Remembering U.S. Supreme Court Justice Sandra Day O’Connor

Episode Notes

Transcript

Jon Amarillo:

Hello everyone and welcome to CBAs @theBar, a podcast where we have unscripted conversations with our guests about legal news, topic stories, and whatever else strikes our fancy. I’m your host, Jon Amarillo of TAF Law, and joining me as co-host is my friend, Maggie Mendenhall-Casey, general Counsel of the Community Commission for Public Safety and Accountability. Maggie, how’s your holiday season treating you so far?

Maggie Mendenhall-Casey:

It’s been good so far. A lot of holiday parties, but I got to get to wrapping my presents asap. How about you, Jon?

Jon Amarillo:

I was just thinking the exact same thing at about 3:00 AM actually. Yeah, my daughter is just becoming aware of Santa this year, so the pressure is mounting

Maggie Mendenhall-Casey:

Present. Panic is real.

Jon Amarillo:

It is, it really is. Joining us as our guest today is Mike Scodro of Mayor Brown’s Supreme Court Appellate practice. The list of Mike’s professional accomplishments is as long as it is enviable, and from my perspective as a fellow appellate lawyer, a little annoying. He’s argued numerous cases before the US Supreme Court. He served as Illinois Solicitor General. He’s a lecturer on Supreme Court practice at the University of Chicago, and perhaps most impressively like me, he’s a former president of the Illinois Appellate Lawyers Association. Mike, welcome to the podcast.

Mike Scodro:

Thanks so much for having me.

Jon Amarillo:

So Mike, we asked you to come on and speak with us because one of the many, many, many gold stars on your accomplishment board at home is that you served as clerk to the late US Supreme Court Justice Sandra Day O’Connor, who our listeners will know recently passed, and we wanted to talk with you a little bit about her life and legacy. Quick disclaimer on that, we’re not doing a full biography today or anything approaching a comprehensive discussion of her life and legacy. There’s plenty of articles that are being written about that now, which our readers can refer to. This will, I hope, be something a little bit more personal to you about your experiences with the justice and how you interacted with her and what you think when the dust of history settles, people will view her life and legacy.

Mike Scodro:

Thanks, Jonathan. Yeah, happy to discuss that. And just back from, as you mentioned with her recent passing just back from Washington with her memorial service both Monday and Tuesday.

Jon Amarillo:

Yeah, let’s start there. What was that memorial service like?

Mike Scodro:

So Monday was really moving all of the vast majority of her law clerks from her many years of service on the court. Assembled at the court early Monday morning and as is tradition formed two lines on the steps of the Supreme Court building and out into the plaza in front as the justice arrived in the hearse and an honor guard then brought her into the Great Hall passing through the middle of these two lines of her law clerks. And I would say that was probably the most, in many ways, the most moving moment. It was complete silence and you had between 80 and 90 of her former clerks by my estimate, standing there and then throughout the day she was lying and stayed in the great hall of the Supreme Court building and throughout the day we took 15 minute turns standing vigil, two clerks at a time as members of the public came through and paid their respects and that was also extraordinarily moving.

Again, complete silence in the room. Meanwhile though, in back there’s a large gathering space where law clerks could spend as much of the day as they wanted between the morning session and their vigil, and that was a truly remarkable space. People were gathering, telling stories. I think the justice would have been very pleased to see that scene throughout the day as stories were exchanged, there was memorabilia in the room from her office, things that neither she or the family had wanted as she moved out of the office. And so folks could grab a photo or something that was left out for folks to kind of peruse and she very much nothing to waste, which was very much in keeping with her philosophy generally. And so all those things found a home I think throughout the day as well.

Maggie Mendenhall-Casey:

Did you happen to take a memento, Mike?

Mike Scodro:

I did. She had a large stack. There were several Time magazines from 1981 and the cover shows depicts the Justice

Jon Amarillo:

That’s year she was appointed, Right?

Mike Scodro:

Exactly. She had been appointed but yet not yet confirmed at that point when the issue was released and it identified her at the bottom as President Reagan Supreme Court appointee Sandra Day. And the headline was very simple. It just said Justice at last showing the first woman appointee to the Supreme Court.

