Judicial Notice (11.23.25): Benchslaps And Bonuses
A wild ride of a dissent, the start of Biglaw bonus season, a problem for the prosecution in the Comey case, and a major transatlantic merger.
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On Tuesday morning, I headed into Manhattan to attend 2025’s final Legal Tech Mafia breakfast, hosted as always by the incredibly energetic and well-connected Ari Kaplan. The conversations were lively, and I came away impressed by the diversity and vibrancy of the legal-technology world (reflected in how the LegalTech Fund just closed its latest fund, a $110 million vehicle that will invest exclusively in legal tech).
That evening, I attended the launch party for lawyer turned novelist Reyna Marder Gentin’s new book, Jessica Harmon Has Stepped Away. I’ve enjoyed Gentin’s prior novels—including Unreasonable Doubts and Both Are True, which featured a lawyer and a judge, respectively, as protagonists—and I look forward to reading her latest (which Reyna’s husband, McKinsey general counsel turned Commerce Department GC Pierre Gentin, believes to be her best work yet).
Maybe I’ll have time for some pleasure reading over the next few days. I’m hoping things will be relatively quiet because of Thanksgiving. But my husband Zach, executive editor of SCOTUSblog, is preparing for the Supreme Court to issue something—or perhaps multiple somethings—on Wednesday. We shall see.
Here’s something that will not be appearing on Wednesday: a new episode of the Original Jurisdiction podcast. I’m recording my next episode, featuring a great guest, on Monday afternoon—but I’ll post it on Wednesday, December 3, because I don’t want it to get lost in the holiday shuffle.
Now, on to the news.
Lawyers of the Week: the litigators from Kellogg Hansen and Davis Polk who successfully represented Meta at trial against the FTC.
On Tuesday, Chief Judge James “Jeb” Boasberg issued his eagerly anticipated ruling in Federal Trade Commission (FTC) v. Meta Platforms, Inc. In an 89-page opinion, based on a bench trial that lasted more than six weeks, Judge Boasberg concluded that Meta holds no monopoly in social media. The ruling represents “a major win to the $1.51 trillion company” and “a blow to the government’s efforts to rein in the power of tech giants,” according to The New York Times.
And the decision also represents a big victory for Meta’s joint trial team: more than two dozen partners and associates from Kellogg Hansen Todd Figel & Frederick, led by Mark Hansen, Kevin Huff, and Aaron Panner; numerous lawyers and staffers from Davis Polk & Wardwell, led by Michael Scheinkman; and several of Meta’s in-house counsel, led by chief legal officer Jennifer Newstead. For a behind-the-scenes look at the trial work—and teamwork—that made this win possible, check out Ross Todd’s interview of the team leaders, over at Am Law Litigation Daily.
Other lawyers in the news:
Speaking of the FTC, Melissa Holyoak stepped down as a commissioner to become Utah’s interim U.S. attorney. The FTC is now down to two members, both Republicans: Chairman Andrew Ferguson and Commissioner Mark Meador.
The Times published an inside look (gift link) into what’s been going on at the U.S. Department of Justice (DOJ) since January 2025, which it describes as “a period of turmoil and controversy unlike any in the history of the Justice Department.” The article is based on interviews with more than 60 lawyers who recently resigned or were fired from the DOJ (which defenders of the administration might argue makes them less than objective as sources).
Kathryn Ruemmler—the general counsel of Goldman Sachs, in the news recently for her unfortunate emails with the late Jeffrey Epstein—last Tuesday sent a company-wide email at Goldman, reminding employees to complete mandatory training. Said training includes a module on “communications at Goldman Sachs”—because, per Ruemmler, “what and how you communicate reflects on you and the reputation of the firm.” Indeed.
Carlos Portugal Gouvea, a visiting professor at Harvard Law School, was placed on pretrial probation for firing a pellet gun near a synagogue on Yom Kippur. The incident does not appear to have been antisemitic; instead, Gouvea claimed he was hunting rats in the area.
Judges of the Week: Judges Jeffrey Brown and Jerry Smith.
