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3. Which firms, legal groups, law profs signed…

Law Firms

Which firms, legal groups, law profs signed briefs supporting Perkins Coie in challenge to punitive Trump order?

By Debra Cassens Weiss

April 8, 2025, 8:52 am CDT

Amicus briefs supporting Perkins Coie are piling up in its challenge to a punitive order against the law firm signed by President Donald Trump.

The briefs have been filed by more than 500 firms, more than 360 law professors, nearly 350 former judges and a “cross-ideological group” that includes the American Civil Liberties Union and the Institute for Justice, a nonprofit public interest firm, report Law.com (here and here); Bloomberg Law; Reuters (here and here); Law360; and press releases by Law Forward, a nonprofit organization, and the ACLU.

The firm brief is mostly signed by smaller and midsize firms. According to Law.com, larger and well-known firms that signed are:

  • Arnold & Porter Kaye Scholer

  • Covington & Burling

  • Crowell & Moring

  • Davis Wright Tremaine

  • Fenwick & West

  • Foley Hoag

  • Freshfields US

  • Hanson Bridgett

  • Jenner & Block

  • Manatt, Phelps & Phillips

  • Munger, Tolles & Olson

  • Patterson Belknap Webb & Tyler

  • Stoel Rives

  • Susman Godfrey

  • Wilmer Cutler Pickering Hale and Dorr

Perkins Coie sued after Trump issued an executive order that suspended Perkins Coie’s security clearance, limited access to federal buildings by its lawyers, blocked government hiring of firm employees, and required federal agencies to take steps to terminate contracts with the firms and their clients—if the firm provided services in connection with the client contract.

WilmerHale and Jenner & Block also sued after they were targeted with executive orders. Covington & Burling was also targeted in a more limited executive order; it has not filed suit.

As of April 3, four other firms reached deals with Trump to avoid punitive measures. The deals included pledges of pro bono support on issues supported by Trump and the firms.

A Perkins Coie spokesperson told Reuters that the firm was grateful to the firms that signed the amicus brief “in our challenge to the unconstitutional executive order and the threat it poses to the rule of law.”

Above the Law is compiling firms’ reactions to actions by the Trump administration in its “BigLaw Spine Index.” Law.com has published a timeline of the executive orders and firms’ response to them.

The legal advocacy groups that signed the ACLU brief are:

  • The ACLU

  • The ACLU of the District of Columbia

  • The Cato Institute

  • The Electronic Frontier Foundation

  • The Foundation for Individual Rights and Expression

  • The Institute for Justice

  • The Knight First Amendment Institute at Columbia University

  • The National Coalition Against Censorship

  • The Reporters Committee for the Freedom of the Press

  • The Rutherford Institute

  • The Society for the Rule of Law Institute

Judges who signed an amicus brief include retired state supreme court and appellate justices and former federal judges. Among them are:

  • Retired Judge J. Michael Luttig of the 4th U.S. Circuit Court of Appeals at Richmond, Virginia

  • Retired Judge Diana Gribbon Motz of the 4th Circuit at Richmond, Virginia

  • Retired Judge Kathleen M. O’Malley of the U.S. Court of Appeals for the Federal Circuit

  • Retired Judge Thomas I. Vanaskie of the 3rd Circuit at Philadelphia

  • Retired U.S. District Judge Shira A. Scheindlin of the Southern District of New York

Law professors who signed the professor brief are from law schools that include Harvard Law School, Yale Law School, Stanford Law School, the University of California, the Georgetown University Law Center, the Northwestern University Pritzker School of Law, Cornell Law School, the New York University School of Law, the University of Chicago Law School, Columbia Law School and the University of Michigan Law School.

Professors who signed the brief include Michael C. Dorf of Cornell Law School, Mark A. Lemley of Stanford Law School, Owen Fiss of Yale Law School, Harold Hongju Koh of Yale Law School, Leah Litman of the University of Michigan Law School, Eugene Volokh of the University of California at Los Angeles School of Law and Pamela S. Karlan of Stanford Law School.