Jon Amarillo:

So let’s go there. Her background a little bit pretty, at least from the standard for Supreme Court justices these days, unique, right? I mean she served a few years I think as a judge, but before that she was a career politician, wasn’t she?

Mike Scodro:

Yeah, you’re exactly right. She spent many years in the Arizona Senate. She was the first woman ever to serve as majority leader of a state senate and did rise to serve as majority leader of the Arizona Senate. That was an extraordinary accomplishment, obviously in its own right. And as you say then after a very brief stint in the Arizona courts was appointed in 1981 by President Reagan consistent with the campaign promise he had made to appoint the first woman to the US Supreme Court.

Jon Amarillo:

Right. Tell me if I’m wrong, but I’m remembering a story about her at Stanford Law and dating a young William Rehnquist. Is that right?

Mike Scodro:

That is right, yes. And I think more and more of that has come out in part with the biography by Evan Thomas that came out called First, not long ago, an authorized biography in the sense that the family had given Mr. Thomas full access to materials and people and interviewed the law clerks and so forth. But yeah, there had always been that understanding. I think some of the details emerged in the book when it came out.

Jon Amarillo:

Well, those are details everyone wants to hear, obviously. Exactly. Didn’t he propose and she said No,

Mike Scodro:

That is a detail yes, that emerged, at least as far as I was concerned, the first time I heard it was in the book and then the press coverage surrounding it, I think I remember hearing it on an NPR broadcast. They were reviewing the book and brought that detail to light. Yes.

Jon Amarillo:

I mean you can’t make that stuff up, right, considering where 18 decades later.

Mike Scodro:

Exactly, exactly. Yes. And remain good friends throughout. Certainly my experience in the court remain very good friends on the court

Jon Amarillo:

As most people do with their exes.

Mike Scodro:

Exactly,

Jon Amarillo:

Exactly. It obviously says a lot about her.

Mike Scodro:

Yes.

Jon Amarillo:

So she was appointed by Reagan in 81, and as I recall, even though she was center right politician, let’s call it the main opposition was coming from the right when Reagan floated her name for the seat. Right,

Mike Scodro:

Yeah. That is my understanding exactly, is that there was opposition from the right as a politician. I mean to your earlier point, we don’t see many elected officials making their way to the Supreme Court because you do have a record. And to your point, Jonathan, there were folks on the right opposed based on her political record.

Maggie Mendenhall-Casey:

How do you think that her career as a politician impacted her jurisprudence? Do you think that it contributed at all to her being a centrist and a moderate on the court?

Mike Scodro:

Yeah, that’s a great question and I think my short answer would be yes. I think that it did a couple of things. I think on the one hand it instilled a certain practical approach on her part, and by that I mean she took each case as its own set of facts and thought deeply about how this decision would impact people on the ground. And I think there’s a certain degree of the pragmatism that came with being not only a legislator but a majority leader, that part of the job is to reach across the aisle and to try to get things done. And I think that part of it not only made her practical, but also gave her an extraordinary, she had extraordinary talent for listening to the other side of an issue and understanding and looking for common ground and respecting the other side on whatever the issue might be. And I think that too lent itself to her jurisprudence. I think this notion that there may well be multiple views on an issue and they all ought to be heard and respected, and then let’s try to figure out what the best possible outcome is.

Maggie Mendenhall-Casey:

I seem to remember about 10 to 15 years ago, there used to be a common refrain of we need a politician back on the Supreme Court. We need one because of that pragmatism that you were speaking about. I haven’t heard it much recently. I don’t necessarily think that that’s possible in the year of our Lord 2023 going into 2024, but that pragmatism certainly is missed in terms of the celebration of the Justice’s life. I would love to hear your take about the importance of acknowledging her role as the first woman on the court. Do you think it’s important, do you find it to be a distraction in reading some of the official statements from the justices? Some chose to acknowledge her historical role, others did not, and I’d love to hear your take on that.

