The court battle between the Trump administration and four corporate law firms, including Houston-based Susman Godfrey, is being argued Thursday at the U.S. Court of Appeals for the D.C. Circuit.
While many legal scholars agree that the likelihood of winning the appeal decisively favors the law firms — the three-judge panel hearing the appeal includes two appointees of former President Barack Obama and one judge appointed by President Donald Trump — the focus will be on appellate Judge Neomi Rao, a conservative jurist, former clerk to Supreme Court Justice Clarence Thomas and champion of the Federalist Society.
No matter which side wins at the D.C. Court of Appeals, most legal experts predict the dispute will almost certainly be decided by the U.S. Supreme Court.
That is why all eyes Thursday will be on Judge Rao.
The rest of the players — the other two judges and the Justice Department lawyer — are almost a side show.
If Judge Rao rules in favor of the law firms and against the Trump administration, legal scholars believe any efforts by the federal government to get the Supreme Court to reverse will be a long shot.
And there is a recent decision written by Judge Rao that gives the law firms hope.
The debate over President Trump’s executive orders, which declare that the law firms are threats to national security and try to ban them from representing clients doing business with the federal government, has created a split among conservatives in the legal community.
There are pro-Trump legal advocates who support strong — almost absolute — presidential power to determine national security threats, even if it means diminishment of the constitutional rights of those affected.
Another band of conservative legal thinkers, led by conservative stalwart and Federalist Society hero Paul Clement, argues that the executive orders far exceed the president’s authority, violate the rights of the lawyers and their clients and were issued simply out of vindictiveness because the firms represented clients and causes that opposed President Trump.
In oral arguments at the federal district court and in briefs to the appellate courts, Clement argues that President Trump’s executive orders are “viewpoint discrimination,” which violates the First Amendment rights of the lawyers and firms that the Trump administration has targeted.
Take a guess on who wrote a majority opinion in 2023 striking down governmental action based on viewpoint discrimination.
Judge Rao ruled in Frederick Douglass Foundation v. District of Columbia that the First Amendment prohibits governmental action based on political viewpoint discrimination.
The foundation sued after two of its members were arrested for writing antiabortion comments on a public sidewalk in chalk. Lawyers for the foundation argued that D.C. officials routinely ignored similar actions by other groups.
“The government may not enforce the laws in a manner that picks winners and losers in public debates,” Judge Rao wrote. “It would undermine the First Amendment’s protections for free speech if the government could enact a content-neutral law and then discriminate against disfavored viewpoints under the cover of prosecutorial discretion. Neutral regulations may reasonably limit the time, place, and manner of speech, but such regulations cannot be enforced based on the content or viewpoint of speech.”
Legal scholars say that WilmerHale was strategically brilliant in selecting Clement, who clerked for former Supreme Court Justice Antonin Scalia and then served as solicitor general for President George W. Bush, because of his influence within the conservative legal community.
In the district court arguments, Clement also countered the Trump administration’s claims that the firms were threats to national security. He pointed out that the president made similar claims in executive orders against other corporate law firms but then dropped the executive orders when the firms agreed to provide $100 million in free legal services to causes supported by the president.
Clement noted that the firms that settled made no changes other than agreeing to what some have called a financial shakedown, thus proving that there were no actual national security concerns.
Hearing such arguments from Clement — rather than lawyers for the ACLU, for example — will carry more weight with Judge Rao, legal experts say.
Because Judge Rao is so closely aligned in thinking with the conservatives on the Supreme Court, legal scholars say the Justice Department desperately needs to convince her to write a dissent in order for it to have a chance of eventually winning the dispute at the U.S. Supreme Court.
If Judge Rao sides with the two more liberal D.C. appellate judges — Sri Srinivasan and Cornelia Pillard — in favor of the law firms, then they say it is game over.
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