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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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With federal courts across the country contending with mounting caseloads, Judge Timothy M. Tymkovich, of the U.S. Court of Appeals for the Tenth Circuit, urged Congress today to create new district and court of appeals judgeships to meet growing workload demands.

A hearing on “Justice Delayed: The Crisis of Undermanned Federal Courts” was held by the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet. Tymkovich testified on behalf of the Judicial Conference (pdf), the federal Judiciary’s national policy-making body. He previously served as chair of the Conference’s Committee on Judicial Resources, which is responsible for evaluating judgeship needs.

“Substantial delays chip away at the public’s respect for the Judiciary and erode public confidence in the judicial process and the timely administration of justice,” Tymkovich wrote in his prepared testimony (pdf). “The problem is so severe that potential litigants may be avoiding federal court altogether, not having the resources or time to wait for their case to be heard or resolved. One cannot imagine the situation will improve on its own, without additional judges.”

District court filings have grown by 30 percent since 1990, when the last comprehensive judgeship bill was enacted. Since 1991, the overall number of authorized district court judgeships increased by only four percent.  

Burgeoning caseloads can lead to significant case delays. Delays result in increased costs for litigants and raise access to justice concerns, especially in civil cases that may take years to get to trial. Over the past 20 years, the number of civil cases pending more than three years rose 346 percent, from 18,280 on March 31, 2004, to 81,617 on March 31, 2024.

In 2023, the Judicial Conference recommended to Congress adding two judgeships to the courts of appeals and 66 judgeships to the district courts. In addition, the Conference recommended converting seven temporary district court judgeships to permanent judgeships and extending two temporary district court judgeships for an additional five years.

In developing judgeship recommendations, the Conference and its Committee on Judicial Resources use a formal survey process to study and evaluate Article III judgeship needs. Before a judgeship recommendation is transmitted to Congress, it undergoes several levels of careful consideration and review. The surveys are conducted every two years and the resulting recommendations are based on established criteria, including current workload factors and empirical standards.

Weighted filings data for each district court are published in Federal Court Management Statistics.

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Judiciary

Could courts run out of options if federal officials defy court orders?

By Debra Cassens Weiss

February 20, 2025, 2:56 pm CST

The question was considered during President Donald Trump’s first term in office: What would happen if his administration ignored a court order? Now, news articles are considering the issue once again, and commentators are using the term “constitutional crisis” to describe worst-case scenarios.

One federal judge in Rhode Island already ruled Feb. 10 that the Trump administration partly failed to comply with a temporary restraining order to lift a freeze on some federal funds.

Then on Feb. 19, plaintiffs in another case sought to hold several administration officials in contempt for alleged “brazen defiance” of a Washington, D.C., federal judge’s TRO requiring continued funding of many foreign-aid programs.

How can courts respond? Among those considering the enforcement issue are Trevor W. Morrison and Richard H. Pildes, professors at the New York University School of Law, in a guest essay for the New York Times, Bloomberg Law, NPR and the Brennan Center for Justice at the NYU School of Law.

Court orders are usually directed at subordinate officials, rather than a president. If the officials don’t comply, “the courts would be likely to issue further orders, with increasingly strict and specific requirements, such as a due date,” according to the guest essay.

Then there are these additional options, according to the articles:

  • Sanction the lawyers. Courts can sanction lawyers who help clients deliberately defy a court order, who file court documents for an improper purpose or who make misrepresentations to a court.

  • Order government officials to answer questions in depositions.

  • Hold administration officials in civil contempt of court. The officials and their agencies could be fined daily until they comply with a court order. Judges could also impose sanctions affecting the underlying litigation. And courts could require imprisonment until an order is followed. The problem is that the U.S. Marshals Service would likely be responsible for imprisoning the official—and the service is overseen by the Department of Justice, which could order noncompliance.

  • Hold officials in criminal contempt and refer the issue to a U.S. attorney for prosecution. Trump could direct the federal prosecutor to drop the case, however. If a judge was to instead appoint private counsel to prosecute, Trump could issue a pardon after a conviction.

“Executive branch defiance of the courts is not a simple, one-time-only decision,” Morrison and Pildes wrote in the New York Times guest essay.

