Judicial Notice (02.24.24): Culture Wars And Warriors

The Alabama IVF ruling, a SCOTUS dodge on affirmative action, a red-state/blue-state prosecutorial throwdown, and other legal news from the week that was.

(via Getty Images)

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. Thanks!

This week was abbreviated thanks to the Presidents’ Day holiday, but it was still a busy one for me. Highlights included speaking to John Fritze of CNN for his profile of the high-powered Consovoy McCarthy boutique, joining chief legal officer Jonathan Leiken for a virtual fireside chat attended by his colleagues in Dollar Tree’s legal department, receiving our new passports, and picking up my new pair of eyeglasses.

The latest testimonial for this fine newsletter comes from legal recruiter extraordinaire Dan Binstock, a past president of the National Association of Legal Search Consultants (NALSC): “Original Jurisdiction is an outstanding source of market intelligence and thoughtful analysis. I often feel guilty receiving so much valuable knowledge at such a low price.” (Speaking of valuable knowledge, if you’re looking for an excellent primer on the world of legal recruiting, read Dan’s latest American Lawyer column, How Legal Recruiting (Really) Works.)

Now, on to the news.

Lawyers of the Week: Rachel Mitchell and Alvin Bragg.

The legal sparring between red and blue states continues: Rachel Mitchell, the top prosecutor in Maricopa County, Arizona, announced at a press conference that her office would not help extradite a 26-year-old man to New York, where he would be expected to face homicide charges. After Raad Almansoori allegedly bludgeoned a woman to death in a Manhattan hotel room, he fled to Arizona, where he allegedly stabbed two other women—for which he was arrested and charged.

According to Mitchell, “Having observed the treatment of violent criminals in the New York area by the Manhattan DA there, Alvin Bragg, I think it’s safer to keep [Almansoori] here and keep him in custody, so that he cannot be out doing this to individuals either in our state, county, or anywhere in the United States.” (Mitchell’s office later clarified that under Arizona state law, Arizona charges against a defendant must be resolved before any extradition to another state.)

Bragg gave as good as he got. Said a spokesperson for his office in a statement, “It is deeply disturbing that D.A. Mitchell is playing political games in a murder investigation.” She added that homicides have dropped by 24 percent since Bragg took office—and that New York City’s murder rate is now less than half that of Phoenix, Maricopa County’s largest city.

It’s not surprising to see Mitchell and Bragg mix it up, since both are well-known combatants in the culture wars. Bragg, a Democrat, is famous for being the first prosecutor to file criminal charges against Donald Trump. Mitchell, a Republican, took the national stage during the Kavanaugh confirmation hearings: known for her sex-crimes expertise, she questioned Dr. Christine Blasey Ford about her accusation of sexual assault against then-Judge Brett Kavanaugh (which, as we all recall, Judge Kavanaugh vehemently denied).

It’s unfortunate to see prosecutors criticizing rather than cooperating with each other. But given the ever-increasing political polarization in our nation, look for this trend to continue or even accelerate in the years ahead.

Speaking of prosecutors, here’s the latest on recent Lawyers of the Week Fani Willis, the Fulton County District Attorney prosecuting Donald Trump on Georgia state election-interference charges, and Nathan Wade, her former paramour and special prosecutor on the Trump case. Although the prosecutors claim their romantic relationship didn’t start until sometime in 2022—i.e., after Willis hired Wade as a special prosecutor in November 2021—Trump’s lawyers question that based on phone records they obtained. (If you’re wondering how Trump’s attorneys were able to obtain these records, read this Twitter thread by Anna Bower.)

The records supposedly show that from January 1, 2021, through November 30, 2021, Willis and Wade spoke by phone around six times a day and exchanged texts or calls around 36 times a day, on average. They also suggest, according to Trump’s lawyers, that Wade visited Willis’s home approximately 35 times during the 11-month period, sometimes quite late at night. File this under Things That Make You Go Hmmmm....

In memoriam: Steven Wise, a leading animal-rights lawyer, passed away at 73. May he rest in peace.

Judge of the Week: Chief Justice Tom Parker.

The big legal news of the week was the Alabama Supreme Court’s ruling in LePage v. Center for Reproductive Medicine, P.C., which has been described by the media as holding that “frozen embryos are children”—and threatening to end in vitro fertilization (IVF) in Alabama. There are some misconceptions out there about this opinion, which I attempt to dispel in my discussion of LePage as Ruling of the Week below, but my bottom line is that it isn’t as apocalyptic for IVF as some are making it out to be. And as the father of two sons who wouldn’t exist without IVF, I have a firsthand appreciation for the process—and how important it is to preserve access.

