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3. House committee drops information request…

Education Law

House committee drops information request about law clinics amid ‘ongoing negotiations’ with Northwestern

By Debra Cassens Weiss

April 14, 2025, 10:59 am CDT

The U.S. House of Representatives’ Committee on Education and Workforce has withdrawn its request for information on law clinics at the Northwestern University Pritzker School of Law, citing “ongoing negotiations” with the university and an intent to pursue “other means of inquiry.”

The committee withdrew the request Thursday during an emergency hearing in federal court in Chicago, a day after two law professors filed a lawsuit challenging the request.

A letter filed with the court April 10 said the withdrawal was based on the committee’s “ongoing negotiations with Northwestern University” related to alleged antisemitism, Law360 reports.

“We expect to pursue other means of inquiry in coming weeks as part of Congress’ oversight authority under the U.S. Constitution,” the April 10 letter adds.

The committee had initially sought information in a March 27 letter that expressed concern about antisemitism and funding of “left-wing advocacy with its institutional resources,” raising “significant concerns about the university’s role as a steward of taxpayer dollars.”

The suit alleged that the information request violated two clinical law professors’ First Amendment right to freedom of speech and association and their right to petition for redress of grievances. The suit also alleged retaliation for expression of First Amendment rights and violation of their clients’ Fifth Amendment and Sixth Amendment rights.

“Here, defendants threaten federal funding to Northwestern based on the viewpoints and associations of plaintiffs and their clients,” the suit said. “Defendants are leveraging funding to regulate speech on the basis of viewpoint and content.”

The committee’s request for information from Northwestern University was one of five information requests sent to colleges March 27, according to a press release announcing the committee’s retreat.

The suit plaintiffs are Sheila A. Bedi and Lynn Cohn, who work with programs operating within Northwestern University’s Bluhm Legal Clinic. Bedi is the director of the Community Justice and Civil Rights Clinic, while Cohn is a clinical law professor at the Center on Negotiation, Mediation, and Restorative Justice.

Jon Yates, a Northwestern University spokesman, previously said Bedi’s civil rights clinic represents clients across the political and legal spectrum, and cases chosen by the clinic don’t necessarily reflect the views of the school.

Yates also said the school is collaborating with the Louis D. Brandeis Center for Human Rights Under Law “to fight antisemitism.”

The case is Bedi v. U.S. House Committee on Education and Workforce.

Publications covering the dropped request, in addition to Law360, include Reuters and the Daily Northwestern.

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3. Executive orders against firms threaten rule…

Law Firms

Executive orders against firms threaten rule of law, Susman Godfrey says in suit against Trump administration

By Debra Cassens Weiss

April 14, 2025, 12:39 pm CDT

Updated: Susman Godfrey has alleged in a lawsuit filed Friday that President Donald Trump’s campaign of executive orders targeting the law firm and other well-known firms is an unconstitutional threat to the rule of law.

“The president is abusing the powers of his office to wield the might of the executive branch in retaliation against organizations and people that he dislikes. Nothing in our Constitution or laws grants a president such power,” according to the April 11 suit, filed in the U.S. District Court for the District of Columbia. “If a president can with impunity seek to destroy a law firm because of the clients it represents, then the rule of law itself is in grave danger.”

If the executive orders against Susman Godfrey and other firms are allowed to stand, future presidents will face no constraint when they retaliate against different perceived enemies, the suit says.

“Put simply, this could be any of us,” the suit says.

Law360, Reuters and Bloomberg Law are among the publications with coverage.

U.S. District Judge Loren AliKhan of Washington, D.C., granted a temporary restraining order Tuesday to block sections of the executive order denying access to government property and calling for an end to government contracts in which the firm provides services.

“The executive order is based on a personal vendetta against a particular firm,” AliKhan said during the hearing, according to a report by Reuters. “And, frankly, I think the framers of our Constitution would view it as a shocking abuse of power.”

Publications covering the ruling, in addition to Reuters, include Law.com and Law360.

Three other firms that sued over executive orders have also obtained TROs.

Susman Godfrey, a firm with 235 attorneys, describes itself as “the nation’s foremost trial firm” in the suit, Susman Godfrey v. Executive Office of the President. Susman Godfrey is represented in the suit by a legal team at Munger, Tolles & Olson headed by Donald B. Verrilli Jr., who was the U.S. solicitor general in the Obama administration and also was a former Jenner & Block partner.