You’re probably already aware of what Advisory Opinions has dubbed “The Dissent Heard Around the World”: Fifth Circuit Judge Jerry Smith’s angry dissent in League of United Latin American Citizens (LULAC) v. Abbott, an important election-law case about Texas’s newly redrawn, Republican-friendly congressional map. I’ll discuss the procedural issues and personal beef between Judge Smith and Judge Jeffrey Brown (S.D. Tex.) in this section, then tackle the substantive issues under Ruling of the Week.
As a constitutional challenge to a congressional map, the LULAC case was heard by a three-judge district court (as required by 28 U.S.C. § 2284). On Tuesday, Judge Brown issued a 160-page opinion and order, joined by Judge David Guaderrama (W.D. Tex.), that preliminarily enjoined Texas from using its brand-new, 2025 map in the 2026 elections for the U.S. House of Representatives. (In case you’re curious, Judge Brown is a Trump appointee, and Judge Guaderrama is an Obama appointee.)
So what about the third judge on this three-judge district court? The opinion’s first footnote noted that “U.S. Circuit Judge Jerry E. Smith will file a dissenting opinion.”
And boy did Judge Smith file a dissenting opinion, the very next day—a vigorous, vociferous, 104-page dissent. It raised plenty of eyebrows and generated copious coverage, collected by Howard Bashman at How Appealing. Here are some headlines:
“‘Nobel prize for fiction’: judge excoriates colleague in Texas redistricting case”
“Jerry’s jeremiad: A wild dissent roils Texas redistricting debate”
“[J]udge torches colleague for ‘judicial misbehavior’ in blocking Texas map.”
The words “I dissent” appear 16 times in Judge Smith’s opinion. You know a dissent won’t be business as usual when it begins by quoting All About Eve (which is, full disclosure, my favorite film): “Fasten your seatbelts. It’s going to be a bumpy night.”
If you have the time, read Judge Smith’s “Preliminary Statement” for yourself; I can’t do it justice, and it’s only four pages anyway. Here’s how it opens:
I append this Preliminary Statement to dispel any suspicion that I’m responsible for any delay in issuing the preliminary injunction or that I am or saw slow-walking the ruling. I also need to highlight the pernicious judicial misbehavior of U.S. District Judge Jeffrey Vincent Brown.
In my 37 years on the federal bench, this is the most outrageous conduct by a judge that I have ever encountered in a case in which I have been involved. In summary, Judge Brown has issued a 160-page opinion without giving me any reasonable opportunity to respond.
After providing a detailed, blow-by-blow account of the correspondence between the Brown chambers and the Smith chambers, the dissent offers strong condemnation of the majority’s decision to issue its opinion without waiting for the dissent:
This outrage speaks for itself. Any pretense of judicial restraint, good faith, or trust by these two judges is gone. If these judges were so sure of their result, they would not have been so unfairly eager to issue the opinion sans my dissent, or they could have waited for the dissent in order to join issue with it. What indeed are they afraid of?
Judges on multi-judge courts understand how important is the deliberative process to fair and accurate judicial decisionmaking…. Judges in the majority don’t get to tell a dissenting judge or judges that they can’t participate. If the two judges on this panel get away with what they have done, it sets a horrendous precedent that “might makes right” and the end justifies the means….
When I was a newer on the bench, a friend asked me, “Now that you’ve been a judge for a few years, do you have any particular advice?” I replied, “Always sit with your back to the wall.”
And here are a few more benchslaps from the Smith dissent:
“[Because I didn’t have enough time to edit, the] resulting dissent is far from a literary masterpiece. If, however, there were a Nobel Prize for Fiction, Judge Brown’s opinion would be a prime candidate.”
“There’s the old joke: What’s the difference between God and a federal district judge? Answer: God doesn’t think he’s a federal judge…. Only this time, it isn’t funny.”
“If this were a law school exam, the opinion would deserve an ‘F.’”
“Judge Brown is an unskilled magician. The audience knows what is coming next.”
“Judge Brown’s analysis exposes either a naivete that is unbefitting of the judiciary or a willful blindness unbecoming of the judiciary. Collected below is a non-exhaustive list of misleading, deceptive, or false statements Judge Brown put forward.”
“[The majority’s] order, replete with legal and factual error, and accompanied by naked procedural abuse, demands reversal…. Darkness descends on the Rule of Law. A bumpy night, indeed.”
