David Lat is the founder and managing editor of Above the Law, an online publication that critically analyzes and...
Joe and Elie chat with Above the Law Founder David Lat about Justice Anthony Kennedy’s announced retirement. What is Kennedy’s legacy? Where will the Court go from here? And handicapping Kennedy’s potential successors.
David Lat is editor at large and founding editor of Above the Law.
Special thanks to our sponsor Major, Lindsey & Africa.
Above the Law – Thinking Like a Lawyer
Anthony Kennedy Retires — What’s Next
Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.
Joe Patrice: Well, welcome to another edition of Thinking Like a Lawyer.
Elie Mystal: Wooh.
Joe Patrice: Yeah.
Elie Mystal: We are all going to die.
Joe Patrice: I mean, yeah, we are all going to die, Elie. That’s true.
Elie Mystal: Soon, Joe.
Joe Patrice: Yeah, that’s what I meant. That was just poor form on your part. We were clearly in a riffing stage trying to invoke an all-time classic Simpsons line and you didn’t quite roll with it.
Elie Mystal: Oh, I am sorry, I missed it. Sorry.
Joe Patrice: Oh really? That Kamp Krusty, “I think I am going to die.” “We all die, Lis.” “I meant soon.” “So did I.”
Yeah, no, so you seem unhappy, which is weird, because there are big law raises going on everywhere; is there something that’s happened recently that like is somehow traumatic?
Elie Mystal: Yeah, I think like all people who like other people. I took the news of Kennedy’s retirement pretty hard. As you can tell I am wearing a shirt with soy sauce stains on it.
Joe Patrice: I mean, the listeners can’t tell that.
Elie Mystal: As you, Joe.
Joe Patrice: I can take judicial notice that there are stains on his shirt. I do not have information or belief to confirm that they are soy-based, so that’s — I am answering this like an interrogatory.
Elie Mystal: Yeah, they are soy Chinese food-based stains on the shirt that I was wearing yesterday too. It’s just —
Joe Patrice: Yeah.
Elie Mystal: The pointlessness of trying is real — is hard to get over. I know, I am so sorry, be grinding my gears right now, but like —
Joe Patrice: You are.
Elie Mystal: — the difficulty of grinding those gears is that, I don’t see the point, I don’t see the point.
Joe Patrice: Yeah. No, that’s —
Elie Mystal: I see the point of moving to Canada, I see the point of moving to Johannesburg, I don’t see what more we can do here.
Joe Patrice: And did you see the Canada, there are — government’s war on Canada is going to step up now that they are legalizing marijuana. The border patrol is going to start saying that any Canadian who has ever smoked marijuana is banned for life from entering the United States, which seems like a completely —
Elie Mystal: No great loss.
Joe Patrice: Yeah. That we can’t have Canadians down here, come on now.
Elie Mystal: I mean real loss for Canada.
Joe Patrice: Oh yeah. Yeah, that’s fair. I mean, I was saying, look, the level of our hockey would go sit down so far, and we got to think of the real victims here.
Elie Mystal: Do you think Tavares stays with the Islanders?
Joe Patrice: I haven’t really been paying attention to the market.
Elie Mystal: You know why, because we are all going to die, Joe.
Joe Patrice: Yeah. Well, that’s true. So, with that, that’s not all that pleasant, but what we are going to do today is we are going to talk about, because it’s breaking news. We are going to talk about Justice Kennedy’s retirement and what it means and what’s next, and we are going to have David Lat from Above the Law, also on to help us walk through that. He has a lot of insight into the Federalist Society mind, so he is going to be able to offer perspective from the Federalist Society mindset, which is good, because the administration has abdicated all of their actual responsibility for picking judges to the Federalist Society, so why not.
Elie Mystal: He’s the one and the now.
Joe Patrice: So, exactly, that puts it in the now. But we have to be first and really most importantly.
Elie Mystal: Drink?
Joe Patrice: No. Well, we can do that second; but first, we need to thank our sponsor, which is Major, Lindsey & Africa, as usual.
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Elie Mystal: Wooh.
Joe Patrice: All right. Well, let’s start I guess by David talking about, so thoughts on —
Elie Mystal: What?
Joe Patrice: Oh yeah, here we go.
Elie Mystal: Yeah. Why shouldn’t I jump off the building?
David Lat: A couple of reasons I think why Justice Kennedy’s retirement from the Supreme Court is not the end of the world. One reason, which I actually forgot to mention in a story I just did for Above the Law on this is, let’s not forget, Justice Kennedy was actually a pretty conservative justice to begin with. He had a couple of high profile defections in areas like LGBT rights, for example, but he is the Justice who wrote ‘Citizens United’.
So, let’s not think that he was somehow, some great savior for progresses. He was, I would say, 80% of the time pretty much in the tank for conservatives. So, this is not a huge shift, it’s an incremental shift.
Joe Patrice: Yeah. I used to say years ago I was on a TV show and they asked me about oh swing Justice Anthony Kennedy, and I was like, Anthony Kennedy is a right winger who has a couple of gay friends, and that’s really where I put him.
