Supreme Court Isn’t Even Trying Anymore

Episode Notes

Transcript

[Music]

Joe Patrice:  Hello.  Welcome to another edition of Thinking Like Lawyer.  I’m Joe Patrice from —

Chris Williams:  There we go.  I miss the interruption.  I really did.  It’s good to hear it again.

Joe Patrice:  So, we’re already –

Kathryn Rubino:  I’m glad you’re happy.

Joe Patrice:  We’re already out of sorts for this introduction.  But I’m Joe Patrice from Above the Law.  You have also heard from Kathryn Rubino and Christopher Williams who is here too, and we’re going to, you know, talk about legal stories for the week.

Kathryn Rubino:  Probably a lot about the Supreme Court

Joe Patrice:  I mean, I guess.

Chris Williams:  I guess this is technically the smaller talk.  But, you know, usually — there it is.

Joe Patrice:  There you go.  Yeah.

Chris Williams:  You know, usually, before the podcast starts little insider baseball, there’s usually a text that gets announced like, “Hey, these are the stories that did well last week,” or, “These are the stories we’d like to talk about.”  We didn’t get that message today.  I wonder what the topic will be.

Joe Patrice:  Yeah.  No, that’s a very good point and, yeah, no, maybe — I don’t know.  Has anybody else has any small talking but otherwise, I think we can jump right into the release of the Law 3640 ranking which — wait, that is what we’re going to talk about a ranking that just says, “Here’s how many people people employ.”

Kathryn Rubino:  It’s the second ranking in the industry —

Joe Patrice:  There’s two.  They make two of these things.

Kathryn Rubino:  — that just help people, and they’re different.

Joe Patrice:  Yeah, because one of them is the firm’s size.  One of them is the firm’s size but only limited to firms that are based in the US.  It’s so — I pointed out a few times, it is as if released how many at-bats a batter had in the baseball season and then said, “And we refuse to track what happened to any of them.  But they were up that many times.

Chris Williams:  I know I used the inside baseball metaphor earlier.  But you don’t have to use baseball metaphor, you know.

Joe Patrice:  Actual baseball.

Chris Williams:  These are lawyers.  These are all nerds.

Joe Patrice:  I mean in fairness, and I’m not a particularly baseball fan or anything, but actually, when you’re talking about statistics, you kind of have to use baseball analogies.  That’s kind of the most robust statistical interface for most people.

Kathryn Rubino:  Baseball is definitely my least favorite sport.

Joe Patrice:  Yeah.

Kathryn Rubino:  And it’s kind of like the dark days of summer when baseball is the only sport really available.

Joe Patrice:  Yeah.  No, I mean, I hear you.

Kathryn Rubino:  This is why I’m an F1 fin now by the way.

Joe Patrice:  So, do you have something to do?

Kathryn Rubino:  Yeah.

Joe Patrice:  Well, at least until there’s a summer break there because they also have that.

Kathryn Rubino:  But the summer break ha like three weeks and they pretend like that’s a long time and it’s not.

Joe Patrice:  All right.

Chris Williams:  I still need to watch that documentary.  I hear good things.

Joe Patrice:  The Drive to Survive Show?

Chris Williams:  Well, there some documentary about, well like about F1 racing, I heard from like some Tinted match, I mean that’s not — I feel like people learn nowadays.  It’s just — anyway, maybe I’m telling to myself.  But they’re like, “Oh, racing thing.  Go watch this.”  I’m like, “Okay.”

Joe Patrice:  Yeah.  That it’s definitely Drive to Survive.  That’s a series they put out every year.  There’s —

Kathryn Rubino:  It’s basically about the year before season, and that’s actually how I got into F1 was watching the first year of the document, the Netflix special and, yeah, it got me hooked.

Joe Patrice:  It is very good.  Anyway, at least that season was.  The first season was definitely great.

Kathryn Rubino:  I mean — okay, I haven’t been able to finish last season because I’m still so salty, so salty about the results.  But, yeah, I mean it’s not the fault of the documentary.  It’s the fault of —

Joe Patrice:  Of how things go.

