Biglaw’s 4-Day Mandatory Office Week Is A Big Gamble

Episode Notes

Transcript

[Music]

Joe Patrice: Welcome to another –

Kathryn Rubino: Hey.

Joe Patrice: Welcome to another edition of Thinking Like a Lawyer, I’m Joe patrice.  We have a special non-special guest host, not guest.

Kathryn Rubino: I’m special, for sure.

Joe Patrice: Special, right.

Kathryn Rubino: For sure, special.

Joe Patrice: I think that’s fair, but it’s a guest host, real host, Kathryn Rubino here also from Above The Law joining us, which is joining us from maternity leave.

Kathryn Rubino: Right, from maternity leave.

Joe Patrice: Congratulations.

Kathryn Rubino: It doesn’t really end.  Yes, thank you so much, since I’ve last spoken on the podcast, I have had a child.

Joe Patrice: Okay.

Kathryn Rubino: Yeah, baby Francesca Le Roux, named after her grandfather and great grandmother.  So, Frankie Le Roux is what we’re calling her.  Like, we’re southerners double naming it away.  Loved that for us.  And, yeah, that’s been most of what I’ve done since last I’ve been on the podcast is giving birth and now just feeding this baby and keeping her alive.

Joe Patrice: Right.  Oh!  By the way, I feel as though this constitutes small talk.

Kathryn Rubino: Definitely, it’s big small talk of anything.

Joe Patrice: Yeah, All right.

Kathryn Rubino: Small talk.  I forgot that that’s what I used to do.

Joe Patrice: Okay.  We want to be clear that we are not the people who make folks not have maternity leave and go immediately back to work.  This is not work.  This is very much of –

Kathryn Rubino: This is play.

Joe Patrice: This is guest hosting situation.  Unfortunately, Chris was traveling today, and there was a screw-up while he was traveling, and there was a screw-up and he had to travel while we were supposed to record, and he was desperately trying to work his way into a quiet place to do it, and we just decided this was easier to bring back Kathryn.

Kathryn Rubino: Although, I mean, listen, fair warning to all guests.  There is a distinct possibility you hear babies cry, or not babies, like a baby.  There’s only one in my house in the moment.  But, yes, we have fed her but you never know.  She could poop herself at any time, I swear.  This baby –

Joe Patrice: So could I.

Kathryn Rubino: Fair.  This baby likes nothing more than pooping into a fresh diaper.  If it has been on her for less than two minutes, that is the prime pooping moment so that’s a distinct possibility.

Joe Patrice: Okay.  All right, we’ll deal with it as needed.  We have a few topics to discuss today.

Kathryn Rubino: I imagine we do.

Joe Patrice: Okay.

Kathryn Rubino: I don’t know what they are, though.  That is the downside.

Joe Patrice: That is the downside of being a guest.

Kathryn Rubino: I am not prepared in the way that I would normally be prepared to spout off about Biglaw.

Joe Patrice: Have you been following legal news generally even, or have you been taking your leave as real leave and unplugged from this horror healthscape of an industry?

Kathryn Rubino:I think I’ve largely unplugged, but it’s not like a deliberate, “Oh!  I refuse to pay attention.”  I’m only two and a half weeks postpartum at the moment, and certainly the first week to ten days is just like, I didn’t even know where my phone was at times.  Not like I was trying to unplug, but I was keeping a person alive.

Joe Patrice: Okay.

Kathryn Rubino: That was all I had the capacity to do and to care about where I was like, “Oh!  I suppose I should know what’s happening in the world.”  Like I don’t.  The debt ceiling question mark.  I don’t know.  All these things are distinct possibilities out there that I’ve not been tracked.

Joe Patrice: Fair enough.  We’ll see how this goes.

Kathryn Rubino: Listen, I still have the witty repartee aspect of the co-hosting job on lockdown.

Joe Patrice: I suppose.

Kathryn Rubino: Okay, you know, I could leave you and just leave the dead air hanging at any given moment.  I will exercise that right if you give me too much leap over there.

Joe Patrice: Okay, that concludes our small talk.

