Judicial Notice (09.04.21): Yo Holmes

The Texas abortion ruling and the shadow docket, the trial of Theranos founder Elizabeth Holmes, and other legal news from the week that was.

Elizabeth Holmes and her legal team arriving at court (via Getty Images).

Hello from the Berkshires, where we have spent the past few days leading into this Labor Day weekend on a quasi-vacation. I don’t have much to report on the personal front for this week, since I didn’t do much other than spend time with family, eat too much, and try to get back into running.

But like everyone else, I’m plunging back into things after Labor Day. I have several speaking engagements on the calendar, I’m cogitating on some long-form writing projects, and I have more exciting stories I’ve been working on that will appear in Original Jurisdiction in the coming weeks.

Now, on to the news.

Lawyer of the Week: Jonathan F. Mitchell.

Sorry not sorry, but this week’s roundup will be dominated by the Supreme Court’s refusal to block Texas’s new abortion law. You’ll thank me later, when you’re peppered with questions about the case from family or friends at a Labor Day barbecue or Rosh Hashanah get-together.

The Texas law, Senate Bill 8 (“SB 8”), is a so-called “heartbeat statute”—one of several new state laws that ban most abortions once cardiac activity can be detected on an ultrasound scan, after about six weeks of pregnancy.¹ But instead of relying upon state actors for enforcement, SB 8 deputizes private citizens to sue anyone who performs an abortion or “aids and abets” a procedure. The citizen who sues doesn’t need to have any connection to the pregnant individual or the abortion—and doesn’t even need to live in Texas. A citizen who prevails in one of these lawsuits gets at least $10,000, plus attorneys’ fees.²

SB 8 appears to be clearly unconstitutional under Roe v. Wade and Casey v. Planned Parenthood, which prohibit states from banning abortion before fetal viability, about 22 to 24 weeks into a pregnancy. But unlike similarly restrictive state abortion laws that came before it, SB 8 was designed so that it couldn’t be enjoined pre-enforcement—i.e., stopped from going into effect—because there’s no defendant for a court to enjoin from enforcing it. The law allows for enforcement by private citizens—but unless and until a citizen actually sues under the law, there’s no way of knowing which citizen will be acting.

Undeterred by this feature of the statute, a coalition of abortion providers filed Whole Woman's Health v. Jackson, in which they named a Texas state court judge, Austin Reeve Jackson, as a defendant (among others). They sued Judge Jackson both in his official capacity and as representative of a class of all Texas judges similarly situated—judges who might be called upon to decide cases under SB 8. Through applications for emergency stays, the case quickly made it up to the Supreme Court through the SCOTUS “shadow docket” (more on that below).

And as the designers of the law intended, SB 8’s one weird trick for evading judicial review succeeded. The Supreme Court declined to stop the law from going into effect, precisely because of its unusual enforcement mechanism. From the Court’s unsigned, paragraph-long order (citations omitted):

[F]ederal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention…. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law. Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law. In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application.

Depending on your view on abortion, the private-enforcement feature of SB 8 is brilliant, evil, or both. So inquiring minds want to know: who came up with it?

Per the Washington Post, credit or blame goes to a former Scalia clerk and Texas solicitor general Jonathan Mitchell:

The ban was shaped by the writings of Austin-based attorney Jonathan F. Mitchell, who guided state lawmakers based on an approach he first outlined in a 2018 Virginia Law Review article….

The legislature can “induce compliance with its statutes by providing for private enforcement through civil lawsuits,” Mitchell wrote. “These mechanisms are especially powerful because they enable private litigants to enforce a statute even after a federal district court has enjoined the executive from enforcing it.”

The bill’s lead state Senate sponsor, Bryan Hughes, said he took a page from Mitchell’s playbook when drafting the bill. “I get to be the author of the bill, my name is on it, but we relied on his work,” Hughes said. “We’re thankful for all the help.”

In his article, The Writ-of-Erasure Fallacy, Mitchell analyzes what he describes as “the fallacy that equates judicial review with a veto-like power to ‘strike down’ legislation or delay its effective start date.” Instead, he argues, “The power of judicial review is more limited: It allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute.” As he explains (pp. 1000-03):

When a district court declares a statute unconstitutional or enjoins its enforcement, its decision binds only the named defendants, and it has no precedential value in other court proceedings. The statute continues to exist (it has not been “struck down”), and private litigants remain free to bring their own enforcement actions in state or federal court.

