Judicial Notice (06.21.26): Bong Hits 4 Alito?
A benchslap for a prominent prosecutor, a surprising alliance between Justices Alito and Kagan, and a major lateral hire by King & Spalding.
This week’s Judicial Notice is sponsored by
Burford Capital helps companies and law firms unlock the value of their legal assets. With a portfolio of over $7 billion and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost or risk or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs and accelerate recoveries. Learn more at burfordcapital.com.
Happy Father’s Day to my fellow dads. Happy Juneteenth to all. And happy birthday to… me! I spent my special day playing Street Fighter at a video-game arcade, eating McNuggets, and napping. What more could I ask for?
Last year, I celebrated my 50th birthday and Original Jurisdiction’s fifth anniversary in more highbrow fashion, with a cocktail reception at the Harvard Club of New York City. Thanks to everyone who joined me for a wonderful evening (and you can now look for yourselves in the photographs I finally posted online).
Speaking of fun events, if you’ll be in D.C. on Wednesday, July 8, please consider joining me and the SCOTUSblog crew for Executive Power and its Limits: Reviewing the Supreme Court’s October 2025 Term. The afternoon conference will include a fireside chat with the ACLU’s Cecillia Wang, who argued the birthright citizenship case before the Supreme Court, and a live taping of the Advisory Opinions podcast.
Now, on to the news.
Lawyer of the Week: Will Scharf.
Trump critics argue that the second Trump administration is worse than the first because of the lack of guardrails. While there’s truth to that, there might still be some guardrails—which brings us to the latest Lawyer of the Week, Will Scharf.
In his job as White House staff secretary, an influential role once held by Brett Kavanaugh, Scharf determines what papers make it into the Oval Office and onto the president’s desk. He’s not usually involved in analyzing legal issues; instead, he decides which legal memos get seen by Trump.
But as a graduate of Harvard Law School, former federal law clerk and prosecutor, and personal lawyer to Trump, Scharf certainly has legal chops. And as recently reported by Maggie Haberman and Jonathan Swan of The New York Times (gift link), in connection with their forthcoming book about the second Trump administration, last year Scharf authored two confidential memos: an April 2025 memo expressing concerns over suspending habeas corpus for unlawful immigrants (as urged by top Trump adviser Stephen Miller), and an October 2025 memo identifying issues with invoking the Insurrection Act to deal with domestic protests (as pushed by both Miller and Vice President JD Vance).
The memos—which are actually addressed to White House Chief of Staff Susie Wiles, not Trump—are works of analysis rather than advocacy. But they do push back, in a subtle and restrained way, against suspending habeas or using the Insurrection Act. As David French put it on Advisory Opinions, they are “very well crafted” and “impressively readable, persuasive without being aggressive.”
That these courses of action were being seriously contemplated by Trump “is alarming,” according to Jacob Sullum of Reason, “insofar as it illustrates the Trump administration’s disregard for civil liberties.” But the fact that these proposals didn’t prevail is also “reassuring,” per Sullum: it shows that “the Trump administration is not yet completely devoid of advisers who see a downside to proposals like these.”
Of course, there’s no guarantee that Trump won’t take these or similar steps at a later point in his administration. But in the meantime, anyone opposed to suspending habeas or invoking the Insurrection Act has Will Scharf to thank—for now.
Other lawyers in the news:
Philadelphia District Attorney Larry Krasner, a prominent progressive prosecutor, got benchslapped by the Pennsylvania Supreme Court. As reported by KYW Newsradio and the Pennsylvania Capital Star, the court issued an opinion rebuking Krasner and his office for being too quick to “concede relief”—i.e., to side with defendants in cases seeking relief under the Post Conviction Relief Act (PCRA). The majority in the 4-3 case criticized Krasner for numerous instances of “untrustworthy concessions, lack of candor, misrepresentations of fact, lack of adequate investigation, and avoidance of hearings”—and ordered that in the future, Pennsylvania Attorney General Dave Sunday’s office will independently review any PCRA case in which Krasner’s office concedes relief. Ouch.
A special counsel, Professor Niki Kuckes, recommended that no sanctions be imposed on Kevin Bolan, who leads the Civil Division in the U.S. Attorney’s Office for Rhode Island. The U.S. District Court for the District of Rhode Island accepted that recommendation—but criticized the government for a “troubling sequence” of events, in which the administration reportedly failed to inform Judge Melissa DuBose that an undocumented immigrant was wanted for homicide in the Dominican Republic (so it could then criticize her for letting a murderer go free).