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3. Federal judge’s warning about potential violence…

Judiciary

Federal judge’s warning about potential violence after Trump’s comments was not ethics violation, 3rd Circuit says

By Debra Cassens Weiss

March 25, 2025, 3:29 pm CDT

A federal judge didn’t violate ethics rules when he commented about the potential for violence when “people in positions of authority” make negative comments about a judge or the judge’s family members, according to a federal appellate judicial council.

Senior U.S. District Judge Reggie B. Walton of Washington, D.C., didn’t comment on the merits of a pending matter and did not engage in conduct prejudicial to the administration of justice, said Chief Judge Michael A. Chagares of the 3rd U.S. Circuit Court of Appeals at Philadelphia. Chagares wrote the opinion for the 3rd Circuit’s judicial council that dismissed two ethics complaints against Walton.

Reuters and Law360 have coverage.

Chagares’ Jan. 31 opinion, which was released last week, did not identify Walton as the judge in question. But a Walton representative confirmed to Law360 and Reuters that he was the subject of the opinion.

Walton had commented on CNN on March 28, 2024, in response to a question about then-candidate Donald Trump’s social media attacks against New York Judge Juan Merchan, according to prior coverage by Reuters. Merchan was presiding in a case accusing Trump of falsifying business records to conceal a hush-money payment to adult film actress Stormy Daniels. Trump was convicted in May 2024.

Trump had criticized Merchan as a “radical left judge” and a Trump hater at “the highest level” in a March 22, 2024, post on Truth Social, his social media platform, according to another prior story by Reuters. Trump also labeled Merchan’s daughter a “rabid Trump hater” before Walton appeared on CNN.

Reuters published this comment by Walton: “I think it’s very important that people in positions of authority be very circumspect in reference to the things that they say, so that they’re not causing others to act on what they say and maybe cause injury or death to someone as a result of that.”

Law360 referred to additional comments from Walton’s interview.

“I can’t get into someone’s mind to say whether they appreciate the impact that they’re doing, but I would think that he’s—any reasonable thinking person would appreciate that when they say things, they can sometimes resonate with others,” Walton said. “And I think that’s particularly true when you have somebody who has status in our society, and they make certain statements that can cause people to act on those statements, even if they don’t necessarily intend for someone to do so.”

None of Walton’s remarks concerned the merits of Trump’s case, and they do not constitute partisan political activity, Chagares said.

“Rather, [Walton] spoke about the experience of receiving threats, reflected on the tragedy of colleagues whose family members had been killed, and encouraged circumspection with respect to public remarks that can have unintended consequences,” Chagares said. Walton “also emphasized the importance of the independence of judicial officers in maintaining the rule of law and ensuring that laws are applied equally to all who appear before a judge.”

Chagares did not identify who filed the complaints. But conservative activist Mike Davis, the founder of the Article III Project, a conservative group, has said he filed one of them.

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3. Supreme Court will review Colorado ban on…

U.S. Supreme Court

Supreme Court will review Colorado ban on conversion therapy for LGBTQ minors

By Debra Cassens Weiss

March 10, 2025, 1:38 pm CDT

The U.S. Supreme Court on Monday agreed to decide whether a Colorado ban on conversion therapy for LGBTQ minors—which aims to change sexual orientation or gender identity through counseling—violates the First Amendment.

The high court agreed to hear a case challenging a Colorado law that imposes professional discipline on licensed counselors who engage in such therapy, report SCOTUSblog and Law.com.

At issue is whether the ban censors counseling based on the viewpoint expressed in violation of the free speech clause or whether it is a permissible regulation of conduct, as the 10th U.S. Circuit Court of Appeals at Denver held in the case.

The plaintiff challenging the law, licensed counselor Kaley Chiles, is represented by Alliance Defending Freedom, a conservative legal advocacy group, according to a March 10 press release. She is a counselor with “Christian worldview” who helps clients with gender-identity issues, the press release said.

“Though Chiles never promises that she can solve these issues,” the cert petition said, “she believes clients can accept the bodies that God has given them and find peace.”

The press release said it is significant that the Colorado law “only prohibits counseling conversations in one direction. For example, it allows counseling conversations that aim to steer young people toward a gender identity different than their sex but prohibits conversations that aim to help them return to comfort with their sex when they desire that.”

