When do lawyers stop litigating?
By Abigail Longacre
Shortly after President Trump was sworn into office he began dismissing mass amounts of federal employees, one of which being U.S. special counsel Hampton Dellinger. Dellinger was sworn into the office of special counsel in March of 2024, where he served to protect federal workers from government misconduct. As part of his position, Dellinger was ensured protection against removal by the president, barring a case of inefficiency, neglect of duty, or malfeasance in office. Hence, when alerted of his removal from office, Dellinger acted quickly to challenge his firing and file a temporary restraining order, which he was granted. This prevented Dellinger’s removal from the office of special counsel, allowing him to remain in office until the court ruled on his motion. While the Trump administration tried to uphold Dellinger’s firing and bypass the temporary restraining order, in Dellinger v. Bessent (2025) the Supreme Court announced that it would uphold Dellinger’s right to continue work until the temporary restraining order expired and a hearing of the case was made.
The preliminary decision ruled in favor of Dellinger, as Judge Amy Berman Jackson stated he could not be fired on a whim or as a result of personal animus. However, this was not a victory for Dellinger as the Trump administration appealed the District Court's order to the U.S. Court of Appeals. Once this appeal was filed Dellinger decided to drop the lawsuit, and the case has since been deemed moot. Many may wonder why Dellinger decided to dismiss the case, but in his own words he stated that, "given the circuit court's adverse ruling, I think my odds of ultimately prevailing before the Supreme Court are long." The predicted outcome of this trial is integral in the decision to withdraw, as the trial court decision in Dellinger’s favor will allow Dellinger to be removed from his office while the case continues. This ruling means that for the months that would pass before a final decision from the U.S. The Supreme Court is reached, the Office of Special Counsel will be run by someone totally beholden to the president, allowing for drastic changes to be made in the time needed to litigate this case. Hence, Dellinger was faced with a difficult choice that many attorneys are faced with: When to stop litigating a case.
While some idealists may believe the correct answer is to never stop fighting, when examining the logistics of litigation the answer becomes less clear as litigation can be a long and costly process. As Jérémie Gilbert discussed in his article “Indigenous Peoples and Litigation: Strategies for Legal Empowerment,” even after putting in the work to go through a challenging process, the danger of losing the case, creating bad precedents. Additionally, positive decisions are often not implemented. Dellinger’s case represents this difficult reality, that even if one’s case has merit, litigation can result in greater costs accumulated than benefits. Dellinger decided to withdraw from the suit because he believed his case would not prevail in the Supreme Court, reflecting the dangerous possibility of setting a negative precedent harming the cases of others who have been wrongfully dismissed from protected positions. Thus, when engaging in strategic litigation it is essential to consider both the possibility of defeat, and the cost associated with the time and effort given to one’s case.
Throughout history, litigation has been used as a tool to implement progressive policy and enact social change. While some cases have altered the U.S. political landscape through their victories, others have done so through their loss. One example of the dire consequences of bad precedent is the case of Plessy V. Ferguson. In the beginning of the Jim Crow era the state of Louisiana enacted the Separate Car Act, which required Black and White passengers to sit in separate cars on train rides. In response to this, a group called the Citizens’ Committee to Test the Constitutionality of the Separate Car Law decided to test the boundaries of this act by having a man of ⅛ African descent named Homer Plessy sit in a white car. Plessy was consequently challenged by the conductor and arrested, leaving attorney Albion W. Tourgée to argue that the “separate but equal” doctrine was unconstitutional in the criminal district court of New Orleans. Plessy lost this preliminary case, and decided to continue fighting by appealing his case to the Supreme Court. In spite of the ‘Citizens’ Committee to Test the Constitutionality of the Separate Car Law’ intention to weaken emerging Jim Crow laws, The Supreme court sustained the constitutionality of Louisiana’s Jim Crow law by ruling against Plessy. When faced with a crisis as dire as the bolstering of segregationist policy, Homer Plessy and the ‘Citizens’ Committee to Test the Constitutionality of the Separate Car Law’ took on the risk of a negative ruling to combat the implementation of racist policy. Many others, like special counsel Hampton Dellinger, are not willing to take the risk of a Supreme Court loss.
Often, in order for a landmark case to receive a positive ruling years of litigation is required to get a favorable opinion. The historic case of Obergefell v. Hodges began in July of 2013, and after years of litigation the Supreme court ruled in favor of Obergefell in June of 2015. Obergefell V. Hodges began with the plaintiff filing a case in the United States District Court for the Southern District of Ohio, where the complaint was amended to add two more plaintiffs to the case. This initial case was ruled in favor Obergefell, declaring that the failure of the State to recognize the marriages of the plaintiffs violated equal protection rights. Despite this victory, in 2014 the defendant appealed this case to the Sixth Circuit Appellate court, where the initial decision was reversed. On November 14, 2014, Obergefell filed a Petition for a Writ of Certiorari with the U.S. Supreme Court. The Supreme court granted this, and consolidated this case with other Sixth Circuit cases challenging same-sex marriage restrictions. The case was heard on April 28, 2015, and on June 26, 2015, resulting in the United States Supreme Court ruling in a landmark decision that the 14th Amendment requires all states to license marriages between same-sex couples and to recognize all marriages that were lawfully performed out of state. Not only did this case take two years to decide, but it went through many stages before landing in the supreme court. The plaintiffs in this case were fighting for equal marriage to be federally protected, as such, the two years of hard work crafting arguments and filing briefs were worthy sacrifices for this victory. Additionally, the plaintiffs were most likely encouraged by the initial ruling in Obergefell’s favor, alerting them of their case’s merit. But, some people do not have the time nor resources to litigate for the duration required to receive a Supreme Court Victory.
Throughout history, litigation has been a double-edged sword: While landmark cases like Obergefell v. Hodges have driven social change, others, such as Plessy v. Ferguson, have reinforced systemic injustices. Both of these cases demonstrate the commitment to fighting through litigation, and yet they also illuminate why attorneys, like special counsel Hampton Dellinger, may decide to withdraw a suit, even if it has merit. The key difference often lies in timing, legal strategy, and the willingness to endure prolonged legal fights. Dellinger’s case serves as a contemporary example of the complex decision many attorneys face as they weigh the costs of litigation, and the benefits of victory.
