Judicial Notice (03.09.25): Proceed With Caution
Trump v. Biglaw, MAGA v. Justice Barrett, Paul Clement v. Emil Bove—and lots and lots of lateral moves, including another big hire by Latham.
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Even if spring doesn’t officially start until March 20, it feels to me as if it’s already here. I don’t see any below-freezing temperatures in the 10-day forecast, we all just lost an hour of sleep, and my eyes are super itchy, which I’m chalking up to allergies—a trade I’ll take in exchange for warmer weather and no more shoveling.
I was out late in Manhattan twice last week, which is a lot for this boring suburban dad. It was great seeing old friends at a reunion on Wednesday night, and on Thursday night, I headed downtown for a party celebrating the tenth anniversary of Matt Levine’s fantastic Money Stuff newsletter—congrats to Matt on this milestone. You can read more about his fascinating career—which took him through Yale Law School, a Third Circuit clerkship, Wachtell Lipton, and Goldman Sachs, on his way to financial punditry—in this New York Times profile (gift link).
Now, on to the news.
Lawyer of the Week: Hampton Dellinger.
Over the past few weeks, I’ve been chronicling the legal effort of Hampton Dellinger to retain his post as head of the Office of Special Counsel (OSC). The mission of OSC “is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing”—and for the millionth time, OSC has nothing to do with prosecutors who are appointed to handle politically sensitive cases.
On Saturday, March 1, Judge Amy Berman Jackson (D.D.C.) upheld the constitutionality of the statute providing that Dellinger can’t be removed from office except for cause—keeping him in office, but only for a time. On Wednesday, March 5, a D.C. Circuit panel issued a two-page order allowing the removal of Dellinger to proceed—and there were no noted dissents.
The following day, on Thursday, March 6, Dellinger dismissed his legal challenge to his termination. Why? As he explained to NPR, “the trio of judges who decided to sideline me are somewhat conservative, and in that sense, mirror our United States Supreme Court”—which led him to conclude that his odds of ultimately prevailing were long. (The panel consisted of Judges Karen LeCraft Henderson, Patricia Millett, and Justin Walker—and while Judges Henderson and Walker are George H.W. Bush and Trump appointees, respectively, Judge Millett is an Obama appointee.)
But Dellinger’s lawsuit wasn’t in vain. As pointed out by Rachel Maddow, who had him on her show, Dellinger’s legal fight kept him in office long enough for him to save the jobs of more than 5,000 employees at the U.S. Department of Agriculture (USDA). Donald Trump tried to fire Dellinger on February 7, but the litigation kept him in office well beyond that date—allowing him to file, on February 28, a request with the U.S. Merit Systems Protection Board (MSPB) to stay the firings of thousands of probationary USDA employees. The MSPB granted Dellinger’s request on the morning of March 5—hours before the D.C. Circuit allowed his own firing to proceed. As with so many things in life, timing is everything.
I’m guessing this won’t be Hampton Dellinger’s last stint in public service. Before leading OSC, he served as assistant attorney general for the Office of Legal Policy, and I could easily see him getting picked for another high-ranking position in a future administration. And in his statement about his departure from OSC and the dropping of his lawsuit, Dellinger left open the possibility of future service: “My fight to stay on the job was not for me, but rather for the ideal that OSC should be as Congress intended: an independent watchdog and a safe, trustworthy place for whistleblowers to report wrongdoing and be protected from retaliation. Now I will look to make a difference—as an attorney, a North Carolinian, and an American—in other ways.”
Other lawyers in the news:
Todd Blanche, the former federal prosecutor who left Cadwalader to defend Donald Trump in his criminal cases, was confirmed by a vote of 52-46 to serve as deputy attorney general, the #2 job at the U.S. Department of Justice (DOJ).
One of Blanche’s first actions was signing a letter placing assistant U.S. attorneys Celia Cohen and Andrew Rohrbach (S.D.N.Y.), who worked on the prosecution of New York City Mayor Eric Adams, on administrative leave. A third S.D.N.Y. prosecutor was placed on administrative leave after writing a LinkedIn post criticizing Acting U.S. Attorney Ed Martin (D.D.C.).
What did Ed Martin do this time? He wrote a letter to Georgetown Law Dean Bill Treanor, accusing the law school of teaching and promoting diversity, equity, and inclusion (DEI)—and declaring that the D.C. U.S. Attorney’s Office would not hire any students or affiliates of “a law school or university that continues to teach and utilize DEI.” As noted by Adam Steinbaugh of the Foundation for Individual Rights and Expression (FIRE), “Federal prosecutors don’t control the classroom. This is a dark abdication of the First Amendment.” Or as David French put it, “I’ve rarely read a more unconstitutional letter.” It’s at least something senators should ask Martin about at his confirmation hearings—along with the many other controversial actions he’s undertaken over the past few weeks.
Congratulations to Enu Mainigi, Josh Podoll, and Jennifer Wicht, who led a Williams & Connolly trial team that won a defense verdict for Albertsons and SuperValu in a False Claims Act case in Springfield, Illinois (C.D. Ill.). The trial lasted for three and a half weeks, but the jury was out for all of two hours.