Mike Scodro:

Sure. And I should add that some of this came out, we talked a little bit about the Monday memorial. The Tuesday was the formal funeral at the National Cathedral. The President spoke, the Chief Justice spoke, and her son Jay, all of whom touched on different aspects, including exactly what you’re describing, Maggie in terms of being the first, I don’t think it’s worthwhile to sort of sidestep it or not pay attention to it. I think she very much understood the importance of that role. I’ve spoken to so many attorneys, judges, for example, when the Justice visited Chicago several years ago and there was a large event and people that I know colleagues spoke about the importance of her serving on the US Supreme Court, the sense of opportunity that instilled in a lot of women lawyers and soon to be judges around the country, I think is impossible to ignore. I think it is something that the justice absolutely understood. One of the quotes from her paraphrase was along the lines of, it’s great to be first, but I don’t want to be last. That is, I understand how important it is that I do that. I embody all that is excellent about being a justice. And she did, as so many people have said, she was extraordinary in so many ways as a justice and as a fabulous boss and colleague and human being.

Jon Amarillo:

Do you think, and I want to be conscious of not leaning into any stereotypes, but in addition to her background as a politician, the fact that she was a woman may have contributed to her style as a justice, her desire to build consensus on the court rather than engage in open conflict with some of her colleagues?

Mike Scodro:

Yeah, that’s a good question. And I think hard to say. I mean, I don’t know that I would attribute it to anything other than more of her background, both politically and even personally and sort of growing up as she did on the ranch and so forth. She absolutely was a consensus builder. There was no question people describing her early years on the court, and I don’t just mean political or legal consensus, but also just she built an atmosphere in the court where everyone was welcomed. She really re-instituted the idea that everyone, or instituted the notion that everyone ought to be at lunch after argument all nine justices. And there was discussion, one of the folks talking about her legacy from within the court made that point. And I think that Chief Justice touched on it as well when he talked about her legacy at the court. So I don’t know what exactly to attribute it to, but I will say that certainly her background brought her to a place where she was a relationship builder within that court and not just informing in terms of opinions, for example, but very much in terms of the culture in the building.

Maggie Mendenhall-Casey:

And when you talk about her history on the ranch, I just learned this recently, I found it extremely interesting that going to the Supreme Court wasn’t her first time being in all boys club besides law school. The ranch was very much so all male environments. So she grew up on a huge ranch that made her become accustomed to working with men from a very young age. But you did mention that she was a fantastic boss and I’d love to hear what happened in the chambers. What was she like as a leader? What was she like as a writer?

Mike Scodro:

Yeah, she expected a great deal out of her law clerks because she expected a great deal out of herself and her colleagues. Everyone was expected to be at the highest standard, and I appreciate that. I appreciated it then, but I think I appreciated more with each passing year as I look back on it. So how did she sort of run things in chambers? Well, we would each sort of take primary responsibility for a case for an upcoming sitting. I think that’s fairly common across chambers, but there was a lot of collaboration within Chambers talking to your co-works. These were by nature tough issues that had made their way to the Supreme Court. So for a group of 20 somethings, for the most part, sort of working through these as young lawyers, they were complex and challenging, but each person had primary responsibility. We would write fairly developed analysis of each case in advance of the argument date with sufficient time for the justice to review those.

And then the tradition that I was terrified about what I started, but came to just love as one of the high points of the clerkship said every Saturday morning before an oral argument week, the court typically hears cases Monday, Tuesday, Wednesday of one week, and then Monday, Tuesday, Wednesday of the following week, and then there’s a period off and then the following month they pick it up with the same kind of two week schedule. So in those proceeding Saturdays we would meet at 10 o’clock in chambers and the Justice would’ve brought in something that she made at home for brunch basically, which was always fantastic, often a Southwest theme. But before that, we would spend about two hours talking about every case to be argued that coming week, typically six cases that will be coming up. And it was sort of half discussion, half thesis defense because you had sort of outlined your views of the case.

