Judges Decide Clarence Thomas Was Just Confused When He Didn’t Report All That Money

Episode Notes

Transcript

Joe Patrice:

Welcome into the new year. Yeah, this is Thinking Like A Lawyer. I’m Joe Patrice.

Kathryn Rubino:

Hi Joe Patrice. I’m Kathryn Rubino.

Joe Patrice:

Awesome.

Chris Williams:

Who am I?

Kathryn Rubino:

Who even are you

Joe Patrice:

In an existential way? Who are any of us but in a much more accurate way? That was Chris Williams. He’s like us all editors at Above the Law and we do this show every week to talk about some of the big stories in the legal week that was so you can get a quick down and dirty half hour digest of what’s going on in the legal

Kathryn Rubino:

Landscape and also Happy New Year. Not just a legal story, but a story generally speaking. We have a new year, woo tie marches ever forward

Chris Williams:

And a moment of empathy for everyone that is still putting 2024 on your documents.

Joe Patrice:

Yeah.

Chris Williams:

You have at least another week to fuck it up until you get side eyed.

Joe Patrice:

So there’s been a lot of talk over the last year in particular about AI as a tool for legal technology and while I think a lot of the hype is unwarranted, the ability for it to figure out and tell you you’re in the wrong year, that is a task It can do. It can do that. Well it can prevent you from doing that.

Kathryn Rubino:

Sure.

Joe Patrice:

Invest in that.

Kathryn Rubino:

Okay. Okay. That’s,

Joe Patrice:

You know what that sound means

Kathryn Rubino:

Joe’s an asshole.

Chris Williams:

No, it means small talk where we talk about the legal goings on instead of our lives.

Joe Patrice:

Right? It’s where we talk about the unimportant, the non agenda items of the week. It’s kind of our pote.

Kathryn Rubino:

We are supposed to also be talking about ourselves so that you get to know us as humans.

Chris Williams:

You can,

Kathryn Rubino:

But it’s a pote.

Chris Williams:

It’s the non-important stuff that proves to the audience that we’re human beings.

Kathryn Rubino:

Right? We are not AI generated.

Joe Patrice:

Yes. On that note, have you played around with Stop it, it notebook, lm,

Kathryn Rubino:

Stop it. You’re talking about AI again.

Joe Patrice:

Well, I mean it’s still a new story but you also raised it whether or not people can sound human, they have those things that take subject matters and then it spits out a podcast that seems human, although not really human sounds like NPR, which I’m not fully prepared to consider. No disrespect. They’ve not fully

Kathryn Rubino:

Prepared to. I mean it sounds pretty disrespectful but

Joe Patrice:

Yeah, I guess it does. It’s just so hyper stylized. It’s like a man or woman going like, Hey, it’s so look and they’re like goofy laughing. All of that stuff that you just kind of fully can expect to be parody in the SNL sch sweaty balls bit.

Chris Williams:

So enough about you describing Like A Lawyer that is also this podcast.

Joe Patrice:

It’s not though. Especially not the way the hyper stylized whole coffee talk kind of way in which those shows go. That’s what that stuff sounds like. If you haven’t listened to any of it, it’s worth listening to because it is a little interesting and the newest feature that they have that I was talking about with some people the other day is you can now if you don’t want to wade through the summary of all the documents that you need to figure out what’s going on in this, you don’t want to have chat GPD give you a paragraph or whatever. You can fit all these into Google’s podcast thing and tell it, give me a podcast about it and it will come up with a banter podcast discussing the results of the 50 documents you put into it and you

Kathryn Rubino:

Can also be sued for malpractice. You guys, that’s also a possibility. You

Joe Patrice:

Could stop it at various points and interrogate it. Stop it almost like you’re calling in with a longtime listener first time caller and ask questions and it will then respond.

Kathryn Rubino:

This. That is the dumbest option, right? If you are an attorney and you are using a podcasting AI in order to do your job, you are doing it poorly.

Joe Patrice:

Okay, alright.

Chris Williams:

Hear this. Well, can’t you limit it to the documents that you feed it? So it’s like it’s actually just saying the things that are in the thing. So on that level I think that it kind of cuts down

Kathryn Rubino:

On what’s faster your eyes. You can read things faster than you can hear them,

Joe Patrice:

But you can’t though necessarily. I

Chris Williams:

Don’t know about you, but I can’t easily read at a times two speed in the same way that I can when I’m listening to a podcast.