In memoriam:
Representative Sylvester Turner (D-Tex.)—who graduated from Harvard Law, worked at Fulbright & Jaworski, and practiced as a trial lawyer at his own firm, before serving as mayor of Houston and winning election to Congress last November—passed away at 70.
Another HLS alum, Roy L. Prosterman—who worked at Sullivan & Cromwell and taught law at the University of Washington, before embarking upon a career in public-interest law focused on land reform—passed away at 89.
And another lawyer turned politician, Lincoln Díaz-Balart (R-Fla.)—who graduated from Case Western Law and worked as a legal-aid lawyer and as a prosecutor, before serving in the Florida state legislature and U.S. Congress—passed away at 70.
May they rest in peace.
Judge of the Week: Justice Amy Coney Barrett.
As the events of the past few weeks have made clear, Justice Amy Coney Barrett occupies a pivotal place on the U.S. Supreme Court right now. As Adam Liptak wrote in The Times, she might be the junior member of the conservative supermajority, “[b]ut her vote may be decisive as the justices consider whether and how hard to push back against President Trump’s efforts to reshape American government.”
On Wednesday, Justice Barrett voted with Chief Justice John Roberts and the three liberal justices in Department of State v. AIDS Vaccine Advocacy Coalition, in which the Court effectively denied Trump’s request to freeze $2 billion in foreign aid (a shorthand description of a rather complex case—discussed in more detail below as Ruling of the Week). That ruling came a day after City and County of San Francisco v. Environmental Protection Agency (EPA), a complicated case about the EPA’s ability to address water pollution, in which she wrote the dissent—and was joined by the three liberal justices. And these votes aren’t outliers: in the Court’s last full Term, she was the Republican appointee most likely to vote for a liberal result.
Not surprisingly, Justice Barrett has been criticized by many in MAGA land. Trump supporters have called her “evil,” a “closet Democrat,” and a “DEI hire,” according to Ann Marimow of The Washington Post. But other conservatives have come to her defense, as noted by John Fritze of CNN (via Howard Bashman of How Appealing). As Ed Whelan told CNN, she has been “an outstanding justice,” and the “criticisms of her are myopic.” Whelan defended Justice Barrett over at National Review, as did Charles C.W. Cooke—who praised her as “a terrific justice” with “a coherent and thoughtful approach toward the law” (even if he disagrees with her from time to time, as he did in the foreign-aid case).
Some on the right inevitably compared Justice Barrett to “turncoat” Republican appointees like Justices Souter and Stevens. But these comparisons fail to recognize how her overall jurisprudence remains deeply conservative. As Leonard Leo noted to CNN, Justice Barrett has “been in the vanguard of conservative jurisprudence on abortion, racial preferences, the administrative state, religious freedom, Trump immunity, guns and the Second Amendment.” And while it’s possible she could “evolve” as a justice, I’d be very surprised if she ever comes close to living up to the “Amy Commie Barrett” moniker that some critics have bestowed upon her.
Speaking of judges under attack from the right for ruling against the Trump administration, three are now the subject of impeachment articles: Judges Paul Engelmayer (S.D.N.Y.), John Bates (D.D.C.), and Amir Ali (D.D.C.). I continue to oppose such efforts—and so does the conservative Wall Street Journal editorial board. In their editorial (gift link), the editors dismiss the movement to impeach anti-Trump judges as “an Alexandria Ocasio-Cortez-style stunt,” since “[r]emoving an impeached judge takes two-thirds of the Senate, which is possible for severe misconduct but not on partisan lines over appealable disputes.” So “Republicans yelling for impeachments are joining the left in undermining the judiciary as an institution,” just as AOC did in trying to impeach Justices Thomas and Alito last year.
In nominations news, I’m hearing there are three finalists for the Tennessee opening on the Sixth Circuit. I’ve previously mentioned two, Justice Sarah Campbell of the Tennessee Supreme Court and Judge Katherine Crytzer of the Eastern District of Tennessee. The third is Whitney Hermandorfer, who leads the Strategic Litigation Unit in the Tennessee Attorney General’s Office. Like Campbell, Hermandorfer is a former law clerk to Justice Alito—but she also clerked for then-Judge Kavanaugh (D.C. Cir.) as well as Justice Barrett, during her first Term on the Court.
Job of the Week: an opportunity for a midlevel ECVC associate in Atlanta.
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Ruling of the Week: Department of State v. AIDS Vaccine Advocacy Coalition.
Where to begin in discussing Department of State v. AIDS Vaccine Advocacy Coalition? This complex case was brought by various groups that receive foreign aid, in an effort to get the federal government to pay out funds that the groups claim is owed for work already performed. Let’s start with the order that the U.S. Supreme Court issued on Wednesday, which helpfully outlines the procedural history:
On February 13, the United States District Court for the District of Columbia entered a temporary restraining order enjoining the Government from enforcing directives pausing disbursements of foreign development assistance funds. The present application does not challenge the Government’s obligation to follow that order. On February 25, the District Court ordered the Government to issue payments for a portion of the paused disbursements—those owed for work already completed before the issuance of the District Court’s temporary restraining order—by 11:59 p.m. on February 26.