Continued defiance could mean expanding the circle of federal officials who violate the law, including U.S. marshals. The confrontation could eventually reach the U.S. Supreme Court.

“For an official to stand in continued, open defiance of a court order, he might have to defy the entire judicial system,” Morrison and Pildes wrote. “At that point, there is no question we would be in a constitutional crisis, and the courts could well run out of options.”

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Judiciary

Americans’ confidence in courts hits all-time low; did Trump cases have bipartisan impact?

By Debra Cassens Weiss

December 18, 2024, 10:25 am CST

Americans’ confidence in the courts hit an all-time low of 35% in 2024, a decrease of 24 percentage points in four years, according to a Gallup poll released Tuesday.

Confidence declined among those who disapproved of President Joe Biden’s leadership, as well as among those who approved, according to an online Gallup summary. The poll did not ask about political party.

The Associated Press covered the findings.

“The results come after a tumultuous period that included the overturning of the nationwide right to abortion, the indictment of former President Donald Trump and the subsequent withdrawal of federal charges, and his attacks on the integrity of the judicial system,” the article says.

The only indictment that led to a conviction had alleged that Trump falsified business records to pay hush money to adult film actress Stormy Daniels in a bid to bolster his election in 2016.

Confidence in courts among those disapproving of Biden’s leadership declined from 46% in 2021 to 29% in 2024. Among those who approved of Biden’s leadership, confidence remained steady at 62% between 2021 and 2023, before decreasing to 44% this year.

The legal cases against Trump likely affected the confidence of both sets of respondents, Gallup said. Those who dislike Biden may have been dissatisfied with the cases against Trump. Those who like Biden many have been dissatisfied with court decisions favoring Trump.

Only nine nations had greater decreases in confidence in the courts over the same four-year period, the New York Times points out. They were Myanmar, Venezuela, Croatia, South Africa, Syria, Hong Kong, Morocco, the Democratic Republic of the Congo and Uzbekistan.

Lydia Saad, the director of U.S. social research at Gallup, told the New York Times that the results represent “a striking decline” in the global context.

“These drops are typically associated with pretty significant political upheavals,” Saad said.

A separate Gallup poll asked about Americans’ trust in the federal judicial branch headed by the U.S. Supreme Court. Forty-eight percent said they had a great deal or a fair amount of confidence, according to findings released in October.

But political party made a difference. Among Republicans, 71% had a great deal or a fair amount of trust in the federal judicial branch headed by the Supreme Court. Among Democrats, only 24% had such confidence.

Gallup also asked whether respondents approved or disapproved of the job being done by the Supreme Court. Overall, 44% of Americans approved of the Supreme Court. Seventy-two percent of Republicans approved, while 15% of Democrats approved.

The Supreme Court ruled in July in Trump v. United States that presidents have absolute immunity when exercising core constitutional powers and at least presumptive immunity for acts “within the outer perimeter” of their official responsibilities.

The Supreme Court’s decision holding that there is no constitutional right to abortion, Dobbs v. Jackson Women’s Health Organization, was released in June 2022. The next month, Democratic approval of the court decreased to 13%.

“When we ask Republicans about the Supreme Court, they’re still very positive,” Saad told the New York Times. “When you don’t pin them down on the Supreme Court and talk about the courts, they’re saying the courts are misbehaving and engaging in quote-unquote lawfare.”

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Trials & Litigation

4th Circuit upholds $1M sanction for law firm that tried to ‘sabotage’ federal court’s authority

By Debra Cassens Weiss

October 29, 2024, 3:50 pm CDT

A federal judge had inherent power to impose a $1.05 million sanction against a Maryland law firm for asking state courts to order an end to U.S. district court litigation, a federal appeals court ruled last week.

The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, affirmed the sanction against Napoli Law, which was accused of breaching a contract to share attorney fees promised in a referral deal. Napoli Law had filed lawsuits in two New York state courts that sought an order for the plaintiff, the Keyes Law Firm, to dismiss the federal case.

“District courts are not powerless to act in the face of contumacious conduct so expressly designed to undercut, and even sabotage, their adjudicative authority,” the 4th Circuit said in an Oct. 24 opinion by Judge J. Harvie Wilkinson III, an appointee of former President Ronald Reagan.

Napoli Law had filed the state court suits after the district court in Maryland rejected its motion to dismiss the fee case.