Your co-works had also reviewed your written analysis of the case. So we were all on top of every case. And the justice probed the issues. She asked questions and it was you were encouraged to be entirely candid with the justice regardless of what you think the majority of justices might think, regardless of what you think at the end of the day, she may think about the case based on court precedent, based on the statutory language, whatever might be at issue. You were encouraged to express your views. And what I just have appreciated even more with each passing year is her capacity at that point to step in and to ask the question that cut to the core of the case. Oral advocates know this. She did this routinely during oral argument, but she had this sense, this incisive ability to ask the question on which at the end of the day, the case was going to turn. She understood the court, she understood the law obviously, and that ability to cut to the very core of something in a way that it had taken me and my corks a week or two to do in terms of research and writing, I continue to marvel at and appreciate. In retrospect,

Jon Amarillo:

Diane Wood does the same thing I found whenever she asks a question like interesting, I brace myself.

Mike Scodro:

Agreed. Agreed.

Jon Amarillo:

So you’re a boss now. So let me ask the same question with a little bit of a different focus. Sure. You have partners working under you, associates working under you. What have you taken from your experience with her and tried to apply it in your relationship with those who work for you?

Mike Scodro:

Yeah, I think one is certainly to try to create that same sense of openness to ideas in the meetings. Not to start the meeting with my thoughts, but rather to wait and speak last so that people can express their views from the most junior associate. They may well have the best view or the most creative view on something based on their research, their own thinking. So let’s open it up and let’s have a space where you can contribute without thinking you’re trying to, that there’s a target in the room that you’re trying to get to a certain point that’s predetermined. So that’s something I very much appreciate hearing and understanding the opposite side, I think as lawyers, we all obviously do better when we’re thinking about how to make our argument strongest to come up with and in some ways embody and reflect the strongest views on the other side.

And I think her capacity to respect opposing views is a great model for that as a lawyer as well, when you’re trying to contemplate what a judge might think of the other side’s case, what might be strongest about it and what the other side thinks is strongest about their case. And the last I would say is just a humanity. The justice was not only our boss when we would have lunch together, we would have those brunches following the Saturday morning meetings. She was deeply interested in what was going on in our lives and our interests and our views professionally and personally for our futures, where we might choose to live and what we might choose to do. And she was really engaged on all those issues. And she remained engaged when it was well understood that if you were expecting a baby, that the justice would be one of the first calls you made after the to be grandparents were informed because if she were to learn of that secondhand, that would be terrible. That would be a terrible fate. You want to be the one to tell her. And she would then send a T-shirt that had the seal of the Supreme Court that says Sandra Day O’Connor, grand clerk.

Maggie Mendenhall-Casey:

That is so sweet. Grandma,

Mike Scodro:

She loved her grand clerks that all the reunions. I think she spent as much or more time with my kids as with us as clerks. And that was terrific. And my kids all have great memories of the justice as well, and photographs and things. So to fully answer your question, Jonathan, I think the last thing I’ve tried to bring from her style to mine is not just being a boss, but having a sense of humanity and understanding that we work together. We have long hours, there’s lots of stress. And to have it be to understand each other personally and to have that kind of mutual respect for each other as humans is something I’ve tried to carry forward from her legacy.

Jon Amarillo:

I’m just going to write that down for myself and my own practice, be more human. That heartwarming noise. Probably a good place for us to take a break. We’ll be right back. And we’re back, Mike, before we broke and you were reminding me to be more human in my work relations. You touched a little bit about Justice O’Connor’s practical, non-ideological approach to the law. And I was wondering when you think of a typical quote O’Connor style decision, what comes to mind?

Mike Scodro:

Yeah, it’s a great question because I think she certainly had some ideologies, some strains that were consistent obviously through her jurisprudence. But the practicality is in itself, one of them I think. And so I think your question is spot on in terms of what is kind of the O’Connor opinion. I mean, the case that jumps out to me, and it’s actually from the term I clerked, so it may be one of the reasons it does, is a case involving a municipal anti loitering ordinance. And the court struck it down on constitutional grounds. But O’Connor’s concurrence in that case to me has always stood out as an example of sort of not only her pragmatism, but also her sense of understanding both sides of the issue and the important policies that were in play. So what she ended up doing joined by Justice Breyer, so they were votes five and six in favor of the majority to strike down the law.