Kathryn Rubino:  — the FIA.

Joe Patrice:  True.  All right.  Well, and we delved into that in a previous episode of the show even.

Kathryn Rubino:  Still salty though, just FYI.

Joe Patrice:  Yeah.  I hear you.

Kathryn Rubino:  You know what else I’m salty about? It’s the Supreme — 

Joe Patrice:  No.  Too bad.

Kathryn Rubino:  It’s okay, it’s the Supreme Court.  We can still talk about it.

Joe Patrice:  Okay.  That was a transition.  Okay, that was a transition.  I was going to say, “I’m so sorry. Small talk has ended.  But, no, that’s good.  That is a good transition.  So, yeah, the Supreme Court term is not yet quite over.  It will be probably right as soon as this episode releases.  But it still got four cases to go but don’t worry, in the last few days, a lot happened.

Kathryn Rubino:  They have destroyed multiple rights.  So, you know, there’s that.

Joe Patrice:  It’s really incredible.  I think we’ll get into a lot of what’s happened here.  Personally, I just want to talk about, you know, this is the classic lawyer-ism of it.  Put aside the substance which — the lawyering of it, it’s really been incredible to me the laziness of it all.

(00:05:05)

They just — you know, part of being a judge I always thought was you either — I mean like the super naive argument is that you follow the law perfectly but whatever.  But the second was that you’re constantly trying to figure out new ways to explain how novel situations fit within a greater legal superstructure and don’t cause cascading bad effects.  I always thought that was a — in law school, I thought this was an engaging intellectual exercise.  How do they get to the result they want without causing all these problems?  And the answer today is just do what you want.  There’s no need to honor — within 24 hours, there’s no need honor.

Kathryn Rubino:  Sure.  Yes.  I think the best way to refer to the current courts legal theory of life was actually coined by Leah Littman and it’s the YOLO court.

Joe Patrice:  Yeah.

Kathryn Rubino:  Yeah.  No, it’s just, “Whatever we want to do, here’s some words on paper.  Boom.  We out.”

Joe Patrice:  I’m actually a little shocked that they even bother to put the words on paper.  I mean within a day, we have a decision that says, “Look, States are tantamount.  They are the only ones who can choose how they regulate.  That’s what’s going on.”  Meanwhile, the day before they said, “State laws just simply cannot be trusted.  The federal government has to stand up.”  Like they’re not even attempting to have a logical through line which is something Justice Kagan points out.

Kathryn Rubino:  They have a political result and they will say and do whatever in order to advance this far right ideology.

Chris Williams:  I’m already feeling old.  I had the thought — I was like, “Back in my day, 

the right hated judicial activism,” you know?

Joe Patrice:  Yeah.  I mean, yeah, it’s so much for that — so much for that complaint.

Kathryn Rubino:  And they never hated judicial activism.  What they hated is —

Chris Williams:  They didn’t like when the left did it.

Kathryn Rubino: They hated the result.

Joe Patrice:  Yeah.

Kathryn Rubino:  I think what this current composition the court has laid bare is that it’s about the result.  It’s always been about the result.  It’s not about judicial activism.  It’s not about originalism.  It’s about getting what they want, period.

Joe Patrice:  You know, that’s an interesting question.  So, I guess I should be more clear when I was saying like, “Within a day, they changed it.”  So, they issued this gun ruling that says the fact that New York has an over 100-year-old law about what it takes to get a gun permit, that they strike down because their decision in Heller which was new in the 21st century is more historical than the 111-year-old — but look, there’s a lot of mess there.

Kathryn Rubino:  We do what we want.

Joe Patrice:  Right.  There’s a lot of mess there about how they can argue that the thing that only happened in the 21st century is history.  But —

Chris Williams:  To be fair, lawyers are really bad at math.

Joe Patrice:  That is fair.  I was told there would be no math.  There was a lot going on there.  But the crux of the argument is States can’t be trusted to make their own laws.  That’s just not how this goes.  You can’t have this hodgepodge network of States getting up and making their own laws.

