Judicial Notice (10.08.22): Game On

The Onion's awesome amicus brief, updates on Judge Ho v. Yale Law, and other legal news from the week that was.

The Yale Law School courtyard during happier times.

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 on the button below. Thanks!

Greetings from beautiful Portland, Oregon, where I’m attending the “35th” anniversary law clerk reunion of my wonderful former boss, Judge Diarmuid F. O’Scannlain (9th Cir.). It was supposed to have taken place last September, to coincide with Judge O’Scannlain’s actual 35th anniversary on the bench, but was postponed because of the Delta-driven spike in Covid-19 cases. I’m glad it worked out this year; it has been such a pleasure to see the Judge and Mrs. O’Scannlain, many old friends, and my former stomping grounds, on a weekend with practically perfect weather.

My week was dominated by podcasting. In addition to posting my interview with appellate advocate extraordinaire Paul Clement, I appeared on two other podcasts. For Movers, Shakers, and Rainmakers, my co-host Zach Sandberg and I interviewed the inspiring Marina Torres, a rising star in law and politics. Then on Thursday, I hopped across the river to Columbia Law School, where I joined Anthony Sanders of the Institute for Justice (“IJ”) and Michael Yaeger of Carlton Fields for a fun live recording of one of my favorite podcasts, Short Circuit.

I showed up in the news a few times. I received shoutouts from Insider (in their great piece profiling the 38 current Supreme Court clerks), Politico (for managing to get statements from the nine sitting SCOTUS justices on the passing of Judge Laurence Silberman), and the ABA Journal and The Dispatch (for Ho v. Yale Law School).

Programming note: I’m taking a short vacation from Thursday the 13th until Monday the 17th, so I might be producing less content over the next week or two, including possibly skipping Judicial Notice for the weekend of October 15-16. I also need to step away from the day-to-day news cycle to make headway on my novel, a sequel to Supreme Ambitions based loosely (or not-so-loosely) on the events of the last SCOTUS Term. I apologize in advance for being less prolific in the next few weeks.

Now, on to the news.

Lawyers of the Week: Stephen J. van Stempvoort and D. Andrew Portinga.

I have a ton to cover today, so I’ll save some words by keeping Lawyer of the Week short. Most of you have already seen this—it went viral throughout the legal world and beyond, garnering copious coverage—but in case you missed it, allow Howard Bashman of How Appealing to explain:

The best U.S. Supreme Court amicus brief ever? The Onion | America’s Finest News Source today filed this amicus brief in the U.S. Supreme Court in the case captioned Novak v. City of Parma, Ohio, No. 22-293.

Congratulations to attorneys Stephen J. van Stempvoort and D. Andrew Portinga of Miller Johnson on their accomplishment.

The Onion’s amicus brief is real, and it’s spectacular—and spectacularly funny. Just read the darn thing, a brilliant and hilarious defense of parody under the First Amendment, and see for yourself. Also real are van Stempvoort and Portinga, partners at Miller Johnson, a Michigan-based firm with around 70 lawyers across three offices that was founded in 1959.

It’s not necessary to appreciate the amicus brief, but for more on Novak v. Parma, yet another case asking SCOTUS to revisit qualified immunity, see the websites of petitioner Anthony Novak’s lawyers, Subodh Chandra of the Chandra Law Firm and his co-counsel at the Institute for Justice. IJ is well-known for libertarian-minded litigation and Chandra is, well, not—the Yale Law grad focuses on high-profile civil-rights cases of a progressive bent—so it’s nice to see them working together.

Two other lawyers in the news, both from the in-house world, both via Law360:

• Joseph Sullivan, former federal prosecutor turned chief security officer at Uber, got convicted on Wednesday of criminal obstruction and concealment of a felony for hiding a massive 2016 data breach from the Federal Trade Commission.

• Brent McIntosh gave this upbeat interview to Sue Reisinger about his journey from a small Midwestern town to the heart of Wall Street, where he now serves as general counsel of Citigroup.

In memoriam: David Beckwith, the lawyer turned journalist who broke the news of Roe v. Wade before its official issuance, passed away at 79. May he rest in peace.

Judge of the Week: Justice Ketanji Brown Jackson.

On Monday, Justice Ketanji Brown Jackson made her debut on the Supreme Court bench—and generated lots of buzz:

• Greg Stohr: “Four arguments into her new job, the court’s first Black female justice has emerged as an active, forceful questioner, willing to directly lay out her views and even take on her more conservative colleagues. She spoke more than any other justice in her first two days on the bench.”

• Mark Joseph Stern: Justice Jackson “came loaded for bear,” and “unlike her predecessor Stephen Breyer, Jackson is a sharp interrogator, fast-paced and adroit, adept at drawing out the feeble reasoning propping up meretricious logic.”

• Ian Millhiser: “Man, Ketanji Brown Jackson is good at oral arguments.”

• Sherrilyn Ifill: “Her tone is upbeat and respectful, but she is tough, no nonsense and demanding. This was as impressive a debut as I’ve seen of a new justice in my more than 30 years of court-watching.”

To paraphrase Beyoncé (quoting Big Freedia), KBJ did not come to play with you advocates—she came to slay.

Justice Jackson had her critics, mainly from the right—like the Wall Street Journal editorial page or former Scalia clerk Ed Whelan, who questioned the logic of her comments and implied that she was long-winded (which reporting by Josh Gerstein of Politico might reinforce, insofar as it suggests that Chief Justice John Roberts passed Justice Jackson a note telling her to stand down). But folks on both sides of the aisle can agree with Gerstein’s bottom line: Justice Jackson “has no intent of being a shrinking violet despite her newcomer status.”¹

Runners-up for Judges of the Week: the jurists who have weighed in about the proposal of Judge James Ho (5th Cir.) to not hire clerks who choose to matriculate at Yale Law School from this day forward, in an effort to get YLS to turn over a new leaf on free speech. A dozen federal judges told the Washington Free Beacon that they were joining the YLS boycott, as did Judge Lisa Branch (11th Cir.), who shared with the National Review her concern “that the stifling of debate not only is antithetical to this country’s founding principles, but also stunts intellectual growth.”

Meanwhile, other judges went on record to oppose the boycott. Judge Jerry Smith (5th Cir.)—Judge Ho’s fellow conservative and former boss, and a YLS grad himself—called the boycott “regrettable,” inviting Yalies to apply to him instead. Similarly, Judge Theodore McKee (3d Cir.) criticized the YLS ban as “ugly” and “horrendous.”

There are reasonable arguments in favor of and against the YLS boycott—which Sarah Isgur and David French ably articulated on a recent episode of Advisory Opinions, and which I’ve also aired in these pages (so I won’t rehash them here). What I will say, though, is that judges joining the boycott should go on the record about it. They enjoy life tenure, so they can’t claim they’re worried about job security, and the judicial clerkship process is opaque enough as it is. It doesn’t need more “shadow bans,” which judges already use to screen out applicants for all sorts of reasons. If judges are going to adopt this policy, they should own it—so props to Judges Ho and Branch for at least being upfront about it.

Ruling of the Week: McGuire v. Marshall.

The litigators among you know how frustrating it can be when a court takes forever to rule. Some of you are surely waiting for decisions on motions or in appeals that have been pending for a year, or 18 months, or maybe even two years.

But how about… seven years?