The Case Made by a Skadden Litigator – The Health Care Blog
By MIKE MAGEE
The Pope’s passing interrupted an epic battle between Trump and the rest of the civilized world over whether America remains a society “under the law.” Critical to the rule of law is the principle of “Due Process,” as described in not one, but two Amendments to our Constitution.
The Fifth Amendment states that no inhabitant shall be “deprived of life, liberty or property without due process of law.”
The Fourteenth Amendment, ratified after the Civil War and Emancipation, uses the same eleven words, called the “Due Process Clause,” to describe a legal obligation of all states.
In arrogantly ignoring any pretense of “Due Process” last week by deporting accused (but not proven) alleged gang member Kilmar Abrego Garcia to an El Salvador top security prison along with 220 others, and ignoring a court order to return the planes while still in flight, Trump basically thumbed his nose at America’s legal system. This was a bridge too far, even for some of his political supporters in Congress.
With that case still in litigation, the Administration tried to repeat the publicity stunt with another group of accused aliens this past weekend and was slapped down by the Supreme Court in an unanimous decision.
What Trump is learning the hard way is that without “Due Process” the law profession might as well hang up its shingle. Trump thought he had Chief Justice Roberts in his pocket when he purposefully allowed himself to be caught on a hot mic as he passed the Chief Justice on his way to deliver the 2025 State of the Union Address. His words for the camera, “Thank you again. Thank you again. Won’t forget it.” were intended to signal to the world, He owes me big time, and I own him.
A common “Due Process” thread connecting these two current events (the Pope’s death and the illegal deportation of Kilmar Albrego Garcia) includes another Supreme Court Justice – Antonio Scalia. Catholic and trained by Jesuits, he shared a common lineage with Pope Francis, the first Jesuit ever to lead the Catholic Church. Other Justices also share this Jesuit educational parentage including Clarence Thomas, Brett Kavanaugh, and Neil Gorsuch.
But Francis and Antonin have a second historical connection. Pope Francis, the day before the 2025 State of the Union address, publicly labeled the immigration policies of the incoming President and Vice President, “a disgrace.” More recently, the Vatican spoke out in opposition to last weeks El Salvador imprisonments. Part of criticism tracks back to the lack of “Due Process.”
Glaringly obvious today, this was just one arm of an aggressive Project 2025 campaign against America’s Legal Profession. By late March, multiple DC based law firms pledged allegiance to the Trump Administration to avoid being barred from entering Federal buildings to represent their clients. Some members of the targeted firms resisted. For example, Skadden associate, Rachel Cohen, resigned from her firm in protest, stating, “It does just all come around to, is this industry going to be silent when the president operates outside the balance of the law, or is it not?”
Former Skadden alumni spoke out in mass along with Rachel this week. Eighty plus former associates of the firm signed on to a letter of public protest that stated in part, “As alumni of Skadden, we write to express our profound disappointment and deep outrage regarding the firm’s recent agreement with President Donald Trump. At a time when rule of law, freedom of speech, and the adversarial system collectively face existential threat, Skadden’s agreement with President Trump emboldened him to further undermine our democracy.”
As it turns out, one current Skadden Associate’s voice, from 9 years ago when she was still a student at Harvard Law, has brought legendary conservative justice, Antonin Scalia, into the mix. Back then Lucy Dicks-Mireaux described herself as “a liberal, minority woman” who believed that “many of Justice Scalia’s opinions set equality back several decades—further back than his three decades on the Court would suggest.”
But she wrote in the May 4, 2016 issue of the “Harvard Civil Rights-Civil Liberties Law Review,” that she had a partial change of heart “when I read Justice Scalia’s dissent in Hamdi v. Rumsfeld (and found) that I agree with him.”
As Dicks-Mireaux went on to explain at the time: “In Hamdi, the U.S. military detained Hamdi, a U.S. citizen, in the United States as an ‘enemy combatant‘ without a trial. The military believed Hamdi to be working with the Taliban, but did not bring a criminal suit against him. Hamdi’s father filed a writ of habeas corpus, a petition asking Hamdi to be delivered to the court or released absent a trial. The majority opinion curtailed Hamdi’s due process right by allowing him to be detained with a meager showing by the government of evidence that they had a reason to hold Hamdi. The tribunal before which Hamdi would be afforded a chance to rebut these allegations would not be a court of law, but a neutral decision maker. Hearsay evidence would be allowed. Hamdi would be presumed guilty until proven innocent.”
In a prescient remark that followed, we see how relevant her analysis a decade ago is to the current battle to return Kilmar Albrego Garcia. She states, “I was very disturbed by the extent to which the Court would curtail an essential constitutional right—due process—in the face of vague national security concerns.”
To her surprise, so was Justice Scalia. As she explained, “The voice of reason came from an unexpected source: Justice Scalia. Arguing that the government could not hold citizens unless the government prosecuted them, Justice Scalia would have granted habeas corpus (fundamental protection against unlawful detention). Justice Scalia would have required that the government either promptly bring charges against Hamdi in a court of law, or Congress would have to suspend habeas corpus. I could not believe that Justice Scalia was advocating for the little guy, but here he was, in black and white, writing that Hamdi deserved better than what the court had offered. Hamdi deserved better because the law required it.”
Attorney Dicks-Mireaux joined Skadden after graduating from Harvard Law School in 2018. She is an Associate in their Litigation Department, and in 2023, she received “High Honors” by the DC Courts for her “Pro Bono” work. Will her skills be put to Trump’s use in the future?
As many top lawyers in the United States, and religious leaders within the Catholic Church and beyond well understand, human rights are not only God-given, but also intended to be vigorously defended under the “Due Process Claus” of our Constitution. If we fail in this regard, we can hardly claim to be just citizens of these United States. As St. Ignatius Loyola said, and his disciple Pope Francis embodied to the very end, “If our church is not marked by caring for the poor, the oppressed, the hungry, we are guilty of heresy.”
Mike Magee MD is a Medical Historian and regular contributor to THCB. He is the author of CODE BLUE: Inside America’s Meddcal-Industrial Complex. (Grove/2020)