David Lat: You may steal that line, Joe.
Elie Mystal: I agree, but it’s undeniable that Kennedy also had a mollifying influence on some of the most — I would say evil impulses of the hard write on the court so that even when Kennedy would side with the conservatives, as he did most of the time, the fact that he needed to bring Kennedy along I think caused some of those decisions to be more narrow, more tailored, less expansive than what they will have to do if he is not there.
David Lat: I guess, I have two thoughts on that. One is, perhaps sadly, I don’t know how much Kennedy had that effect in the sense that in some ways conservatives loathe him more than anyone.
Remember Scalia’s line from the Obergefell opinions about how if he’d written some line that Kennedy hadn’t written, he would hide his face in a paper bag and this was like judicial decision-making by Chinese fortune cookie. In some ways, Kennedy almost brought out a lot of really bad instincts from conservatives.
But the second thing I would say, and again, reasonable minds can disagree with this and Catherine, our colleague just wrote a post on this, but I think in some ways John Roberts is now going to have to, and will I think, grow into the role of swing justice.
Now, look, he is quite conservative, even more conservative than Kennedy, but remember, he is an institutionalist. He doesn’t want to do anything that is going to bring protesters to the Supreme Court every day, he likes being able to go out to nice restaurants in Georgetown and Notre Dame, 00:06:24 people throw wine in his face, he is not going to do anything too crazy.
Elie Mystal: Look, I have my own issues with Roberts and I think to your point about going out to nice restaurants in Georgetown, yeah, and he can do that as long as those restaurants don’t have any Black people in them. But if they do have Black people in them, we already know what Roberts means for racial justice in this country.
But before we kind of go too far field there, I want to come back to Kennedy because reading — and if you haven’t read it, you should read Lat’s post about why we shouldn’t freak out about Kennedy retiring, I am freaking up.
Don’t you think that he is most famous on the left for his stands for gay rights? Don’t you think that it is dangerous at this moment to tell gay rights activists to not put their foot on the gas, because somehow Roberts is going to save them.
David Lat: I think that probably both sides should be wary of trying to use the court’s right now to advance agendas, because we don’t know what the new equilibrium is going to be.
So, I would say that about gay rights activists, I would also say that about religious activists who want to help out the baker from Masterpiece Cake Shop. I think everyone should sort of lay down their arms for a bit, and let’s figure out what the heck is going on.
Joe Patrice: That may well be true, but I don’t have a lot of faith, that’s how this is going to be received. I think that one inside baseball observation that came from SCOTUSblog, their coverage yesterday, that I thought was really interesting, and it really does speak to the we all kind of record observers and stuff, but the people actually have to file these things every day, have a slightly different perspective. They made the point that almost more so than being a vote, what Kennedy accomplished was — well, one of the things he actually did was he might have been a right winger but he was unpredictable enough in certain places that some people didn’t bring the harsh challenges they wanted to, because they were like, my god, what happens if we bring this and he’s a swing on it. That will be largely mitigated now.
I think that the Right Wing activist folks well for going forward say, I don’t have to worry about this. I can go ahead with my 48-hour abortion ban.
Elie Mystal: And this is how — and I am glad you brought that up, Joe, because from my perspective this is how abortion dies. Okay, you say it Lat in your piece that Roberts isn’t likely to overturn Roe V. Wade. Of course not, he won’t have to, because the way that abortion dies in this country is that in two years from now without Kennedy and without States having any fear of an Anthony Kennedy, what we are going to see is the increasing outlawing of abortion at the State level knowing that they cannot be challenged in the Supreme Court.
So maybe it won’t be an outright ban but you will have these bans. Already Iowa has the ban, no abortion after six weeks. You don’t even know if you are pregnant after six weeks, but no abortion after six weeks.
I would imagine at least half the states have some kind of a plan in place like that in two years and there’s going to be no cover from the Supreme Court to strike these bans down.
David Lat: So, I think the point that I would raise here, which I make in my piece is, you have to remember that the Supreme Court even elects to say, it’s all about law not politics and it’s above the fray, it is a political institution. The justices are political actors. Especially Justice Kennedy, but also Roberts, they are very cognizant of public opinion and not getting too far ahead of things.
Now, could they try to support or affirm some really harsh limitations on abortion? Sure, but at a certain point they are going to overplay their hand, and at a certain point there is going to be a backlash.
Let’s not forget. Women are majority of the population in this country, at a certain point women are going to say, we actually value the right to choose and we’re going to do something about it.
So, at the end of the day, look, I know that’s probably not much comfort to women who will find themselves perhaps in this sort of interim stage; remember, many states will protect abortion.
The vast majority of the population, blue states, the people who voted for Hillary Clinton by about three million, those states are going to be fine. But let’s say, you are a woman in Iowa. Yes, there could be some interim period, but at the end of the day, this really should work itself out through the political process and people should take a standard, progressives should use this as a rallying point.
