Judicial Notice (01.06.24): In SCOTUS We Trust?

A seasoned Supreme Court advocate joins Team Trump, a Biglaw firm gets sued for copying a boutique's brief, and other legal news from the week that was.

Nevada Judge Mary Kay Holthus, moments before she was attacked in her own courtroom (via Eighth Judicial District Court).

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 (and avail yourself of the $5 a month/$50 a year rate before I raise it on Monday). Thanks!

Coming back from vacation is always tough for me, so this week was challenging. I felt—and still feel—a bit anxious and overwhelmed. Apologies if I owe you a call, email, or other communication; I’m still digging myself out from under everything that accumulated over the holiday break, so please bear with me.

Because I was traveling, I couldn’t join Zach Sandberg and Summer Eberhard for the most recent episode of Movers, Shakers & Rainmakers. But you should check it out; Zach and Summer provide a nice overview of the current state of the lateral market, plus predictions for the coming year.

Speaking of podcasting, I won’t have an episode of the Original Jurisdiction podcast this Wednesday, January 10, as scheduled; my (exciting and high-profile) guest fell ill and lost their voice. My current plan is to post episodes on January 17 and January 24, which should get things back on track.

Now, on to the news.

Lawyer of the Week: Jonathan Mitchell.

When Donald Trump filed his certiorari petition on Wednesday in Trump v. Anderson, his appeal of the Colorado Supreme Court ruling that disqualified him from appearing on the presidential primary ballot in that state, I heard some SCOTUS snobs scoff at his legal team. His lead lawyers on the petition—David Warrington and Harmeet Dhillon of the Dhillon Law Group, and Scott Gessler of Gessler Blue—are well-credentialed, but they’re not regulars at One First Street. This puzzled the folks I was talking to: Anderson is a history-making case with incredibly high stakes and fascinating legal issues, so even a client as challenging as Trump should have been able to land a marquee name to argue on his behalf.

It turns out, however, that Trump has hired an experienced SCOTUS advocate: on Thursday, former Texas solicitor general Jonathan Mitchell sent a letter to the Court announcing that he represents the Donald. A former law clerk to the late Justice Antonin Scalia, Mitchell has argued five cases before the high court—and presumably he’ll argue this one, which the Court agreed to hear and scheduled for February 8. [UPDATE (4:16 p.m.): Mitchell sent his letter in Colorado Republican State Central Committee v. Anderson, the first cert petition filed out of the Colorado case, but so far the Court has granted cert only in Trump v. Anderson.]

Mitchell is most famous—or infamous, to folks on the left—as the “evil genius” behind Texas’s SB 8, which banned most abortions after around six weeks of pregnancy. As explained by Erik Larson and Greg Stohr of Bloomberg, Mitchell became “a conservative hero” for his work on SB 8, which was carefully crafted “to avoid judicial review by placing enforcement in the hands of the public instead of the state”—and the law “survive[d] a Supreme Court fight in 2021, even though Roe v. Wade was still in place.”

In a statement about Mitchell’s hiring, Trump spokesperson Steven Cheung boasted that Trump has “the most experienced, qualified, disciplined, and overall strongest legal team ever assembled.” That’s about as accurate as… a Trump loan application to Deutsche Bank, given the teams that worked on Bush v. Gore, with which Anderson is often compared. But with Mitchell’s addition, Trump’s SCOTUS team is solid.

With all due respect to Mitchell, though, the outcome of this case won’t really turn on the quality of his advocacy. First, he’ll receive ample amicus support—see, e.g., the brief submitted by Noel Francisco and John Gore of Jones Day on behalf of Senator Steve Daines (R-Mont.) and the National Republican Senatorial Committee. Second, as discussed in my latest Bloomberg Law column, cases like this one aren’t decided based strictly on doctrine. Instead of being resolved as pure matters of constitutional law, they’re driven by what Professor Stephen Vladeck calls “constitutional politics,” which mixes con law with all sorts of other political, practical, and prudential concerns. In other words, “SCOTUS gonna SCOTUS.”

Runner-up for Lawyer of the Week: Tom Girardi, the once high-flying, now disgraced and disbarred plaintiffs’ lawyer—and (estranged) husband of Erika Girardi, of Real Housewives of Beverly Hills fame. Judge Josephine Staton (C.D. Cal.) found Girardi competent to stand trial on charges that he defrauded his clients of millions, concluding that although the 84-year-old probably suffers some cognitive impairment, he’s exaggerating its severity and can assist adequately in his defense.