As Mitchell concedes, once they are sued, “the defendants in these private enforcement actions can reassert the constitutional objections to the statute.” But that hasn’t happened yet in Texas. For whatever reason, two of Texas’s biggest abortion providers, Planned Parenthood and Whole Woman's Health, are complying with the law. I don’t understand why a clinic doesn’t defy SB 8 so it can challenge the law in court, then turn to liberal billionaires, pro-choice organizations, and Go Fund Me to cover any legal fees and $10,000 bounty payouts. I welcome your thoughts on this in the comments.

Who says that law review articles have no relevance to the real world? Regardless of what you think of him and his work, Jonathan Mitchell’s lawyering has had a definite impact, causing abortion clinics to turn away patients in droves—violating the constitutional rights of untold women or saving the lives of untold babies, depending on your point of view. The Texas law and its unique structure have also sparked a national conversation about abortion, the Supreme Court, and the role of the judiciary more generally. As a result, this baby-faced barrister is Lawyer of the Week.³

Runners-up for Lawyer of the Week:

• John Pierce. The colorful and controversial defense attorney is proving more elusive than Carmen Sandiego (but is “beginning to feel better,” according to one report; I continue to wish him a speedy recovery).

• Natasha Harrison. Once the heir apparent to David Boies at Boies Schiller Flexner, Harrison is stepping down as deputy chair at BSF, citing the challenges of trying to lead a U.S. firm from the U.K. during a global pandemic.

• Jessica Mager. The Taft Stettinius & Hollister partner faces possible disciplinary action after allegedly taking her commitment to client relations a bit too far.

In memoriam: Barry Garfinkel, a longtime partner and former head of litigation at Skadden Arps. He was the ninth lawyer at Skadden, which today boasts 1,600 lawyers—and he was still working on cases when he passed away last Sunday at the age of 93. May he rest in peace.

Judge of the Week: Justice Elena Kagan.

The SCOTUS vote not to block SB 8 was 5-4, and each of the four dissenters—Chief Justice Roberts and the Three Liberals (world’s worst wedding band name?)—wrote a separate dissent. Justice Sotomayor’s dissent—which described the majority’s inaction as “stunning,” and SB 8 as “flagrantly unconstitutional”—was the most passionate, and the one you’d expect to resonate most with the public.

But interestingly enough, it was “Kagan” that was trending on Twitter on Thursday. And one can see why Justice Kagan’s dissent appealed the most to the lefty intellectuals who dominate that particular social media platform, including but not limited to law professors. As Professor Steve Vladeck argued in the Washington Post, the Sotomayor dissent “may have been the bluntest…. But Justice Elena Kagan’s two short paragraphs were in some ways more blistering.”

In last week’s edition of Judicial Notice, I predicted “more criticism of what Professor Will Baude famously dubbed the ‘shadow docket,’ the decisions the Supreme Court makes in connection with its orders docket, and more calls for greater transparency in this critically important but woefully opaque area of the Court’s work.” Little did I know that I would be proved right just a few days later. From Justice Kagan’s dissent:

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend. I respectfully dissent.

Justice Kagan is “a judge’s judge”: whether or not you agree with her, she cares deeply about (and often focuses on) the integrity of the judicial process, and she deserves credit for starting an important (and long overdue) discussion at One First Street about the shadow docket. Her dissent marks the first the time that the “shadow docket” has been discussed as such in a Supreme Court opinion, but it surely won’t be the last.⁴

And the conversation about the shadow docket won’t be happening just among judges. On Friday, the Senate Judiciary Committee announced that it will be holding hearings about the Supreme Court’s latest ruling and the shadow docket—and the SJC’s announcement closed by quoting from Justice Kagan’s dissent at length. Thanks to her much-discussed dissent, Justice Kagan is Judge of the Week.