Justice Jay Mitchell wrote the opinion for his court in LePage, but he got less attention than Chief Justice Tom Parker—and understandably so. Justice Mitchell wrote a straightforward, traditional legal analysis, while Chief Justice Parker penned a religiously focused, red-meat concurrence declaring that “human life cannot be wrongfully destroyed without incurring the wrath of a holy God” and “all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”

The Parker concurrence cited multiple books of the Bible, Thomas Aquinas, John Calvin, and other authorities you don’t expect to see in judicial opinions. It was a barnburner of an opinion that seemed designed to trigger the left—and did. See, e.g., Ruth Marcus’s Washington Post column, Alabama Ushers in the Theocracy (via Howard Bashman of How Appealing—as usual, my source for many of my links).

As explained below, I found some of the media discussion of the majority opinion in LePage to be hyperbolic. But I won’t defend Chief Justice Parker’s concurrence, which is more appropriate for a political stump speech than a judicial opinion.

It might not have been surprising to folks who are familiar with Chief Justice Parker. In the words of Rick Rojas of the New York Times, the concurrence was “true to form” for a jurist who is credited—or blamed—for a series of opinions that laid out a “road map” for the successful overruling of Roe v. Wade. See also his recent appearance on a show hosted by a well-known QAnon conspiracy theorist and his strong support for former Alabama chief justice Roy Moore, who was twice removed from office for judicial misconduct arising out of religious demagoguery.

But while it might not have been surprising, I think Chief Justice Parker’s solo concurrence did a disservice to public discourse over the Alabama IVF opinion. Its stridency and extremism very much shaped how LePage was received by the media—and, by extension, the American public.

Other judges in the news:

• Speaking of controversial members of the judiciary, Justice Clarence Thomas is in the headlines yet again. First, in a piece for The Nation, William W. Taylor III of Zuckerman Spaeder argued that Justice Thomas should be criminally investigated for allegedly violating the federal false-statements statute in some of his past financial disclosures. Second, the justice’s hiring of Crystal Clanton as a law clerk is now public. Clanton is the clerk accused of having sent a racist text message around nine years ago, when she was 20 years old; for a concise summary of the whole saga, see Ruth Marcus’s Post column. (I’ll have more to say about L’Affaire Clanton in a forthcoming SCOTUS clerk hiring roundup.)

• The left’s other favorite SCOTUS member, Justice Samuel Alito, issued two high-profile opinions in connection with certiorari denials. In addition to dissenting from the denial of cert in a closely watched affirmative action case, Coalition for TJ v. Fairfax County School Board (discussed below as Litigation of the Week), he issued a statement respecting the denial of cert in Missouri Department of Corrections v. Finney that reflects what Abbie VanSickle of the Times describes as his “continued discontent with Obergefell v. Hodges,” the Court’s landmark 2015 ruling in favor of same-sex marriage.

• In a speech last weekend at a symposium hosted by the conservative Harvard Journal of Law and Public Policy, Judge Kevin Newsom (11th Cir.) criticized the “tradition” part of the Supreme Court’s newfound focus on “text, history, and tradition.” As reported by Nate Raymond for Reuters, Judge Newsom argued that “traditionalism gives off an originalist ‘vibe’ without having any legitimate claim to the originalist mantle,” since historical evidence that post-dates the adoption of a particular constitutional provision is “positively irrelevant.”

In nominations news, the Biden Administration named its forty-sixth round of judicial nominees. The latest picks are Judge Nancy Maldonado (N.D. Ill.), nominated to the Seventh Circuit, and three district-court nominees: assistant U.S. attorney Georgia Alexakis (N.D. Ill.), assistant U.S. attorney Krissa Lanham (D. Ariz.), and Magistrate Judge Angela Martinez (N.D. Ill.).

Ruling of the Week: LePage v. Center for Reproductive Medicine, P.C.

There’s so much that can be said about the Alabama Supreme Court’s 131 pages of opinions in LePage v. Center for Reproductive Medicine, P.C., but let me begin with a recommendation: read the opinions for yourself. Aside from Chief Justice Parker’s passionate but problematic concurrence, I found them to be thoughtful and well-written—and they’re a pretty quick read, perhaps because they’re so engaging.

I’ll make just four quick points. But again, read the opinions yourself and form your own views, instead of uncritically accepting the analysis of any particular observer (including, yes, yours truly).