That’s enough to give you the flavor of Judge Smith’s dissent—which was received sourly by most observers, who found its tone excessively harsh and over-the-top. Not surprisingly, given my own emphasis on civility, I agree (and would echo most of the criticisms of the dissent’s style issued by Sarah Isgur and David French on AO).
But what about the “merits” of the procedural issue, i.e., the majority’s refusal to wait for the dissent? Per Judge Smith, Judge Brown relied on what’s known as the Purcell principle (from a 2006 Supreme Court case, Purcell v. Gonzalez). As concisely summarized by SCOTUSblog, “Under the Purcell principle, courts should not change election rules during the period of time just prior to an election because doing so could confuse voters and create problems for officials administering the election.”
I understand the notion of every day mattering under Purcell, when election-related deadlines are fast approaching. But as noted by Professor Josh Blackman, Judge Brown took around 40 days to issue his majority opinion. Meanwhile, Judge Smith issued his dissent—admittedly, a rough-hewn, occasionally stream-of-consciousness dissent—only one day after the majority. Would it have killed Judge Brown, who took 40 days to issue his own opinion, to have called Judge Smith up on the phone to ask how quickly he could put together his dissent?
If Judge Smith said he could have his dissent ready in a day or two—with the understanding that the majority and the dissent would refrain from the customary, detailed back-and-forth argument, because of Purcell—I don’t think it would have been so terrible to hold both the majority and dissent for one or two additional days (especially since 40 days had already elapsed). And if Judge Smith said he would need a week or more for his dissent, then I could see Judge Brown saying, “Sorry, Jerry—that’s too long, in light of Purcell. We’ll have to go ahead without you.”
Readers, what do you think of the tone of Judge Smith’s dissent?
In other news about judges and the judiciary:
Judges are just like us: they send irreverent group texts during speeches at legal conferences. While Judge Andrew Oldham (5th Cir.) was delivering the Olson Lecture at the 2025 Federalist Society National Lawyers Conference, Chief Judge William “Bill” Pryor sent out a meme poking gentle fun at one of Judge Oldham’s comments—in a group text among conservative appellate judges that included Oldham. How did we find out about Pryor’s text? One recipient described it to Mattathias Schwartz of The Times (gift link).
Judges are just like us: some of them are Elvis obsessives (like my husband Zach). But if a judge takes it too far—e.g., by wearing an Elvis wig on the bench, playing Elvis songs in court, and reciting Elvis lyrics to litigants at inappropriate points in proceedings—it can create a judicial-ethics issue. Just ask Judge Matthew E.P. Thornhill, who agreed to step down from the St. Charles County Circuit Court in Missouri (as recommended by a judicial-conduct commission).
On a happier note, congratulations to Presiding Judge Stephen Dillard of the Georgia Court of Appeals: on Thursday, he went to the U.S. Supreme Court to receive the William H. Rehnquist Award, which recognizes a state-court jurist for “judicial excellence.”
Last week brought no news of new judicial nominations or confirmations, but the Senate Judiciary Committee (SJC) advanced four nominees to the Senate floor: Mississippi Supreme Court Justices James Maxwell and Robert Chamberlin (N.D. Miss.), Louisiana Supreme Court Justice William Crain (E.D. La.), and Acting U.S. Attorney Alexander Van Hook (W.D. La.). The votes were all 12-10—i.e., along party lines—except for the vote on Van Hook, who was approved by a 16-6 margin.
In memoriam: Justice Willis Padgett Whichard, who served on the North Carolina Supreme Court from 1986 until 1998, passed away at 85. May he rest in peace.
Job of the Week: an opportunity for an executive compensation and employee benefits associate in Dallas or Houston.
Lateral Link is assisting an international firm with its search for an executive compensation and employee benefits associate. The firm’s preference is for the candidate to join in Dallas (although Houston is possible for an exceptional fit). The ideal candidate will have 2-7 years of experience, preferably at a Biglaw firm working on executive compensation and employee benefits matters, including qualified plans, equity plans, executive employment agreements, and compensation and benefit matters arising in connection with transactions such as mergers, acquisitions, carve-outs, initial public offerings, and spin-offs. Candidates should possess a strong academic background and be ready to join a collaborative, national practice group. Interested candidates should email wendyboone@laterallink.com.