What they did is wrote a concurrence that was both narrower in terms of what was decided than the other members of the majority, but also provided basically a roadmap, an outline of how this law could be narrowed more narrowly interpreted in order to be constitutional. The court didn’t have that narrow interpretation from the state high court at that point, but in essence provided a very detailed, and again, this goes to the pragmatism and I think goes to her understanding of the challenges faced by state and municipal legislators. Here is how, yes, we’re striking this down, but here’s how you could make this constitutional and still achieve the policy objectives that appeared to underlie it. And the fact that, so her vote and justice Breyers ended up obviously being essential to the majority in that case. To me, that stands out as that example of a pragmatic. At the same time she’s narrowing, she very much wanted to avoid deciding more about a case than was presented. And so it embodied all of those elements.

Jon Amarillo:

And that’s correct me if I’m wrong, but when I think of her, one of the first things that comes to mind is her extensive and judicious use of concurring opinions to almost hijack the decision is too strong a word. But you see what I’m doing with it because when you’re in law school and you read those kinds of concurring opinions, okay, that’s really the controlling law here, even though they didn’t have the majority on that concurrence, that got them the majority. So that’s what lower courts are going to be looking to when they’re deciding cases. And she was famous for her concurrences. She would often side with Justice Thomas, but I think there was a year where she issued a concurrence for every single one of his opinions because she thought, I agree with your outcome here, buddy, not the reasoning.

Mike Scodro:

That does not surprise me. Right, exactly. And as the court has itself defined the way in which lawyers and lower courts have to understand its opinions, you’re exactly right. The narrowest view controls in cases where there aren’t five votes for the broader view. And so in a case where you have say four votes for a sweeping opinion and you have an O’Connor concurrence that reaches the same end, the last line is going to be the same affirmed, reversed, vacated, remanded, but the analysis is narrower. Perhaps what’s being struck down is smaller, and that absolutely then controls, you’re exactly right.

Jon Amarillo:

And that was part of her political genius.

Mike Scodro:

Yeah, I think it was consistent with her view that, again, we are here to decide this case on these facts and not go broader.

Jon Amarillo:

Mike, talk to me a little bit more. So when she would write a concurrence like that, and as I said, sort of hijack a decision, how would that play out behind the scenes with her fellow justices? What was that relationship like? I know you talked before about how she prioritized building collegiality. That reminded me of all those stories you hear about Jon Marshall forcing his justices to have dinner with him and drinking sessions and that kind of thing. So she was putting in that relationship capital early. Would it pay off on the backend when she would do something like that?

Mike Scodro:

That’s a great question. I can’t think of any specific examples where I could say that necessarily had an impact, that sort of respect at the human level had an impact on an opinion. And I’m not sure that it did, other than I do think that not withstanding the fact that she may have provided a narrower result that ends up being controlling, for example, or providing the fifth vote for a view that four justices obviously would disagree with in those five, four cases. I do think that not withstanding all of that, there was a real sense in the building, and I can’t say this was just justice, but certainly she was part of this culture, but a sense that, okay, next case, we’ve sort of a small boat, long river kind of view, we’re all together. She sat on one of the longest as contiguous, if not the longest court without a change in personnel.

And so she, I think instilled that sense. I never got the impression that there were sort of any kind of lingering resentment or anything like that following either a narrower concurrence or from the minority in a five four case where she Cast a critical vote, it was always onto the next case. That was certainly her philosophy and that was her philosophy when it came to things like folks that wrote vigorous descent and opposition to things, to opinions that she wrote in some of those five, four cases. And I never saw it bother her. It was always, okay, next case.

Maggie Mendenhall-Casey:

So this next question is meant in no way as disrespect to the late Justice’s legacy, there are some critics of her jurisprudence in particular, Jeffrey Rosen in an old quote said that her refusal to commit to consistent principles, and in doing such O’Connor forces accord and those who followed to engage in a guessing game, each of her decisions is a ticket for one train only. How would you respond to the critics that would critique how her moderation, her attempt to reach consensus might lead to a lack of clarity?

