But Sam Alito still has a job.
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Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a...
Kathryn Rubino is a member of the editorial staff at Above the Law. She has a degree...
| Published: | July 8, 2026 |
| Podcast: | Above the Law - Thinking Like a Lawyer |
| Category: | News & Current Events |
The Fourteenth Amendment lays out birthright citizenship in clear terms. Every subsequent legal challenge and all the scholarly work on the subject — until about a year ago — agreed on how to read it. Yet, the Supreme Court still managed to split on the question, with a 6-3 decision knocking down Donald Trump’s executive order purporting to overturn the key constitutional provision — that was more accurately 5-4, with Kavanaugh agreeing with the result on other grounds, but joining the dissent in erasing the Fourteenth Amendment. Or maybe it was 6-3 with an asterisk, because Neil Gorsuch went rogue, mostly agreeing with birthright citizenship in the only scenario the Trump administration really wanted to snuff out. Chief Justice Roberts also took his burning desire to be seen as the middle of the Court comically too far, authoring contradictory opinions back-to-back. And Sam Alito did not retire, despite reports. And in Biglaw, we continue to wonder where all the raises are.
Joe Patrice:
Hello, welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice from Above the Law. I am joined by my colleague Kathryn Rubino. Hey
Kathryn Rubino:
Friends.
Joe Patrice:
And we’re from Above the Law. We talk here about the big stories from the week that was in legal. First, we usually talk about some small talk, some things from our lives.
Kathryn Rubino:
Yeah. So obviously the 4th of July weekend just happened, which I feel like it has a weird difference of import regionally because Northeast, New York City, born and raised, now live still in New York State, that always feels like the start of summer to me. It’s very much the beginning. School’s always went to the end of June. June 27th is around when it ends. So July 4th is really the big kickoff in a lot of ways. But I was talking to friends who’ve been off for over a month because their schools ended in May. They’re like, “Oh, this is the beginning of the end now. We’re almost done with summer.” And I was like, “I feel very much the opposite.” Interesting.
Joe Patrice:
I have no strong feelings about it on those levels.
Kathryn Rubino:
I will say I did just book my daughter’s back to school photo session. So maybe I am wrong about what 4th of July means for the calendar, but it feels like this is like I finally got into my pool this weekend. We have barbecues. I feel like we’re just starting barbecue season, pool season, all that good stuff.
Joe Patrice:
Yeah. I guess the legal story that is my small talk adjacent thing is I guess I don’t particularly care about this sport, but I guess we deployed a bunch of lawyers to win a soccer case.
Kathryn Rubino:
Yeah. I mean, I actually think I’m going to write about that
Joe Patrice:
Today
Kathryn Rubino:
Because it is kind of interesting. Yeah, but there was a red card issued to America, which meant that they can’t have their star in the game against Belgium. Apparently Donald Trump made a phone call to FIFA and not want to shy away from any appearance of corruption. FIFA was like, “Sure, we’ll take away that red card.”
Joe Patrice:
Well, he did win the FIFA Peace Prize.
Kathryn Rubino:
Yeah. Which again, not an organization to shy away from the appearance of corruption.
Joe Patrice:
Yeah. My takeaway from it, I saw somebody on social media make a point similar to this that I love how Belgium’s all mad about this and exploring their legal options. And it’s like, yeah, our lawyers are still at work. Years all are off until September. Yeah, the way messages are till September. Yeah,
Kathryn Rubino:
That is absolutely kind of my hook into the whole thing, the tweet. So I was like, “Our lawyers work so hard. We have 45% clinical depression,” which not a flex actually.
Joe Patrice:
But
Kathryn Rubino:
Yeah, I think that’s definitely what my take is going to be and I think it’ll be interesting. But also it wasn’t really a red card. It shouldn’t have been a red card. They slowed down their VAR, which obviously has the impact of making everything look worse. I know you have very strong feelings about slowing down replays in a different sport.
Joe Patrice:
I feel that way about targeting calls in college football too. Once you slow it down, everything looks intentional.
Kathryn Rubino:
Yeah, because you don’t actually see how fast these… You don’t actually make a decision in 0.05. It’s momentum, it’s instinct. There’s not malice of forethought going on in that amount of time. But when you slow it down, it seems like there would be an opportunity to stop your momentum or to do this or to do that, and it changes the way you perceive things. And I think that FIFA probably has the correct rule, which is that you’re not meant to slow these things down in order to issue a red car or any sort of penalties. So that is probably the right rule if it was done in this case, which it appears that they did slow it down, which does change your perception. So yes, it seems like that is the correct move whether or not Donald Trump should have been involved in it, entirely separate question, but it does seem like this is the correct thing to have happened.
