Sir Sam Alito Decides No Pesky ‘Constitution’ Governs Him

Episode Notes

Transcript

Joe Patrice:

Welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice.

Kathryn Rubino:

Hi. Joe Patrice. I’m Kathryn Rubino, also of Above the Law.

Joe Patrice:

I had, I don’t know though, I’d even said that I was from Bubble Law, but I am and we are here to do this show where we talk about some of the big stories in the week that was in legal.

Kathryn Rubino:

That’s true, yes. That is what we do.

Joe Patrice:

Yeah.

Kathryn Rubino:

But before we,

Joe Patrice:

Oh, no, that’s the sign that we have a little bit of small talk to do to open up the show.

Kathryn Rubino:

Yeah. So kind of a little behind the scenes moment. We record this on Monday, so tomorrow is election day, but by the time this gets published on Wednesday, election day will be over. And so my question to you, Joe, is by the time that everyone’s listening to this, will we know who the president is?

Joe Patrice:

I think it will be on Wednesday. I don’t know when on Wednesday. So I don’t know as though I will, when people listen to it, who knows.

Kathryn Rubino:

Fair. Fair. But I definitely think that for a lot of people this week is filled with plenty of anxiety and I am on that list of folks.

Joe Patrice:

Yeah. Well, so for what I was going to say for small talk is it is Halloween is behind us,

Kathryn Rubino:

Mhm.

Joe Patrice:

Means that I am in possession of the Christmas

Kathryn Rubino:

Trees

Joe Patrice:

Hallmark Holiday movies calendar.

Kathryn Rubino:

Oh, love that for us.

Joe Patrice:

Yes. And I have searched it for the key terms,

Kathryn Rubino:

Attorney lawyer, big city.

Joe Patrice:

Yeah. Yeah. And it seems as though this year there may only be one.

Kathryn Rubino:

We’re falling down on the job folks, we as a profession are no longer representing the kind of coldhearted character that can be turned by returning home and the love of a good person.

Joe Patrice:

Yeah. I mean, look, this is a mad libs of jobs. You go down it, it’s like an interior, hardworking interior designer determines a hardworking, a couple of doctors, I think. But no, the only one that I see involving us is a nineties Christmas on November 29th, which is an evening in a time traveling taxi stop. It makes a workaholic lawyer reassess her priorities as she gets a chance to relive the Christmas of 1999 with her mom’s sister, best friend and high school crush.

Kathryn Rubino:

Ah, 1999. That’s what they’re calling a nineties Christmas. That seems like the last possible moment

Joe Patrice:

Because that’s really old A long time ago.

Kathryn Rubino:

It sure was, but I’m just saying 1999 is not necessarily emblematic of the decade.

Joe Patrice:

Oh, I see what you mean. Yeah, because it’s only two years before the decade ends.

Kathryn Rubino:

Yeah. And

Joe Patrice:

I guess Chris,

Kathryn Rubino:

It’s very colloquially. I think that the nineties ends in 1999

Joe Patrice:

Certainly. Except

Kathryn Rubino:

It

Joe Patrice:

Doesn’t.

Kathryn Rubino:

Well, no, because you count 1990.

Joe Patrice:

See, I don’t think we

Kathryn Rubino:

Do. I think when you’re talking about a decade, what is the nineties? It has to have a nine in it.

Joe Patrice:

See, but there’s no year zero, so all of that has to always be

Kathryn Rubino:

Off. But this is not like counting, this is referring to it as the nineties. Right. This isn’t saying the decades changed at this moment or that moment where you might have an argument. I’m just saying that the nineties, when you’re talking about the nineties, you have to in fact have a nine in it.

Joe Patrice:

Okay.

Kathryn Rubino:

That’s what I’m saying. And this is mere days away from the start of the two thousands. I feel like that this should be called a Y 2K Christmas.

Joe Patrice:

Oh yeah. By the way, it’s going to be really, there’s going to be a Y 2K joke in this movie. There

Kathryn Rubino:

Should be. I bet there isn’t, but there should be. It’s going to be a missed opportunity because it’s going to be written by people who didn’t actually live through it or did, but they were like children and didn’t really, wasn’t one of those core memories for them. But there’ll be some moment in this where you look at it, you’d be like, there should have been a Y 2K joke right there.

Joe Patrice:

I actually saw somebody posted a thing on, there’s some movie coming that time travel movie where they go back to 2003 and that’s the whole thing. And I saw somebody immediately reply to it with none of the things that are here as old actually were from 2003. None of this reflects what actually was going on. And in a weird way, it did kind of look like it was being written by somebody who remembers that the eighties are old, and they just kind of poured all that on top of it. Like everyone’s wearing fluorescent colors. And I’m like, I don’t remember that from 2003, but I do from in the

Kathryn Rubino:

Eighties. That’s not what happened in the year 2003.

