When I was a student at Boston University School of Law, I won the school’s moot court competition with my classmate-turned-lifelong friend Nicole Cooper. In the finals, we argued before a panel of judges that included now-retired Supreme Court justice David Souter.
In the weeks leading up to that pivotal moment, I’d recognized a weakness in the argument I was assigned to make. I decided that if I were pressed on that point, I’d concede it and pivot to the more muscular parts of my case.
Sure enough, Souter homed right in on that thinnest part of my case during oral argument. And as I’d planned, I let it go, opting instead to focus on the strongest.
When Souter pronounced Nicole and me the winners, he also said my pivot earned me the title of best oral advocate of the competition.
I don’t bring this up to brag but to point out an important lesson: Sometimes in legal practice, swinging for the fences on everything isn’t a winning strategy. It can be better to focus on the pitches you know you can hit.
That may be a lesson learned the hard way by a career civil servant who is admirably and righteously fighting back after being fired by President Trump in a way that flouts federal law. The case of Hampton Dellinger, who served as a federal ethics watchdog overseeing whistleblower complaints, officially landed on the steps of the Supreme Court this week. If that seems fast — it is. And that’s one reason why he may not emerge as victorious as Nicole and I did.
First the law: As head of the Office of Special Counsel (not to be confused with Jack Smith’s old job, which is completely separate despite the similar name) Dellinger was Senate-confirmed last year to a five-year term. The length of the special counsel’s tenure was, in part, to ensure the independence of the office by making it last beyond a single presidential term.
The federal law that created the post stipulates that special counsels can only be removed by the president for cause, specifically: “for inefficiency, neglect of duty, or malfeasance in office.” This too is meant to shield the office from politically motivated actions.
But Trump fired Dellinger Feb. 7, giving no reason at all. That clearly violates the law, so Dellinger sued. He also sought, and was granted by a federal district court, a temporary restraining order immediately reinstating him in his position. The government appealed, and a federal appellate court left the TRO in place, saying it had no jurisdiction to review such an emergency order.
Over the holiday weekend, the government asked the Supreme Court to step in. On Tuesday, Dellinger urged the court to stay out of it for now by leaving the TRO in place and allowing the case to proceed in the usual course.
And here is where Dellinger may have overplayed. A TRO is meant to be used only in dire emergency situations where there is really no other way to protect a litigant. They are often issued without the opposing party being heard, or even given notice. Think of their use in domestic violence situations, as an example. The idea is to protect the spouse or other family member of a dangerous person first and litigate the particulars of the case later.
TROs also, generally speaking, cannot be appealed — which is why the appellate court declined to intervene.
But in Dellinger’s case, there were other ways to go about it. He could have sought a temporary injunction, a similar kind of order that is meant for less exigent circumstances — but which still could have allowed him to stay in position while his case was litigated. It also would have made it harder — at least theoretically — for the Supreme Court to justify stepping in at such an early stage instead of allowing lower courts to rule first.
But I think it is highly unlikely that the Supreme Court’s majority will issue a ruling essentially saying it can’t weigh in on a matter of such magnitude just because a trial judge issued a TRO. As early as Friday, when justices reconvene after a weekslong spring recess, I think the court is likely to grant the government’s motion to hear the case.
That decision would be bad enough: By tacitly ruling that temporary restraining orders are reviewable, at least when it comes to recent actions by the Trump administration, it will open the door for other TROs that have been issued to be challenged. Those include the order stopping Trump from freezing funding that had already been approved by Congress and the order stopping the Justice Department from releasing the names of FBI agents who worked on the investigations leading to Trump’s federal criminal charges. It’s a Pandora’s box that could have immediate reverberations. All because the temporary remedy Dellinger and others sought was a little too ambitious, even if justified.
It could get worse from there. I think there is also a good chance that, on the merits, the Supreme Court’s majority could strike down the part of the law requiring specific cause to fire Dellinger as a violation of the president’s broad power over the executive branch. But we’ll parse that when it happens.
It’s worth noting that in another case, challenging Elon Musk’s authority to do all the things he’s been doing within the Trump administration without having been formally nominated and Senate-approved to any post, more potential TRO drama has been averted. US District Judge Tanya Chutkan declined to issue a temporary restraining order halting Musk’s access to federal agency information, including the personal data of Americans. On the surface it may seem like a win for the administration. But perhaps Chutkan just saw the perils posed by the temporary restraining order and sidestepped it, increasing the chances that it proceeds without such early Supreme Court intervention. In this case, Chutkan spotted the weakness and pivoted away.
This is an excerpt from The Gavel, a newsletter about the Supreme Court from columnist Kimberly Atkins Stohr. Sign up to get The Gavel in your inbox every Thursday afternoon.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com.