Kathryn Rubino:  We’ve had it for over 100 years.

Joe Patrice:  Right.  Whatever.  Fast forward to the abortion decision which we already knew what it was going to say because we already seen the leaked.  Thank you very much, Jenny Thomas, who we all are fairly confident was that leaker.

Kathryn Rubino:  Pre confident.  You know how you know it’s somebody on the conservative side?  We’ve stopped hearing about the investigation.

Joe Patrice:    We stopped hearing about the investigation like a week into the investigation.  That was the part —

Kathryn Rubino:  We heard after the initial thing, we started hearing that they were asking for cellphone records.

Joe Patrice:  Cellphones, yeah.

Kathryn Rubino:  And then after the cellphone record information, that’s it.

Joe Patrice:  Yes.  It stopped immediately after that.  We heard nothing else and, yeah, and there’s a reason.  Anyway, but again, this Dobbs decision comes out to Dobbs decision is predicated on the idea that States are sacrosanct and the ante regulation has to be done by States.  The federal government can’t intervene in anything.  States are laboratories of democracy.  They can do whatever they want.  This is without any irony coming immediately after striking down a state statute —

Kathryn Rubino:  First of all, they do not understand irony.

Joe Patrice:  Well, and — yeah.  I mean I guess that’s true.  I guess that’s fair.  And now, I guess if there’s any hope coming out of it is that we’re getting, this yellow point that you’re making, we’re getting kind of straight up a vision that no, these people have stopped trying to do law which is the Kagan descent.  Well, it’s all three of the dissenters filed a joint descent, but you can — I think it’s fair to say you can tell what parts Kagan had the biggest hand in because those are the super snarky funny parts.

(00:10:00)

But there’s a segment where –

Kathryn Rubino:  This isn’t a Dobbs descent.

Joe Patrice:  In the Dobbs tonight, yeah.

Kathryn Rubino:  Well, there’s a lot of cases out there, just want to be —

Joe Patrice:  No, that’s fair.  There’re points in there where she’s just like, “What about this situation, what about this situation,” where she just lists all of the opposite results that happen despite this.  If you apply the standard of the majority, here’s how they would have ruled and all of these other instances where they clearly ruled the other way, because there’s no fidelity to any of this.  And then yesterday, we got, and Chris, this is where I’ll bring you in here because you wrote up this one, we now have, because we’ve already got all these other ones, we just decided to look at football coaches praying in school and the Establishment Clause, of which there’s a well-known lemon test and we have the Supreme Court go, “What lemon test?”

Kathryn Rubino:  R.I.P. Establishment Clause.

Chris Williams:  And the funny thing is like this is — the facts of the case of just so egregiously what would have been considered constitutional violations last week.

Joe Patrice:  Right.

Chris Williams:  I think it was something like the students told administrators they felt pressured to pray.  The administrators told the coach to stop.  The administrator — no, the coach was using religious language in like the team speeches.

Kathryn Rubino:  It’s almost like the facts were so bad, that’s why the majority lied about them.

Chris Williams:  Yeah.  And like here’s the thing, their record, it was like two-seven.  It was like two wins, seven losses.  Dude wasn’t praying hard.  I mean as hard as he was praying, it might not even to the right god if you’re looking at the victory record.  But even then, they’re like, “Yeah, we see nothing wrong with this.”  And the fact that they bypass the facts of the matter and made it about individual liberty when it’s like, “No.  This is a thing that has clearly impacting others.”  Like the — this court is doing a really great job of DARVO-ing.  Are you familiar with DARVO-ing?

Joe Patrice:  No.  What’s that one?

Chris Williams:  DARVO refers to a reaction to perpetrators — reaction to perpetrators of wrongdoing, particularly sexual offenders made display in response to being held accountable for their behavior, and the acronym stands for deny, attack and reverse victim and offender.

Joe Patrice:  Right, right, right.  Yes.

