Judicial Notice (01.20.24): Back To The Future

The fate of Chevron, a major move in the D.C. boutique world, another Biglaw discrimination lawsuit, and other legal news from the week that was.

Then-Justice Don Willett of the Texas Supreme Court (photo By Tom Williams/CQ Roll Call via Getty Images).

What was I up to this week? When I wasn’t freezing my tuchus off—have I mentioned how much I hate the cold?—I did a lot of podcast recording.

In addition to the next installment of the Original Jurisdiction podcast—in which David Boies, who argued Bush v. Gore for Al Gore, offers his take on the Donald Trump disqualification case headed to the Supreme Court—I recorded a great new installment of Movers, Shakers & Rainmakers. Zach Sandberg and I caught up with Supreme Court superstar Kannon Shanmugam, who this month celebrates the fifth anniversary of his move to Paul, Weiss. And as you’d expect from an acclaimed appellate advocate, Kannon ably fielded my probing questions about the sustainability of the firm’s aggressive expansion.

I also appeared on Friday night’s Dateline, a two-hour, in-depth examination of the Dan Markel murder case. Much of it will be familiar to folks who have followed the case, but the end of the episode includes fascinating audio and video footage from the night of Donna Adelson’s arrest at Miami International Airport.

This week’s testimonial for Original Jurisdiction comes from Peter Kalis, Chairman Emeritus of K&L Gates: “Original Jurisdiction has assumed must-read status in my life. There is very little writing in our legal culture that qualifies at once as extraordinary analysis and extraordinary synthesis. David accomplishes this in Original Jurisdiction. The fact that he pulls this off in real time as events break in the legal world is humbling to us mere mortals. Keep it up, David. We depend upon you.”

Considering that Peter is one of the most influential and innovative figures in the history of Biglaw, I’m especially grateful for his gracious praise. And I’m still happily taking testimonials; if you’d like to submit one, please complete this form.

Now, on to the news.

Lawyers of the Week: the attorneys at the Cause of Action Institute and the New Civil Liberties Alliance behind the Loper Bright and Relentless cases.

The biggest legal news of the week were the Supreme Court oral arguments in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, challenges to the 1984 landmark precedent of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. As discussed in more detail below (see Litigations of the Week), these cases have the potential to dramatically transform administrative law as we know it. Chevron, in a nutshell, calls for showing deference to an administrative agency’s interpretation of a statute in cases where the statutory language is ambiguous—and is therefore hated by conservatives for allegedly aggrandizing the administrative state.

The cases were ably argued by Paul Clement of Clement & Murphy, for Loper Bright; Roman Martinez of Latham & Watkins, for Relentless; and Solicitor General Elizabeth Prelogar for the federal government. All three have been previously recognized as Lawyers of the Week—and Clement and Prelogar are three-time winners, reflecting my admittedly heavy focus on the Supreme Court.

Today I’d like to spread the love and shine the spotlight away from One First Street. Setting aside cases within the Court’s original jurisdiction (holla), cases like Loper Bright and Relentless typically get to the Court only after years of intense legal battle. So the lawyers who file those cases in the first place and shepherd them through the lower courts deserve much of the credit (or blame) for Supreme Court outcomes.

My latest Lawyers of the Week are the attorneys at the Cause of Action Institute and the New Civil Liberties Alliance who back in 2020 filed Loper Bright and Relentless, respectively. The Loper Bright complaint was signed by Ryan Mulvey and Eric Bolinder of the Institute—who have stayed on the case all the way up to the high court, with their names on the Supreme Court brief (along with Clement, who argued). The Relentless complaint was signed by John Vecchione and Kara Rollins of the Alliance (along with Kevin Holley, local counsel in Rhode Island)—and Vecchione is actually counsel of record at the Supreme Court, even though Martinez argued. Also on NCLA’s SCOTUS brief, besides Vecchione, Rollins, and Martinez, are Mark Chenoweth and the Alliance’s founder, Philip Hamburger. (NCLA is busy these days: this coming Thursday, Greg Dolin will argue before Judge Christopher Cooper on behalf of Judge Pauline Newman, whom I interviewed and featured this week in both audio and video recordings—so you can watch, listen, and evaluate the 96-year-old judge’s mental acuity for yourself.)

Conservatives have been trying to get Chevron overturned for years, but I suspect that the Court’s willingness to finally hear a frontal challenge to the doctrine was helped by the well-chosen plaintiffs and well-constructed complaints in these cases. The plaintiffs are fishermen who earn modest wages but must shoulder the cost of paying for monitors aboard their vessels who ensure compliance with various fishing regulations. If the justices are going to overturn an important, 40-year-old precedent, doing so in favor of fishermen—or is that ”fisherpeople”?—looks much better than doing so to benefit an oil giant like Chevron. So congratulations to the Institute and the Alliance on getting their cases heard by the high court.

Other lawyers in the news:

• In a follow-up on the most recent Lawyers of the Week, damaging revelations continue to surface about Fulton County District Attorney Fani Willis and her alleged paramour Nathan Wade, whom she hired to serve as a special prosecutor in her sprawling prosecution of Donald Trump and more than a dozen co-defendants. Willis is trying to get out of testifying in Wade’s ongoing divorce case—but she’ll have to explain herself by February 2, the deadline set by Judge Scott McAfee for Willis’s office to file a written response to allegations that she and Wade engaged in an illicit relationship and mishandled public funds.

• Yale Law School Dean Heather Gerken, who presided over YLS during a series of controversies over free speech, is reportedly a “frontrunner” for the presidency of Yale University, according to Aaron Sibarium of the Washington Free Beacon.

Judge of the Week: Judge Don Willett.

If you’re a lower-court judge who aspires to be Judge of the Week, try releasing two or more interesting or important opinions in a single week (outside of May or June, when it’s all SCOTUS, all the time). It worked last week for Judge Kevin Newsom (11th Cir.), and it worked this week for Judge Don R. Willett (5th Cir.).