Joe Patrice:
It just seems like it’s an intersection of lawyer ball and sports ball that I find interesting.
Kathryn Rubino:
Yeah. And the way that lawyering gets involved in sports is something we’ve written about obviously
Joe Patrice:
A
Kathryn Rubino:
Lot before. The one that’s I think still ongoing the Jordan Childs bronze medal situation, which was absolutely ridiculous and she a thousand percent deserves that medal. I think it’s a horrible injustice that what they’ve done to her. But if there is an opportunity to undo injustice, what is sports law for if not that?
Joe Patrice:
Yeah. Well, all right. We should close off our small talk. We’re having a technical issue today that’s making it difficult for me to get sound effects working.
Kathryn Rubino:
You’re having a gloomy day.
Joe Patrice:
Yeah. Speaking of sad and depressing, the Supreme Court has concluded its term.
And we are going to transition talking about the run to the season finale of Supreme Court 2025, 2026. So big impact stuff happens at the end. It seems as per Yuch that the Chief Justice, in an effort to try to control the narrative, put a quote unquote moderate decision at the end so that he can have the mainstream media claim that, look, the court is really balanced going into the summer, which is a lie because they’re not in any way. The decision that they put up at the end, I guess we’ll start here at the very end in order to try to garner this reputation was the birthright citizenship case. This is a case where the 14th Amendment clearly states that people born here with the exception of children of ambassadors and stuff like that are US citizens. That’s what it says. That’s what it’s always said.
That is what all the law about it has always concluded. And the Supreme Court decided in a split decision that –
Kathryn Rubino:
In a weird split.
Joe Patrice:
Maybe it doesn’t.
Kathryn Rubino:
Which by the way, this is very relevant to our small talk conversation because Florian Balagun is in fact a birthright citizen. His mother was visiting family and was told she couldn’t get back on the plane because she was too pregnant and he was born in Brooklyn.
Joe Patrice:
Yeah. Well, so let’s put a pin in that situation because that comes up later on in this conversation, I think. So it is a split decision, which is shocking. And Clarence Thomas wrote 90 some odd pages, which are a collection of largely blog posts and stuff of that ilk that are purporting to rewrite the history of the 14th Amendment, which is all the product of a cottage industry that developed after the Republican Party decided that it was going to become deeply anti-immigrant and the Stephen Millers of the world are ascendant and are pushing kind of a white nativist worldview. Suddenly birthright citizenship became a block to that. Some right-wing law professors, including several who have never voiced any reason to believe that the 14th Amendment doesn’t say what it plainly says until now have spent the last year writing mostly newspaper articles, blog articles, putting stuff up on SSRN that are not peer reviewed or anything like that, attempting to build a false history narrative that can be cited for the idea that no, it’s always meant that.
And that’s what the basis of Thomas decision was.
Kathryn Rubino:
I think that it’s really interesting because it kind of has become this kind of current litmus test where people are changing their opinion about what the 14th Amendment says and means and all that kind of stuff in a pretty interesting and profound way.
Joe Patrice:
Robert’s wrote the main opinion deciding that what are you guys all talking about? Joined by Barrett. So you’ve got five justices there. Now it’s difficult to scorecard this one.
Kathryn Rubino:
It does read like a long gone by logic game. It joined in part.
Joe Patrice:
So theoretically it’s five four, although it’s kind of six three because Justice Kavanaugh writes separately to say he doesn’t think the Constitution says what it says, but he still thinks that the birthright citizenship exists as of now and that the Trump executive order does not operate to take that away because of something that – It
Kathryn Rubino:
Says that Congres could
Joe Patrice:
Do. Theoretically.
Yeah. So in a lot of ways it is 5-4 even though the result is technically 6.3. On the other hand, and this brings us back to your soccer analogy, I was intrigued by Justice Gorsuch who joins the Thomas opinion, which is just gibberish. So weird that he chooses to do that because he then follows with this six paragraph separate dissent. It’s the very last thing in this doorstop of an opinion. But I thought it was interesting because in some ways he is functionally with the majority, it struck me, that he takes the stance that he reads a whole third way of interpreting this amendment to say that birthright citizenship does exist probably for undocumented migrants who have been living in this country. Their children would be birthright citizens. But the specific scenario of say this soccer situation where somebody just happens to be in the US and trying to go home, that they would not have access to it.