Will anything come of this criticism of the shadow docket? That’s tough to say. In the New York Times, Charlie Savage does an excellent job of explaining why “defining the precise nature of the problem is complicated and subject to dispute.” It’s very much tied up with the similarly complex issue of nationwide or “universal” injunctions, in which a judge orders some governmental actor to do or refrain from doing something, on a nationwide basis. That order then gets appealed, on an emergency basis, to the federal appeals courts and ultimately the Supreme Court—which is how these cases wind up on the shadow docket.

As nationwide injunctions have increased in recent years, especially during the Trump Administration, important shadow-docket rulings from SCOTUS have increased as well. Some conservatives on the court, such as Justice Thomas and Justice Gorsuch, have expressed serious concerns about nationwide injunctions. Perhaps one way of at least taking the temperature down on the shadow docket would be to cut back on nationwide injunctions, which would make the impact of shadow-docket rulings less sweeping.

In other judicial news—specifically, nominations to the federal bench—the Senate will soon return from August recess, and the machinery of confirmation will start up again. Senator Chuck Schumer (D-N.Y.) just recommended a trio of progressive women for the federal courts in Brooklyn and Manhattan—and given his status as Senate Majority Leader, I wouldn’t bet against his picks getting nominated. They are Nusrat Choudhury (E.D.N.Y.), 44, of the ACLU; Nina Morrison (E.D.N.Y.), 51, of the Innocence Project; and Jessica Clarke (S.D.N.Y.), 38, of the New York Attorney General’s Office.

Folks are also wondering who will get a coveted nomination to the one open seat on the uber-powerful D.C. Circuit. According to Madison Alder of Bloomberg Law, the possibilities include Deepak Gupta, founder of the high-powered boutique of Gupta Wessler; Karla Gilbride, a senior attorney at Public Justice; Kelsi Brown Corkran, Supreme Court director of the Institute for Constitutional Advocacy and Protection at Georgetown Law; Loren AliKhan, the solicitor general of the District of Columbia; and Cate Stetson, partner at Hogan Lovells.

In memoriam: former Justice Edward J. Greenfield of the New York State Supreme Court, who passed away last week at the age of 98. As noted in his New York Times obituary, Justice Greenfield “often luxuriated in the richness of the English language, going off on whimsical digressions and enlivening the law with colorful asides.” May he rest in peace.

Ruling of the Week: Whole Woman’s Health v. Jackson.

Of course the Supreme Court’s decision in Whole Woman’s Health is Ruling of the Week. How could it not be? As a practical matter, it’s having major real-world effects, and as a legal and judicial matter, it’s causing judges and legislators to focus on the SCOTUS shadow docket and possible reforms.

It’s also noteworthy as a sign of how the Court might rule in the landmark case of Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law that would ban most abortions after 15 weeks, which SCOTUS will decide in the coming Term. Reading the tea leaves for The Atlantic, Mary Ziegler argues that “the justices may be ready to strike down Roe v. Wade.” On the other side of the ideological spectrum, conservative Sarah Isgur, writing for Politico, seems to agree that “abortion-rights advocates have reason to be nervous.” But Professor Noah Feldman, in a Bloomberg Opinion piece, contends that because the Texas case didn’t tackle the merits of SB 8, “it would be premature to predict the outcome in the Mississippi case based on it.”

What’s my view on what Whole Woman’s Health means for Dobbs? First, it suggests that at least five justices are open to a significant reconsideration of the Court’s abortion jurisprudence; if a majority felt strongly enough about Roe and Casey, they wouldn’t have allowed a law that thumbs its nose at those precedents to go into effect.

Second, it indicates that Chief Justice Roberts, who voted with the dissenters in Whole Woman’s Health, wants to proceed with caution. I doubt that the Chief, already famously averse to overruling precedents outright (as opposed to whittling them down to a sliver), will vote to overrule Roe and Casey. And I’m not sure that Justice Kavanaugh, who shares the Chief’s concern for the institutional concerns of the Court, will want to do that either. (Why didn’t Justice Kavanaugh vote to block SB 8? My guess is that the enforcement mechanism made a difference to him.)

Given all this, I’m sticking with my prior prediction about Dobbs. The Court will definitely revamp its abortion jurisprudence, by either upholding the Mississippi law or remanding for more fact-finding. But it won’t overrule Roe and Casey outright.