Mike Scodro:

Yeah, no, it’s a terrific question, and I think this was something that came up not surprisingly, a fair bit actually among the law clerks as we were gathered earlier this week in Washington. I think that, and there have been some have responded, and my own sense is I tend to agree with this response, which is that her pragmatism, for lack of a better word, her sense of the practical impact of some of her decisions, I think that in itself could be seen and well defended as a consistent point of view in its own right. And I think that my own prediction would be that as time passes, I think there may be a greater and greater appreciation, not only in the broader sense that look, politics are increasingly divisive, and here was a voice that really did try to bridge gaps, but even from a doctrinal legal theory perspective, legal doctrinal perspective, that there was a certain consistency, and not only in some strains like her federalism, her view of federalism and so forth that others have talked about, but even in her practicality itself, I think there may be, and once underappreciated, but perhaps increasingly appreciated consistency there.

Jon Amarillo:

Oh, I think there’s a craving for it now. You see the Supreme Court’s approval ratings are at historic lows hovering around 40% because people think rightly or wrongly, that justices are coming in now with certain set ideologies and ideologies, a poor substitute for thought. And Justice O’Connor, as you were saying before, would carefully think through each case on a case by case basis rather than knowing the outcome, knowing their vote before they even heard the arguments or read the briefs.

Mike Scodro:

Yeah, no, I think that’s fair. That was true of her, and I think that also made those Saturday morning meetings to sort of circle back. Perhaps we felt as open as we did because sometimes we didn’t know what her view ultimately would be on that issue.

Jon Amarillo:

Part of the discussion kind of reminds me of an op-Ed that I read. I think it was a day or two ago from Linda Greenhouse. Did you see that one, Mike, about her legacy? I

Mike Scodro:

Haven’t, no. I’m a huge fan of Linda Greenhouse, so I need to, will definitely want to read this

Jon Amarillo:

Friend of the appellate lawyers Association. Yes, indeed. And Linda’s point in the article was that she was almost critical, and it’s almost critical of Justice O’Connor because she thought that at least in today’s environment, her view of how the court should operate seemed almost quaint or naive

Because she was an institutionalist and because she said that the court mainly acts in a reactive, not a proactive manner. And because it will generally only issue major decisions on social issues when there has already been a social consensus that has built around that issue. And now of course the court without getting any specifics seems to be lunging in a very different direction. And going back to what we were talking before about maybe there’s this craving, this desire for her kind of practicality that exists because of it. So do you think with the court moving away from that approach, how do you think that impacts her legacy? Is it dismantling her legacy or do you think it will perhaps provoke a reaction to swing back her way eventually? Where do you see that landing?

Mike Scodro:

Yeah, it’s always challenging to kind of identify and sort of characterize different courts in different periods of time. I think though that the justice’s approach to case law, my sense is that over time, and this builds a little bit on the response to Maggie’s question, I think that over time, my guess would be there would be an increased appreciation for Justice O’Connor’s approach to the law that to her sort of case by case at times, very narrowly ruling. Again, back to your concurrence point, I do think that that is something that folks have appreciated, and I think we’ll probably only appreciate more over time to the extent that we see majority opinions that sweep more broadly than she likely would have, even if she would have agreed with the ultimate outcome on those particular facts. So I think it’s a really interesting question you always hate to predict, but I do tend to think that, at least in my sense, that there’s likely to be a growing appreciation for her approach.

Jon Amarillo:

What examples come to mind from perhaps more recent cases since she’s retired, where the outcome would’ve been different, you would’ve five four court or perhaps even a different split where she would’ve been able to influence the outcome?

Mike Scodro:

Yeah, I mean, that’s a fantastic question. I mean, I think a number of the, again, without getting into specifics, I think a number of the headline grabbing cases from the modern court in the last few terms, certainly I think some would have come out differently. And I think some, at least back to Maggie’s point, people would have felt very uncertain beforehand how they would’ve come out either differently outright, that is a different outcome or a more narrow, again, controlling concurrence, or she would’ve written a more narrower majority opinion. She herself, after retiring from the court, made a number of public statements. It’s my recollection, I’m thinking of one or two where she spoke directly to this question and made the point that there were certain then recently decided cases that would’ve come out differently had she still been on the court. And so I think we can say at least as to those with some certainty that I’d have to go back and look at which particular cases she was referring to be sure.

