Judicial Notice (06.25.22): Overruled

Roe no more, Kirkland Kirkland Kirkland, and other legal news from the week that was.

The Supreme Court of the United States (photo by Douglas Rissing 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, you can email me at davidlat@substack.com, and you can subscribe by clicking on the button below.

If your week was anything like mine, you spent most mornings with the brilliant writers and insightful readers of SCOTUSblog. It’s always an amazing resource, but I have special appreciation for it during the last two weeks of June.

I worked a lot this week, and I’m tired. I stayed up late on Friday writing a piece for Esquire about Dobbs v. Jackson Women’s Health Organization, the abortion decision that just overruled Roe v. Wade, and I stayed up late last night working on the roundup you’re now reading (which I’m publishing now that Zach has had the chance to edit).

So this edition of Judicial Notice will be shorter than usual. If something interests you, click on the links to learn more, since I’m kinda tapped out in terms of commentary. During these times information overload, curation is still very useful—see generally the invaluable How Appealing—so you’re still getting your money’s worth.

Now, on to the news.

Lawyers of the Week: Paul Clement and Erin Murphy.

Former U.S. solicitor general Paul Clement and his partner Erin Murphy, two stars of the Supreme Court bar, had an exciting week. They won a huge SCOTUS victory in New York State Rifle & Pistol Assn., Inc. v. Bruen, the landmark Second Amendment case, then promptly announced their departure from Kirkland & Ellis to launch their own appellate boutique, Clement Murphy, PLLC.

The duo left K&E after the firm announced its withdrawal from all Second Amendment cases, including existing representations being handled by Clement and Murphy, and ankling Kirkland allowed them to stand up publicly for the principle of standing by your clients. Although I’m no fan of the Second Amendment, I don’t think they should have been forced to abandon current clients so abruptly, as I wrote on Friday. For their skill in both the courtroom and the court of public opinion, Clement and Murphy are the Lawyers of the Week. (They’re also the Lateral Move of the Week; there’s more backstory here, per my Kirkland sources, which I share below.)

Runners-up for Lawyers of the Week: Richard Donoghue, Steven Engel, and Jeffrey Rosen. They served in top roles at the U.S. Justice Department during the Trump Administration, stopped former president Donald Trump from hijacking the 2020 presidential election, and offered powerful testimony to the January 6 Committee this week about their efforts. We should all be grateful to them both for defending democracy and speaking to the Committee.

[UPDATE (6/27/2022, 3:58 p.m.): One reader wrote to me, “Please give a special shout-out to Richard Donoghue for the best quote of the entire January 6 hearings thus far.” Donoghue told Jeff Clark, the former head of DOJ’s environmental division who worked with Trump to overturn the election, “You're an environmental lawyer. How about you go back to your office and we’ll call you when there is an oil spill.”]

Judge of the Week: Justice Clarence Thomas.

On Thursday, Justice Clarence Thomas wrote the Supreme Court’s opinion in Bruen, ruling in favor of the right to carry a firearm in public. As a longtime defender of Second Amendment rights, Justice Thomas surely enjoyed the issuance of that opinion (which took place on his 74th birthday).

On Friday, Bruen got overshadowed by Dobbs v. Jackson Women’s Health Organization, in which the Court held that the Constitution doesn’t protect a right to abortion and overruled Roe v. Wade and Planned Parenthood v. Casey in the process. But even though Justice Samuel Alito wrote for the Court, Justice Thomas stole the show (for good or ill) with his separate concurrence urging SCOTUS to reject substantive due process, the doctrine underlying precedents like Griswold v. Connecticut (contraception) and Obergefell v. Hodges (same-sex marriage).¹