Judicial Notice (05.26.25): Sturm Und Drang
Judge Ho’s reverse benchslap of SCOTUS, major Paul Weiss partner departures, a big-ticket ruling on the shadow docket, and a trio of notable hires by Simpson.
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I hope you’ve been having a meaningful Memorial Day weekend, taking time to honor and mourn the brave individuals who died while serving our nation in the armed forces. And I hope you’ve been having a relaxing long weekend, given the turbulent times in which we live.
The current moment has definitely been keeping legal journalists and commentators busy. In the past month, I’ve shown up in the pages of Corporate Counsel, which highlighted my podcast interview of former Bristol Myers Squibb general counsel Sandra Leung; the New Jersey Law Journal, which quoted me discussing ongoing turmoil at the U.S. Department of Justice; and the ABA Journal, which picked up a New York Times article (gift link) about how my former outlet, Above the Law, is speaking out against the Trump administration.
So there’s no shortage of news—to which we now turn.
Lawyers of the Week: Karen Dunn, Bill Isaacson, Jeannie Rhee, and Jessica Phillips.
Late on Friday afternoon, four prominent partners—Karen Dunn, Bill Isaacson, Jeannie Rhee, and Jessica Phillips—announced that they’d be resigning from Paul Weiss to launch their own firm. The news made it into The Times (gift link), as well as legal-industry publications like The American Lawyer, Bloomberg Law, and Law360.
The departures come two months after Paul Weiss cut a controversial deal with the Trump administration, which allowed the firm to get out from under an onerous executive order. Notably, three out of the four partners have supported Democratic politicians or done other things that might be viewed as anti-Trump:
Dunn helped multiple Democratic presidential candidates, including Kamala Harris in 2024, to prepare for their debates (as she discussed with me in a podcast interview);
Dunn co-chaired a fundraiser for Harris in October 2024, while Isaacson and Rhee served as co-hosts for the event;
Isaacson and Rhee made contributions to other Democratic politicians and organizations; and
Rhee worked on special counsel Robert Mueller’s Russia investigation.
(Jessica Phillips, daughter of the renowned Supreme Court advocate Carter Phillips, doesn’t appear to have significant ties to Democratic politics—and actually clerked for the archconservative Justice Samuel Alito.)
But it’s not the case that these Paul Weiss partners resigned to protest the settlement, which their departure email didn’t mention. In fact, according to The Times, Karen Dunn—a member of firm leadership, as co-chair of litigation—supported the deal, even helping chair Brad Karp persuade other partners to get behind it.
At the same time, this news is… not unrelated to the late unpleasantness. One source told The American Lawyer that the partners are leaving to launch a boutique that can take on the Trump administration “without limitations”—which, in light of these lawyers’ liberal leanings, isn’t surprising. If they remained at Paul Weiss, their litigating against Trump would raise the danger of the executive order being reimposed on the firm (which the settlement in no way precludes, at least as far as I know).
Dunn et al. aren’t the first top trial lawyers to leave Biglaw in order to take on Trump—they were preceded by Abbe Lowell, who left Winston & Strawn to launch Lowell & Associates—and they won’t be the last. I predict that in the weeks and months ahead, they’ll be joined by a number of other leading litigators yearning to breathe free (of the strictures of Biglaw).
I’m a big supporter of the rise of litigation boutiques (full disclosure: one of Original Jurisdiction’s longtime sponsors, NexFirm, advises partners on how to leave Biglaw and launch firms of their own). But I do have a concern: if more and more litigators leave large firms to launch boutiques, the transactional tilt of Biglaw, already quite pronounced, will grow even stronger. And I don’t think it’s a good thing—for either the legal profession or for individual firms—for Biglaw to abandon litigation.
Other lawyers in the news:
Noted Supreme Court advocate and SCOTUSblog founder Tom Goldstein filed what Bloomberg Law described as a “slew of motions” attacking the federal criminal tax charges he’s facing, amounting to what Law360 characterized as his “his most forceful attack” to date against the prosecution. According to Goldstein and his lawyers at Munger Tolles, some of the charges are legally deficient, while others are barred by the statute of limitations.
