Judicial Notice (04.13.25): ‘I Respect The Supreme Court’

Biglaw partners unite against Trump, SCOTUS treads lightly, Susman goes to the mat, and Sidley raids three rivals.

Susman Godfrey (photo by David Lat).

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Last week was pretty low-key for me—which I was just fine with, considering how much is going on in the world at large. The highlight was attending an event at the Harvard Club of New York with Rachel Cohen, the former Skadden Arps associate whose noisy withdrawal from the firm turned her into a leading figure of Biglaw opposition to Donald Trump. While there, I also met Thomas Sipp, another associate who resigned from Skadden over its acquiescence to the administration; for more about him, listen to his appearance on The Daily.

If you’ve emailed me recently, you might have received my out-of-office message. Our family is away for Harlan’s spring break, staying at a lovely resort and enjoying some sun—and missing the snow that hit parts of the northeast. So I apologize for being slower than usual in responding to communications, as well as for sending Judicial Notice out later than usual. (We’re on Mountain Standard Time, plus I had a previously scheduled Passover Seder to attend tonight.)

Now, on to the news.

Lawyers of the Week: the 350-plus members of Law Firm Partners United.

More firms continue to settle with the Trump administration, to avoid getting hit with executive orders aka “EO’d.” On Friday, five more firms fell in line: Kirkland & Ellis, Latham & Watkins, A&O Shearman, Simpson Thacher, and Cadwalader.

The first four firms each agreed to provide $125 million in pro bono work focused on causes supported by the Trump administration; Cadwalader, significantly smaller than the others, committed $100 million. The first four firms also agreed to “compliance monitoring” by the Equal Employment Opportunity Commission (EEOC), to ensure that they don’t engage in illegal discrimination in their hiring. Cadwalader’s settlement didn’t include a monitoring provision; it wasn’t one of the 20 firms that received EEOC letters seeking information about their DEI-related employment practices.

The latest deals came shortly after Trump openly mused in the Oval Office about forcing Biglaw firms to work on negotiating trade agreements with foreign nations or coal-leasing deals. Conscripting private firms in this way might strike critics of the administration as outlandish or even outrageous, but I can’t help wondering: considering how quickly firms are capitulating, how sure can we be that they’d refuse to comply with such demands, if faced with what Paul Weiss chair Brad Karp characterized in his now-famous firmwide email as an “existential” threat? (This is all quite hypothetical at this point, so I’m putting to one side any legal complications that could arise from the government trying to squeeze free work out of Biglaw firms; for example, I wonder if the Antideficiency Act might be relevant.)

At the same time as more firms are surrendering, we’re seeing more individual lawyers speaking out against the EOs—and quitting their firms over them. Joining Rachel Cohen and Thomas Sipp are fellow associates Andrew Silberstein, who resigned from Willkie in what Above the Law described as “epic fashion,” and Siunik Moradian, who departed from Simpson after condemning the firm for “bending the knee and kissing the ring of authoritarianism.”

And it’s no longer just associates who are heading for the exits. Steven Banks, who served as special counsel for pro bono at Paul Weiss, left the firm in order to resume working with nonprofits that help the homeless. Joseph Baio, the longest-tenured lawyer at Willkie—a former partner at the firm, who previously served on its executive committee—resigned as senior counsel, in order to “join the fight against governmental tyranny, unconstitutional decrees, and social injustice.”

As far as I know, no current partner at an Am Law 200 firm has quit in protest over their firm’s response—or lack thereof—to the Trump administration’s attack on Biglaw. But it might just be a matter of time; we know that hundreds of partners are deeply concerned about this issue.

And how do we know this? More than 350 partners at Am Law 200 firms have joined Law Firm Partners United (LFPU), a LinkedIn group established by Neel Chatterjee and David Cross—both prominent trial lawyers and Goodwin partners, based out of Silicon Valley and Washington, D.C., respectively.

As one LFPU member explained to Law.com, the organization is only a week old, “so we don’t yet know what this will become”; for now, it’s about “providing partners with space to discuss what’s happening, because they feel unable to do so inside their firms.” But as Cross told Law360, he and Chatterjee might form a 501(c)(3) organization, which could allow the members to act collectively—for example, by filing amicus briefs in the pending challenges to various EOs targeting Biglaw firms.

Here’s an obvious question for the (almost entirely anonymous) members of LFPU: “If you’re so troubled by what your firm is (or is not) doing, why not resign from the partnership in protest?” Chatterjee tackled this topic in a LinkedIn post, arguing that (1) changing law firms is complex and time-consuming process that can disrupt client representations, and (2) partners can often make a bigger difference by staying at their firms and advocating internally for charge.