Circuits are split on whether bans on conversion therapy regulate speech or conduct, according to the cert petition. The 11th Circuit at Atlanta and the 3rd Circuit at Philadelphia have ruled that the laws regulate speech, while the 10th Circuit and the 9th Circuit at San Francisco have determined that the laws regulate conduct.

Colorado’s brief opposing cert said its law was “based on overwhelming evidence that efforts to change a child’s sexual orientation or gender identity are unsafe and ineffective.”

The state argues that Supreme Court precedent “makes clear that the First Amendment allows states to reasonably regulate professional conduct to protect patients from substandard treatment, even when that regulation incidentally burdens speech.”

The case is Chiles v. Salazar.

The SCOTUSblog case page is here.

See also:

9th Circuit upholds ban on conversion therapy for minors in First Amendment challenge

Supreme Court declines to consider challenge to conversion-therapy ban; 3 justices would have heard case

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3. Forget originalism; some conservatives back…

Legal Theory

Forget originalism; some conservatives back ‘common-good constitutionalism,’ its embrace of strong rule

By Debra Cassens Weiss

February 19, 2025, 11:37 am CST

Adrian Vermeule, a professor at Harvard Law School, is an “ideological lodestar” among conservatives who are impatient with originalism—the idea that the Constitution’s meaning can be determined by its text and the founders’ intent, according to a story by the New York Times.

Vermeule, dubbed “the godfather of post-originalism” by the New York Times, argued in a March 2020 essay in the Atlantic that originalism has “outlived its utility.”

Vermeule instead embraced an approach that he called “common-good constitutionalism” that goes beyond originalism in incorporating conservative values. Common-good constitutionalism is based on the idea that government helps direct society generally “toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate,” he wrote.

The main aim of common-good constitutionalism “is certainly not to maximize individual autonomy or to minimize the abuse of power,” Vermeule wrote. Instead the aim is “to ensure that the ruler has the power needed to rule well,” Vermeule wrote.

Critics on the left side and the right side of the political spectrum criticized Vermeule’s essay. On the liberal side, Garrett Epps, then a professor at the University of Baltimore School of Law, said in an April 2020 article in the Atlantic Vermeule was arguing for “authoritarian extremism.”

Some judges are also expressing interest in Vermeule’s theory, the New York Times reports. Two federal appeals judges attended a 2022 conference on common-good constitutionalism. They are Judge James C. Ho of the 5th U.S. Circuit Court of Appeals at New Orleans and Judge Paul B. Matey of the 3rd Circuit at Philadelphia.

In addition, some footnotes in federal appellate decisions have referred to Vermeule’s book on common-good constitutionalism, according to the New York Times.

Vice President JD Vance is familiar with Vermeule. Earlier this month, Vance shared a social media post on X, formerly known as Twitter, by Vermeule that read: “Judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers.”

The next day, Vance posted: “Judges aren’t allowed to control the executive’s legitimate power.”

According to the New York Times, Vance is hinting at “wholesale ultra vires executive-branch impunity,” an idea that “is increasingly part of the Republican mainstream.”

Vermeule didn’t think that Vance went that far when he defended his comments in a Feb. 11 article in the Wall Street Journal.

Vance appeared to be referring to legal doctrines used by courts to determine whether they have jurisdiction to review executive action, Vermeule wrote.

“Judges often invoke the separation of powers to limit their own authority, to put certain classes of executive action off-limits from judicial review, or to shape and constrain the remedies they provide,” Vermeule wrote.

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3. 2 federal judges have changed their minds…

Judiciary

2 federal judges have changed their minds about senior status; will 2 appeals judges follow suit?

By Debra Cassens Weiss

December 5, 2024, 10:02 am CST

After President-elect Donald Trump won a second term in the White House, two Democratic-appointed federal judges announced that they no longer plan to take senior status.

The reversal means that there will not be two additional vacancies for Trump to fill when he takes office, report Reuters, Law360, Law.com and CNN.

The two judges are:

  • U.S. District Judge Max O. Cogburn Jr. of the Western District of North Carolina, an appointee of former President Barack Obama. Cogburn had announced his plans to take senior status after his successor was confirmed in 2022, but Biden did not choose a replacement. Any nominee would have needed the approval of North Carolina’s two Republican U.S. senators under a U.S. Senate custom of blue-slip approval.