On Wednesday, Ford Motor Company sued multiple California lawyers and law firms in federal court in Los Angeles (C.D. Cal.), alleging that they engaged in fraudulent overbilling—e.g., by billing more than 24 hours in a day.
In happier news out of the Golden State, reality TV star turned entrepreneur Kim Kardashian graduated from California’s Law Office Study Program, an alternative route to becoming a lawyer that doesn’t require graduation from an accredited law school. She already passed California’s First-Year Law Students’ Examination aka “baby bar” and the Multistate Professional Responsibility Exam, so if she passes the CA bar exam, she should be able to become a practicing attorney.
In memoriam: South Florida defense lawyer Paul Donnelly passed away at 57, after experiencing a medical emergency in federal court. As David Oscar Markus reported on the Southern District of Florida Blog, Donnelly was “waiting to be called for a sentencing hearing before Judge [Jacqueline] Becerra. The marshals and co-counsel did all they could until rescue arrived. He died pursuing justice.” Paul Donnelly, rest in peace.
Judge of the Week: Judge James Ho.
In A.A.R.P. v. Trump, the U.S. Supreme Court held that a putative class of Venezuelan nationals in the Northern District of Texas were entitled to more notice than they were given on April 18, when the Trump administration attempted to deport them under the Alien Enemies Act (AEA). Along the way to this conclusion, the Court concluded that the district judge handling the case, Judge James Wesley “Wes” Hendrix (N.D. Tex.), constructively denied the AEA detainees’ request for relief by not granting them an emergency temporary restraining order quickly enough. The Court then remanded to the Fifth Circuit, directing it to proceed “expeditiously” in the case. (For more discussion of A.A.R.P.—which has nothing to do with old people—see last week’s Judicial Notice, as well as my post on class actions and universal injunctions.)
Consistent with its marching orders from SCOTUS, the Fifth Circuit scheduled A.A.R.P. for expedited oral argument. Judge James Ho issued a seven-page concurrence, going along with the order—but also delivering a “reverse benchslap” of the Supreme Court. (As I explained back in 2012, a reverse benchslap is when “a lower-court judge diss[es] a judge on a higher tribunal.”)
The gist of Judge Ho’s concurrence is that (1) Justice Samuel Alito’s dissent in A.A.R.P.—which was joined by Justice Clarence Thomas, for whom Judge Ho clerked (and whom he might replace someday)—was totally right; (2) the SCOTUS majority unfairly maligned Judge Hendrix, by suggesting that he didn’t handle the case expeditiously; and (3) the Court “disrespect[ed]” Donald Trump, by denying his administration “the right to express its views before any ruling is issued” (because the majority basically said that Judge Hendrix should have entered a TRO immediately, instead of giving the government 24 hours to respond).
The headline-grabbing quip of Judge Ho’s concurrence came as he was chastising the Court for concluding that Judge Hendrix didn’t act quickly enough: “We seem to have forgotten that this is a district court—not a Denny’s.” This eminently quotable one-liner got highlighted by everyone from the WSJ to Rolling Stone to Law360.
For praise of Judge Ho’s concurrence, see, e.g., Professor Josh Blackman, over at The Volokh Conspiracy (here and here), or former federal judge Paul Cassell, in a WSJ piece. For critical commentary, see, e.g., Professor Steve Vladeck at One First. And for a middle path, here’s Professor Will Baude of Divided Argument:
One can believe all of the following things:
1. Judge Hendrix is an upstanding man and a very good district judge.
2. His decision to tell the ACLU that Friday that he would not grant an emergency injunction/TRO without giving the government 24 hours to respond was reasonable, given what he knew at the time.
3. While reasonable, that decision was also an effective denial of any emergency injunction/TRO targeted at irreparable injuries (such as rendition to an El Salvador prison) that might happen in the next 24 hours.