Chris Williams:  So, what was clearly this guy trying to pressure his students into praying with them, now it’s, “Oh, no.  The school is trying to prevent this man from vocalizing his religious liberty and his religious choices and how dare they –,” you know, like this is clear, “No, you.”  But this is just written in like legalistic language to where it sounds like, “Oh, this is about an abstract concept like liberty.”  This is just straight up bullying.

Kathryn Rubino:  Yeah.  I think — didn’t the majority write that he was quietly praying as opposed to, you know, the what —

Chris Williams:  On the 50-yard line?

Joe Patrice:  Yeah.  He quietly was doing it privately while his players were doing other things, which brings us to Justice Sotomayor rights, just like throws in pictures from the record when that is obviously not what was happening.

Kathryn Rubino:  This is not accurate.  Liar.

Joe Patrice:  Yeah.  Just making stuff up, it’s unbelievable.  Because it’s also true that if you — and maybe this is the clever way around this opinion because if you believe the facts as Gorsuch pretends they existed, then this case actually didn’t do anything, because we already had a case.  I mean I think it’s called like Lee(ph) or something like that.  We already had a case that decided if you’re a teacher and you’re privately doing it and nobody else hears you necessarily that that isn’t an Establishment Clause violation.  So, the clever work around on this opinion is to say, “Look, if we believe these facts, then it didn’t actually change the law.”  The problem is that those weren’t the facts and how it changed the law is that the facts were what Justice Sotomayor put in the dissent and they decided those didn’t matter.

Chris Williams:  I think you’re forgetting that one of the main tenants of textualism is that you get to choose the parts of the text that you care about and focus only on those.

Joe Patrice:  Right.  I mean, yeah.  It’s bad.  So, that’s a lot on Supreme Court stuff.

Kathryn Rubino:  I’m sure there’s more.

Joe Patrice:  Yeah.  I think there’s probably more.  All right, well this is — looking down, I see that we have a bunch of messages but —

Kathryn Rubino:  Oh, no.  I’m busy right now because I’m recording a podcast.  If only.  If only.

Joe Patrice:  Yes.  If only when you were doing your legal work, you had someone else handling those and in taking those calls.

Kathryn Rubino:  Right, so you can focus on the task that you are trying to accomplish and not get distracted by telephone calls when you can have a virtual receptionist take care of that mundane work.

Joe Patrice:  So, let’s hear from Posh about exactly that.

Female:  As a lawyer, ever wish you could be in two places at once?  You could take a call when you’re in court, capture lead during a meeting.

(00:15:02)

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Craig Williams: Today’s legal news is rarely a straightforward as the headlines that accompany them.  On Lawyer 2 Lawyer, we provide legal perspective you need to better understand the current events that shape our society.  Join me, Craig Williams, in a wide variety of industry experts as we break down the top stories.  Follow Lawyer 2 Lawyer on the Legal Talk Network or wherever you subscribe to podcasts.

Kathryn Rubino:  Well, obviously, the Dobbs decision was, you know, I think —

Chris Williams:  A win for white life.

Joe Patrice:  Oh, yeah.  No, that was a thing.  For anybody who didn’t catch that, that was the way in which a person introduced Trump about the opinion saying that Dobbs was a win for white life.

Chris Williams:  And it wasn’t an introduction, it was a truncation with applause and gritting.  And there was no weeping or moaning or gnashing of teeth.  This is a very clear thing, which of course, you know, I guess it’s probably going to be spun as it was bushes in which she meant to say was right to life.

Joe Patrice:  Yeah.

Chris Williams:  But even, that’s quite an omission and that’s quite the slip.  And also, this is a woman who was like, “If Hitler had any right, it was just one thing people who control the children, control the future.”  Something along those lines.

Joe Patrice:  When you’re positively quoting Hitler, you —

Kathryn Rubino:  You don’t get to make these kinds of misstatements.

Joe Patrice:  You stop right there.

Kathryn Rubino:  Yeah.

Joe Patrice:  Yeah.