Kathryn Rubino: Small talk.

Joe Patrice: We’re going to talk Biglaw first.

Kathryn Rubino: Love it.  What’s going on in Biglaw?  It’s summer, so is it summertime related, summer associates?  Did a summer associate jump in the river again?

Joe Patrice: We have not gotten any summer associate stories yet.  I don’t think summer classes have really started yet.

Kathryn Rubino: I guess it’s still May.

Joe Patrice: Yeah.

Kathryn Rubino: Usually, I guess, they start right around now.  Probably, having your welcoming parties.  “Man, being a summer associate was fantastic.”

Joe Patrice: True.

Kathryn Rubino: We can just take a moment and reminisce and be like, “hey, that was a great summer that each of us had.”

Joe Patrice: It was.  By the way, if you are a summer associate listening to this, be sure to keep us up-to-date if anything crazy happens while you’re there.  If you’re not, a summer associate, obviously snitch on if something happens in the summer —

(00:05:00)

Kathryn Rubino: Yeah and the thing that I referred to was historical thing that happened.  It was like one of the top ATL stories of all time, which is when a summer associate jumped into the Hudson River.  That’s the thing that really happened.

Joe Patrice: Yeah from my old firm.

Kathryn Rubino: Yeah, jumped into the river.  That’s the thing that happened.

Joe Patrice: I was not there at the time.

Kathryn Rubino: And I think still got an offer at the firm.

Joe Patrice: Yeah and actually turned up in the news years later having tackled a purse snatcher or something like that.

Kathryn Rubino: Listen, this is fantastic stuff. Love to see it. But the point is, things happen for summer associate classes and we love to hear about it anything Above the Law.

Joe Patrice: Exactly.  All right.  But that’s not what we’re talking about.  What we are talking about is the decision by Scadden announced that they are going to go to a four-day work week.

Kathryn Rubino: So they had been at what?

Joe Patrice: Well, let me rephrase.  It’s always weird to say work week because we don’t really mean work week. They’re lawyers.

Kathryn Rubino: In office.

Joe Patrice: There are lawyers, they work seven days a week, but in the office, they’re going to be required to be in the office for four days.  They had a more flexible system, much like a lot of people did.  Now they are moving to a mandatory four day so a Monday through Thursday in the office all the time system.

Kathryn Rubino: I don’t love it.

Joe Patrice: No.

Kathryn Rubino: I don’t love it.  Listen, I think that I –

Joe Patrice: You know who else doesn’t love it?

Kathryn Rubino: Associates.

Joe Patrice:  Associates, yes.  They do not love it, and they are all — the chatter we’ve heard is that a lot of them are picking up those recruiter calls now.  Lots more office –

Kathryn Rubino: It’s a good time to answer those random unlisted numbers because you’re going to be in the office anyway, right?

Joe Patrice:  Yeah, that’s true.  Yeah, you’re going to be there.  May as well answer those calls.  They’re not going to be there yet, this policy takes effect in the fall, and there’s going to be, let’s in all fairness describe it, there’s going to be some times that are work from home the week between Christmas and New Year, Thanksgiving week.  They’re going to set up a system where in August you only have to be in three weeks and you can work out which weeks those are it looks like, whatever.

Kathryn Rubino: Not quite the European.  We take August off kind of vibe, but you know.

Joe Patrice: No, of course not.  It’s an interesting policy move because I feel like we talked about how there’s a collective action problem in legal.  I don’t know how much of a problem it is, but it’s a collective action issue.  Cravath decides what everyone’s going to get paid, and then everyone follows on.  Cravath decides what everyone’s bonus is and everyone follows on and it’s not always Cravath, but it usually is, and everyone’s –

Kathryn Rubino: Cravath a day was great.

Joe Patrice: Sometimes it’s Milbank, but somebody does something and everyone follows.  This very much feels like a bold Gambit out of Scadden, because they are saying everyone needs to come back to the office Monday through Thursday.  If other peer firms don’t follow on, that’s where all of that talent is going to go.

