Legal Law

Favourite Tales Of 2020: Corruption, Courts, And… Ahem… Jeffrey Toobin

Just a few days left before 2020 is over and one hopes that 2021 will promise better days ahead! On the other hand, I just learned the phrase “super gonorrhea” so maybe not.

Normally at this time of year, we do a post reflecting on the top 10 most read Above the Law stories of the year. But since, “[INSERT FIRM HERE] COVID Layoffs” makes for a top 10 list as redundant as it is depressing, the editors decided to try something different this year. So each of us will throw together a list of our top stories of the year by whatever metric we choose.

For my list, I decided to just pick my personal favorite stories to write about, but after checking the traffic numbers on the year, it looks like my favorite stories were more or less your favorite stories too. So let’s count down the top 10 most read stories of the year from me.

10. Court Reform Is Now Inevitable: John Roberts Can Do This The Easy Way Or The Hard Way

This one may actually turn out to be “wrong,” depending on what happens in the Georgia runoffs, but it aimed to sort out just where things stand on the “court expansion” proposals that generated a lot of attention from liberal and conservative media. Indeed, the GOP inundated the airwaves in key Senate races with the idea that Democrats might “pack the Court” and it may well end up being what saves the Senate for the conservatives.

But the article discusses the role the Chief Justice could have played (and might still play) in charting the future of the Supreme Court. John Roberts could shut down the most aggressive court expansion proposals by throwing support behind the more reasonable staggered term limit proposal and place the Supreme Court on a path that preserves its overall structure while eliminating the fundamentally aristocratic and ultimately macabre life tenure system.

9. Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion

Supreme Court decisions are mostly predictable. Justice Alito getting deeply offended that anyone would suggest that Jim Crow laws were racist is a quintessentially “dog bites man” story. But Justice Neil “Not Merrick Garland” Gorsuch striking a blow for transgender rights in this summer’s Bostock opinion took a lot of folks by surprise.

But opinions are as important as the result, and where Justice Gorsuch extends basic civil rights with one hand, he reaches to hamstring the modern regulatory state with the other, casting transgender rights as a necessary detour toward gutting environmental laws and the like. The contrast between what a Justice Sotomayor-penned majority opinion would say and this one was stark. It also got me a shout out on the Majority Report so that was cool.

8. Federal Judges Releasing Music Video About COVID Is Officially The Last Thing You Expected From 2020

Just because 2020 was a nightmare, it didn’t mean there weren’t some bright spots. Like this Hamilton-inspired performance from Judge Jennifer Walker Elrod of the Fifth Circuit Court of Appeals and Judge Charles Eskridge of the Southern District of Texas. The pair addressed the court system’s experience dealing with COVID with wit and a terrific performance.

Now I’ve got that song stuck in my head again.

7. St. Louis Lawyers Wave AR-15 At Protesters Like Totally Normal, Totally Not Bonkers People

Mark and Patricia McCloskey found their 15 minutes of fame and it was wild. The pair busted out their weapons to wave at passing protestors and became a national sensation. They claimed the march up their street was threatening their home — despite the fact that none of their neighbors seemed to experience any issues — and turned what could have been an embarrassing meme-worthy evening into a grievance parade that culminated in a GOP convention speech.

This story was always going to make my list though because it gave rise to a torrent of adorable hate mail!

6. Donald Trump Didn’t Disband Pandemic Team, He Did Far Worse

When the COVID response careened out of control, liberals embraced the talking point that Donald Trump had disbanded the White House pandemic response team, rendering the ongoing calamity inevitable. Republicans replied that the team was never disbanded… look, it’s right here!

In an article that has very little to do with the legal industry and a lot more to do with basic critical reading skills, I dug into Tim Morrison’s Washington Post editorial defending the White House response, explaining why disbanding the team might have been better for the country than what they really did.