Joe Patrice:

Exactly. And what it can also do is it can identify based on repetition throughout the series of documents and stuff, it can identify key points that it would take you a long time to get to. Look, you should not be, and no one thinks you should be practicing law based exclusively on this, but look, you’ve been called by somebody who wants to hire you. They’re looking for a lawyer, they send over 50 documents, they say they’re shopping around. You need to figure out quickly enough to have a conversation with them, Hey, what’s going on? So that you can make your pitch that you should be their lawyer. Yeah, I could see that being valuable. No one thinks that what you get out of that pitch meeting is the last time you’re going to do anything with these documents, but I could see that value

Kathryn Rubino:

Once again. Joe has hijacked small talk to talk about law stuff instead of people things

Joe Patrice:

We’re talking about ai.

Kathryn Rubino:

No, you were.

Joe Patrice:

No, you brought it up.

Kathryn Rubino:

I made a joke about AI as a, and now let’s talk about ourselves instead of,

Joe Patrice:

And then we had a naturally occurring conversation and banter about it.

Kathryn Rubino:

It’s not banter when you’re the only one who’s entertained by it.

Joe Patrice:

I don’t think banter is defended on.

Chris Williams:

Joe had an AI hallucination, so as an example, small talk.

Joe Patrice:

No,

Chris Williams:

As an example of small talk, I recently finished at least What’s out so far, this animated series, it’s called Fiend. It’s like social new fiend or something. I don’t speak to the language but the fiend part. People know what you’re watching and it was really good. It’s just like a slice of life show. So you don’t really watch it for the big fights or anything. It’s kind of like Seinfeld. You just see what people are doing in the day to day. But it’s also this nice rumination on the significance of getting to know people with the amount of time that we have to live. So the main character is a elf. Her name is Freeman and she’s a thousand years old. At least the show happens after there was a big battle where her and a group of three other people save the world. So it’s like what do you do after Avengers end game? Right? Her friends

Joe Patrice:

Are a series of bad movies is what you do after Avengers end game.

Chris Williams:

Well, it’s still worth checking in, but so one of her best friends, he’s a human and he lived to be like 70, which is a decent lifespan for a human, especially for a warrior that saved the world. But there she is on her thousand 100th year of life being like, I barely got to know this guy. Time moves so quickly. So then you see her getting to know people, dealing with the fact that they’re living in a human timeframe while basically she’s functionally immortal for the people that she’s interacting with. And she takes on people that she’s what’s her name, apprenticing and seeing them grow up and being like, wait, I care about waking up to see a sunrise even though I’ve seen thousands of sunrises, they have a limited amount. So it’s more about the sharing of experiences with a party and it’s really nice

Joe Patrice:

And she could save and maximize more of that time worry. She’d use AI to summarize a lot of the reading that she needed to do.

Chris Williams:

Back to Kathryn,

Joe Patrice:

How was your life? Sorry everybody. That marks the end. Orna, you’re the worst of small talk. Hey, so last week was the beginning of the year and there was not a ton going on because the legal industry does largely shut down over that period, but it is not completely shut down. There’s still billing going on, there’s still issues out there and there’s more importantly still opportunities for the federal judiciary to do news dumps when they think no one is paying attention.

Kathryn Rubino:

Sure. The week between Christmas and New Year’s, if you can take it off, people take it off. And so that’s a perfect time. People are not

Joe Patrice:

Paying attention.

Kathryn Rubino:

So let’s talk about the failings of the federal judiciary, Joe.

Joe Patrice:

So Clarence Thomas has been a subject of inquiry ever since a couple years ago when ProPublica found that he had taken at that point roughly half a million dollars in undisclosed gifts and travel from a billionaire friend of his. This has since expanded. We’ve learned about more gifts the home that is given rent free to his mother, the tuition that was given to him to pay for person, his nephew, who he was raising at the time, the RV that was co-signed by a healthcare executive. And as far as we could tell fully paid off by that person, at least Thomas has not provided anything to suggest otherwise despite multiple requests from Congress. So this is obviously a problem. This is a situation where there is a law that governs the behavior of the judges and justices that requires them to disclose this material. He had not been doing it. He’d been keeping this all under the radar, likely because he understood that it would appear wildly corrupt, which it has. The Senate has asked the judicial conference in its attempt to get anything and any movement out of this ethical quagmire. It asked the judicial conference to exercise its power under the statute to refer its members to the DOJ for inquiry. Then the FBI can look into all this and prepare charges if necessary for violating this act dragged on forever. The judicial conference responded over the holidays to explain what it’s going to do.