The April 9 executive order targeting Susman Godfrey alleged that the firm “spearheads efforts to weaponize the American legal system and degrade the quality of American elections.” Susman Godfrey is one of the firms that filed a defamation suit against Fox News for false claims that voting machines made by Dominion Voting Systems were used to help former President Joe Biden win the 2020 election. The case settled for $787.5 million.

The executive order against Susman Godfrey seeks the suspension of security clearances issued to any of the firm’s lawyers; restricts access to government buildings for firm employees; bans the government from providing resources to Susman Godfrey, including compartmentalized information facilities; bans government hiring of Susman Godfrey employees; and calls for termination of government contracts for which Susman Godfrey has been hired to provide services, including clients’ government contracts.

Trump’s executive order “effectively seeks to create a new condition of government contracting—that contractors not work with Susman Godfrey,” the suit says.

That is an unconstitutional condition that interferes with a First Amendment right to associate and a due process right to counsel under the Fifth Amendment’s due process clause, according to the suit, which also cites other alleged constitutional violations.

Susman Godfrey is the fourth firm to sue over executive orders. The others are Wilmer Cutler Pickering Hale and Dorr, Jenner & Block, and Perkins Coie.

Firms that have reached agreements with Trump to avoid executive orders are Paul, Weiss, Rifkind, Wharton & Garrison; Milbank; Willkie Farr & Gallagher; Skadden, Arps, Slate, Meagher & Flom; Kirkland & Ellis; A&O Shearman; Simpson Thacher & Bartlett; Latham & Watkins; and Cadwalader, Wickersham & Taft.

The deals typically provide that the firms will provide pro bono services for projects mutually supported by the firms and Trump. Amounts of pro bono pledged range from $40 million to $125 million.

See also:

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

Updated April 16 at 8:45 a.m. to include information on the temporary restraining order.

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3. Supreme Court will consider scope of Sixth…

U.S. Supreme Court

Supreme Court will consider scope of Sixth Amendment right to counsel during trial recess

By Debra Cassens Weiss

April 15, 2025, 2:37 pm CDT

The U.S. Supreme Court has agreed to decide whether a criminal defendant’s Sixth Amendment right to counsel was violated when a judge banned him from discussing his ongoing testimony when meeting with his lawyers during an overnight trial recess.

The Supreme Court agreed to hear the case of David Asa Villarreal on April 7, report SCOTUSblog, Law360 and Law.com.

Villarreal was the only defense witness at his trial for fatally stabbing his boyfriend Aaron Estrada, according to prior coverage by SCOTUSblog. He was convicted of murder and sentenced to 60 years in prison.

Two prior Supreme Court decisions have led to a lower-court split on whether defendants have a Sixth Amendment right to talk to their lawyers about their testimony when it is interrupted by an overnight break, according to the cert petition and a brief opposing cert filed by prosecutors in Texas.

In Geders v. United States, a decision in 1976, the Supreme Court ruled that a defendant’s Sixth Amendment rights are violated when a judge prohibits the defendant from conferring with their lawyer during an overnight break.

In 1989, the Supreme Court ruled in Perry v. Leeke that a defendant’s Sixth Amendment rights are not violated by a ban on consulting with their lawyer during a 15-minute recess between direct and cross-examination.

Six federal appeals courts and three state supreme courts have held that defendants have a right to confer with a lawyer about testimony during an overnight recess, according to the cert petition. The top state supreme courts or criminal courts in four other states—including Texas, in a ruling against Villarreal—have reached the opposite conclusion, according to the cert petition.

The case is Villarreal v. Texas.

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3. Judge finds probable cause to hold US in…

Constitutional Law

Judge finds probable cause to hold US in contempt; is Trump administration ‘at the cusp of outright defiance’?

By Debra Cassens Weiss

April 16, 2025, 3:53 pm CDT

A federal judge who banned the Trump administration from removing Venezuelan immigrants from the United States ruled Wednesday that there is probable cause to find the government in criminal contempt for willfully disobeying his directive.

The federal government transferred the deportees to a prison in El Salvador in Central America hours after he issued an injunction, the judge said, and officials’ boasts implied that it was done “deliberately and gleefully.”

Chief U.S. District Judge James E. Boasberg of the District of Columbia said he would give the Trump administration a chance to purge itself of contempt, and if the government doesn’t act, he would identify the people responsible for noncompliance. The final step would be a contempt prosecution, possibly by an appointed prosecutor.

CNN, the Washington Post, Law360 and the New York Times are among the publications with coverage of Boasberg’s April 16 order.

Boasberg ruled a day after U.S. District Judge Paula Xinis of Maryland ordered the administration to provide answers about why it apparently failed to “facilitate” the release of an immigrant mistakenly sent to the El Salvadoran prison, as ordered by the U.S. Supreme Court on April 10.