Kathryn Rubino:
It is interesting and not the most objectionable interpretation by a hefty margin. It just becomes, I think, unruly to manage that world. It’s not like an undocumented migrant makes an attestation that they are meaning to immigrate here or whatever. What would happen? It’s a weird, how does that even work? You’d have to go by vibes of like, well, I don’t know, this mom seemed like she meant to stay here. It’s weird. It seems a lot easier certainly as an administrative point of order to be like, no, if you were born here,
Joe Patrice:
We
Kathryn Rubino:
Could tell. We could tell who was born here and that’s how we’re going to go forward on it.
Joe Patrice:
Yeah, no, but he’s just a chaos agent who’s willing to just –
Kathryn Rubino:
Not like the most ringing endorsement for one of the nine most important people in this country.
Joe Patrice:
Yeah, but very interesting. I will say it was interesting that he did not manage to bring up indigenous
Kathryn Rubino:
Treaties,
Joe Patrice:
Which was an issue for him at oral argument. So I thought that was interesting that that didn’t come up because that of course actually is relevant to this conversation. What to do with Native peoples was part of the conversation with the 14th Amendment and yet somehow Neil Gorsuch of all people chooses not to
Kathryn Rubino:
Talk about it. I’m sure it’ll be fine. And it’s also, I think, kind of interesting to see how the far right has absolutely lost their mind over decision that changes nothing. Nothing about this decision changes the status quo in any way at all.
Joe Patrice:
Right. Yeah. They’re all like, it’s a disgrace that Robertson Barrett made up new rules.
Kathryn Rubino:
This will open up the floodgates. No, it hasn’t.
Joe Patrice:
Yeah, so it is what we already had.
Kathryn Rubino:
It is what it is.
Joe Patrice:
And until people started pretending that making up fake history, it’s what everybody understood it to be.
Kathryn Rubino:
Literally all far right people were like, “Of course, this is what we think the 14th Amendment means until it became
Joe Patrice:
Donald
Kathryn Rubino:
Trump’s hobby horse.”
Joe Patrice:
And that is kind of the sci-fi book scariness is the level to which people have memory holed the fact that this was upheld as a very obvious thing as recently as the early 2000s. All right, well, let’s take a break and we will be back to talk more about the end of the Supreme Court term, I guess, in a minute. All right. Well, we still had a few more aspects of the Supreme Court worth talking about. If we assume that the Birthright case was the one that Roberts wanted to end the session on a, look, we’re really just calling balls and strikes note. He led into it right beforehand. He led into it with the Supreme Court calls balls and strikes a Schrodinger’s umpire where it is both a ball and a strike simultaneously, which is where he wrote an opinion declaring that independent agencies don’t exist and they’re unconstitutional.
And therefore the rules that we have for something like the Federal Trade Commission that has existed since 1914, those apparently since 1914, they have been unconstitutional.
Kathryn Rubino:
We have just lived at a century long amount of just lawlessness.
Joe Patrice:
Yeah. And therefore –
Kathryn Rubino:
Inaccurate.
Joe Patrice:
And therefore the executive is perfectly fine firing the folks who are appointed with job protections by statute. He then announced a second opinion which makes no reference to the first and the first makes no reference to the second where he declares obviously Trump can’t fire a member of the Federal Reserve. It’s an independent agency.
Kathryn Rubino:
Well, that was established a whole year earlier, Joe. It was established in 19. That is really the historical line that we’re creating.
Joe Patrice:
Right. Because that is ingrained in the nation in history at one year earlier.
Kathryn Rubino:
Full year, Joe.
Joe Patrice:
Right. To give him a little more credit, he does cite that there had been banks of the United States beforehand that had enjoyed some independence. He glosses over the fact that those banks that had enjoyed that independence in the past were also gotten rid of. Seems like also part of our nation and tradition that everyone rejected the idea of them being independent multiple times. Though if there’s any real history that is stable, it is the 1913 on one. But apparently maybe that’s the line, 1913 versus 1913.
Kathryn Rubino:
Yeah, apparently. 1913 deeply embedded in our nation’s history. 1914 modern shit that we can get rid of
Joe Patrice:
With
Kathryn Rubino:
A mere shrug of our shoulders.
Joe Patrice:
It’s really embarrassing. And both sides around him call him out on it. In the Fed side where he’s holding up the Fed, his right-wing colleagues are annoyed and express that this is lawless and horrible. And on the other one, his more liberal colleagues say that this is a violation of the clear intent of Congress and the clear… When we talk about the nation’s tradition and history, Sotomayor’s writes in this case and details how as far back as the early, early days of the constitutional order, Congress was setting up independent agencies and the job protections. So it is completely fictitious to try to –
Kathryn Rubino:
For sure, for sure. I will say I thought that your headline for this was
Joe Patrice:
Particularly
Kathryn Rubino:
Entertaining.