Kathryn Rubino: Yes, there’s definitely a collective action problem.  I think, though, it’s still Scadden.  There’s still going to be folks for whom Scadden is their best option, and it’s still going to always be on their resume.  And I think when I certainly took my full-time associateship, I very much had the attitude of, “well, this is for a limited time only.”  Like, I didn’t think that I was going to try to make partner at the Biglaw Firm I was at.  Didn’t try to make partner at that firm, I was only there for a couple of years.

And so, knowing that it’s a limited time, but knowing you have Scadden on your resume for the rest of your life might be worth it for some folks.  Particularly, earlier in their career and they may not have the same obligations that mid-level or senior associates have that make them really value that flexibility so I’m not sure.  It certainly, I think, hurts them in the lateral market.

Joe Patrice: Yeah and I think both sides of lateral market, it’s going to be harder to pull somebody in who already is working at a place where it’s flexible.

Kathryn Rubino: And easier to pull them out.

Joe Patrice: And it’s going to be a lot easier to pull people out because Scadden, you talk about the Scadden resume.  Having a Scadden line item on a resume makes for an appealing candidate.

Kathryn Rubino: Easy to get them their next job, which doesn’t require them being in the office four days a week.  I think it is bold too for Scadden because four doesn’t seem — I see a move to three and I don’t necessarily support it, but if firms are requiring three days in the office, I’m not going to pitch a fit over that.  That seems to me where the market is headed.  That seems like a wild advantage over the pre-COVID status quo, which was probably six days in the office.  So, I think that three days is probably where the balance lies.  The difference between three and four is stark.

(00:09:56)

Joe Patrice: Yeah.  Well, with three, if you don’t create a system of mandatory days where you say it has to be these set days and only these three days, you have the option of having a flexible rotating workforce where you can –

Kathryn Rubino: Right.  Firms can reap a benefit of hoteling.

Joe Patrice: Yeah and you can actually save overhead by reducing footprint and on office footprint, that has advantages.  When you make everybody come in for four days and say what those four days are, you get none of the advantages of having a work from home world with all of the disadvantages of disgruntled employees.  And it’s not just associates either.  Well, we know it’s associates.  We have also heard some unconfirmed rumors that this was brought up for a partner vote and it failed so this was imposed over the partners or at least the majority of partner’s objections.

Kathryn Rubino: Yeah, and they’re probably thinking about it from a couple of different vectors.  First of all, them personally not wanting to be in the office a mandated four days, but there’s also the knowing that they want the best talent.  They want the talent that knows that other firms are only requiring three days or two days and that this is going to make them look bad vis-à-vis vis their peers.

Joe Patrice: Or even four days that are flexible.  There are people in this world who would rather work Tuesday through Friday, or would rather work Monday-Tuesday than Thursday-Friday and have Wednesday.

Kathryn Rubino: Yes.  I definitely think the lack of flexibility, particularly when you’re at a number like four, right?  Four means that everybody’s going to overlap majority of the time no matter what.  So, might as well make it flexible.  You can only get that as an advantage.

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Joe Patrice: Okay, so let’s talk about the next issue.  The never-ending saga of Clarence Thomas and ethics.  Had a few new developments this last week.

Kathryn Rubino: I’m not surprised, frankly, that there were more developments in the two weeks that I was not paying attention to the news, because they were developments — when I was paying attention to the news on a nearly daily basis and almost impossible to keep track of kind of pace, which query if it’s better or worse for the public at large.  Those of us in the legal media, those of us who are lawyers, obviously care more about supreme court and supreme court ethics.  But I think that this is definitely the story that has sort of jumped the rail and has become a full-time mainstream story.  And I don’t know if the more developments are hurting or helping it take on a life of its own for mainstream folks.

Joe Patrice: So, a couple of issues.  The first one, I guess let’s start with this, because it’s a good transition from Biglaw, which is that Harlan Crow, who is of course, Clarence Thomas’ super –

Kathryn Rubino: Sugar daddy.

Joe Patrice: Super awesome sugar daddy, best friend forever.  He has been —

Kathryn Rubino: I like that.