Some might find this reasoning sensible; others might find it self-serving. But again, I think it’s only a matter of time before Biglaw partners start quitting in protest (perhaps because they were already thinking about breaking off to launch their own boutiques, and recent events provided the nudge they needed to make it happen). And to the extent that LFPU helps partners opposed Trump feel that they’re not alone, giving them a “safe space” to collaborate and coordinate, I wouldn’t be surprised if the group serves as a catalyst for some highly public partner departures.

Other lawyers in the news:

• Speaking of the Trump administration (because what else do we speak about these days), it continues to make waves at the U.S. Department of Justice (DOJ). Career attorneys at the DOJ are finding themselves in increasingly difficult positions—”trapped between President Trump’s partisan political appointees, who insist on a maximalist approach [to defending the administration in court], and judges who demand comprehensible answers to basic questions,” in the words of Devlin Barrett and Glenn Thrush of The New York Times (gift link).

• As a result, many lawyers are “self-deporting” from the Department. The Civil Division, which bears a disproportionate share of the burden when it comes to defending the administration’s most controversial moves, has been especially hard-hit by attrition—and it appears that the Office of the Solicitor General (OSG) might be next. Based on reporting by Ann Marimow of The Washington Post (gift link), at least half of OSG’s line attorneys have already announced their departures or will be doing so shortly—even though working at OSG, which handles the DOJ’s litigation before the U.S. Supreme Court, has historically been viewed as a dream job among elite lawyers.

• The Senate confirmed Paul Atkins as head of the Securities and Exchange Commission (SEC), by a vote of 52-44. According to Renato Mariotti of Paul Hastings, “his confirmation will provide much-needed direction to the SEC” during these uncertain times.

• I’m not a fan of writing about pure politics, which I find a bit icky—and that explains why you won’t see much coverage of lawyer candidates in these pages (so don’t bother pitching me on your campaign, unless there’s a strong legal angle). But because they’re well-known figures in the legal world, I’d like to give brief shoutouts to current Quinn Emanuel partner and former U.S. attorney John Bash, who is running for Texas attorney general, and lawyer and former television reporter Mike Sacks, who is running for the Hudson Valley congressional seat currently held by Representative Mike Lawler (R-N.Y.).

In memoriam: Larry “L.P.” Scriggins—a University of Chicago Law School alum and longtime corporate partner at Piper & Marbury, now part of DLA Piper—passed away at 88. May he rest in peace.

Judge of the Week: Judge Paula Xinis.

In its recent decisions regarding legal challenges to various actions of the Trump administration, the U.S. Supreme Court has proceeded with caution. As Adam Liptak wrote in The Times (gift link), the Court “has issued a series of narrow and legalistic rulings,” an approach that could reflect an effort by the justices “to avoid a showdown with a president who has relentlessly challenged the legitimacy of the courts.”

You know who’s not trying to avoid a showdown with the Trump administration? Judge Paula Xinis (D. Md.).¹

Profiled last week in The Washington Post (gift link), she graduated from the University of Virginia and Yale Law School, clerked for Judge Diana Gribbon Motz (4th Cir.), served as a federal public defender, and worked in private practice. Nominated by President Obama and confirmed by a vote of 53-34, she has been a judge in the District of Maryland since May 2016.

Judge Xinis is in the headlines these days because she’s presiding over Abrego Garcia v. Noem. Kilmar Armando Abrego Garcia is an immigrant from El Salvador who was living in Maryland with his wife, who’s a U.S. citizen, and their three children. On March 15, he was removed to El Salvador because of what the government acknowledges was an “administrative error.” Abrego Garcia was not supposed to be sent to El Salvador because an immigration judge previously concluded that he faced a “clear probability of future persecution” there. But El Salvador is where he now finds himself—held in the Terrorism Confinement Center, which Judge Xinis described as “a notorious supermax prison known for widespread human rights violations.”

Lawyers for Abrego Garcia and his family sued to bring him back to the United States, raising claims under the Immigration and Nationality Act, the Administrative Procedure Act, federal habeas-corpus law, and Fifth Amendment due process. Judge Xinis ordered the federal government “to facilitate and effectuate the return of Plaintiff Kilmar Armando Abrego Garcia to the United States by no later than 11:59 PM on Monday, April 7, 2025.”

The government asked for a stay from the Fourth Circuit, which that court denied. Judge Stephanie Thacker, joined by Judge Robert King, declared that the feds have “no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process”—and the government’s position to the contrary is “unconscionable.”

Judge J. Harvie Wilkinson concurred. He opined that it was “legitimate for the district court to require that the government ‘facilitate’ the plaintiff’s return to the United States, so that he may assert the rights that all apparently agree are due him under law”—but that requiring the government to “demand” Abrego Garcia’s release “would be an intrusion on core executive powers.”