4. The Supreme Court’s own conclusion (in AARP I) that those irreparable injuries were sufficiently imminent, and therefore that it should act to preserve the status quo, was also reasonable, and proved even more reasonable in hindsight.
In support of Baude’s fourth point, consider these comments by David French on Advisory Opinions:
Yes, this is not a Denny’s; they’re not open 24/7. And on the one hand, Judge Ho, I get that.
[UPDATE (7:21 p.m.): A reader drew my attention to 28 U.S.C. § 452, which provides as follows: “All courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders.]
On the other hand, your anger is misplaced. It’s not the Supreme Court that is causing this problem; it’s an administration that is thumbing its nose at the Supreme Court, not providing any process that would meet the definition of due process. And so that is why this is happening. It is not happening because the Court is saying, “Well, district courts need to be open 24/7, working around the clock.” It’s happening because the administration is pulling a fast one.
Put another way, it’s reasonable in theory to give a hypothetical presidential administration 24 hours to respond to a request for emergency relief from migrants who fear they’re about to be deported. But in practice, if you give the Trump administration 24 hours, “we have no assurance that the president isn’t going to put all these people on a plane to El Salvador, making the entire litigation moot,” as Professor Brian Fitzpatrick told me in a recent interview. (Justice Alito noted in his dissent that the administration promised that it wouldn’t deport the two named plaintiffs, A.A.R.P. or W.M.M., while the litigation moved forward—but the government conspicuously did not make a similar commitment about any of the other detainees.)
Other judges in the news:
In remarks at an American Law Institute event in Washington, D.C., Chief Judge William Pryor (11th Cir.) spoke out in defense of judicial independence, declaring that political leaders who deploy “inflammatory rhetoric” against judges are “play[ing] with fire in our toxic political climate.”
Speaking of Alabama-based judges who feed clerks to the U.S. Supreme Court, Justice Jay Mitchell resigned from the Alabama Supreme Court. He’s seeking the Republican nomination for Alabama Attorney General in the 2026 election, as reported by Yellowhammer News (via Howard Bashman’s How Appealing).
Former judge Richard Posner prevailed in a lawsuit by an Indiana man who claimed he was owed $170,000 for working at the now-dissolved Posner Center of Justice for Pro Se’s. Posner was represented by Steven Molo, Justin Ellis, and Ken Notter of MoloLamken, as well as David Beach of Eichhorn & Eichhorn.
In a recent episode of Divided Argument, Professors Will Baude and Dan Epps wondered why five SCOTUS justices recused in Baker v. Coates, a case leveling plagiarism accusations against bestselling author Ta-Nehisi Coates and others. As Gabe Roth of the watchdog group Fix the Court suggested to The Washington Post, four justices likely recused because one defendant in the case was the German conglomerate Bertelsmann, owner of Penguin Random House—which has published or will be publishing books by Justices Sotomayor, Gorsuch, Barrett, and Jackson. (Why Justice Alito also recused is less clear.)
In nominations news, Principal Associate Deputy Attorney General Emil Bove is apparently a top contender for a vacancy on the Third Circuit, according to Glenn Thrush and Charlie Savage of The New York Times (gift link). Conservatives had divergent reactions: Ed Whelan called it “disturbing news” over at National Review, citing Bove’s role as “DOJ henchman” during the “mishandl[ed]” prosecution of New York City Mayor Eric Adams, while Deputy Attorney General Todd Blanche, Bove’s current boss, praised him as “a brilliant legal mind and a dedicated public servant.”
In memoriam:
Judge John Duhé, Jr.—who served as a Louisiana state-court judge, a federal trial judge (W.D. La.), and a Fifth Circuit judge—passed away at 92.
Chief Justice Michael “Mike” Cavanagh—who served as a justice on the Michigan Supreme Court from 1983 to 2014, and as chief from 1991 to 1995—passed away at 84. Chief Justice Megan Cavanagh—the current chief is the daughter of a former chief—said that her father “embodied what it means to be a compassionate, thoughtful, and loving human being.”
May they rest in peace.
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