Joe Patrice:
Yeah, that he slaughtered the FTC and let the – Federal
Kathryn Rubino:
Reserve.
Joe Patrice:
Cook. Yeah,
Kathryn Rubino:
Because
Joe Patrice:
That’s their
Kathryn Rubino:
Names. Listen, listen, I’ll give you your flowers when they’re due
Joe Patrice:
And
Kathryn Rubino:
Give you your shit when it’s
Joe Patrice:
Due. As part of the FTC one, they executed Humphreys.
Kathryn Rubino:
Yeah. Okay. Okay. Okay. Yeah.
Joe Patrice:
We got jokes.
Kathryn Rubino:
We got jokes, you guys. But it is particularly entertaining that the last names of the two people involved are what they are.
Joe Patrice:
So I guess we’ll close out the Supreme Court side of this conversation before moving on to something else by just saying as of this second that we are recording, Sam Alito is still on the Supreme Court. He is,
Kathryn Rubino:
He is.
Joe Patrice:
He has not retired.
Kathryn Rubino:
He has not. Has hired a full compliment of clerks for the next year. Does not apear as though he’s doing despite what Nina Totenberg may have inadvertently published.
Joe Patrice:
Yes. And we’re sorry to our former host of the show, Ellie Vistal, who now owes David Law lunch, I think, over this retirement conversation. Yeah, there was a lot of speculation driven and kind of kicked off by Ellie about Alito retiring. There are reasons why you would think that conservative justice might want to do that right now. Sure. He also has a book coming out in the fall, which would suggest he’s going on a book tour in the fall, which is the time that you would think that a Supreme Court justice would be clearing their calendar because they’re supposed to work. He’s a thing
Kathryn Rubino:
On his to – do list
Joe Patrice:
In
Kathryn Rubino:
October besides selling a book.
Joe Patrice:
So there were reasons to have some suspicion. It seems as though veteran, the Dean of Supreme Court reporting, Nina Totenberg from NPR had written as one does, had a pre-written Alito Retires article that was ready to go in case it happens. And while she was still in fact in the Supreme Court building, she misinterpreted something someone said as Alito retiring and told her people to go ahead and hit publish. It was up for five minutes tops, I think. It was down almost immediately after the Supreme Court press folks went to her and were like, “What the hell?”
Kathryn Rubino:
I think it’s interesting. I’d also point to the weird fetishization of being able to be the one who breaks it
Joe Patrice:
As
Kathryn Rubino:
Opposed to it’s actually if it had happened, it would’ve been the fact that Alito announced it and whether you got yours up at 11:01 or 11:02 doesn’t really matter. I’m not crediting Nina Totenberg as breaking it when it was because of his announcement. But there is a journalistic fetishization of being the first breaking the news. And listen, we play that game too. We broke the Milbank raises, which we’ll talk about later in this show, but there is that aspect to it, but it shows you how because everything happened so much faster in 2026 than it did when we first started caring about that when you had to actually publish papers and stuff, that it could bite you right in the ass.
Joe Patrice:
Yeah. So you kind of feel bad for him. Social media has a lot, some conspiracy theorists who think she knows he’s really retiring. She just accidentally hit it early.
Kathryn Rubino:
No.
Joe Patrice:
No. It reads –
Kathryn Rubino:
He would’ve done it during the last day of the term.
Joe Patrice:
Yeah, it reads the same. Well, some people do it the day after, but I mean we’re past that. And we keep pre-written stuff for news that we expect to happen too. It is a thing that happens and it reads like that because it has inconsistencies in it. It had been set up. The caption on the photo said he’d announced it on Friday, which the previous Friday was the day they thought the term would end. It went to Tuesday. There were misspellings here and there in it.
Kathryn Rubino:
Which also, if she did think that, oh, he was about to announce it, makes me question their final editing process.
Joe Patrice:
Well, yes, there is a bit of a problem there. But yeah, no it read something that was put together that was expected to get a warm over before it goes up and it did not. Well, and in some ways, as far as you say the editing process, I think it also speaks to her role in the Supreme Court superstructure of reporting. I think she probably was taken aback by the idea that she had to hit publish immediately. I think – Without having
Kathryn Rubino:
Had a little birdie
Joe Patrice:
On her
Kathryn Rubino:
Shoulder already told her
Joe Patrice:
About something. She figured she was going to get a birdie on her shoulder first probably, which would allow her to take that 10, 20 minutes to warm it over, but whatever. So he is still gainfully employed. Conservatives don’t need to fly their flag upside down or anything. They’ve made an appeal to heaven and he’s still there. Okay.