  • U.S. District Judge Algenon L. Marbley of the Southern District of Ohio, an appointee of former President Bill Clinton. Marbley had notified Biden of plans to retire in October 2023, according to the Columbus Dispatch and Reuters. Biden had not nominated a replacement, which would have needed the support of Vice President-elect J.D. Vance, who’s currently one of Ohio’s two senators. The other senator is Democratic Sen. Sherrod Brown.

Judges can take senior status, which allows them to reduce their caseload, if they are older than age 65 and have been on the bench at least 15 years, Reuters explains.

The judges’ decisions come amid a deal between Democrats and Republicans in which the Senate won’t hold votes on four of Biden’s appeals court nominees while advancing the president’s district court nominees, according to the Associated Press and Bloomberg Law.

The deal was made after Republicans used “stalling tactics” to hold up judicial confirmations, according to Bloomberg Law.

The deal gives Republicans a chance to fill seats on the 3rd U.S. Circuit Court of Appeals at Philadelphia and the 1st Circuit at Boston. The two other appellate judgeships are not yet officially open because the judges made their transition to senior status contingent on confirmation of a successor.

Those two judges are Judge Jane Branstetter Stranch of the 6th Circuit at Cincinnati and Judge James Andrew Wynn of the 4th Circuit at Richmond, Virginia.

Republican Senate Minority Leader Mitch McConnell of Kentucky is worried about the possibility, according to CNN’s reporting on his comments.

“Never before has a circuit judge unretired after a presidential election,” McConnell said. “It’s literally unprecedented. And to create such a precedent would fly in the face of a rare bipartisan compromise on the disposition of these vacancies.”

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3. Supreme Court orders reconsideration of appellate…

U.S. Supreme Court

Supreme Court orders reconsideration of appellate decision on youths carrying guns

By Debra Cassens Weiss

October 15, 2024, 2:46 pm CDT

The U.S. Supreme Court on Tuesday told a federal appeals court to reconsider its decision that blocked a Pennsylvania ban on youths openly carrying guns during a state of emergency.

The high court vacated the decision by the 3rd U.S. Circuit Court of Appeals at Philadelphia and directed it to reconsider in light of U.S. v. Rahimi.

In the June Rahimi decision, the Supreme Court upheld a federal ban on gun possession by those who are subject to domestic-violence restraining orders.

The 3rd Circuit ruled in January that youths who are 18 to 20 years old are among the people protected by the Second Amendment, and they can’t be barred from openly carrying guns during a state of emergency.

Pennsylvania requires people carrying concealed firearms to be at least 21 years old and to have a license. Those who want to openly carry guns are generally allowed to do so. But in states of emergency, they must have a license, or they must qualify under other exceptions. The practical effect of those laws is to ban those who are 18 to 20 years old from openly carrying guns during states of emergency.

When the suit was filed, Pennsylvania had been in a state of emergency for nearly three years because of the COVID-19 pandemic, the opioid addiction crisis and Hurricane Ida.

CNN and Bloomberg Law have coverage of the Supreme Court’s order in the case, Paris v. Lara.

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3. Death row inmate held in solitary confinement…

Criminal Justice

Death row inmate held in solitary confinement for 26 years can sue, federal appeals court rules

By Debra Cassens Weiss

September 26, 2024, 9:22 am CDT

A death row inmate with a known history of serious mental illness can sue Pennsylvania’s corrections chief for holding him in solitary confinement for 26 years, a federal appeals court ruled Friday.

The 3rd U.S. Circuit Court of Appeals at Philadelphia ruled 2-1 that inmate Roy L. Williams can sue for alleged violations of the Americans With Disabilities Act and the Eighth Amendment’s ban on cruel and unusual punishment.

The Associated Press covered the Sept. 20 decision.

The prison chief did not have qualified immunity because “individuals with a known history of serious mental illness have a clearly established right not to be subjected to prolonged, indefinite solitary confinement—without penological justification—by an official who was aware of that history,” wrote Senior Judge Theodore McKee, an appointee of former President Bill Clinton, citing a prior case.