Kathryn Rubino:

Nah,

Joe Patrice:

Exactly the in a letter sent to Sheldon Whitehouse, who currently at least for a little bit longer actually no or was up until when you hear this, the chair of, I believe until the chair of the judiciary committee on this subject, he was looking into this. He got a letter from the judicial conference in which they said they mused that they may not have had authority to send a referral of a justice arguing that despite the fact that the law says they can do it for anybody, it applies to, and it applies to justices, maybe it doesn’t really mean they can do it for justices, but that’s not actually the crux of what they say, the actual decision. They put that in almost as a footnote. What they actually say though is we put out new guidance. It wasn’t clear before that you weren’t allowed to take millions and millions of dollars from people with our interests before the court. I mean, it was a little vague when they wrote this law in the seventies. And so now that we have new guidance, we trust that he’ll never do it again and therefore we don’t think it can be sent to the DOJ to investigate when he did it before.

Kathryn Rubino:

That is wild.

Joe Patrice:

Yes.

Kathryn Rubino:

I mean, this is a real problem that it’s very clear at this point that the justices on the Supreme Court can do whatever they want. There is no ability for common decency laws, senators, even presidents to check their behavior. There’s literally nothing. And we’ve kind of used this line a bunch when talking about the court, but being a Supreme Court, justice means never having to say you’re sorry. They can do whatever they want. It doesn’t matter how corrupt it appears. And let’s not forget that the standard for ethical behavior for the federal judiciary is meant to be the mere appearance of impropriety. It’s not, oh, he got a tit for tat. You can’t prove this. No, it’s supposed to be, it looks bad. And you know what? This does look bad.

Joe Patrice:

So to explain this new guidance argument, the law says that you have to disclose all of these gifts you get it’s Justice. Kagan once got a care package from her high school classmates when she was down and ill, there was a bunch of bagels and she returned it because she felt like that was in breach of this law. So to give a sense of where everyone else’s head is at as far as what this law means, but it has a personal hospitality exception and what the personal hospitality exception was intended to be is you’re crashing on your buddy’s couch while you’re somewhere

Kathryn Rubino:

Guest room guest. It doesn’t have to actually hurt your back,

Joe Patrice:

Whatever it is. You don’t really need to report that you go over to your friend’s house for dinner. That’s fine.

Kathryn Rubino:

Right. Because you still have a

Joe Patrice:

Life. What Thomas has done historically is claimed that these billionaires that he only knows by virtue of being a Supreme Court justice that these billionaires, when they give his mother a house or when they buy him an rv, that is just personal hospitality. This is something that according to this report he was unaware of and that they needed to present new guidance for. It is what the rest of us think is completely obvious.

Kathryn Rubino:

Yeah, yeah. This is not a hard call and listen, the problem is that, again, no one is willing to hold the court’s feet to the fire in any sort of a real way. The court has said, justice Alito in particular has said that there’s no other bodies could possibly have any ethical guidance that the Supreme Court should have to take seriously.

And the other options, which are things like the power of the purse that Congress has, and if you want your increases in your security budget and you want all your clerks paid for and all that kind of stuff, well you have to meet these following requirements in order for us to justify these expenditures is not something that Congress has the political will to do and certainly not now that it is controlled by the same party that appears to repeatedly have these ethical lapses. So all we can say is, and the approval rating of the court just keeps on getting tanked and tanked and tanked because it’s incredibly obvious to everyone that this is a problem.

Chris Williams:

I think Luigi Mangione has a higher approval rating among young, and it’s not even a joke among no joke, young Americans than the Supreme Court.

Joe Patrice:

So I want to fixate on those two points as a matter of transition. But before I wanted to do that, I wanted to say my story, which you could all read to get more analysis on this, focuses on a Seinfeld framing.

Kathryn Rubino:

Of course, Gen X.