“In every practical sense,” Wilkinson said, “Napoli asked a state court in New York to overrule a federal district court in Maryland. It is hard to imagine a more flagrant challenge to the district court’s authority or a more obvious spur to litigation hither and yon.”

The 4th Circuit rejected Napoli Law’s argument that federal courts only have power to sanction conduct outside the courtroom when it is in direct defiance of a court order.

“To ask a district court to foresee and expressly prohibit through court order every conceivable abuse of process is to ask it to chase its tail,” Wilkinson wrote. “Litigation is complicated enough as it is. District courts should not have to wage a sprawling, three-front war to defend their rightful role.”

Law360 and the Maryland Daily Record have coverage of the decision.

The sanction against Napoli Law followed a December 2019 verdict of more than $861,000 for the Keyes Law Firm. It also followed a previous sanction of nearly $317,000 against Napoli Law for defiance of discovery orders.

The second sanction was for the state court suits and “other bad-faith misconduct,” the appeals court said. “The full list of Napoli’s sanctioned misconduct is long and troubling. It included repeated defiance of court orders, frivolous motions, and last-minute document dumps, to name just a few examples.”

Lawyer Paul J. Napoli formed Napoli Law after the breakup of Napoli Bern Ripka Shkolnik, according to Law360. The suit by the Keyes Law Firm had claimed that the prior firm violated fee-sharing agreements for referrals of asbestos cases. The Keyes Law Firm’s suit named 17 defendants alleged to be alter egos of the original firm and lawyer Napoli, according to Law360.

Marc Bern, a former Napoli Bern name partner, settled the case and was dropped from the Keyes Law Firm suit.

In a statement to Law360, lawyer Napoli said Napoli Law and Napoli Bern are distinct entities. The appeals court disregarded the distinction and overlooked the fact that many of the underlying cases have concluded through settlement or dismissal, he said.

“Keyes consistently held the misconception that there were still tens of millions in fees outstanding, despite having already received millions, a view the jury ultimately sided with us on,” Napoli said. “In the end, it became evident that we had prevailed in the underlying case. The firm is evaluating further briefing to remedy these misconceptions.”

Louis Malick of the Keyes Law Firm told the Maryland Daily Record that the firm is pleased with the 4th Circuit’s decision.

“It sends a strong message to certain members of the profession that the sort of tactics employed in this case will not be tolerated and that district judges have ample authority to sanction misconduct,” Malick told the Maryland Daily Record in an email.

How do Canadian court systems and protocols differ from American ones? Let me count some of the ways.

1. Order in the court

I practiced in the Canadian courts for ages, and I have never seen a judge using a gavel in the courtroom. Yet there is not a caricature of a judge without a gavel in his hand. This must be an American creation.

I don’t know what the purpose of a gavel would be, in any event. The voice from the bench readily gets heard throughout. It’s not as if the courtroom is the size of Yankee Stadium. I believe the reason why the American judges have gavels is protection. They may not be Magnums, but I’ve seen these hammers, and a zealous litigant might think twice before lunging at the bench with his fingers.

2. What is a continuance?

Apparently, when American lawyers want to postpone or reschedule a hearing, they ask for a continuance. (I casually draw this conclusion after recently bingeing on Law & Order).

In Canada, we ask for an adjournment. This makes more sense to me, as you are more specifically asking the court to put the matter over—that is, to adjourn it. It also makes more sense to me because I am more familiar and comfortable with adjournment than continuance. Adjournment for me. Now let me continue.

3. Will counsel approach the bench

Also, no such creature in Canada. People watching from the body of the court might get the idea that the judge is having a private conversation with the lawyers to their respective detriment. In addition, I guess one party might have better ears than the other and thereby pick up the private conversation. He could then wink at his less-endowed opponent and all hell might break loose.

In Canadian courts, if the judge wants a private conversation with counsel, he recesses the court and says, “I want to see counsel in my chambers.” This then really gives the litigants a good reason to feel something secretive is going on behind their backs and their respective lawyers are trying to sell them out.

