckeye State before becoming VP.
Job of the Week: an opportunity for a finance associate in Chicago.
Lateral Link is conducting a search for a commercial finance associate with two to three years of lending transactions experience for a highly respected midsize Chicago firm with a nationally recognized finance practice, trusted by institutional lenders, major banks, and private equity sponsors on high-value loan transactions across the United States and internationally. The position offers sophisticated work, top-tier mentorship, competitive salary plus bonus, and true schedule flexibility—including fully remote options for out-of-state candidates. Candidates must have a strong background in commercial lending and a J.D. from a top-25 law school. For confidential consideration, please contact Liz McGarry at emcgarry@laterallink.com.