Kathryn Rubino:  But obviously, this has taken up a lot —

Chris Williams:  I didn’t mean Gestapo, I meant gazpacho.  No, no.

Joe Patrice:  Yeah.

Kathryn Rubino:  Obviously, the Dobbs decision has taken up a lot of the bandwidth I think for most folks out there.  And one of the things that we’re doing here at Above the Law is trying to figure out which big law firms are going to continue to cover abortion care for their employees who live in places where the right to abortion has now either been banned or severely limited.  Yeah.  So, I went through the list of the Am Law 100, and out of that list, 76 firms have offices in places that have trigger laws or other restrictions on the right — there’s no more right to abortion, but to abortion care.  And so, we reached out to those firms and are tracking to figure out exactly which firms will continue to cover travel costs, abortion care, et cetera, et cetera.  What’s been really interesting to me is that we knew this Dobbs decision was coming for eight weeks, eight weeks.  It was clear what was happening.  We knew what was going on and lots of firms don’t have an answer yet, or, “We were investigating to figure it out.”  And it just — I mean, listen, not the only institution that has kind of muffed that eight-week where we actually could have had a response, you know, CEG, the federal government, CEG, the president, whatever.  But the point is, yeah, we are continuing to track exactly which firms will pay for travel and housing and all that kind of stuff.

Joe Patrice:  Yeah.  No, I think that’s an important list, not just for people who are there now but also, you know, for perspective folks.

Chris Williams:  Two things by the way, for somebody thinking, “Oh, eight weeks, it’s not that long.”  That’s A, two weeks longer than the amount of time people have to make the decision to get an abortion or not depending on some of the States you’re in.  And two, we’re in the phase of American history where we’re hoping that the corporations will save us from evil government.  Like this is such a bad scenario to being like as funny —

Kathryn Rubino:  We are through the looking glass.

Chris Williams:  Yeah.  Like as funny as the Dick’s out for abortion rights thing was, like people should not be looking to Dick’s Sporting Goods to be the threat, the thing that prevents people from dying from readily — like easily addressable health concerns.  That is terrifying.  It’s not even like the point — the rallying point now isn’t even like realize utopia.  It’s just to make sure that the bad shit that were slated for isn’t going happen.  And we’re depending on corporations to save us and that’s terrifying.

Joe Patrice:    And this actually — it’s interesting you mentioned that and phrase it that way because that is how I’ve — in the past on a different show I was on talked about gun laws.  At this point, the only people you can really rely on when it comes to guns is hoping some benevolent billionaire buys a gun company and shuts it down because there’s no path out.

Kathryn Rubino:  Yay.

Joe Patrice:  Okay.

Chris Williams:  Bill Gates if you’re listening, I like Microsoft.

(00:20:00)

I also like liberty.  If you could help out maybe like buy a Supreme Court Justice for sakes, just put it out there.  I mean fighting polios important to but, you know, liberty.

Joe Patrice:  Yeah.  I guess at this point, we should transition a little bit before we get to a new story to the question of Supreme Court Justices.  This obviously, with everything that’s happened in the last few days, and again, as bad as the substance is, the way it’s laid bare that there’s not even an effort to justify a lot of these decisions internally so it’s like that it is kind of a dangerously wall less court at this point, given that there’s been an increased call for the reforms.  Obviously, I’m on record as being a big fan of term limits.  Elie Mystal, our former co-host has been a big believer in expanding the court.  There are arguments for both of those in various ways.  And with all of these options out there on the table, it seems as though the president’s take is to do nothing.

Kathryn Rubino:  No.  That’s the president’s take.  And here’s the thing, it’s such a fucking terrible negotiation tactic.

Joe Patrice:  Right.

Kathryn Rubino:  Like, why take the thing that the right is actually scared of off the table now.  Why?  What are you doing?  Why?