Joe Patrice: He has been asked for documents by the Senate Judiciary Committee.  He wrote a response letter saying that he is not going to do that.  His response letter is pinned by Gibson Dunn.

Kathryn Rubino: So he’s bringing in the big guns right there.  Biglaw, big guns.

Joe Patrice: And basically, what Gibson Dunn says is they’ve decided to advise their client to commit contempt.  Not exactly, but at least they’ve advised him to take his chances that contempt is going to happen.  They made the argument that they don’t believe there’s any legislative purpose to seeking documents from him.  Their argument being that the Judiciary Committee and the Senate can’t impose any ethical rules on the supreme court, so there’s no reason why they should be inquiring into supreme court ethics.

Kathryn Rubino: Wow!  That’s a take.

Joe Patrice: This is bold, given that it’s not really up to a random witness to decide where the separation of powers.

Kathryn Rubino: Right.

Joe Patrice: But also it is problematic because the actual laws at issue here are laws that the legislature has passed and do apply to the supreme court already.

(00:15:03)

This is not about imposing anew judicial code of ethics.

Kathryn Rubino: Code of ethics, right. They’re trying to see whether or not the existing code of ethics has been violated.

Joe Patrice: Right and there are two laws implicated here that already exist, that the supreme court has already recognized that they’re bound by for years.

Kathryn Rubino: Generations.

Joe Patrice: I don’t know about generations, but for 40 years –

Kathryn Rubino: Generations of the court.

Joe Patrice: Generations of the court.  All right, that’s fair.  That’s fair.  But yeah, so for a long time, they’ve recognized that the law requiring public disclosure of these sorts of transactions is required of all government officials, not just judges but the judges are covered by that, and everyone agrees.  That is the law that we already know Clarence Thomas failed to comply with by not reporting all of this income that he was getting.  Now, on top of that, we also learned, as we’ve discussed over the course of this whole thing, that Thomas was called out by the judicial conference for this in 2012, so he was already on notice that this was a problem.  But it is about these disclosure laws, and those disclosure laws are legislative, and everyone agrees they are.  So, there’s not really any separation of powers argument to be had here.

Kathryn Rubino: Sure.

Joe Patrice: Gibson Dunn’s letter is –

Kathryn Rubino: Not the Biglaw firepower that you might think.

Joe Patrice: It is.  Look, we’re particularly snarky about the quality of Biglaw work product, but it is not just us.  There were other lawyers and law professors who responded to this letter with, I hope that the Gibson Dunn associates who worked on this are properly ashamed of themselves.  Another tweet from –

Kathryn Rubino: Man, that’s got a sting.

Joe Patrice: From a legal luminary was.  Yeah, this is very wrong.  It was an embarrassing letter.  The citations in it made no sense.  They didn’t even reference the two laws that are actually at issue here.

Kathryn Rubino: This is a wild, too, because on my other podcast the Djibouti, I’ve talked to folks who have cases that they know are of extreme public interest.  And this is one of those instances where you have to know if you’re Gibson Dunn.  That this letter is going to be analyzed, dissected by a lot of smart legal minds on your side against your side.  You have to know that going in when you’re composing the letter.  And to not dot your Is, cross your T’s, go in and make sure it can withstand the scrutiny that you know it’s going to get.  Feels bad.  Feels like you want to use, like, bad words to describe it.

Joe Patrice: Yeah, it was not great. It got an appropriate rebuke from the Judiciary Committee and response letter.  Yeah, but this is the latest update on the crow front part.  Specifically, we also had Chief Justice Roberts received an award from the ALI for, I don’t know.  I can’t really think of any accomplishment that deserved that award, but he’s gotten this award despite the fact that he’s lorded over the decline of the federal judiciary’s standing in this country to the point where it’s at a historic law.

Kathryn Rubino: It is wild.  It is wild to have watched just in terms of the amount of time that I’ve been a lawyer watching the reputation of the court just tank and it’s wild.  And listen, I remember Bush v. Gore, which did not seem like a highlight of the supreme court and that seems we are looking up at Bush v. Gore at this point.