Joe Patrice:

But the most amazing part of it was everyone has flip bones and stuff

Kathryn Rubino:

That is true,

Joe Patrice:

And disc men and stuff, which that’s all true, but all the high school kids were looking down at them as they were listening to music as though you would be looking at your phone.

Kathryn Rubino:

Yeah, that’s

Joe Patrice:

Not right if it had no visual. But it’s one of those issues where it’s clearly written by somebody who doesn’t understand what the concept or directed not having that. Yeah. Anyway,

Kathryn Rubino:

Some directors should been like, that’s

Joe Patrice:

Not what

Kathryn Rubino:

Your phone doesn’t do that.

Joe Patrice:

Yeah,

Kathryn Rubino:

It’s a tiny little screen that only shows you the number you hid.

Joe Patrice:

But yeah, they’re just looking down at a discman as it plays as though that was, yeah.

Kathryn Rubino:

Yeah. That’s not what you did.

Joe Patrice:

It is not. Well, I think

Kathryn Rubino:

So are you going to watch a very nineties Christmas?

Joe Patrice:

It’s not a very, it’s just a nineties Christmas.

Kathryn Rubino:

So you said November 29th. So I have some appointment viewing on November 29th, apparently. And then we’ll maybe chat about it after I watch

Joe Patrice:

It. Yeah, I mean, I sure don’t want to, but I

Kathryn Rubino:

Can see I should force you to

Joe Patrice:

Yeah, yeah, maybe

Kathryn Rubino:

I’ll put something on your calendar for whatever this is. Oh,

Joe Patrice:

Good. And as we know internally here at Above the Law, I’m very good about always checking the calendar for He’s the worst of issues. I’m not. Elie was the worst, but now

Kathryn Rubino:

He’s no longer currently employed by Above the Law

Joe Patrice:

No, I guess that’s fair. Alright, well, we could be done with small talk and move on the move on to the big stories that we have discuss.

Kathryn Rubino:

I do like that you, we use a trumpet sound right here.

Joe Patrice:

Yeah. Because ooh, I like this segue.

Kathryn Rubino:

Yeah, thanks. Because I think that trumpet kind of heralding knighthood is also something that I think of.

Joe Patrice:

So as it turns out, justice Samuel Alito got knighted. This was actually a long time ago. He got knighted back in 2017, but nobody was really paying attention.

Kathryn Rubino:

Well also because there was not nearly as much pressure for him at the time to disclose all sorts of gifts. And now that the heat is on for folks, not just folks, Supreme Court justices to disclose their gifts, he disclosed a bunch of gifts from a princess.

Joe Patrice:

Yes. So that’s a little bit separate, but that’s an excellent point. We should go back to that is it turns out he is getting concert tickets and stuff like that from his CHMI relationship with a German princess. Now, this German princess in question is now a big kind of a trad Catholic

Kathryn Rubino:

Trad Catholic.

Joe Patrice:

Yeah

Kathryn Rubino:

I like it.

Joe Patrice:

Big Trad Catholic activist and therefore pushing her relationship with Alito over abortion rights and such. It’s interesting to think of her as Catholic, by the way, something that she seems to have come to later in life because how she has her title is she was married to a social, she was a socialite and she was married to this also very paparazzi driving German prince. So it’s interesting because he was very publicly bisexual. So it’s interesting that she’s kind of gone this direction given her husband and how they lived their way through the eighties. But hey, she’s here now and giving a lot of gifts to Alito, which prompted some inquiry from other sources. New York Mag did a look in and found that in addition to all of this hanging out with German aristocrats, he also apparently back in 2017 got himself knighted by something called the Sacred Military Constantinian Order of St. George, which is,

Kathryn Rubino:

That’s a lot of words that I don’t like seeing together.

Joe Patrice:

It’s a weird little knighthood. But the point of the matter, regardless of how it works out, it is a knighthood that is run by a chivalric order in Europe that is run at this juncture overseen by some aristocrats. The question that I’ve gotten some back and forth on is whether or not this is the same version of the Order of Constantine that is run by the House of Bourbon, which in my article suggested it was, but it may be slightly different, although when you look it up, it says that it is stilled a house of bourbon to Sicily’s. There might be some schism there regardless. He has a European knighthood.

Kathryn Rubino:

I bet none of those details matter to what the founding fathers thought about such details.