The administration appealed to the Supreme Court, asking the justices to vacate Judge Xinis’s injunction. On Thursday night, the Court issued a per curiam decision that effectively came down where Judge Wilkinson landed:

The application is granted in part and denied in part, subject to the direction of this order. Due to the administrative stay issued by THE CHIEF JUSTICE, the deadline imposed by the District Court has now passed. To that extent, the Government’s emergency application is effectively granted in part, and the deadline in the challenged order is no longer effective.

The rest of the District Court’s order remains in effect but requires clarification on remand. The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.

The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.

Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, issued a statement regarding the Court’s denial of the government’s application. She expressed anger at the administration’s handling of Abrego Garcia’s case—and declared that “on remand, the District Court should continue to ensure that the Government lives up to its obligations to follow the law.”

On remand, Judge Xinis didn’t waste any time. The Supreme Court issued its ruling on Thursday night; Judge Xinis demanded that the government provide her with information, no later than Friday at 9:30 a.m., about its efforts to secure Abrego Garcia’s release.

After the government responded to her order for a status report with what she described as “extremely troubling” evasions on Friday, Judge Xinis directed the DOJ to provide her with daily updates on its progress in getting Abrego Garcia home. As Ken White put it on Serious Trouble, requiring daily updates is “a demand that’s not good, no matter who’s giving it to you. A spouse, a military commander, a federal judge—it’s always bad news.”

On Saturday night, the administration informed Judge Xinis that Abrego Garcia is “alive and secure”—and still being held in the Terrorism Confinement Center, “pursuant to the sovereign, domestic authority of El Salvador.” But it still failed to provide Judge Xinis with any information about efforts to secure his release.

And then on Sunday, the administration doubled down. In their response to a motion by Abrego Garcia’s counsel, DOJ lawyers Yaakov Roth and Drew Ensign wrote as follows:

Defendants understand “facilitate” to mean what that term has long meant in the immigration context, namely actions allowing an alien to enter the United States. Taking “all available steps to facilitate” the return of Abrego Garcia is thus best read as taking all available steps to remove any domestic obstacles that would otherwise impede the alien’s ability to return here. Indeed, no other reading of “facilitate” is tenable—or constitutional—here.

I can’t wait to see what Judge Xinis has to say about this position.

Liberals and progressives have praised Judge Xinis for her toughness toward the government, while some conservatives have questioned her approach. From the Wall Street Journal editorial board:

Judge Xinis seems to have read past the part [in the Supreme Court ruling] about deference to the executive branch. Instead she responded with an aggressive order that the government provide information about its efforts at 9:30 Friday morning. The Justice Department asked to have until April 15 to respond. Judge Xinis granted a few hours extension. She couldn’t have waited until Tuesday?

Now that Mr. Abrego Garcia is in El Salvador, the U.S. can’t simply order that foreign government to send him back. This requires diplomacy, which is a foreign-policy function reserved for the executive. Getting those wheels in motion can’t happen literally overnight as Judge Xinis commanded….

This is a showdown nobody needs…. [Judge Xinis] is needlessly courting a clash with the executive branch, when Chief Justice Roberts and the Court are trying to steer her and the Administration away from one.

But not all conservatives agreed. From a Twitter an X thread by Ed Whelan:

Lots of confusion in this [WSJ editorial]. Perhaps worst is notion that retrieving deportee from prison contractor is complicated matter of “diplomacy.” As [conservative commentator Andrew McCarthy] has explained, Abrego Garcia is best understood as being in constructive American custody.

But maybe even worse is notion that Trump administration, having unlawfully deported Abrego Garcia a month ago, should have five days to provide elementary information to Judge Xinis.

What does Donald Trump have to say about all this? On Friday, he told reporters, “If the Supreme Court said bring somebody back, I would do that. I respect the Supreme Court.”

And then he muttered, under his breath, “Lower courts, not so much.”

Okay, that last part was satirical; Trump didn’t actually say anything about lower courts. But it’s a frighteningly plausible comment coming from him, isn’t it? And the conduct of his administration seems to reflect that attitude. As Ken White put it, “I have never seen in my entire legal career the United States being this overtly non-compliant and obstructive in a case before a federal judge.”

Other judges in the news:

• Not surprisingly in light of her latest votes—including siding with the liberals in Trump v. J.G.G., discussed below—Justice Barrett once again took flak from some conservative commentators. And once again, other conservatives came to her defense. Wash, rinse, repeat. (As for what might explain why Justice Barrett parts ways with her fellow conservatives so often, I like how Sarah Isgur put it on Advisory Opinions: Justice Barrett might be “a process girl living in an outcomes world.”)

• Nearly 350 retired federal and state judges filed an amicus brief in the challenge mounted by Perkins Coie to the executive order issued against it by the Trump administration.

In memoriam: Joseph Grodin, who served as a justice of the California Supreme Court from 1982 to 1987, passed away at 95. May he rest in peace.

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