Joe Patrice: Yeah, right.  Anyway, so at this event, Roberts made some remarks about supreme court ethics and he is committed.  He says to –

Kathryn Rubino: Great.  I love it.  What’s his plan, Joe?

Joe Patrice:  To the highest standard of ethics.

Kathryn Rubino: I think that’s wonderful. What’s his plan, Joe?

Joe Patrice:  Well, he has a secret plan.  He’s not going to tell us.  He says they’re still discussing a lot of things they can do, quote unquote.

Kathryn Rubino: So I don’t know.  The chief justice has taken a very closed approach to ethics and the light of this scandal, but I have to wonder if, behind closed doors, what is actually going on?  You can’t imagine that he’s happy with Clarence Thomas, because you have to imagine he’s personally disappointed in Thomas for no other reason than calling undue attention to the court at a time when the attention is not doing any favors to the to the reputation of the court.

Joe Patrice: No.  He says that he is committed.  We are continuing to look at things we can do to give practical effect to that commitment and I am confident there are ways to do that that are consistent with our status as an independent branch of government under the constitution’s separation of powers.  That is some double speak there.

(00:20:03)

Kathryn Rubino: That is, “please don’t ask me about my secret plan to fight inflation right there.”

Joe Patrice: This also is par for the course so we had put aside the supreme court.  We had that instance a few years ago where a bunch of lower level courts were dinged for failure to recuse over clear conflicts of interest.  And his response to that –

Kathryn Rubino: Mostly stock, as I recall.

Joe Patrice: What?

Kathryn Rubino: Mostly stock ownership.

Joe Patrice: Lots of its stock ownerships.  And his response to that we also had “oh, yeah, it’s also fair that we had the kind of earth’s groundbreaking revelations about years of workplace harassment in federal courts that no other done nothing.

Kathryn Rubino: Also did nothing about it.  Well, no, that’s not true.  If a judge retires, then that just ends all the investigations.

Joe Patrice: Right, but that’s neither here nor there.  It’s about the judiciary’s inability to deal with it and its years of covering it up.  In response to those, Roberts put out a report saying basically scolding anyone —

Kathryn Rubino: How dare you?

Joe Patrice: For how dare you questioned the sanctity of the judiciary and then offering that he might run a webinar.  When I hear that he’s committed to doing things here, I feel like we’re staring down another webinar.

Kathryn Rubino: Yeah, at absolute best.  I have to wonder how history is going to look at this time period of the supreme court.  Maybe it’s just hopeful thinking that there will be some consequences that history will dole them out, even if we can’t in real time.  But I have to think that the way that we remember Chief Justice John Roberts is not going to be kind.  Separate and apart from his jurisprudence, which I have massive problems with.  Separate and apart from actually penning some of the worst decisions in Supreme Court history.  Separate and apart from all that.  Just looking at how he’s run the court is not going to look great.

Joe Patrice: Yeah, it’s not been a good run.  If you are the person who’s been sitting around thinking, “well, this Clarence Thomas thing,” somebody’s going to deal with that responsibility that is not what’s apparently in the offing.

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Joe Patrice: All right, so there were a couple of big cases last week.  Chris was really our person on the Clean Water Act case.  He’s obviously not here, so let’s push that aside.  The other big case that got a lot of media attention.

Kathryn Rubino: Takings.

Joe Patrice: What?

Kathryn Rubino: Takings.

Joe Patrice:  Was a Takings case, much to Elie Mystal to light for those who’ve been around for a long time.  He’s a big Takings fan.  This was a case out of Minnesota about — quite the sympathetic plaintiff, an old grandmother, she is African-American.  She had her condo seized by the local authorities and sold so that it could satisfy her missed tax payment.  But at the end, they sold it for more than the tax payment was worth, and the local government felt that it could pocket that difference.

Kathryn Rubino: Well, that doesn’t seem great.

Joe Patrice:  Right.  On the surface, that doesn’t seem particularly great.  If you have a $15,000 outstanding tax bill and they sell your place for 40 grand, they don’t get to keep the extra 25 grand.

