Judicial Notice (02.25.23): Never Mind

SCOTUS has second thoughts about Section 230, a law firm sues one of its own for 'quiet quitting,' and other legal news from the week that was.

If your home internet goes down, Justice Kagan recommends restarting your router (photo by Alex Wong via Getty Images).

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I hope everyone had a good week (shortened thanks to the Presidents’ Day holiday). Mine was fairly uneventful. Zach and I took Harlan skiing—and lived to tell the tale. I was quoted in a Bloomberg Law article by Kimberly Robinson about how J. Michael Connolly of Consovoy McCarthy will be making his Supreme Court debut in the big student-loan case, which makes him the eighth lawyer from the firm to argue before the high court—a pretty remarkable statistic, considering that the firm has only 20 lawyers. As I told Robinson, “I’m hard-pressed to think of a firm—of any size—where more than a third of the lawyers have argued before the high court.”

The next two weeks will be more exciting. On Friday, Zach and I are heading down to Cartagena, Colombia, to attend the wedding of two dear friends, and right after that we’re going on a cruise with Zach’s family. So, a quick programming note: I might skip Judicial Notice for March 4 and/or March 11. But I will be producing at least some content during this period, including a new podcast episode on March 8 that will be of special interest to Article III groupies.

Now, on to the news—of which there was no shortage this week.

Lawyer of the Week: Eric Schnapper.

The obvious choices for Litigations of the Week were Gonzalez v. Google LLC and Twitter, Inc. v. Taamneh, major cases about the future of the internet that were argued before the U.S. Supreme Court this week. And they were argued on behalf of the plaintiffs, on back-to-back days, by the same advocate: Professor Eric Schnapper, a member of the faculty at the University of Washington School of Law in Seattle since 1995. He faced off against two of the most formidable SCOTUS advocates: Lisa Blatt of Williams & Connolly, who argued for Google on Tuesday, and Seth Waxman of WilmerHale, who argued for Twitter on Wednesday.

How did the 80-year-old Schnapper, not a partner in Biglaw or at an elite boutique, land these big-ticket arguments? As reported by Kimberly Robinson of Bloomberg Law, attorney conflicts played a significant role. Because so many leading members of the Supreme Court bar were conflicted out of representing Google and Twitter, Robert Tolchin, the personal-injury lawyer representing the families of terror victims suing the tech giants, sought out Schnapper. And one can understand why: a graduate of Oxford and Yale Law School, Schnapper practiced for 25 years at the NAACP Legal Defense and Education Fund before entering academia, and he argued before SCOTUS an impressive 22 times going into this week’s arguments.

Schnapper’s arguments in the Gonzalez and Taamneh cases didn’t garner rave reviews from the #appellatetwitter peanut gallery on Twitter, but I agree with Sarah Isgur and David French of Advisory Opinions: it’s easier to criticize a Supreme Court argument than to make one, and Schnapper clearly had the losing sides of both arguments. While Schnapper could have been smoother—perhaps he was a bit rusty, since his last argument before the Court was back in 2014—I’m not sure that even the most skilled SCOTUS advocate could have argued these cases in a way that will change the ultimate outcome. Also, as noted by Tony Mauro in a 2010 profile, Schnapper has been arguing at One First Street since Justice William O. Douglas served on the Court—so cut the man some slack.

In memoriam:

• Former governor Tony Earl (D-Wis.), who graduated from the University of Chicago Law School and practiced law in the Navy and as an assistant district attorney and city attorney before entering politics, passed away at 86.

• Duncan Alford, associate dean for the law library and professor of law at the University of South Carolina School of Law, passed away at 59.

May they rest in peace.

Judge of the Week: Justice Elena Kagan.