Joe Patrice:

Yeah, thanks for that. But no, largely that George Costanza once did something that was obviously wrong but not necessarily spelled out wrong and responded with, was that wrong? I didn’t know that was frowned upon. And that is exactly the excuse given here. I thought that was fun. It’s a cute way of telling

Chris Williams:

A story. Anyway, wait with Clarence.

Joe Patrice:

Yeah,

Chris Williams:

I thought the excuse here is my friend said I could do it

Joe Patrice:

In some ways. Yeah, I guess there’s some reason to believe that Scalia launched this personal hospitality exception and took advantage of it. So

Chris Williams:

Not to go T Seinfeld or what have you or no, link your Seinfeld, but alright.

Joe Patrice:

Okay, we’re back. And let’s talk a little bit about, because that wasn’t the only Supreme Court news dump. Let’s talk a little bit about the unpopularity of the court.

Kathryn Rubino:

Yeah. Well in fairness, this is not so much a news dump because the chief justice does this every year at this time of year because it’s appropriate to

Joe Patrice:

Reflect it’s a news dump. Yeah. So there is an informal but now kind of ingrained tradition of the chief justice of the United States putting out a report on the federal judiciary at the end of the year. It’s not really official, but it is intended to be a kind of indirect way of communicating with the public and Congress about the federal judiciary and its priorities, whatever it’s the state of the union address, but for the judiciary, much like the State of the Union address, which is not handed out at midnight on December 31st slash January 1st. It could be anytime at the beginning of the year, but this justice very much feels it’s necessary to put out during the news dump time so that nobody focuses on it. In the past few years, he’s been openly contemptuous of the public in all of these reports. He spent one whole report at the height of us learning about a lot of the corruption, not just at the top of the federal court system, but a lot of, there was a big report about a lot of the ethical challenges below, and he spent Ben, that report writing about the history of typewriters in law.

So he’s not really zeroed in on the important issues here this year. He once again, did not focus on issues like Clarence Thomas taking a bunch of money, but he did talk about how criticism of the court is important, but everyone’s criticism is wrong and needs to be stopped. There is some criticism that’s legal in his mind and everyone else’s criticism is bad. Specifically people like us having this conversation now.

Kathryn Rubino:

Sure. I am positive his life would be easier if people would stop talking about the court.

Joe Patrice:

Yeah. We did talk on this show about the confrontation between Judge Jones and Professor Vick a few weeks ago. It’s an extension of that not, while Roberts is not nearly as wildly unhinged as Jones was, as far as his temperament, part of that is that he’s doing it in writing. It is the same set of logic. He begins by talking about how criticism of the court is bad by saying it leads to threats. They’re all going to, they’re physically threatened by the fact that people criticize courts, which is obviously violence against judges, bad needs to be stopped. But this is introduced in this report as a way of poisoning the well to make sure that all future, everything he’s going to say after that is treated as though if you do this, it

Kathryn Rubino:

Necessarily leads to violence.

Joe Patrice:

Then he talks about how people mischaracterize the decisions of the courts, what he means by that. Putting aside that his court doesn’t even give opinions half the time on the shadow docket. What he really is trying to get at is he doesn’t like people like us who will look at a Supreme Court opinion that is written by design a little opaquely and say, oh, when they say in this limited based on these facts, this limited thing, we’re going to do X, Y, Z. The impact of that is this. This is what that means for the circuits. This is what that means for states trying to remain in compliance with it, yada yada. This is what the court did. He doesn’t like that and he scolds in this report that that’s bad because it has to be limited to what we write as though what they write isn’t intentionally designed in order to hide what they’re doing.

Kathryn Rubino:

And I think that Amy Coney Barrett said something similar not too long ago that she misses the days when the Supreme Court justices were anonymous figures that could write their decisions in obscurity. And that’s all well and good, except that what the work that they’re doing has impact on real people and real lives. There are, I mean particularly when you’re talking about something like the Dobbs decision and the way the impact of that is not just the words that they wrote, but that what it means for people in a whole bunch of states. And now we have a bunch of women who had miscarriages who were dead, right? Because they were not able to get the kind of medical care that they needed because of anti-abortion and anti-choice laws in various states. We know that that is true. We know that is the direct impact of the words that they wrote, even though they never said that this is what they wanted.

Joe Patrice:

But

Kathryn Rubino:

They don’t want that kind of analysis done. And the truth is they are ruining people’s lives in a very direct way, but they would prefer not to bear any responsibility for those choices that they’ve made.