Kathryn Rubino: That seems accurate.

Joe Patrice: That is ultimately what the supreme court ruled.  That said, a lot of the coverage around this has been kind of superficial and it violates one of the rules that I think is very valuable.  And I know Jay Willis wrote a thing recently about ways in which the media could better cover the supreme court.  And one of those issues was take a look at the interests of the people arguing those cases and paying for those cases.

(00:25:01)

In this instance, the case was being brought by the same weighing organization who won that Clean Water Act case, actually.  And the reason –

Kathryn Rubino: Interesting.

Joe Patrice: Yeah.  The reason was that Takings is a very important part, especially in the case of property taxes and stuff like that.  A very important part of an overarching mission to weaken government declare property so sanctified that regulations can’t apply to it.  In this instance, we also have kind of a factually janky situation where it wasn’t like the county took away her home.

Kathryn Rubino: I thought it was.

Joe Patrice: She lived elsewhere.  This was a property she no longer got –

Kathryn Rubino: Not a homestead issue?

Joe Patrice: No, she didn’t live here.  She had abandoned it and stopped paying her taxes.

Kathryn Rubino: Abandoned the property?

Joe Patrice: Yeah.

Kathryn Rubino: Less sympathetic.

Joe Patrice: Yeah.  So that was the situation.  The argument that the county made is that they pocket the difference because they give you every opportunity to pay your tax bill, and if you aren’t going to do it and the county has to go to the trouble of being your real estate agent, the disincentive to bringing it to that point is if you force us to do that, we’re keeping the balance.  Their argument was this is a very reasonable way to make people pay their taxes without forcing the county to do it for them, which is not an insane argument.  I think it is wrong.  I actually agree with the supreme court’s decision as it is.  But that’s not a crazy argument.  As a regime that makes some sense for how to get there.  And there’s a non-zero argument that would the county have taken this woman’s home as opposed to her abandoned second property?

Kathryn Rubino: Or just property, yeah, maybe and maybe not.

Joe Patrice: I don’t know.  Maybe, maybe not.  But here’s the thing, if there’s anyone in the world who got their real home seized this way, their name probably would have been on this.  I think that they found this.  This is the best possible case that the Pacific Legal Foundation could find for this and it is an abandoned second property, because I just think that local governments probably wouldn’t pull the trigger on kicking somebody out of their home.

Kathryn Rubino: They have to be reelected too, right?

Joe Patrice: Yeah.

Kathryn Rubino: That’s interesting and I think that like sort of the playing fast and loose with these supreme court cases that supreme court cases obviously are more important than the individual facts that give rise to them.  They have this presidential value which is incredibly important.  But I also am interested in the parallels between this case and that football game player case because that was another case where, even in the majority’s decision, the recitation of facts was wildly different than the original record reflected.  And I think it’s interesting that we are increasingly comfortable as a society of softly massaging the facts to get the results that we want as opposed to living with these difficult facts.  I mean, think about it.  In law school you always learn about the Skokie, KKK case.  And that’s not a sympathetic case, right?  You’re like, “Oh!  Man, the KKK is terrible, but you got it.”

First amendment requires terrible decisions like this or whatever.  And there was a recognition of that difficult facts still make the law.  And I think that we are seeing a very playing fast and loose with facts of the case in a way that we should be really worried about.

Joe Patrice: I mean, the one that always gets me is the property class, one-hour property class case about Dolan versus City of Tigard.  That was the one that always did it to me because I remember reading that case in class and the description of the beautiful area that they were going to put a bike path along and it actually, in fairness, it is more beautiful now than it used to be.  But as someone who was from that town, I was like, “this isn’t accurate at all as I read that case.”

But aside from that, the other aspect of this case that I thought was interesting, it’s another in the — there’s been a lot of dragging of Neal Katyal (ph) over some of these cases.  So, Katyal represented Minnesota in this case, which was the government involved, and a lot of people, especially on the left have been dragging him for representing and trying to takeaway grandma’s houses and stuff like that, which one put us — it’s important to note who was on the other side of this case.  And maybe that –

Kathryn Rubino: Right.  The enemy of my enemy.