Kathryn Rubino:
Okay. Yeah.
Joe Patrice:
All
Kathryn Rubino:
Right. I think that you’ve done what you needed to on this
Joe Patrice:
Segment.
Kathryn Rubino:
All
Joe Patrice:
Right. Let’s
Kathryn Rubino:
Take a quick break. All
Joe Patrice:
Right. Bonuses.
Kathryn Rubino:
Nope, not bonuses. A little bit bonuses,
Joe Patrice:
But monthly raises. Some people have bonuses, but you’re right.
Kathryn Rubino:
Monthly raises. We are now officially past July 8th or July 1st rather, which is when the Milbank raises are effective. So currently associates at Millbank, Norton Rose, a handful of other firms are making more than their peers at Cravath,
For example. I really thought that before the July 1st deadline of the effective date of the raises, that Cravath would show their hand in some way or another. It seems incredibly likely that they are at least going to match there. I don’t think that they are going to not be at the top of the market before the year is out, but what’s the delay? What’s going on? Why haven’t they moved? I gave them a couple of weeks grace, at least mentally, because I think a firm like Cravath doesn’t necessarily run when others run, but they have their previously scheduled partners meetings. There’s plenty of time in the number of weeks. It’s been over a month now since Milbank moved. They did their announcement in the beginning of June. Plenty of time to have moved, plenty of time to have met with your partners. This is not a rush job at this point.
This is just showing I think fundamentally in consideration for their associates, they either don’t care that they might this sows discontent or they’re planning something splashier perhaps later in the year. But I think that it is not a decision that it was expected for them to take this long, but we’re still waiting. We’re still waiting to see what happens.
Joe Patrice:
Yeah, it is interesting that we had kicked off. Millbank does these and these raises, and while I don’t want to diminish the importance of raises, Millbank is really not trying to rock the boat compensation-wise here as much as they are honoring cost of living adjustments. These aren’t raises that radically alter the baseline as much as they just say, “Hey, a few years ago we set it here. Things are more expensive.”
Kathryn Rubino:
Yes, and that is certainly, I think, part of the language that Millbank has put out regarding raises like this. But that’s also, I think, slightly disingenuous because the people are not the same. A first year in 2023 is not your same person in 2026. They are getting raises. Assuming they’re still at the firm, they have been getting a series of raises. Their cost of living
Joe Patrice:
Adjustment
Kathryn Rubino:
Has been more than made up by their just sort of run-of-the-mill raises because they went from a first year to a second year to a third year. So their cost of living has not been impacted. It’s only the cost of living as you imagine a fictitious constant first year.
Joe Patrice:
But it goes all the way up the scale.
Kathryn Rubino:
Right. But everyone continues to get raises. Every year somebody who’s in the system gets a raise.
Joe Patrice:
Right. And now those raises, the scale is adjusted for the cost of living.
Kathryn Rubino:
Correct.
Joe Patrice:
Yeah. Anyway, the point is they’re making a cost of living adjustment as opposed to a baseline of everything, which I think is significant because you see this resistance from these firms. It makes it a little more… You look askew a little bit more at it because it’s like, why are you upset about what is essentially a cost of living adjustment? The partners are unwilling to part with a little bit of extra money that matches the extra amount of money that things now cost. So we saw boutique firms join in and a handful of big firms, but the slow pace of the big firms is disconcerting and probably speaks to a sense among them that they would rather keep things where they are. And if they have to compensate people more, do it on the backend through a discretionary bonus that they can walk back in a future year if the bottom falls out of the economy or something like that.
Well, I think with that, we are done for the week. So thanks everybody for listening. You should subscribe to the show, get new episodes when they come out. You should also be listening to Jabo that Kathryn hosts. I’m also a guest on Legal Tech Week Journalist Roundtable. There are other shows by the Legal Talk Network to listen to. Social media, read above the law, so you read these and other stories before they come out at getsabovelaw.com. I’m at JoPatrice. She’s at Kathryn1 on the socials. And with that, we will talk to you next week.
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Above the Law - Thinking Like a Lawyer |
Above the Law's Joe Patrice, Kathryn Rubino and Chris Williams examine everyday topics through the prism of a legal framework.