Trying to rehabilitate her reputation, outgoing Goldman Sachs general counsel Kathryn “Kathy” Ruemmler sat for an interview with Ankush Khardori for The Times (gift link). The gist of her defense: spending time with the well-connected Jeffrey Epstein was part of the business development expected of her as a Biglaw partner, and as a white-collar defense lawyer, “I would not have been very effective in my job if I took the position that I would not meet with people who had been convicted of crimes or accused of crimes.” Vivia Chen was not impressed: “Ruemmler was close to Epstein, enjoyed the fruits of that relationship, and stuck with him long after he became a pariah. You could say she was a true friend. If only she owned it.”
Even though former solicitor general Elizabeth Prelogar, now at Cooley, argued on his behalf (along with Stephany Reaves of Munger Tolles), former SCOTUS advocate Tom Goldstein lost his motion for acquittal or a new trial, after he was convicted at trial of tax and other charges related to his high-stakes poker playing.
“The Plaintiffs’ Attorney Now 5-0 At High Court With No Dissents”: Jeff Overley of Law360 profiled Jennifer Bennett of Gupta Wessler, my recent podcast guest, who has a great track record advancing progressive positions before a conservative Supreme Court.
Judges have taken a number of different approaches in dealing with AI-related screw-ups by lawyers. Here’s one I hadn’t heard of (via Eugene Volokh of The Volokh Conspiracy): have the lawyers “write an article for the state bar journal explaining their errors and the potential pitfalls of misusing artificial intelligence.” In this particular case, Chief Judge Martin Reidlinger (W.D.N.C.) expressed “disappointment” in the resulting article, which he felt soft-pedaled the lawyers’ errors—but in the end, he didn’t impose additional sanctions, citing the attorneys’ “long history of exemplary conduct before this Court” and “expressions of repentance,” which he found were “made in good faith.”
In memoriam:
John Reinstein, former legal director of the ACLU of Massachusetts, passed away at 83. He was married to former judge Nancy Gertner for 41 years.
Wylie Sheldon, a real-property lawyer in San Francisco, passed away at 86. He was married to Judith Sheldon, the daughter of William Wyler—and the Sheldons were found dead in their running car, parked on the side of the highway.
May they rest in peace.
Judge of the Week: Justice Samuel Alito.
Under 18 U.S.C. § 922(g)(3), an “unlawful user” of a controlled substance can be criminally prosecuted and disarmed for life if they knowingly possess a gun at home. Ali Hemani is a Texas man who admits he owns a gun and uses marijuana “about every other day.” Does prosecuting Hemani under § 922(g)(3) violate the Second Amendment? In United States v. Hemani, discussed in more detail below (as Ruling of the Week), the U.S. Supreme Court held that such a prosecution is inconsistent with the Second Amendment.
Seven justices joined Justice Neil Gorsuch’s majority opinion, but Justice Samuel Alito did not. Instead, Alito filed a surprising opinion in which he concurred in the judgment—and was, in another unexpected twist, joined by Justice Elena Kagan.
Under the analytical framework outlined by the Court’s landmark Second Amendment opinions in Bruen and Rahimi (aka Brahimi), when the government seeks to justify a gun restriction, it must show its proposed regulation is “relevantly similar” to ones that are “well-established” in our nation’s history. Alito opened his concurrence by stating that he “agree[s] with the Court that the historical analogues that the Government cites are not ‘relevantly similar’” to § 922(g)(3) as applied to Hemani.
Specifically, the government tried to compare § 922(g)(3) to laws prohibiting gun possession by “habitual drunkards,” but the majority—and Justice Alito—didn’t buy it. Here’s the language from the Alito concurrence that ricocheted around the internet: “In these circumstances, marijuana use today is like alcohol use at the founding. It is widespread and increasingly considered socially acceptable in many quarters. And from a practical standpoint, law enforcement widely tolerates the use of marijuana. These similarities underscore the deficiency of the Government’s analogues.”
I found this very surprising coming from Justice Alito, a former prosecutor and perhaps the most “law and order” justice on the current Court—and I wasn’t alone. On Advisory Opinions, Sarah Isgur quipped that she wouldn’t have come up with this Alito/Kagan concurrence “in 99 years,” jokingly wondered if they were high when coming up with this, and tongue-in-cheek dubbed them the “Cheech & Chong of the Supreme Court.” David French echoed Isgur’s shock, stating that “the Sam Alito I knew and loved would have required mandatory viewing of Reefer Madness in his dissenting opinion.”
In general, writers for the conservative opinion page of The Wall Street Journal tend to adore Justice Alito. But this time around, one of them, Matthew Hennessey, felt compelled to criticize Alito, in a piece titled Booze and Weed Aren’t the Same.
So what was actually going on here? In terms of why Justices Alito and Kagan didn’t join Justice Gorsuch’s opinion, they apparently felt that his 19-page analysis said much more than necessary to resolve the case. As they put it in their concurrence, after their reflections about the increasing acceptability of marijuana use, “We need not say more to decide this case, and I would for that reason say no more.”