Joe Patrice:

The abortion examples are very good, but not the only one. They would say, well, we didn’t do anything to say that states couldn’t have laws to deal with medically necessary medical emergencies like this. However, the effect of meeting the rules that they set out are such that obstetricians just aren’t doing these things because they have,

Kathryn Rubino:

Hospitals have rules in place that because they are concerned about being prosecuted by various states for things that they may or may not do, they are then taking the stance that they can’t provide this unless they’re, and people are dying, people with uterus are dying because of this law, because of the Dobbs decision. And they would prefer never to have to think about that.

Joe Patrice:

And that’s the role that legal analysts, those of us who are lawyers and break this down that we fulfill because we can take all that opacity and say, here’s what they’re trying to do. He specifically says, that’s bad and we need to not be doing that because that’s how they hope to get away with things. That’s how they hope to be anonymous like a CP was saying. And we can’t let that happen because that’s how bad things happen.

Kathryn Rubino:

It’s really insulting, and I know that that’s sort of your entire take on this report in its entirety. But the truth is not that just that they want to have the amount of influence that they have because they have, in every instance, taken the opportunity to claim more power from themselves. That’s why they got rid of Chevron deference in order to put more power in the federal judiciary. They keep on doing stuff like this to take more power, but they don’t want to be responsible. They don’t want anybody to be able to say, oh, it’s these people’s fault that the following is true in this country now. And it’s that they want that disconnect between what the impact is and who gets to do it. And I think that that’s really insulting. There’s no other power Embroker in this country that you won’t be able to point to that you wouldn’t be able to know who they were on the street. Who the vice president is who?

Joe Patrice:

The Nancy Pelosi Elon Musk. Right? Fair. He’s the president. Oh, okay. Yeah.

Kathryn Rubino:

But they want the power. They just don’t want any of the responsibility and they believe that they can wave their hands in front of the American public

Joe Patrice:

Antis Spider-Man

Kathryn Rubino:

With

Joe Patrice:

Great power comes absolutely Zul responsibility.

Kathryn Rubino:

Yes. And they think we’re dumb enough to believe it.

Joe Patrice:

And an RV as the case may be

Chris Williams:

The thing that I think is important for folks that are doing legal journalism or at least having a conversation about the way that these opinions were on or deployed, but also the way that the criticism gets discussed is that it’s important to see through what appears to be a good faith argument and be like, wait, this isn’t what’s actually going on here. The thing that stuck out to me is he was like, threats are bad. People were burning crosses in front of judges’ lawns. People were getting their windows shot in. Somebody said, I’m a me poopoo head on Twitter. No, these not. They were sitting next to each other and it gives the feeling as if they’re comparable, but if you look at ’em, they’re really not. They’re really not.

Joe Patrice:

There’s a trend in these reports of just galling false equivalency. And it’s not just this year, it’s over the past few years where Roberts will take almost always kind of a liberal icon, some heroic federal judge from the past who struck down some Jim Crow law or something like that, take them, hold them up as a victim of all sorts of horrible abuse at the time, which true. And then segue from that too, and this is really no different than the fact that somebody wrote on Reddit that we were bad people. The false equivalency is so jarring

Chris Williams:

And it’s one of those things where it’s kind of like not halo effect that’s for pretty people. It’s with, if a person says a thing in a doctor’s gown, you just kind of trust it.

Joe Patrice:

The white coat effect.

Chris Williams:

White coat effect. Yeah, the black robes effect. It’s like

You can say, Hey look, I know y’all don’t like the outcome of the Dobbs decision, but judges should be able to eat burgers at Ruth Chris. It’s like people can’t have cancer treatments because of that shit. The consequences of they, they’re discusses if there are purely academic theoretical things and people are mad or not understanding what’s happening at the level of theory when so much of the frustration is at the level of practice and things that are actually happening. And it helps to have you be able to say, no, don’t. Don’t just lean on. Don’t let them lean on the laurels that their row provides. This is bullshit. Believe it’s okay to understand this is bullshit. Yeah. This was years out. There was a Harvard professor talking about the consequences this has had for the Supreme Court’s legitimacy, and I’m just wonder if you want to eventually hit head where they can’t just keep saying fuck whatever the people believe because them being the final stop is when a judge says, if you believe this person is guilty, you must say guilty. No. The actual authority is the people and the people just stop abiding by the things the courts are doing just going to hit the fan.