Williams was in solitary confinement between 1993 and 2019, when the state corrections department changed its policy because of a legal settlement. But the department was on notice that its policy was cruel and unusual because of a 2014 report by the U.S. Department of Justice, McKee said.

The report said harsh solitary confinement for extended periods of time for prisoners with serious mental illness and intellectual disability “constitutes precisely the type of indifference to excessive risk of harm the Eighth Amendment prohibits.”

Judge Peter J. Phipps, an appointee of former President Donald Trump, dissented.

The majority “ignores this court’s precedent and misapplies foundational principles,” Phipps wrote.

Williams, who was convicted for killing a construction worker, had mental health issues since childhood, according to the opinion. He was 14 years old when he was involuntarily committed for suicidal threats and violent behavior.

Williams was represented by the Pennsylvania Institutional Law Project, which has filed similar lawsuits over solitary confinement.

Williams’ case “is the first to go up on appeal,” said Matthew Feldman, a supervising lawyer with the group, in an interview with the Associated Press. “So I think this opinion definitely will help all those other men whose cases are currently pending in trial courts right now.”

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3. TikTok can be sued over ‘Blackout Challenge’…

Internet Law

TikTok can be sued over ‘Blackout Challenge’ that led to death, 3rd Circuit says

By Debra Cassens Weiss

September 3, 2024, 2:53 pm CDT

A federal appeals court has ruled that a mother of a 10-year-old Pennsylvania girl who died after copying a “Blackout Challenge” that appeared on her TikTok “For You Page” can sue the social media company.

Citing allegations that a TikTok algorithm recommended the video, the 3rd U.S. Circuit Court of Appeals at Philadelphia reinstated the lawsuit filed by Tawainna Anderson, the mother of the girl who died.

The author of the Aug. 27 opinion is Judge Patty Shwartz, an appointee of former President Barack Obama.

The “Blackout Challenge” encourages viewers to choke themselves with belts, purse strings and similar items until they pass out, the suit says.

Section 230 of the Communications Decency Act generally protects social media companies from liability for content posted by third parties. But Section 230 doesn’t protect TikTok, the appeals court said, because the algorithm that allegedly presented the video to the girl was TikTok’s expressive speech, rather than information posted by another.

Original Jurisdiction, Law & Crime and the Associated Press are among the publications with coverage.

The 3rd Circuit said its decision could be different if the girl was shown the video because she had previously searched for and watched a “Blackout Challenge” video.

The 3rd Circuit said the TikTok algorithm can constitute the platform’s expressive speech under the reasoning of a recent U.S. Supreme Court decision, Moody v. NetChoice.

The July 1 Supreme Court decision said states likely can’t interfere with social media platforms’ decisions to ban political candidates or restrict content because content moderation is speech entitled to First Amendment protection.

According to the 3rd Circuit, the Supreme Court “held that a platform’s algorithm that reflects ‘editorial judgments’ about ‘compiling the third-party speech it wants in the way it wants’ is the platform’s own ‘expressive product’ and is therefore protected by the First Amendment.”

“Given the Supreme Court’s observations that platforms engage in protected first-party speech under the First Amendment when they curate compilations of others’ content via their expressive algorithms,” the 3rd Circuit said, “it follows that doing so amounts to first-party speech under Section 230 too.”

Judge Paul B. Matey, an appointee of former President Donald Trump, wrote a partial concurrence and partial dissent.

Matey said TikTok reads Section 230 “to permit casual indifference to the death of a 10-year-old girl. It is a position that has become popular among a host of purveyors of pornography, self-mutilation and exploitation, one that smuggles constitutional conceptions of a ‘free trade in ideas’ into a digital ‘cauldron of illicit loves’ that leap and boil with no oversight, no accountability, no remedy.”

The case is Anderson v. TikTok.

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3. Apology sanctions for misleading court were…

Prosecutors

Apology sanctions for misleading court were ‘mild and fitting,’ 3rd Circuit rules in appeal by DA’s office

By Debra Cassens Weiss

March 12, 2024, 3:55 pm CDT

A federal judge did not abuse his discretion when he imposed “mild and fitting” sanctions on lawyers in the Philadelphia district attorney’s office for misleading statements made when they sought to vacate the death penalty in a double murder case.