Joe Patrice:

That’s an excellent point. The man who is very adamant that he

Kathryn Rubino:

Can noted originalist,

Joe Patrice:

That he can read the minds of the framers seems to believe that the part of the Constitution that says specifically that no office holder can get a title or of any kind, whatever, from a king, prince or foreign state.

Kathryn Rubino:

And really, I think you inadvertently sort of hit on exactly what the issue is that Alito and other Originalists thinks that they can read the minds of what founding father might have thought about problems that would simply blow the minds of founding fathers. The question of how originalist intent would apply to the year 2024 is largely unknowable, I think. But here’s the thing. We know exactly what they thought about getting a title from a foreign government.

Joe Patrice:

They were not big fans.

Kathryn Rubino:

They put it in the Constitution. There’s a federalist paper about it.

Joe Patrice:

There is Alexander Hamilton kind of referred to it as royal prostitution, which seems negative.

Kathryn Rubino:

Oh, we should now refer to Samuel Lidle as Supreme Court Justice.

Joe Patrice:

Oh, easy. But he did get, as part of it, he got this, apparently this cape made by the Popes Taylor and everything. So he looks a little bit more like Superfly than prostitution. So maybe that’s the side he’s on of it. Anyway, the point is,

Kathryn Rubino:

Wow, okay. Okay. Just

Joe Patrice:

Superfly references are getting a little old. Anyway, the point is, yeah, so the serious angle on this is no, nobody really thinks that the House suburban two Sicily’s is about to prevail upon the Supreme Court to do much of anything. That said, the Supreme Court probably can’t restore them in control of Naples, which is apparently what at least some reports suggest that the point of this order is, but that’s not the point. The point is the Constitution makes one command of office holders here, and we live in a world where the Supreme Court has been dodging ethical requirements making the argument as John Roberts has that because of the separation of powers, no one can regulate them. We can pass rules to regulate lower court justices, but the Supreme exists in some sort of constitutional twilight zone where they are answerable to no one according to this. That is problematic on a lot of levels. It also doesn’t make a ton of sense. We have rules governing the other

Kathryn Rubino:

Range. There are rules, man.

Joe Patrice:

And even after the most recent immunity case, we recognize there are still at least some sort of rules governing precedents. So the idea that the Supreme Court is a devoid of all of them is problematic. But even that argument about separation of powers would fall in light of a constitutional command. So whatever ethical rules exist, there’s at least a constitutional rule. And the constitutional rule is pretty clear. You can’t take this stuff even though it’s probably meaningless, that almost cuts the other way. It’s so meaningless. Why would you ever do this? It speaks to,

Kathryn Rubino:

Because you want a fancy cape.

Joe Patrice:

Yeah. I mean, it speaks to the sort of pettiness and vanity that Hamilton in that paper is talking about where he’s suggesting that the reason they have to have a ban on this is you don’t want some sort of bad actor and office who is swayed by trinkets from European aristocracy, because that speaks to kind of a broader sort of unfitness for office. And so that’s really where this comes down. This probably is stupid and a stupid title that has no long-term value to it. But that’s why it’s so much more important that they not take these sorts of titles. And it’s a real New York mag reached out to him to get some degree of answer about this, and he did not respond.

Kathryn Rubino:

And that I think is really emblematic of big Part of the problem is that he doesn’t have to respond to these inquiry. We already know that he has utter scorn for journalism, but there’s no impact to him doing something blatantly unconstitutional. There’s no mechanism the way our current politics works that he will ever be censured or removed from office or anything. This is a lot of people rightly getting angry about it and nothing can or will be done.

Joe Patrice:

Yeah. It’s so much more egregious than any of the other ethical lapses that we’ve seen out of him because Because

Kathryn Rubino:

Explicit,

Joe Patrice:

Because it’s so explicit. Yeah, it’s dumber. It is probably substantively less problematic than flying insurrection flags, which we’ve got him doing, but it’s so much more explicit that it’s really problematic

Kathryn Rubino:

And maybe also because it’s happening during a pretty contentious election season. But it’ll be interesting to see if there are even articles of impeachment written as a result of this, or if it’s just one more thing that just gets swept under the rug.

Joe Patrice:

Yeah. All right. We are back, and we’re talking law school now, I think.