Joe Patrice:

And I think that’s a great point about court legitimacy because this is after we just had that report come out that compared the faith in the courts to puts it in the same breath as Myanmar’s courts. Given that crisis happening, the justice does not respond with any ways to fix that, but instead to blame a bunch of victim rhetoric about how it’s all those mean reporters’ faults. Alright. So in some ways, framed by Chris’s story of the anime, there are some people in this world who just bill a thousand hours and are never able to see the lives progress of the regular people and they deserve bonuses.

Kathryn Rubino:

We call those big law associates

Joe Patrice:

And they deserve bonuses, we think for doing that. And if that Barry had gotten or Elf had gotten a bonus, maybe they wouldn’t have minded any of this

Chris Williams:

Horrible

Joe Patrice:

Comparison. Horrible. But I’ll

Chris Williams:

Let it go.

Kathryn Rubino:

We’ve been talking a lot about big law bonuses. There have been two varieties that were given out this year led by Milbank, which were the sort of typical year end bonuses, which have matched the last couple years set and year end bonuses. But then they also did special bonuses. Millbank did it in the summer. They ranged between six and $25,000 depending on class year. And it was like, we are having a good year. We’re going to share the wealth. Kind of a moment. No one responded in kind over the summer, which was strange. But when the end of the year came rolling around Cravath said, oh yeah, we will definitely match that money. And the rest of the big top of big law seemingly followed suit except not quite, there was a couple of really big stories that some firms decided not to give those special bonuses. Hogan levels and Perkins Kuey in particular did not initially give that money. And that was a big story we wrote about annoyed associates. These firms think that they’re at the top of the big law heat, but they’re not doing the same amount of money, blah, blah, blah. But what happened was in that week between Christmas and due years, both of the firms that got called out by their associates for not giving market compensation abruptly reverse course, and both firms will be giving out the special bonuses to associates.

Joe Patrice:

Great. That is good to know. As we talked about in the last show, that it’s poor form if you’re trying to exist at the elite level because it becomes, takes on a life of its own. It becomes a thing that people talk about, not just in the lateral market. It becomes a thing that infiltrates law schools on campus, recruiting gets affected by it. People make their decisions in some ways. One of the reasons we wanted to talk about it is like we were talking about the news dump effect. The fact that we all talked about the special bonuses not being paid before the holidays and then the announcement that they’re reversing course coming during the holidays. There was a risk. It slipped under the radar and people would miss that they did this right? Because the make good announcement was during a dead zone.

Kathryn Rubino:

But I mean, in their defense, I think that it was because it was the soonest time that they could make the decision of course and announce it. You

Joe Patrice:

Don’t want to leave the associates hanging. That’s obviously you need to do that. I’m not blaming them for doing it during the dead period. I’m saying that it’s really important that we highlight that they did that.

Kathryn Rubino:

Yeah, and it’s interesting because oftentimes, especially when you work for a big organization like these big, biggest, big law firms, you can often feel like your opinions or feelings don’t matter. But when all the associates think the same thing, it really matters.

Joe Patrice:

Yeah. Alright then. So good on them. That wraps us up.

Kathryn Rubino:

I think so.

Joe Patrice:

Alright. Thanks everybody for listening. You should check out wherever on your podcast delivery service, wherever the reviews are, and leave stars, write things. That all helps. You should be subscribed to the show, I’m assuming you probably are already. But if not, get on that. You should be checking out other shows. Kathryn’s the host of the Jabot. I’m a guest of the Legal Tech Week Journalist Roundtable. There’s also multiple other shows by the Legal Talk Network worth checking out. You should be reading Above the Law. So you read these and other stories before we talk about them. You can interact with us all on social media. Blue Sky’s the primary at this juncture Above the Law dot coms there. I’m at Joe Patrice, she’s at Kathryn one, the numeral one, Chris is at writes for rent. There’s still some limited, we’re still limited over on Twitter where I’m Joseph Patrice. But moving away from that as it’s more or less ceased to be a viable news source. And yeah, I think that’s everything.

Kathryn Rubino:

Peace.

Joe Patrice:

Bye.

Chris Williams:

Peace.

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