Joe Patrice:  For instance, I wrote an article.  I am opposed to expanding court but pro term limits, I think that over the extended — expanding the court is only a short-term solution and the only long-term solution is to actually build a court that is responsive to the swings, like a lagging indicator of the swings of the government.  That said, I wrote an article several months ago where I said, “You should walk in and say ‘court expansion.’”  Take the maximalist position and then make it a compromise when you don’t go that far.  But to begin with, my initial offer is to do absolutely nothing about this.

Kathryn Rubino:  It’s like Biden has decided to shoot himself in the foot.  It’s like, “Don’t worry.  We’re not going to do anything that anybody on the right is afraid of.  Don’t worry.”

Joe Patrice:  Well, I mean I also think I’ve said — well, I mean this isn’t fair.  Nancy Pelosi read a poem, so I guess there’s some democrats who are trying to do something.

Chris Williams:  Oh, God.

Joe Patrice:  Oh, God, yeah.  No.  But it does —

Chris Williams:  What’s with liberals in symbolic victories?  Like, if I see her in an — I had enough of her when she was cosplaying Wakandans.  What the fuck is a poem going to do?  The fuck is a poem going to do?

Joe Patrice:  I really think — I’m still developing exactly the contours of this, but it does seem as though the democratic party has become so enamored of the court where they view their entire value proposition as, “Vote for us and we won’t add more problems to courts.”  That is terminal defense.  It means you — it’s like playing soccer with just a goalie on the pitch and you know that means you’re going to stop some things but you’re never going to win.  You’re at best going to tie forever, and that means, you know, you lose.  And when that happens, you need to re-evaluate that this party and definitely the leadership level, and I think, unfortunately, it’s become ingrained in the way in which you hear some supporters talk about it.  They just think — 

Chris Williams:  They think compromise is the starting point.

Kathryn Rubino:  Yeah.

Joe Patrice:  Yeah.  They think compromise —

Chris Williams:  And that seeds the right like always.  There’s something important with even if you’re not a political person, for the purpose of like negotiation, starting with the polemic is helpful, strategically, because then you have some wiggle room that could go in your favor.  But if you’re starting with, “Okay, I will be deferential.”  You literally have no ground to gain.

Joe Patrice:  Yeah.

Kathryn Rubino:  100%.  And it’s not just the court that — Biden has taken this position with, he also has come out and said that he won’t let there be abortion providers on federal land in States that have banned abortion.  So, the other kind of practical solution that people are advancing, he’s already nixed.  Don’t worry, he doesn’t have a solution, he’s just vetoed a bunch.

Joe Patrice:    Well, and that’s my issue with the beyond the compromise.  What I’m trying to get at is I think there’s very much a feeling that the value proposition of the democratic party is, “Vote for us and we’ll sometimes prevent the hellmouth opening.”  And that’s just not a long-term strategy.  And once pressed, they have no solution for how to fix the problem.  They’re like, “You should have voted for us before so that we could have stopped it from happening,” or delayed it from happening, probably more accurately. But that’s all they think they’re capable of doing.  It’s an approach to governance that is just a severe abdication of the whole purpose of governance.  Yeah.  Anyway.

(00:25:00)

Speaking of the Supreme Court and how it impacts the legal industry, let’s take a quick side to, you know, the saddest man in the world which is Paul Clement, former solicitor general who won the case that determined that the States with the lowest gun mortality — this is interesting actually.  I don’t know if everybody knew this.  If you list out all the States and the incidents of gun mortality per capita in them, there’s a bunch of them right at the bottom that have very few deaths and then, you know, a bunch that have unfortunately tons.  And those ones that have very few deaths are the ones that just got their laws struck down by the Supreme Court.  And the winner of that case, Paul Clement, who was working at the time for Kirkland & Ellis, was super excited about it, and then Kirkland & Ellis decided that this was the public relations nightmare that they certainly had no interest in being involved in and more importantly, that none of their other clients had any interest in being involved in.  And they told Paul, “Okay, you have now made it to the end of this case.  It’s time to call it a day, buddy.  We’re not doing these gun cases anymore.”  So, how does a professional respond to that? I assume by just kind of sucking up and realizing, “Hey, there’s other fights that I can do, and so on,” or what — 

Kathryn Rubino:  I mean, you’ve already won the biggest gun case.