4. This comment will be stricken from the record

Another all-American feature. And an amusing one at that. We see a lawyer suggesting to a witness charged with attempted murder something improper and irrelevant like, “And I understand, sir, that you have an automatic firearm collection,” and after he cries “yes!” before the opposing lawyer gets a chance to object, he demands and the judge orders: “This testimony will be stricken from the record. The jury will disregard this evidence.”

I like this one the most. Here we have 12 people who are given the responsibility of determining whether a person goes free or possibly goes to jail—or worse. Yet the judge expects them to act like morons and willfully forget some of the juiciest testimony of the trial.

In Canadian courts, nothing ever gets stricken from the record. The judge may merely remind the jurors during his final charge that they should not take this evidence into account. I am sure no Canadian jury would even think of rendering their decision with this tainted evidence when asked to disregard it.

5. The king v. the people

In the United States, the prosecution side of a criminal case is apparently dealt with by the state’s inhabitants. In other words, the case will be designated something like People v. Brown or Texas v. Brown. (Once again, I casually draw this conclusion after recently bingeing on Law & Order).

In Canada, the people are replaced collectively and substituted by “the king.” The Latin designation is usually used, and so the court docket will read Rex v. Brown. Our prosecutors are even referred to as crown attorneys or simply as crowns.

South of the border, they’re district attorneys or DAs. I prefer the American system, as the Canadian one puts too much pressure on His Majesty the King. For example, if the culprit Mr. Brown decides to shoplift a tumbler of shampoo from a Walmart in Dallas, then it is the people of Texas who will prosecute him. When the knave Brown sees the docket reading The People of Texas v. Brown, he’ll no doubt get overwhelmed and think twice before committing another larceny.

All the people of Texas are certainly a massive force to face, more massive than even Walmart. But if he were to do the same thing in Edmonton, it would be Brown against the king. One-on-one. If he’s any sort of a hardened criminal, I doubt he’ll be put off by a septuagenarian gentleman across the ocean waiving his finger at him and saying, “Shame, shame.”

Furthermore, prosecuting thousands of charges a year must put a tremendous strain on the king. Imagine the busy schedule he has performing his monarchical duties, like traveling to New Guinea to watch tribal dances or attending state dinners from Ottawa to San Francisco. The last thing he needs is to get a call on his cellphone from some police officer in Edmonton asking, “Your Majesty, what do you want us to do with Mr. Brown?”

Even if Walmart might want the charges dropped, it is the king himself who is the aggrieved party, the victim so to speak. When that rogue snatched the shampoo from Walmart, little did he know His Majesty King Charles III might have to go next door to his wife, Queen Camilla, and say, “Excuse me, dear. Can I borrow your Head & Shoulders?” It would, therefore, only be fair for the loss to be spread among all the people as it is in the United States.

6. Garb

In the U.S., only the judges wear those black robes. Lawyers do not wear any specific outfit that would identify them as attorneys. In Canada, however, in the higher-court lawyers all don robes, white shirts with pointed ends and white tabs.

We also have our own entrance into the courtroom. Wearing the outfit allows us unconditionally to go through that door that says “Barristers entrance” on it. Thrilling actually. You Americans don’t know what you’re missing.

And our confrères in England also wear wigs, traditionally made of horses’ hair. The theory is that barristers still wear wigs because it represents the history of the common law, allowing for a visual separation of the law from those before it. Sounds convincing. Then again, I always thought the British were eccentric. I’d pass on that horses’ hair. I think we lawyers can still enjoy this visual separation by going through those aforementioned doors.

As I think about our respective court systems, they both have pluses and minuses. But what does bother me a bit is the burden on the shoulders of His Majesty. All I can say is, “God save the king.”

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Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue his humor writing and speaking passions. His latest book is First, Let’s Kill the Lawyer Jokes: An Attorney’s Irreverent Serious Look at the Legal Universe. Visit MarcelsHumour.com and follow him at @MarcelsHumour on X, formerly known as Twitter.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

Seeking a ruling that would find him immune from any criminal prosecution when operating under his “official duties” as president, lawyers for Donald Trump have entered their last filing before oral arguments get underway next week in front of the appeals court in Washington, D.C.

The arguments are set for Jan. 9 at the U.S. Circuit Court for the District of Columbia and the historic and hugely significant issue of Trump’s immunity will be considered by a panel of judges including Karen Henderson, Michelle Childs and Florence Pan.