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Judicial Notice (09.07.26): Split Decisions
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The New York office of Skadden, at One Manhattan West (photo by David Lat).This week’s Judicial Notice is sponsored by
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I hope you had a fun and relaxing Labor Day weekend. Zach and I took our kids down to the Jersey Shore—specifically, Wildwood (don’t judge). It’s not the most upscale vacation destination. But our boys, ages 8 and 3, had a great time—and, to be honest, so did we.
Now, on to the news—which was busier than one might expect (or want) going into Labor Day weekend, so let’s get to it.
Lawyer of the Week: Kevin Reddington.
On January 24, 2023, Lindsay Clancy, now 36, fatally strangled her three children—Cora (5), Dawson (3), and Callan (8 months)—in the basement of the family home in Duxbury, Massachusetts. Clancy then attempted suicide by cutting her wrists and neck and jumping out of a second-story window. She survived but is now paralyzed from the waist down.
Plymouth County District Attorney Timothy Cruz charged Clancy with three counts of first-degree murder, and the case went to trial—with Clancy admitting that she killed her children, but did so while suffering from severe postpartum psychosis. After a monthlong trial and almost 40 hours of deliberations over seven days, the jury deadlocked, 11-1—apparently in favor of acquittal, according to notes the jury foreperson sent to Judge William Sullivan.
The jurors remained deadlocked even after Judge Sullivan gave them a Tuey-Rodriguez charge—the Massachusetts version of an Allen or “dynamite” charge, urging them to continue deliberating and to “consider that it is desirable that the case be decided.” And so last Friday, with a hung jury, Judge Sullivan had no choice but to declare a mistrial in Commonwealth of Massachusetts v. Clancy.
I analyze the case in greater detail below, as Litigation of the Week. For now, I’ll briefly discuss Clancy’s lawyer, Kevin Reddington—the subject of extensive media coverage and water-cooler discussion, and as such, the latest Lawyer of the Week. (Recall that Lawyer of the Week and my other Judicial Notice “awards” are based on who or what is most talked-about or in the news, not my personal opinions.)
Reddington, 75, “has spent 50 years litigating high-profile cases—arguing in many that his clients’ alleged crimes were the extreme result of mental illness,” per The New York Post. In 1989, for example, he won an acquittal for Therese Rogers, who was accused of killing her boyfriend, by arguing that she suffered from delusions and PTSD as a result of battered woman syndrome.
In the Clancy trial, Reddington passionately defended his client. He acknowledged the horrific tragedy before the jury, but argued that Clancy—a former labor and delivery nurse who desperately, but unsuccessfully, sought medical treatment for her postpartum psychosis—should not be held criminally liable for her actions. In doing so, Reddington “won the admiration of many women around the country who became engrossed in the trial and saw him as calling out a health care system that they believe failed her”—and in the process “became a hero” to Clancy’s supporters, in the words of The New York Times (gift link—I now have unlimited gift links to both The Times and The Wall Street Journal, so all NYT and WSJ links are gift links).
When the jury informed Judge Sullivan that they were deadlocked because one juror was refusing to follow the judge’s instructions as to reasonable doubt, Reddington moved to have the holdout juror removed. But Judge Sullivan denied the motion, Reddington’s emergency appeal of that ruling to the Massachusetts Supreme Judicial Court failed, and the case ended in a mistrial.
According to The Times, “for now, the mistrial must be considered a victory” for Reddington—because it “allows his client to return, for the time being at least, to a state-run psychiatric hospital rather than a prison cell.” And legal experts interviewed by The Times opined that Reddington “had masterfully pulled off an astonishingly difficult courtroom assignment, amid the most macabre of circumstances.”
Of course, the case has been extremely polarizing, and Reddington has his detractors. For example, Howie Carr of the Boston Herald wrote that Reddington acted “appallingly” in trying to have the holdout juror removed and in giving post-trial remarks to the press in which he “spew[ed] venom and contempt” at the prosecutors.
What comes next? DA Tim Cruz said he hasn’t reached a decision about whether to try Clancy again. Lindsay’s ex-husband Patrick, who had to testify at trial, appears to oppose a retrial, describing “[t]he prospect of reliving this tragedy through another trial” as “extraordinarily painful.” But Cruz, who declared that prosecuting Lindsay Clancy was “about getting justice for those three little babies,” might press on.
An 11-1 split for acquittal would seem to bode well for Clancy’s prospects at a retrial. It also raises the possibility of Clancy pleading guilty to lesser charges, like second-degree murder or manslaughter. And if you’re thinking—as I initially did—that it’s only a matter of time before Clancy gets convicted, you should be aware of how she benefits from certain unusual features of Massachusetts law (discussed below).