But my recollection was these were headline grabbing top of the docket cases for that term. And so I think it’s fair to predict that we would have some very different outcomes. I think it’s also important to bear in mind that one of the more fundamental effects that change in even a single justice can make is in which cases they take. And so I think it’s not only fair to assume we would have some differences in outcome on cases that they did take. It’s also very possible that they would have a different docket than we’ve seen either, because sometimes you hear, for example, theorists that say if there’s, and this was sometimes said about Justice Kennedy as well, if neither kind of wing of the court was sure where Justice Kennedy or what might be on an issue, nobody would want to grant the case because everyone might think that their view could lose. And I think Justice O’Connor probably would add a little bit of that. I mean, back to Maggie’s uncertainty point, may actually through that very fact might also have a powerful, or have had a powerful impact on what their docket looks like.

Maggie Mendenhall-Casey:

In speaking to really the role that Justice O’Connor played as a folklore on the court, did you feel that centrality when you were clerking, did you feel as if people were wondering what is she doing and that there was a certain importance in her seat versus other seats?

Mike Scodro:

Yeah, I mean, I think you definitely had a sense on certain issues. Now, I always like to include the parenthetical that there’s a huge chunk of the court’s docket that is 9 0 8 1 7 2.

Maggie Mendenhall-Casey:

You have to right,

Mike Scodro:

Exactly, ERISA preemption, and everyone is wondering where anyone’s going to be because it’s going to boil down to how you parse through a complicated array of federal regulations, for example. But on those issues where you can might say fairly predict with at least some degree of certainty where eight of the justices would be, or seven of the justice would be, you absolutely had a sense the building is very much a family and it’s a family, people working sometimes 24, 24 7, many all-nighters that term, but you’re working in close contact and absolutely one got the sense from clerks from other chambers, for example, that in your everyday conversations, because certainly we would compare notes and thoughts on complicated issues as well. You at times absolutely got the sense that there were a number of justices out there wondering, in the parlance of the building, where is your boss on this? Everyone refers to their justice as the boss. So it would always be, well, where do you think your boss would be? I can say with some degree of confidence that I and my co-works got that question more regularly than I think clerks and other chambers.

Jon Amarillo:

Okay. So running with that, let me ask a completely unfair question. Where do you think your old boss would’ve been since you mentioned federal regulations on the major questions doctrine?

Mike Scodro:

Wow, that is a good question. It’s always hard to predict, especially with her having been off the court now for pushing two decades. But I would say my instinct is that she would not embrace major questions as a freestanding rule or canon. I can certainly see her in a common sense way, taking account of the magnitude of a delegation, the nature of a delegation as part of the broader context, recognizing the whole enterprise when it comes to statutory interpretation is trying to know what we know about human nature and use it to figure out what Congress would’ve been thinking. It seems reasonable that in particular cases, the nature of the delegation may be part of that context. And in that respect, I would say that’s really kind of touching on a strain of analysis that Justice Kagan noted embracing elements of something Justice Barrett noted both in separate writings in opinions this past term. But all of that is to say sort of a common sense, part of the overall context, but not in my view, at least, I would not imagine she would embrace it as a freestanding doctrine.

Jon Amarillo:

Fair enough. That’s a good place for us to take another break. We’ll be right back with Stranger in legal fiction, and we’re back with Stranger and Legal fiction. Our audience knows the rules. They’re pretty simple. Maggie and I have done some research. We found one law that’s on the book somewhere, but probably shouldn’t be. We’ve made another one up, and we’re going to quiz Mike and each other to see who can distinguish strange legal fact from fiction. Mike, you ready?

Mike Scodro:

Okay, sounds good.

Jon Amarillo:

Maggie, you ready?

Maggie Mendenhall-Casey:

Yes, let’s go.

Jon Amarillo:

Why don’t you lead us off?

Maggie Mendenhall-Casey:

Sure. So in Illinois, it is illegal to purchase a car on Sunday or in New Mexico. It is illegal to purchase a car on a Sunday. Which one is true and which one is false?

Mike Scodro:

Wow. Alright. I’m going to say that the law is true in New Mexico, but not in Illinois.

Maggie Mendenhall-Casey:

What don’t you think, Jon?

Jon Amarillo:

I think we’ve had this one before, Maggie.