But they could have done this in a much more restrained way. How? Keep the first and last paragraphs of the concurrence, deleting everything in between—and voilà, you have a perfectly serviceable concurrence in the judgment. There was no need to write, as they did, “Marijuana consumption is increasingly common in this country. Many States have legalized its use and sale, and although possession of the drug remains a federal crime, very few persons are convicted of that offense each year.”
What might be going on here? Is Justice Alito acting out of character—in a “screw it” sort of way, because he’s about to reveal his retirement from the Court?
Like it or not, I don’t think he’s going anywhere. Consistent with reporting by Jan Crawford of CBS News and also by Fox News that he’s not stepping down this year, I can confirm that Justice Alito has hired a second clerk, Zach Gluckow (Penn 2024 / Bibas / Katsas), to join Bradley Larson (Columbia 2022 / Stras / Katsas) in chambers for October Term 2026. In addition, the justice was interviewing candidates for the remaining spots earlier this month—and might very well have hired all four OT 2026 clerks by now. If you’re aware of any clerk hires, by Justice Alito or any other justice, that didn’t appear in my most recent SCOTUS clerk hiring roundup, please email me (davidlat@substack.com) or text me (917-397-2751—texts only, not a voice line).
In other news about judges and the judiciary:
The Supreme Court denied certiorari in Newman v. Moore, Judge Pauline Newman’s challenge to her (seemingly endless) suspension from the Federal Circuit, as reported by Michael Shapiro of Bloomberg Law (via Howard Bashman of How Appealing). I can’t say I’m surprised by the cert denial, but it’s interesting that no justice issued any dissent or statement respecting the denial.
Judge Ryan Nelson (9th Cir.) obtained a four-week continuance in the Idaho state-court proceedings over the misdemeanor charges against him, arising out of his brief confrontation with a critic of his parking. It appears he requested the additional time to discuss a prosecution offer with his counsel.
In response to last week’s discussion of Chief Judge Debra Ann Livingston’s resolution of a complaint brought by the Legal Accountability Project (LAP) against Judge Sarah Merriam (2d Cir.), one reader faulted me—and other journalists—for giving too much credence to the complaint. This reader didn’t wish to be quoted, so I won’t cite his message, but he urged folks to actually read Chief Judge Livingston’s full order (as opposed to news articles summarizing it)—which he personally found persuasive. [UPDATE (6/23/2026, 7:11 p.m.): In case you missed it, this press release from LAP critiques the Livingston order.]
Judge Eleanor Ross (N.D. Ga.) recused herself from litigation involving the Trump administration’s effort to access Georgia election records. The government sought Ross’s recusal based on her (improper) attendance at an event for Fulton County District Attorney Fani Willis, who prosecuted Trump.
Speaking of Judge Ross and the handling of the ethics charges against her, which (in)famously included having sex in chambers and lying about it, Professor Arthur Hellman wrote an interesting post at the Volokh Conspiracy: Chief Judge Pryor’s Non-Order in the Eleanor Ross Judicial Misconduct Proceedings: Why It Is So Problematic and What Might Be Done About It.
Speaking of Professor Hellman, he’s quoted in this wide-ranging and timely article by Jacqueline Thomsen of Bloomberg Law, Judges’ Misconduct Cases Bring Extra Scrutiny to Strained Courts.
In nominations news:
The Senate confirmed Missouri lawyer (and former Trump personal attorney) Justin Smith to the Eighth Circuit, as well as Kansas Solicitor General Anthony Powell and Kansas Bureau of Investigation Director Tony Mattivi to the U.S. District Court for the District of Kansas.
Last week, I mentioned Louisiana Solicitor General Ben Aguiñaga as a top contender for the Fifth Circuit seat being vacated by Judge Kurt Engelhardt. Other possibilities include Judge Anna St. John (E.D. La.), former president and general counsel of the Hamilton Lincoln Law Institute, and James Baehr, current general counsel of the Department of Veterans Affairs and a former federal prosecutor in New Orleans.
Job of the Week: an opportunity for a funds associate at a leading boutique.
Lateral Link is assisting a sophisticated boutique founded by former Biglaw attorneys in its unposted search for an investment funds/private funds associate. The ideal candidate will possess 3-5 years of relevant experience, including private equity experience. This is the perfect role for an entrepreneurial self-starter looking to leave Biglaw because of a lack of hands-on training or direct client experience. It offers Am Law 100 resources with less bureaucracy, interesting and cutting-edge work, a collegial atmosphere, a manageable 1,800-hour billable requirement, and competitive compensation. The group is already reviewing candidates, so please email Vered Krasna at vkrasna@laterallink.com to learn more.