If Lindsay Clancy gets put on trial again, this much is clear: Kevin Reddington stands ready to defend her. As he told the media, “I don’t want a mistrial. Why would I want a mistrial? I kicked the s**t out of their case.”
Other lawyers in the news:
Speaking of attorneys tasked with navigating difficult situations, U.S. Solicitor General John Sauer, 51, has spent the past 16 months trying to maintain his credibility before the Supreme Court while not ticking off Donald Trump—and so far, Sauer “has largely appeared to pull off a tricky balancing act,” according to Amy Howe of SCOTUSblog.
Speaking of top Justice Department officials, Assistant Attorney General for Civil Rights Harmeet Dhillon, 57, was profiled by Glenn Thrush and Michael Bender of The Times. As I did with the recent NYT profile of White House Counsel Will Scharf, I asked my trusty AI assistants to rate the positivity of the Dhillon profile, on a scale of 1 to 10; ChatGPT gave it a 3.5/10, while Claude rated it a 2/10.
When Todd Blanche was promoted from deputy attorney general to attorney general, Trent McCotter was bumped up from principal associate deputy attorney general to acting deputy attorney general. Who replaced McCotter in the position known as “PADAG”? That would be Aakash Singh, 34, per Bloomberg Law’s Ben Penn—who described Singh as “an aide responsible for the aggressive overhaul of US attorneys’ offices to meet Trump priorities.”
Some lawyers are moving up at DOJ, and some are moving out—like Yaakov Roth, who stepped down as head of the Civil Division after a year and a half and returned to the D.C. office of Jones Day.
Roth left voluntarily. Elizabeth “Liz” Oyer was fired as U.S. pardon attorney—and last Thursday, she sued DOJ over her termination. In a statement to Reuters, she said, “If career officials like me can be fired for refusing to bend the rules to serve the president’s friends, then the message to every public servant is clear: loyalty to a politician matters more than loyalty to the Constitution.”
The Florida Bar declined to investigate an ethics complaint filed by 128 former judges against James Percival, general counsel of the Department of Homeland Security, based on Percival’s critical tweeting about four judges who ruled against DHS. In his letter announcing the decision, bar counsel Christopher Stephen Wackes explained that “[t]he Florida Bar does not investigate or prosecute sitting officers appointed under the U.S. Constitution while they are in office” (but the complaint can be refiled after Percival has left office).
In memoriam:
Prominent plaintiffs’ lawyer Joseph Rice—co-founder of Motley Rice, a major player in the mass-torts space—passed away at 72.
Peter Barton Hutt—a longtime partner at Covington & Burling and leading figure in the food and drug bar, who served as chief counsel of the Food and Drug Administration from 1971 to 1975—passed away at 91.
Erin Piacenti, a graduate of Fordham Law and former associate at Davis Polk, passed away at 32. She had just returned from parental leave, after giving birth to a daughter, and was commuting home from her job as a vice president at Bank of America when she was killed in a knife attack by a mentally ill woman (who was then fatally shot by NYPD officers).
May they rest in peace.
Judge of the Week: Chief Justice John Roberts.
Last Monday, the U.S. Supreme Court granted the Trump administration’s request to allow construction on the White House ballroom to continue. I wasn’t surprised by the bottom line, which I had predicted: “a narrow win for the administration, holding that the plaintiff, the National Trust for Historic Preservation, lacks standing.”
As stated in the Court’s eight-page, per curiam opinion in National Park Service v. National Trust for Historic Preservation, “Today, we do not pass upon the legality of the government’s East Wing project. We conclude only that, based on the submissions before us, the government is likely to prevail in showing that the Trust lacks Article III standing to challenge the project in federal court.”
When I predicted a “narrow” win, I was referring to the scope of the reasoning—expecting that the Court would rule based solely on standing, not touching the merits. I wasn’t thinking of narrowness in terms of the vote margin, but that was narrow too: 5-4, with Chief Justice John Roberts joining the three liberal justices in dissent.
And not only that, but Chief Justice Roberts wrote the six-page dissent himself. It was joined in full by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—and it was the one and only dissent, with no other justice feeling compelled to write an even more pointed dissent of her own (not even KBJ). The Chief argued that the ballroom project “is likely unlawful,” given Congress’s “plenary constitutional authority over the District of Columbia and federal property,” and based on precedents like Lujan v. Defenders of Wildlife (1992) and Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc. (2000), the National Trust has standing to sue.
The Roberts dissent was surprising for at least two reasons, as explained by Ann Marimow of The Times. First, Chief Justice Roberts rarely finds himself in the minority: since 2020, he’s been with the majority in argued, non-unanimous cases 91% of the time. Second, in the ballroom case he was arguing in favor of the plaintiff having standing—even though, per Marimow, he generally has “a reputation as a hawk when it came to the court’s gate-keeping role of deciding the procedural—but important—question of who gets to sue.”