Joe Patrice:  Exactly.  So, what does a mature professional do?

Kathryn Rubino:  Not what happened.

Chris Williams:  I’ll be honest, I’m still stuck on this religious freedom cake.

Joe Patrice:  Amazing.

Chris Williams:  I’m sorry.

Joe Patrice:  So, what Paul — so what a mature professional actually does is go to the Wall Street Journal and write thousands of words of whining about how his firm is mean and they were trying to like cancel culture the — you know.  And as a lawyer, I have a duty — you don’t.

Kathryn Rubino:  Also, the case is over.

Joe Patrice:  Right.  You have duties.  That’s why you didn’t get told this a year ago.

Kathryn Rubino:  Right.  Right.

Joe Patrice:  The firm did respect your duties.  They are now — have reached their completion and you can move on with your life.  And this goes to our new favorite term, DARVO, I guess, because this op-ed —

Chris Williams:  It’s a good term.

Joe Patrice:  The op-ed is a series of, “I’m the victim here and the firm is just so mean and I’m the champion for like trying to take these cases that lead to more children getting shot.”

Kathryn Rubino:  And Kirkland, with its billion in revenuers like, “Shut up.  We’re done.  We’re done with you.”

Joe Patrice:  Well, and the crazy thing is this isn’t the first time Paul’s done this.  This guy has an MO because he’s, you know, a born snowflake loser.  This guy does this all the time.  Because the last firm he left, he left after — over gay rights because it reached a point where the firm he was working for decided, “You know, we’ve decided we don’t want to be associated with a bunch of cases saying it’s okay to be bigots.”  And he then responded to that by going around to the media and complaining about how he was being persecuted for trying to just take some cases.  This is his MO.  He does this all the time.  Now, I mean, maybe it’s at an end because his solution this time is to found his own firm.  So, I don’t think he can quit that.  But who knows?  Maybe his other partners will cancel culture him someday in the future when he’s, “I don’t even know what can possibly be next after this term.  Well, I mean I do know what’s next.”

Kathryn Rubino:  It’s gay marriage again.

Joe Patrice:  Well, when it’s affirmative action next term, then it will be gay marriage again, and I think we all agree with that.

Kathryn Rubino:  I meant particularly for Clement.

Joe Patrice:  Yeah.

Chris Williams:  I’m just waiting for once they get rid of interracial marriage, Clarence, talking again, he’s saying, “Listen, it’s not us.  It’s what the founding fathers would have wanted.”

Joe Patrice:  Right.  It’s not me, it’s you or founders.  Yeah.  No.  It’s all coming and — yeah.  And there’s some active gaslighting going on.  Weedo puts it in his Dobbs opinion that, “You know, some people are going to say that this opinion means that we’re going to strike down gay marriage or the laws against being homosexual or the law — or interracial marriage or contraception.”  But that’s ridiculous.  We obviously aren’t doing that.  The descent brilliantly goes through this by noting that in Thomas’s concurrence, he —

Kathryn Rubino:  Explicitly.

Joe Patrice:  — he didn’t get the memo and decided to go ahead and say, “And so because of this, that’s why we’re now going to strike those things down.”

Chris Williams:  To be fair, the founders probably would’ve ignored the clear writings of the black dude too.

Joe Patrice:  Fair.  But the gaslighting aspect, and you’ll hear repeating this Alito thing and it’s been — I’ve seen it on social media.

(00:29:57)

It is all a lie and the reason you know it’s a lie is because you could have struck down Roe a million and one ways, and they chose the way that was the only rights that really exist where those that were deeply rooted in the nation’s history and tradition, and what Alito says that means is stuff that was legal in the 1700s.  That would suggest that these other rules are in severe danger and will be moved to next.  And this isn’t out of the ordinary for the Alito approach.  He often says like he did with Roe, “That settled law, we won’t possibly do that.”  But what he means is we won’t possibly do anything with it until someone brings a case that allows us to do something with that.