5. Attention Donald Trump: If You Put Amy Coney Barrett On The Supreme Court, Republicans Will Turn On You Fast

When Mitch McConnell admitted that Joe Biden won the election and Donald Trump lambasted him over Twitter, it confirmed pretty much everything I’d spelled out in this article. There are Trumpist true-believers still out there ready to pretend that Dominion voting machines run by a Zombie Hugo Chavez are behind everything, but by and large the Republican Party infrastructure is comfortable moving on having gotten everything they could have wanted out of the gold-plated dimwit they’d installed. After packing the judiciary with “Not-Qualified” judges  — a product of trashing Constitutional norms and keeping vacancies open long enough to create judicial emergencies in the Obama-era — fate gifted Mitch McConnell an opportunity to solidify a far-right Supreme Court and he promptly washed his hands of the president.

Trump’s only smart play was to announce his intention to nominate Amy Coney Barrett but make it entirely contingent on the GOP fighting for him. If they sucked it up and stuck with him, they’d get their real desire. If he failed, he could deny them out of spite.

The only thing I didn’t predict in this article is how much worse off the country would be right now if Trump was able to use the prospect of this Supreme Court nomination to get McConnell to go along with the various coup plots Newsmax and OAN entertain daily. Maybe it’s a good thing that while hundreds of thousands of you read this article, Donald Trump did not.

4. New York Times Spews A Lot Of Hot Garbage About Jeffrey Toobin

The New York Times ventured into the time-honored tradition of immediately trying to rehabilitate notable media figures for getting caught with their pants down. Or in this case, their dick out… during a work meeting. Their attempt to raise Jeffrey Toobin from Wankgate was so clumsily conceived that it deserves a journalism school case study.

To wit:

But masturbation at a remotely conducted work meeting was a new order of business.

As I respond, “To be clear, masturbating at a work meeting will always be a “new order of business” because most employers don’t provide the opportunity for a repeat performance.”

A thoroughly enjoyable piece to write and one that really resonated with readers. I think I received more complimentary emails from this article than any other all year.

3. WOW!!! Davis Polk Raises The Bar On Bonuses

This wasn’t a great year for the legal industry, but it wasn’t ultimately a bad one for some of the most elite firms out there. After Cooley opened the door to offering associates a little something extra for their hard work under unprecedented circumstances, Davis Polk went over the top and convinced a lot of the top firms to follow suit.

That said, we shouldn’t let the fact that many firms had a reasonably good year financially overshadow the fact that many others laid off associates and staff. It was a roller coaster of a year for the industry and those of us covering it all have celebrated both the highs and the lows.

2. Judge Gleeson Comes Right Out And Calls Bill Barr Corrupt

Representative line:

It’s hard to believe there was a time when Bill Barr was one of the staunchest of Donald Trump’s loyalists. It’s harder to believe that this time was as recent as a few weeks ago. But way back before the election, Barr was tossing the good name of the Department of Justice in the mud to help out Trump’s other cronies.

Nowhere was this more evident than in the effort to get Michael Flynn out of admitting — twice! — to committing federal crimes. Barr tried to get the case dropped even though it had already ended and was just awaiting sentencing. When former federal judge John Gleeson was brought in to independently assess whether or not Judge Sullivan should grant the unusual request, he compiled a report that pulled very few punches:

In other words, the rule empowers courts to protect the integrity of their own proceedings from prosecutors who undertake corrupt, politically motivated dismissals. That is what has happened here.


But after all that trouble and Neomi Rao writing one of the most comically ludicrous legal opinions in American history to bail Barr out, Michael Flynn has received a presidential pardon anyway. And all it took was his lawyer fanning Trump’s delusions about voter fraud.

Everything’s going great here!

1. Bill Barr Did WHAT? How Is This Not The Biggest Story In The Country Right Now?

But before Bill Barr was helping Donald Trump, he was helping his clients. And unfortunately, it appears that he might have been doing the latter even after he moved on to the former. Reuters initially reported that Barr’s client, facing a $2.3B tax inquiry” found their charges mysteriously dropped one week after Barr got nominated for the AG job.

What a coinkydink!

There was a lot to say about Bill Barr’s debasing of the Justice Department this year, but this one more or less slipped under the radar. I thought this deserved to be a bigger story than it was, and thanks to you all, I guess it did.

Thanks for spending your 2020 with us!

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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