Kathryn Rubino:

Yeah, we had a story last week about the University of Chicago Law School. Some of their policies, they have an explicit policy that they instituted this year about when students are allowed to access recordings of classes because they want to sort of encourage in person attendance. They only have a limited number of instances where somebody can look at the recording. They don’t want somebody just to be drunk or hung over from the night before and not go to class and still be able to get the access to the material. So you could only access them if it’s in observance of a religious holiday, if there is an approved disability accommodation, an approved Title IX accommodation, or when two makeup classes are scheduled for the same time. There’s some notable other reasons you might actually need access to a recording of a class. For example, there was actually a petition over a hundred students assigned it. What happens if somebody has covid and they can’t go to class? What if somebody has surgery planned? What if there’s a death in the family? None of these sort of very, very legitimate reasons are covered underneath the existing policy. And in fact, people have requested like, oh, well, I had, I can’t go to class. Can I get access to it? And they were told no.

Joe Patrice:

Yeah, that’s not great. You probably don’t want to encourage people who have covid to go to class.

Kathryn Rubino:

Yeah. I mean, let’s be very, very frank. The whole reason why there’s this prevalence of recorded classes is because of Covid.

Joe Patrice:

Yeah. I mean, look, you don’t necessarily want to give out legal education for free, so you can’t publicly post it. But if you had some kind of a secure place where people could watch the shows, I think that’s something you should probably encourage for exactly this reason. And I also understand that there’s increased ethical rules saying that law students have to attend a certain percentage of the classes at all, but if they’re watching it and you have some way of registering that, so-and-so is gone for Covid, and they watched this, and you can clarify that, that should count too.

Kathryn Rubino:

And let’s be clear, the students at this school are not even asking for something nearly as broad as what you’re suggesting, Joe. It’s not saying, oh, they should be available, that anybody can watch for their own personal reasons. They’re saying, if I have this and I am presenting that to the professor, I have access to this. And the current system, the professors are not allowed to give access to these recordings to students who are out because their mom died, for example. And that seems unduly harsh. And listen, I really do take the point of trying to encourage in in-person education. I think there’s a ton of benefits to it. And what we’re seeing is it doesn’t really benefit students to think that everything can just be done online, because that’s how the law school was. When we know that sort of big law that isn’t really flying anymore in big law, that increasingly we’re moving to more and more days in the office. Clifford Chance just spent $20 million on a Houston office. So it’s unrealistic to say just, oh, it’s available if you want it in your own personal discretion. But certainly there are many other reasons besides the ones that Chicago currently recognizes that is very legitimate reasons to watch a recording of a class.

Joe Patrice:

So hopefully the petition will prevail upon cooler heads over there at Chicago to figure something out. We have the technology we can use it for good.

Kathryn Rubino:

And again, just use it for the exact reasons why it was a thing in the first place. The only reason why we have this is because of Covid. Let’s make sure we’re not also spreading covid.

Joe Patrice:

Okay, we are back. This is another story that did well for us last week that we thought was important. Richard Epstein, who’s a law professor of the Chicago School, though not currently there, he appeared at a Federalist Society panel last week, wouldn’t have even really been big news except something struck me, which is that coverage that panel pointed out that he was about Chevron and its demise as a legal standard. For those who don’t remember. That’s the standard that says that

Kathryn Rubino:

Agencies,

Joe Patrice:

Agency experts probably should be the default. If you’re trying to interpret vague terms in a law. And by vague terms in a law, if you have a clean air act and say, Hey, don’t pollute the air. What is a pollutant? Well, the scientists probably can figure that out better than Congress.

Kathryn Rubino:

And more to the point, especially when you’re talking about science, they may not have at the time of passage, a full list of every potential pollutant because we are always creating more pollutants. That’s a great thing about our country.

Joe Patrice:

And so with that gone, but in this instance, Epstein makes a point in this panel that he has always been against Chevron, which is maybe that’s true. It actually is interesting. Chevron, while it was defended down the stretch as a boon for more left of center policymaking because of the way in which it fills in the gap with pollutants and stuff like that. Originally it was intended to be a boon for right wingers. The case was originally argued on the logic that Reagan’s EPA could go ahead and say, we don’t see why dumping sludge into things is all that bad. And so it evolved since then. And in no small part, because scientists tend to be driven more by science, science, and so they had real issues with it. But anyway, so he’s always been against it. And the only reason this became an issue for us is as I read that, I was reminded of something, which is that at the beginning of Covid O’s arrival on US shores, Epstein, who I will note is just a law professor wrote very passionately that he had done the numbers himself and only 500 people were going to die of Covid.

Kathryn Rubino:

That was

Joe Patrice:

Wrong. It was not correct. It was sufficiently not correct that within a couple weeks it had already hit, the death toll had already hit 5,000. And he, well, actually it hadn’t yet. He within a couple of weeks revised it to say, oh, what I mean is because it had hit 500. What I mean is I didn’t carry a decimal point. It really was 5,000. But then when 5,000 got blown by a couple of weeks after that, they just stopped updating the article and kind of memory hold it. But this is what he thought about science and felt the need to proclaim, which had real impacts because

Kathryn Rubino:

Later

Joe Patrice:

Reports indicated that his article declaring that only 500 people were going to die was widely circulated among White House staffers at the time. It had a role in the slow Trump administration response because they believed law professor numbers over the scientific and public health reports they were getting.