Kathryn Rubino:  Right.

Joe Patrice:  Yeah.

Chris Williams:  And it being the most egregious case is to where if we allow this, we allow anything.

Joe Patrice:  A big right wing talking point is this idea that precedent — it’s not a problem to overturn long-standing precedent because if the precedent’s wrong, it could always be overturned.  And they — for this always cite Brownlee board, which half of them, won’t overturn anyway if you look at some of their judicial hearings but they cite that because they know it has kind of a halo around it as an opinion and say, “Look, that overturned Plessy and that was way older than –,” or even Roe was at the time, so precedents don’t matter.

Chris Williams:  Wasn’t Marbury v. Madison like pro leader side?  What of that?

Joe Patrice:  Well, Marbury versus — overturning Marbury v. Madison, which by the way, actually, that’s an excellent point.  Where originalism seems to have a big blind spot is the framers did not intend the Supreme Court to have judicial review and maybe — 

Chris Williams:  That is not in the constitution.  Like if you want to — if we are already starting like the New York gun law that was over 100 years old, they’re like, “Oh, this is bad.”  Fuck it.  Let’s have the defective verse of just delivering the mail.  This whole judicial review shit — then let’s just get rid of that.  How about that?  You want to give it to the States, all right.

Joe Patrice:    I wonder if it — like within originalism, if you bring up Marbury versus Madison is it like telling a computer to define love or something, where it like starts steaming.

Chris Williams:  The answer is 42.

Joe Patrice:  yeah.  Nice.  But what I was saying about this is that these — there are a million ways overturning — oh, yeah, the Brown issue.  Brown, people cite like, “Oh, it overturned separate but equal.”  But it didn’t really just say, “Hey, that opinion was wrong.”  It cites, “Hey, we’ve learned things about education.  We have new information now and based on that information, it changes that doctrine.”  That’s not happening in this opinion.  There’s no attempt to say that in this opinion that something has changed, and there are disingenuous arguments that you could have made for that but they don’t.  Instead, he cites a bunch of stuff from the 1300s that was available, readily available to those justices before which would seem to suggest that it’s not new information, but, whatever.  Anyway, we’ve talked about this and we will certainly have to talk about this again next week, because next week I assume we’re determining that CO2 emissions have personhood or whatever.

Kathryn Rubino:  Almost certainly.

Joe Patrice:  Yeah.  So, we’ll be back on that and hopefully, some other legal news.  Hopefully, some law firms have done something between now and then too.

Chris Williams:  Or Dick’s Sporting Goods apparently.

Joe Patrice:  I mean Dick’s Sporting Goods is doing the real work here.  We’re all done, right?  Good.  Good.  Good.  Good.

Chris Williams:  Piece?

Joe Patrice:  No, I’ve got to talk.  You know, like you should be subscribed to the show and give it reviews, stars, write something, listen to other shows like the Jabo or the rest of the Legal Talk Network is offering, or the Legal Tech Week Journalist Round Table, and you should be reading Above the Law of where you see these and other stories before we even talk about him here.  You know, those sorts of things.

Chris Williams:  Do they know the places they can follow us?

Joe Patrice:  I don’t think they do.  Like you can follow me @JosephPatrice and you can follow Kathryn @Kathryn1 and you can follow —

Chris Williams:  One like the numeral?

Joe Patrice:  With the numeral 1.  Yeah.  And Chris, you can follow @rightsforrent.

Chris Williams:  I do that.  I do rightsforrent.

Joe Patrice:  Yeah, that’s true.  And we can do all of that stuff here.

Chris Williams:  Oh, okay.  So, should we do it?

Joe Patrice:  Now, we’ll do it.  No, okay.  I think that’s — yeah.  All right, now, I think we can be done.

Kathryn Rubino:  Yeah.

Chris Williams:  Have a good one.

[Music]

Kathryn Rubino:  Thanks to our sponsor, Posh.

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