Runners-up for Ruling of the Week (thanks to How Appealing for several of these):

• Doe v. Fairfax County School Board (4th Cir.). Meow! A judicial catfight on dissents from denials of rehearing en banc. Judge James Wynn condemns them as “no more than advisory opinions that read like editorials or legal commentary on the three-judge panel decision,” while Judge J. Harvie Wilkinson defends them as reflections of judicial transparency and reasoned decision-making.

• Veasey v. Abbott (5th Cir.). An opinion about attorneys’ fees, but in the controversial context of voter ID laws, featuring a noteworthy concurrence from Judge James Ho—channeling his old boss, Justice Clarence Thomas, by sharply criticizing a precedent that probably isn’t going anywhere. (The not-inaccurate title of Professor Rick Hasen’s Election Law Blog post about the case made me chuckle.)

• Landis v. Washington State Major League Baseball Stadium Public Facilities District (9th Cir.). At first glance, this looks like a run-of-the-mill case applying the Americans with Disabilities Act to a stadium (and I like Short Circuit’s quip: “Left unanswered is how being unable to see the Mariners play constitutes an injury in fact.”). But check out Judge Patrick Bumatay’s concurrence for some thoughts on deference to administrative agencies, an interesting issue that’s definitely coming back to the courts.

Litigation of the Week: the Elizabeth Holmes trial.

The most consequential litigation of the week was the bankruptcy case of Purdue Pharma, the company most responsible for our nation’s opioid crisis, in which U.S. Bankruptcy Judge Robert Drain approved a multibillion-dollar settlement that will see members of the Sackler family pay out around $4.5 billion through the next decade or so. Some states are unhappy with the deal, though, which provides the Sacklers with broad immunity in opioid-related litigation, and appeals are expected.

But the opioid litigation has been with us—and will be with us—for quite some time. Generating more buzz and headlines this week in the legal world was the criminal fraud trial of Elizabeth Holmes, founder of the blood testing start-up Theranos, which just got underway in San Jose. Jury selection began on Tuesday, and opening arguments will take place next week.

Who are the major players? Judge Edward Davila (N.D. Cal.) is presiding over the case. The prosecution is led by assistant U.S. attorney Robert Leach, who has been an AUSA for almost a decade and worked at the SEC for nine years before that. Holmes’s team is helmed by Kevin Downey of Williams & Connolly, a top defense lawyer who has successfully represented numerous CEOs over the years.

The witness list is no less impressive. It includes former Secretary of State Henry Kissinger, former Defense Secretary James Mattis, billionaire media mogul Rupert Murdoch, star litigator David Boies, and a surprising number of other lawyers with a wide range of relationships to Theranos or Holmes. This trial should be fascinating to anyone interested in how lawyers can get themselves into trouble—or keep themselves out of trouble—when a once-celebrated client becomes radioactive.

Deal of the Week: Baxter International’s $12.4 billion acquisition of Hillrom Holdings.

In an age dominated by SPAC deals, it’s nice to see some good old-fashioned public M&A—to wit, Baxter International’s $12.4 billion purchase of Hillrom Holdings. Baxter is a leading medtech company, and Hillrom is known for its “smart” hospital beds. The deal, expected to close next year, has been approved by the boards of both companies (after Hillrom rejected an earlier offer as too low).

Congratulations to the law firms on the deal: Sullivan & Cromwell, which advised Baxter, and Wachtell Lipton, which advised Hillrom. The S&C team was led by corporate partners Frank Aquila and Melissa Sawyer, and the Wachtell team was led by Adam O. Emmerich, Sabastian V. Niles, and Mark Stagliano. Aquila and Emmerich are exactly the types of veteran M&A lawyers you’d expect to see on a multibillion-dollar transaction involving two public companies.

Law Firm of the Week: Kirkland & Ellis.

Kirkland strikes again. And again. And again. This week brought a slew of news about K&E’s continued world conquest.

First, the firm is opening an office in Salt Lake City. In explaining the launch, Jon Ballis, chair of Kirkland’s executive committee, cited the “extraordinary talent pool of highly skilled attorneys” coming out of Brigham Young University’s J. Reuben Clark Law School and University of Utah’s S.J. Quinney College of Law. It’s also good news for any Kirkland partners who enjoy skiing.