The government’s clashes with Boasberg and Xinis have led to the government’s arrival “at the cusp of outright defiance,” the New York Times reports in a separate article. Other examples of the administration’s defiant stance include its freezing of funds that have been ordered released and its refusal to allow the Associated Press to participate in the press pool, despite a federal judge’s decision requiring access.

Elora Mukherjee, a professor at Columbia Law School, told Courthouse News Service that the executive branch “is intent on pushing the bounds of its authority as far as possible and now beyond the breaking point of our constitutional democracy.”

In the case before Xinis, the government has argued that facilitating the return of the immigrant, Kilmar Armando Abrego Garcia, means only that it must “remove any domestic obstacles that would otherwise impede the alien’s ability to return here.”

The government argument “does not pass the laugh test,” Michael Dorf, a professor at Cornell Law SchooL, told the New York Times.

The New York Times concludes that defiance may not be in the form of an outright refusal to follow a judge’s order.

“It may be an appearance by a hapless lawyer who has or claims to have no information. Or it may be a legal argument so outlandish as to amount to insolence,” the article says.

Boasberg initiated contempt proceedings, even though the Supreme Court ruled April 7 that the case had been filed in the wrong venue. The Supreme Court said the immigrants could only challenge their deportation under the Alien Enemies Act of 1798 through a habeas action, which must be brought in the district in which they are confined.

Boasberg said the Supreme Court decision, which lifted his temporary restraining order preventing the deportations, “does not excuse the government’s violation.”

Every judicial order must be obeyed until it is reversed, he said.

“If a party chooses to disobey the order—rather than wait for it to be reversed through the judicial process—such disobedience is punishable as contempt, notwithstanding any later-revealed deficiencies in the order,” Boasberg wrote.

Boasberg said the government could purge itself of contempt by giving the deportees sent to El Salvador a chance to challenge their removal in a habeas proceeding by asserting custody over them. The government would not have to release people or bring them back to assert custody.

If the government does not purge itself of contempt, Boasberg will require declarations and possibly testimony, he said. The next step, if needed, would be to seek a contempt prosecution by the Department of Justice, and, if that is declined, to appoint another prosecutor.

The Trump administration planned to seek “immediate appellate relief” from Boasberg’s ruling, according to the New York Times.

The case is J.G.G. v. Trump.

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3. Can Trump serve third term? Yale Law prof…

Constitutional Law

Can Trump serve third term? Yale Law prof sees ‘possible loophole’ to 22nd Amendment ban

By Debra Cassens Weiss

April 3, 2025, 3:01 pm CDT

Can President Donald Trump serve a third term? The 22nd Amendment appears to prevent it. “No person shall be elected to the office of the president more than twice,” it reads. But could a president serve a third term if he isn’t “elected” to the office?

The use of the word “elected,” rather than “serve,” is “an unfortunate drafting error,” in the view of Michael C. Dorf, a professor at Cornell Law School, who spoke with the Washington Post.

The Wall Street Journal (gift link via How Appealing), the Washington Post and the New York Times have coverage of the constitutional questions.

The issue is getting attention since Trump told NBC News that “there are methods” by which he could serve a third term, and he wasn’t joking.

NBC News asked Trump about a scenario in which Vice President JD Vance would run for president and then hand the office of president to Trump.

“That’s one” method, Trump responded.

But Trump could not be Vance’s vice president, according to many experts who spoke with the Wall Street Journal and the New York Times. That’s because of the 12th Amendment, which says, “No person constitutionally ineligible to the office of president shall be eligible to that of vice president of the United States.”

Because Trump wouldn’t be eligible to be president, he wouldn’t be eligible to be vice president under the 12th Amendment, said Akhil Reed Amar, a constitutional law professor at Yale Law School.

Taking a contrary view are the authors of an article in the Minnesota Law Review written when former President Bill Clinton was president. The article argues that the 12th Amendment might not bar a two-term president from the vice presidency because “it is by no means clear that the term ‘eligibility’ as used in the 12th Amendment refers to or incorporates a person’s reeligibility under the 22nd Amendment” that followed.

The 12th Amendment eligibility provision was likely referring to constitutional requirements for the presidency based on citizenship, residency and age, according to the article co-authored by Bruce G. Peabody, a government and politics professor at Fairleigh Dickinson University. The ambiguities might allow a vice presidential run by a two-term president, he told the Wall Street Journal.