What explains Roberts’s position here? There’s a doctrinal explanation, and a personal explanation. They’re not mutually exclusive—and might even be mutually reinforcing.
On a doctrinal level, the key issue is whether “aesthetic standing” is a thing—i.e., whether the Trust can sue over the ballroom project because one of its members, Alison Hoagland, claims that “having to view the finished ballroom the government is constructing would cause her to suffer ‘injuries’ to her ‘aesthetic, cultural, and historical interests.’” According to the majority, “This Court has not found standing in circumstances like these before. To the contrary, we have repeatedly held that mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury under Article III.”
But according to (relatively conservative) law professors like Will Baude and Jonathan Adler, that assertion isn’t entirely convincing. There’s language in opinions like Lujan and Laidlaw suggesting that yes, Virginia, there is such a thing as aesthetic standing. So while there might be a tension between aesthetic standing and “some of the Court’s stricter views of standing in other lines of doctrine,” per Baude, cases like Lujan and Laidlaw remain on the books. In light of this, one can understand why Chief Justice Roberts—of the six Republican appointees, perhaps the most institutionalist and precedent-focused—might want to respect these opinions (at least until they’re explicitly overruled, with aesthetic standing joining Roe, Chevron, and Humphrey’s Executor in the graveyard of truly dead precedents).
On a personal level, I can’t help thinking: Chief Justice Roberts has a strong personal distaste for Donald Trump, and even if he’s not consciously “voting his disgust,” it might be subconsciously coloring his doctrinal views. As Jonathan Adler put it, “Given the choice between constraining standing and constraining Trump, the Chief chose the latter.” Or as Elie Mystal wrote, “it seems pretty clear to me that Roberts himself is offended by Trump’s garish White House extensions.”
In the end, Chief Justice Roberts couldn’t get a fifth vote, even if maybe he was working hard behind the scenes (perhaps to persuade Justice Amy Coney Barrett, as Professor Josh Blackman speculated). So the Chief’s dissent remained just that—a dissent. But it’s an important reminder, to both the Trump administration and litigants who challenge its actions before the Court, that the Chief is “gettable”—even on issues where you might expect his doctrinal views to line up with the administration’s.
In other news about judges and the judiciary:
When will journalists, historians, and the American people find out about how cases like the ballroom litigation got hashed out at SCOTUS? The papers of former justices can be incredibly revealing. But after Justice Scalia died suddenly in 2016, without having made arrangements for the handling of his papers, Chief Justice Roberts “led the surviving justices in discussions about imposing a more uniform seal for their own papers,” according to Jodi Kantor of The Times. Kantor’s article, which quotes legal historians like Professors Brad Snyder and Mary Ziegler, sounds critical notes about the justices protecting their papers from public disclosure for a longer period of time. For a counterpoint, check out Sarah Isgur on Advisory Opinions—who wonders if justices will commit less to paper if they know their papers will become public soon after they leave One First Street.
Justice Samuel Alito released his 2025 financial disclosure (a few months later than his colleagues, but pursuant to an extension he requested and received). His form contains no major surprises, unless you’re surprised by the modest size of his book advance: $33,333, which I’m guessing is the first of three equal payments. (His forthcoming book, So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country, is based heavily on speeches he has previously delivered—so I understand why he didn’t get the sizable sums commanded by Justices Jackson and Barrett, who wrote memoirs.)
Judge Roy Altman (S.D. Fla.) was cleared of misconduct charges related to his bestselling book, Israel on Trial: Examining the History, the Evidence, and the Law, including his promotion of the book and his commentary on the Israel-Palestine conduct more generally. For the details, see Bloomberg Law and Chief Judge William “Bill” Pryor’s order dismissing the complaint (which contains both a detailed description of the allegations and Judge Altman’s responses).
Some of you might recall conservative criticism of the Federal Judicial Center’s fourth edition of its Reference Manual on Scientific Evidence—specifically, its chapter on climate change, which was removed from the Manual in the wake of the controversy. For an explanation of how the chapter was put together and a defense of the accuracy of its discussion of climate change, see the latest essay in The New York Review of Books by Judge Jed Rakoff (S.D.N.Y.), And Yet It Warms. According to Judge Rakoff, “The result [of the chapter removal] is that neither judges nor the public has access to a detailed chapter on climate science that was developed over two years in accordance with multiple checks and balances and whose scientific validity is not at issue.”
In memoriam: Judge N. Sanders Sauls—who served on Florida’s 2nd Judicial Circuit for more than 20 years, most famously ruling against Al Gore’s request for a manual recount of disputed ballots in the 2000 presidential election—passed away at 84. May he rest in peace.
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