Maggie Mendenhall-Casey:

Well, maybe it was when I wasn’t a co-host.

Jon Amarillo:

The embarrassing part is, I can’t remember the answer. I’m going to say Illinois, just to keep things spicy, I would usually defer to Mike. His legal knowledge is unparalleled, but what fun is it if there’s not some disagreement here? So I’ll say Illinois.

Maggie Mendenhall-Casey:

Jon, I have yet to stump you. I think thus far, wow. In Illinois it is illegal to purchase a car on Sunday. In New Mexico, there is no such law. I was aware of the blue laws about drinking, but I didn’t realize that they extended to car purchasing. I guess the origin of it is that car dealers wanted their employees to be able to have Sunday off, but didn’t want to lose the competitive advantage. So Illinois, Indiana, and some other states have laws on the books barring the sale of cars on a Sunday.

Mike Scodro:

Wow. It’s good to know.

Jon Amarillo:

There you go. Don’t go car shopping on a Sunday. Okay.

Mike Scodro:

Exactly.

Jon Amarillo:

Alright, round two. In Maine, it is illegal to fish for lobster using any method other than conventional lobster traps. Bar devices include nets, spears, or even using your hands. Option two, in Maryland, Marlin, it is illegal to serve Chesapeake crab with champagne or any other sparkling wine on Sundays, and any restaurant caught doing so is subject not only to fines, but revocation of their liquor license.

Mike Scodro:

Wow. Alright. The main one seems reasonable to me, or at least conceivable. So I’m going to say the Maryland is the made up one.

Jon Amarillo:

So usually the rule fair warning, I know that you’re a first timer here. The more absurd it is, the more true it is

Mike Scodro:

Usually. Oh, usually. Well then I’m going to say that the, no, you

Jon Amarillo:

Can’t change your answer unless you, well, alright. You can change your answer if you want. You’re a friend. We’re going to bend the rules.

Mike Scodro:

We’re bend the rules. Well, boy, that sounds absurd. I love this idea. So I’m going to say the Maryland then is the more absurd of the two. I’ll go with that one.

Jon Amarillo:

Maggie, what do you think?

Maggie Mendenhall-Casey:

I’m going to say the Maryland law is false just based on personal experience. I feel like, I know I’ve been in Maryland, I know I’ve eaten crabs in Maryland and I remember drinking. So I think the Maryland one is false.

Jon Amarillo:

And you would be right, Mike. I led you down the garden path there. I’m always

Mike Scodro:

Sorry. I was my first answer. I don’t, why

Jon Amarillo:

Are you listening to me? You know me better than that.

Mike Scodro:

That’s right. That’s right.

Maggie Mendenhall-Casey:

Jon. Why you do your friend like that? Why did you do your friend like that?

Mike Scodro:

I love it. Good to know though, that you can have champagne and crab on a Sunday in Maryland. That’s good to know.

Jon Amarillo:

I mean, I remember in college there was a place in Adams Morgan in DC granted, but just pretty close that we’d go to every day and you’d slap down $20 and they’d fill a picnic lunch table with crabs and give you something they called champagne, which definitely was not. And you spent the rest of the week getting over the hangover. It’s a great

Mike Scodro:

Time. Right, right.

Jon Amarillo:

Alright. All right, Mike, I really want to thank you for being with us today. This was a fascinating discussion and a really unique one because of your insights with the Justice.

Mike Scodro:

Well, I appreciate the invitation from both you and Maggie, and it’s been a real pleasure. I’m very happy to talk about The Justice and again, thank you.

Jon Amarillo:

Wonderful. I also want to thank my cohost, Maggie Mendenhall-Casey, our executive producer Jen Byrne, Adam Lockwood on Sound, and everyone with the Legal Talk Network family. Remember, you can follow us, send us comments, questions, episode ideas, or just troll us on Facebook, Instagram, or Twitter at CBAattheBar, all one word. You can also email us at [email protected]. Please also rate and leave us your feedback on Apple Podcasts, Google Play Stitch, or Spotify, audible, or wherever you download your podcast. It helps us get the word out. Until next time, for everyone here at the CBA, thank you for joining us and we’ll see you soon @theBar.

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