There is another possible scenario. What if Vance is elected president, he appoints Trump as the secretary of state, Vance and his vice president resign, and others in the line of succession before the secretary of state step aside?

That could work if Congress changes the federal presidential succession law to eliminate the ban on cabinet officials becoming president if they are ineligible for the job, according to Amar.

“There is a possible loophole. I wish it weren’t true, but there is,” Amar told the Wall Street Journal.

But some experts said there should be no debate on the issue.

The history of the 22nd Amendment’s drafting and ratification “make clear beyond doubt it was written that way to guard against the danger that anyone could use the office to assert long-term tyrannical control in the United States,” said Deborah Pearlstein, a professor at Princeton University, in an email to the Washington Post.

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3. Climate change case that ‘ignited a movement’…

U.S. Supreme Court

Climate change case that ‘ignited a movement’ ends with Supreme Court’s cert denial

By Debra Cassens Weiss

March 25, 2025, 2:01 pm CDT

The U.S. Supreme Court on Monday refused to revive a climate change lawsuit filed on behalf of 21 youths who contended that the government is a trustee of the environment and has a duty to preserve it.

The Supreme Court denied cert in Juliana v. United States, report Law360, Reuters, the New York Times, the Oregon Capital Chronicle and E&E News by Politico.

The 9th U.S. Circuit Court of Appeals at San Francisco had tossed the case in a 2020 opinion that said the issue should be taken to the political branches of government, rather than the courts. In May, the appeals court said a revised suit had not cured standing issues that prevented courts from deciding the case.

The name plaintiff in the suit, filed in 2015, is Kelsey Cascadia Rose Juliana, who is now 29 years old and a teacher in Oregon, according to the New York Times.

The U.S. Department of Justice said in a March 24 press release it has defended the case across three presidential administrations.

“The U.S. Supreme Court’s cert denial brings this long saga to a conclusion,” said Acting Assistant Attorney General Adam Gustafson of the DOJ’s Environment and Natural Resources Division, in the press release.

The case was filed on behalf of the children by the nonprofit group Our Children’s Trust. Julia Olson, the group’s chief legal counsel, said in a March 24 statement the suit’s impact “cannot be measured by the finality of this case alone.”

“Juliana has ignited a movement and created a powerful legal framework for future generations to assert their constitutional rights in the face of the climate crisis,” she said.

In one success for the group in late 2024, the Montana Supreme Court struck down a state law banning consideration of greenhouse gas emissions in fossil-fuel-permitting decisions. The state supreme court cited a state constitutional provision that guarantees a “clean and healthful environment.” The case was Held v. Montana.

In a second case in 2024, Hawaii agreed to cut emissions of carbon dioxide in its transportation system in a settlement with Our Children’s Trust.

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3. This Harvard Law prof thinks constitutional…

The Modern Law Library

This Harvard Law prof thinks constitutional theory is a terrible way to pick a judge

By Lee Rawles

March 5, 2025, 9:04 am CST

What if we are asking the wrong questions when selecting American judges? Mark Tushnet thinks our current criteria might be off.

“We should look for judges who are likely to display good judgment in their rulings, … and we shouldn’t care whether they have a good theory about how to interpret the Constitution as a whole—and maybe we should worry a bit if they think they have such a theory,” the Harvard Law School professor writes in his new book, Who Am I to Judge? Judicial Craft Versus Constitutional Theory.

In looking at what qualities were shared by great U.S. Supreme Court justices, Tushnet identified five that he thinks were of especial importance:

1. Longevity and age

2. Location in political time

3. Prior experience in public life

4. NOT A JUDGE (“I put this in capital letters because it’s common today to think that justices have to have been judges,” Tushnet writes. He doesn’t see having a past judicial career as disqualifying but points out that many great justices were not sitting judges when appointed.)

5. Intellectual curiosity

In this episode of The Modern Law Library podcast, Tushnet and the ABA Journal’s Lee Rawles discuss how he thinks that people should be evaluated for judicial positions, his experience as a clerk for the late Supreme Court Justice Thurgood Marshall, what makes a well-crafted opinion, and why he thinks that any overarching theory about the Constitution will fall short.

In This Podcast:

Mark Tushnet

Mark Tushnet is a William Nelson Cromwell law professor emeritus at Harvard Law School. Tushnet, who graduated from Harvard College and Yale Law School and was a law clerk to the late U.S. Supreme Court Justice Thurgood Marshall, specializes in constitutional law and theory, including comparative constitutional law. His research includes studies of constitutional review in the United States and around the world. He is the author of more than a dozen books, has edited eight others, and has written numerous articles on constitutional law and legal history.