Second, the firm continues to make high-profile lateral hires. The latest additions are private equity M&A partner Bradley Friedman, who joins from the New York office of Willkie Farr, and tax partner Richard Husseini, who joins from the Houston office of Baker Botts (where he previously chaired the tax department).

Finally, Kirkland continues to get tapped for some of the most interesting and important litigation and transactional work. It’s representing Apax Partners in its purchase of SavATree, a seemingly ubiquitous provider of lawn care services (which sent us a mailer the moment we moved into our new house), and it’s defending Facebook in former President Donald Trump’s free speech lawsuit. Given the merits of that lawsuit, hiring K&E to defend against it is like trying to kill a fly with a flamethrower.

Lateral Moves of the Week: Willkie goes west, and Fenwick goes east.

Law firm merger activity has been modest in 2021. But office openings have been going gangbusters, reflecting the boom times for Biglaw and an increasingly national approach to talent acquisition and the staffing of matters. In addition to the aforementioned opening of Kirkland’s office in Salt Lake City, this week saw two top firms opening offices on opposite coasts.

First, California-founded Fenwick & West opened an office in Washington, D.C., luring Thomas Ensign from Freshfields, Melissa Duffy from Dechert, and Steve Albertson from Skadden Arps. The new office will focus on antitrust and trade regulation—which makes sense, given the challenges on those fronts faced by Fenwick’s impressive roster of tech clients.

Second, New York-founded Willkie Farr launched a Los Angeles office, bringing over three partners—Alan Epstein, Michele Mulrooney, and Alex Weingarten—from Venable. They focus on media and entertainment work, representing such clients as Ryan Reynolds, Selena Gomez, and Brooke Shields. The L.A. office opening is Willkie’s fourth office launch in the past four years.

Runners-up for Lateral Move of the Week:

• On Wednesday, three partners left Baker Botts for rival firms: bankruptcy lawyer Emanuel Grillo went to Allen & Overy in New York, trial lawyer Tim Durst went to O’Melveny & Myers in Dallas, and tax specialist Matt Donnelly went to Gibson Dunn in D.C.

• Veteran Supreme Court advocate Daniel Geyser is moving from a boutique, Alexander Dubose & Jefferson, to Biglaw—specifically, Haynes Boone, where he will chair its Supreme Court practice. The appellate space tends to be quiet, but lately there has been a surprising amount of movement.

Speaking of quiet, I wish all of you a restful and relaxing Labor Day weekend. And to those of you who celebrate Rosh Hashanah, which starts on Monday night, early wishes for a happy new year.

1. I say “most abortions” because the law does have an exception to protect the life of the mother. It does not contain an exception for pregnancies resulting from rape or incest. It does, however, provide that a lawsuit under SB 8 “may not be brought by a person who impregnated the abortion patient through an act of rape, sexual assault, incest, or any other [prohibited] act.” Thanks, Texas.

2. If you’re wondering about how private enforcers of SB 8 would have standing to sue over an abortion they have nothing to do with, you’re not alone. Check out this interesting Twitter thread by Professor Carissa Byrne Hessick, who points out that Texas courts historically have followed federal standing doctrine. This that recent Supreme Court precedents taking a stingy view of standing, like TransUnion LLC v. Ramirez, might spell trouble for SB 8.

3. For another prescient law review article, see The Imperfect but Necessary Lawsuit: Why Suing State Judges is Necessary to Ensure that Statutes Creating a Private Cause of Action are Constitutional (2018), in which Stephen Scaife argued that when faced with a law like Texas’s that relies upon private enforcement, “the pre-enforcement action should be brought against state judges who could potentially hear lawsuits brought under the private cause of action created by the state statute”—which is what Whole Woman’s Health is trying to do here.

4. I asked Professor Will Baude, who coined the term “shadow docket,” if this is the first time these words have graced U.S. Reports. He said, “Other than a citation to Steve Vladeck's article, which had ‘Shadow Docket’ in the title, yes.” Congrats to Professor Baude on coining a term that so brilliantly captures the essence of such a complex subject—and that is now in wide usage.