Several hours before that deadline, the Government filed this application to vacate the District Court’s February 25 order and requested an immediate administrative stay. THE CHIEF JUSTICE entered an administrative stay shortly before the 11:59 p.m. deadline and subsequently referred the application to the Court.
The application is denied. Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines. The order heretofore entered by THE CHIEF JUSTICE is vacated.
This order denied the relief sought by the Trump administration, while also telling the trial judge, Judge Amir Ali (D.D.C.), to cut the government some slack (by showing “due regard for the feasibility of any compliance timelines”). It had the votes of Chief Justice Roberts, Justice Barrett, and the three liberal justices.
Justice Samuel Alito dissented. And you have to hand it to him—his dissent, which was joined by Justices Thomas, Gorsuch, and Kavanaugh, grabs your attention:
Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic “No,” but a majority of this Court apparently thinks otherwise. I am stunned.
Here’s another highly quotable excerpt, from later in the opinion:
As a result [of the majority’s ruling], the Government must apparently pay the $2 billion posthaste—not because the law requires it, but simply because a District Judge so ordered. As the Nation’s highest court, we have a duty to ensure that the power entrusted to federal judges by the Constitution is not abused. Today, the Court fails to carry out that responsibility.
What happened after SCOTUS spoke? The case went back down to the district court, and after a hearing on Thursday afternoon, Judge Ali issued a significantly narrower order. The Trump administration now has until 6 p.m. Monday (tomorrow) to pay the money that the specific plaintiffs in the case claim that they’re entitled to receive, but aid recipients who are not parties to the litigation are not covered (addressing one of Justice Alito’s complaints).
So what’s the big picture? Here are some takeaways.
First, to quote Adam Liptak of The Times, the ruling suggests that “[t]he president’s plans to remake American government… will have to face a Court more skeptical than its composition, with six Republican appointees, might suggest.” Or as Professor Steve Vladeck put it at One First, “for those hoping that the Court is going to be a bulwark against the (mounting) abuses of the Trump administration, it’s a cautiously optimistic sign that there may well be at least five votes for that broader (but yet to be proven) proposition.”
Second, I agree with the theory offered by Professor Jack Goldsmith at Executive Functions:
[T]he Supreme Court [is] temporizing in connection with emergency orders. To temporize is to delay making a decision or offering a view in order to gain time or some other advantage. I think that is what the Court has sought to do in [AIDS Vaccine Advocacy Coalition and the litigation over removing Hampton Dellinger], and I think the cases can plausibly be viewed as having brought the Court advantage by achieving emergency outcomes it wanted without having to tip its hand prematurely on the merits of the cases.
Third, temporizing when it comes to requests for emergency relief can be wise when the underlying merits of a case are complicated—which is the case here, according to Professors Nicholas Bagley and Samuel Bray of Divided Argument:
The Chief Justice’s administrative stay and the Court’s denial of the application had the salutary effect of avoiding the Court being forced to decide—or to tip its hand about a decision regarding—some major legal questions. It would not be good, for example, for the Court to determine the interplay between sovereign immunity, equity, and the disbursement of federal funds on an application for a stay of an order enforcing a temporary restraining order. That emergency posture is not conducive to deliberate decisionmaking.
And you know who’s big on not biting off more than the Court can chew in emergency aka shadow docket cases? Justice Amy Coney Barrett—who probably shares Bagley and Bray’s appreciation of the complexity of the questions, as a former law professor who taught both civil procedure and federal courts. Or as Charlie Cooke put it over at National Review, “As a former legal academic, Barrett clearly has some procedural preferences… she’s skeptical of the virtues of the emergency docket, and she dislikes reaching the merits of a big case when the details aren’t entirely clear—and she follows those preferences rigorously. As far as I can see, this is what she did here.”
So in the end, Department of State v. AIDS Vaccine Advocacy Coalition suggests to me that the Supreme Court, with Chief Justice Roberts and Justice Barrett as critical votes, will proceed with caution when deciding issues related to the Trump administration. The justices will want to make sure that they get things right—or at least don’t get things wrong—even if it means “underdeciding,” i.e., deciding less than they can. They’ll move slowly, sometimes buying time by kicking cases back to the lower courts. They’ll guard their political capital as an institution jealously—and occasionally make the lower courts do some of the “dirty work,” in terms of making tough or unpopular calls.
And the justices will attempt to avoid a constitutional confrontation with Donald Trump at all costs. They’ll try their darnedest to not get into a situation where they’ll have to order Trump to do something really major that he really doesn’t want to do—i.e., a situation where he might, as JD Vance has suggested, be tempted to pull an Andrew Jackson and say, “The chief justice has made his ruling. Now let him enforce it.” (Yes, I know: this quotation is almost certainly apocryphal.)
Other significant decisions and dispositions (with my standard thanks to Short Circuit):
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