Joe Patrice: Maybe that’s why a democratic party aligned lawyer might be very interested in representing a state government in defending its ability to execute its own tax laws, even if the facts of the case seem a little less than —

Kathryn Rubino: Yes, this could have gone terribly awry for the functional administration of local governments.

Joe Patrice: Yeah, I mean, it would have been wild to go off the rails.  But then again, we’ve seen other cases go further off the rails.

Kathryn Rubino: Wouldn’t be betting on it.

Joe Patrice: There was good reason for that.

(00:30:00)

And then a lot of people also were mocking that he made a lot of arguments about feudal history and whether or not the Duke of Gloucester could seize people’s property.  And all I could think about that was, “yeah, that’s the wrong takeaway.”  I saw some folks on social media dragging that and all I could think was, no, that’s not the picture –

Kathryn Rubino: Know your audience, first of all.

Joe Patrice: Yeah, the takeaway is he’s adapting to the audience.  The supreme court made very clear over the last year that that’s what they care about is whether or not somebody in England did this in the 1300s.  So, he pointed out that that’s how it worked, and their response was literally, “we don’t care.” And that’s the takeaway.

Kathryn Rubino: And Katyal is sort of famous for crafting arguments for specific justices during oral arguments as well.  He’s specifically called out.  He’s like, “this is for you, Thomas.”  He’s gone out of his way to point out if this aligns with your philosophy and if you don’t agree with this argument, you have a real consistency problem.  Which I also think is important to point out because I don’t think that the conservative justices are particularly consistent between decisions.  Let alone within their own decisions, so I think that it’s important to point it out.

Joe Patrice: The real takeaway of this when Gorsuch (ph), for instance, in the oral argument was like, “I don’t see what this has to do with it.”  The real takeaway was these folks talked about ancient history being the most important aspect of law right up until it was about literally anything other than women’s reproductive rights and guns.

Kathryn Rubino: yes, its’ like the 1600 are super relevant when you’re trying to take away my rights, but if you want to let local governments execute their own tax laws, “easy there, cowboy.  Why are you talking about ancient history?”  And you literally can’t have it both ways.  And the supreme court is about to has it both ways, and we should be calling that out.  That should be the thing that really pisses people off.

Joe Patrice: I feel like I’ve done– What’s weird about this case is I’ve spent a whole lot of time and effort defending a position that I don’t actually think is right.  That’s the weird thing.  I do think that it is a violation of the constitution to take more than the government owed.

So I’m defending this other position but all I’m saying is it’s not a wild position.  It is wrong, but it is not as far off the rails.  That’s people fun.

Kathryn Rubino: I think that your advice to look at who’s on the other side of the this is incredibly relevant before.  Any ideology gets pissed off.  Be like, look who’s on the other side because I promise you, they’re more wrong.

Joe Patrice: Yeah.  All right.  Well, with that said, let’s close things up.  Thanks for listening, everybody.  Thanks for joining us guest host.

Kathryn Rubino: Thanks for having me and Frankie Le Roux says, thanks for having her in the background.

Joe Patrice: Yeah, well, barely heard her.  And that has nothing to do with our fantastic editing, I’m sure.  But yeah, so thanks for joining us, everyone.  You should subscribe to the show so you get more episodes when they come out.  You should be leaving reviews, stars, write some things.  It always helps.  You should be following us on social media.  I’m @ josephpatrice on Twitter.  She is @katryn1theabovethelaws@atlblog.  I’m also Joe Patrice at BlueSky, not that I’ve really too in depth there yet, but I’m trying.

Kathryn Rubino:  Start small.

Joe Patrice: I’m trying.  You should be reading Above the Law so you get these and other stories as they come out and read them, share them, tell people about them.  It’s always great.

You should be listening to other shows on the Legal Talk Network.  You can also listen to the Jabot Katheryn’s other podcast you can listen to.  I’m a guest on the Legaltech Week Journalist Roundtable where we talk about legaltech every week.  And that’s it.  Thanks.  Peace, bye.

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