Kathryn Rubino:

This is an instance where the phrase stay in your lane is actually really important.

Joe Patrice:

Right? Well, I mean, that’s the thing. Sometimes lawyers just don’t think they have a lane. And look, the article, one of the points I make in the article is, look, lawyers blur a line, which it’s a subtle distinction, but an important one. The skill of lawyers is kind of having a flexible mind. I don’t know anything about how various O-rings are constructed for aerospace applications or something like that. But I can be put on a case, read the files, and go through things and talk to experts and crunch numbers and read cases, and I can figure out how to explain to somebody that issue. And I become an expert in it within the limited confines of explaining it. And then afterwards, I move on to a new

Kathryn Rubino:

Case.

Joe Patrice:

And that is a skill that does not make you as a lawyer, defacto an expert in everything you choose to set your mind to. And that subtle distinction is what leads to situations like this where a law professor decides to declare with some degree of disastrous results that he’s figured out that only 500 people get killed. And the fact that he is going out and saying he’s always been against Chevron is just a chef’s kiss of learning. No lesson here. He believes that people like him should be making those sorts of scientific calls rather than scientists,

Kathryn Rubino:

Which Right. And if he’s wronged by millions of deaths, so be it.

Joe Patrice:

Right? In this instance, the current Covid death count is just above a million, all told, obviously to slow down considerably as things have finally gotten better, and vaccines are widely available and so on. But a million is way off of 500. That’s kind of the situation you get up with. And look, I understand there are people who say that not every response that we had was the optimal one. And that’s probably true. People are making decisions on the fly, and they made ones that they thought were good in the time, whatever. But that’s part of that calculus. If you wanted to say, Hey, lockdowns, were too aggressive, you can say that, but you have to kind of begin from the premise of it was actually that devastating. But maybe there’s a better way than a lockdown. You can have that debate. You can’t have the baseline debate. I don’t think this is going to kill anybody. Right.

Kathryn Rubino:

You can disagree about the way that a lot of these policies were implemented without saying, Hey, we should have done

Joe Patrice:

Nothing. Right. Well, yeah. And that’s the whole issue here. And this speaks to an extra layer of hubris and one that is poignant in this moment. Because when we talk about Chevron, this is what we’re talking about. We’re talking about turning over the decision of what’s toxic sludge, what’s a pollutant? How much rat poison can be in a hotdog before it’s not safe for human consumption. These are the sorts of questions that we currently farm out to the agencies who pay scientists to work it out for us. And Epstein believes that this should be substituted.

Kathryn Rubino:

So does the majority of the Supreme Court

Joe Patrice:

Should be substituted for what the Supreme Court feels, which

Kathryn Rubino:

Is the currency of the law.

Joe Patrice:

Yeah, it’s terrifying. Which is a terrifying place to put things.

Kathryn Rubino:

I mean, there’s a real, I think, good argument that for all of the wild jurisprudence that the Supreme Court has recently engaged in, that getting rid of Chevron deference is going to cause the most deaths long term.

Joe Patrice:

Long term. And it’ll be in small, subtle ways that won’t

Kathryn Rubino:

Be, but it’ll be constant and an ever increasing amount of ways. But I think that long-term, the death of Chevron, unless something is done about that, was going to be absolutely devastating.

Joe Patrice:

One of my favorite tweets of the last week was somebody pointed out the meme like, I hate blank Halloween. It was, I hate DC Halloween. What do you mean? You’re the ghost of Chevron deference? I don’t even know what that costume would look like,

Kathryn Rubino:

But it’s just a bunch of rap poison in a costume. It’s something I don’t know, but it’s good.

Joe Patrice:

Well, I think that’s all the time we have. Let’s close this up. Thanks everybody for listening. Subscribe to the show to get new episodes when it comes out. Leave reviews stars, write something, check out some other shows. Kathryn’s the host of Jabot. I’m a guest on the Legal Tech Week Journalist Round table. There’s also a bunch of other shows from the Legal Talk Network to listen to. There is Above, the Law that you should be reading. So you read these and other stories before we talk about ’em here, you should follow social medias at ATL blog at Joseph Patrice, at Kathryn one. Also, I’m over at Blue Sky at Joe Patrice for that purpose. Otherwise, everything’s the same. And with all that, I think we’re done. Peace. Bye.

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