The 3rd U.S. Circuit Court of Appeals at Philadelphia upheld the sanctions in a March 8 opinion, report Law.com, Law360 and the Volokh Conspiracy. How Appealing noted news coverage and linked to the opinion.

One of the sanctions required Philadelphia District Attorney Larry Krasner to write apology letters to four members of the families of the murder victims. The other required the office to be more forthcoming in the future.

U.S. District Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania had imposed the sanctions in September 2022 for misleading statements by the district attorney’s office when it conceded the defendant’s ineffective counsel claim following a death penalty retrial. The office said it reached the decision after a review of the case and “communication with the victims’ family.”

The convicted man, Robert Wharton, had argued that his lawyer in the death penalty retrial was ineffective for failing to argue that he had adjusted well to prison.

But when conceding the ineffective assistance claim, the district attorney’s office never revealed that Wharton had tried to escape from courtroom custody in an unrelated case, resulting in a conviction, the 3rd Circuit said. Nor did the office reveal six instances of prison misconduct by Wharton, including twice being found with makeshift handcuff keys.

And the district attorney’s office communicated with only one family member—and it wasn’t the daughter of the victims, who was only 7 months old when she was left in freezing temperatures after Wharton killed her parents, Bradley and Ferne Hart, in 1984.

The person who was consulted, a brother of one of the victims, was never clearly told that the office planned to concede the death penalty, the 3rd Circuit said.

“The sanctions imposed were mild and fitting,” the 3rd Circuit said in an opinion by Judge Stephanos Bibas, an appointee of former President Donald Trump.

Goldberg had directed the office to include a “full, balanced” explanation of facts when making future concessions, which serves the goal of deterrence, Bibas said. And the apology letter “may help soothe” the outrage of family members, who were “taken [a]back” when they learned of the concession by the district attorney’s office, according to Bibas.

“Courts rely on lawyers’ honesty; lawyers may not mislead them,” Bibas wrote.

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3. 3rd Circuit judicial nominee opposed for…

Judiciary

3rd Circuit judicial nominee opposed for ties to a group critics say amplifies ‘antisemitic speech’ and ‘terrorist propaganda’

By Debra Cassens Weiss

January 31, 2024, 9:14 am CST

The nomination of a BigLaw partner to serve on the 3rd U.S. Circuit Court of Appeals at Philadelphia should be withdrawn because of his service as a board member for a group with “a deep history of amplifying antisemitic speech, terrorist propaganda and anti-American rhetoric,” according to a letter to President Joe Biden by a group of Republican members of the U.S. House of Representatives.

The letter seeks the withdrawal of the nomination of Adeel Abdullah Mangi, who would become the first Muslim American federal appeals judge if he is confirmed to the 3rd Circuit.

Courthouse News Service covered the Jan. 25 letter, while NBC News and Reuters covered the Senate Judiciary Committee’s 11-10 vote Jan. 18 to advance Mangi’s nomination.

Mangi is a partner with Patterson Belknap Webb & Tyler. He is being criticized for his former service as a member of the board of advisers for the Center for Security, Race and Rights at Rutgers Law School.

The center says it addresses “the underlying structural and systemic causes of Islamophobia and xenophobia against people of Arab, African and South Asian descent,” according to Courthouse News Service.

The Republican lawmakers said in their letter the center hosted an event on the 20-year anniversary of the Sept. 11, 2001, terrorist attacks that featured a speaker who blamed the attack on the United States and its support for Israel. That speaker supported a terrorist organization that was involved in the Hamas attacks on Israel on Oct. 7, 2023, the letter said.

The letter also said while Mangi was a board member, the center “supported efforts to delegitimize the state of Israel by pushing for the boycott, divestment and sanction movement and calling for resistance in
Palestine.”

Mangi said at his confirmation hearing he met with other advisory board members just once per year, and he “unequivocally would condemn terrorism or people associated with it.”

Courthouse News Service published a statement by a White House spokesperson who said the attacks on Mangi are “vile, unconscionable smears” that have been discredited by groups that include the Anti-Defamation League and the American Jewish Committee.