Joe Patrice: Yeah, I mean, I definitely see the risk of that. The problem with the majority of the country being women is the argument that three million people voted argument is we don’t have a system that reflects that particularly well. We have a system where senators are often times, probably again, or probably again going to see a situation where the majority of the Senate is voted on by the minority of the population, just by the way that California has just as many as Montana.
We have a president who lost an election straight up. My tweet that I put up yesterday is that four of the nine Supreme Court justices by this fall will have been put on the court by someone who entered office, and that’s an important distinction that I make in that tweet, entered office having not won the popular vote. Bush (Roberts and Alito) were nominating his second term, but the odds of him winning in that election having not been the power of incumbency are probably slim.
So, we will have four, almost half the court be put there by people who don’t win popular elections and at the end of the day, I think some people, may be Roberts as an institutionalist, I don’t know, he gets on the border. He certainly talks a good game, I don’t know if he actually will follow-through. But Alito, Thomas, these people don’t care that they are representing the minority view in this country. They are pretty aggressive by what they want regardless.
David Lat: It will be interesting to see what Justice Gorsuch does. I remember Dimaya in this recent term, he could occasionally aside with the liberals. I am not really counting on that necessarily. Some of you will remember from last term, his opinion in Pavan v. Smith, which was essentially to kind of summarize it almost like questioning Obergefell, but I think that one thing we have seen over the court’s history is, it’s pretty unpredictable.
Kennedy, Souter, Stevens was a Republican nominee. Look, I think the Republicans have gotten better about vetting. I said so on Twitter yesterday, but they are not perfect and they could have a couple of missteps hereto.
Elie Mystal: Here is the disconnect that I’m not getting from what you are saying, David. On one hand, you’re saying, don’t freak out, there is a process here, whatever. On the other hand, you are saying and we shouldn’t be too worried because if you they go too far, people will freak out.
So, I guess, my question is, why shouldn’t I freak out right now today? Now, is the time to freak out? Why do I have to wait —
Joe Patrice: To freak out.
Elie Mystal: To Freak out.
David Lat: Well, I think that if your freak out helps galvanize people on your side of the aisle and raise funds and increase voter turnout, then I think the freak out is probably what’s needed. I just think that — I don’t know, I think that there has to be some kind of balance between just for your own mental health like between freaking out and being complacent.
I don’t think progressives should be complacent; in fact, I think the opposite, but at the same time, I think that we have a system of checks and balances here and there’s only so much the Supreme Court can do, even with the majority of conservative justices.
Joe Patrice: In the death of a thousand cuts and I think in the Kathryn Rubino piece that we were just referencing, she mentions this, the death of a thousand cuts is definitely there for issues like gay rights and abortion, where small restrictions are going to happen. They are going to make things worse.
And the new kind of — I call it the Acela corridor elite kind of circles —
Elie Mystal: My people.
Joe Patrice: Right, and not particularly mine. They are embracing this like progressive federalism, bullshit, where they think that, oh, you know, so long as White women in New York can get abortions, everything is fine; but like, at the end of the day, people are going to be suffering under these situations and it’s going to be even better than this federalism thing.
I think Mark Joseph Stern in Slate wrote a piece where he pointed out, if this goes very much further, we’re not far from the Federal government trying to enter the field of abortion regulation. I mean, they can do things, they can pass regulations through the FDA – would make FDA-style rules like, oh, no, this procedure that procedure.
David Lat: Well, they already did have that rule. The Federal Partial-Birth Abortion Act, it was the one that was construed in Carhartt. Although, again, this is probably more inside baseball nerd stuff as opposed to sort of something that would come for people who are very concerned about abortion.
But, there was an interesting digression from the conservatives, I think maybe it was Scalia and Thomas, who said, I’m siding with the majority here because it applies our jurisprudence on abortion, but I’m not sure whether this actually flies under the commerce clause, which was kind of interesting, actually. I was like, hah.
Elie Mystal: Looking ahead, who is the next guy?
David Lat: So I think —
Elie Mystal: It’s going to be a guy.
Joe Patrice: I don’t think we agree on that actually.
David Lat: Actually — oh, really interesting.
Joe Patrice: I mean, it probably will, my money is on that, but I would place a show bet on a woman.
David Lat: Oh, interesting. I mean I would place an outside bet if you gave me, I think I compare this to a craps table and I would bet on Amy Coney Barrett, if you gave me 2-1 odds, like betting on the 4 and 10 on a craps table. But I think that my money is on a conservative former Kennedy clerk, whose last name begins with K.
I am not referring to Judge Alex Kozinski or former Judge Alex Kozinski, but rather Judge Brett Kavanaugh of the DC Circuit and Judge Ray Kethledge of the Sixth Circuit, I think that both of them are in very good positions right now.
Joe Patrice: Yeah, I think that’s right. And then with Amy Coney Barrett being an increasingly discussed outlier, although I think your article makes a good argument for why Republicans probably should hold her in reserve. He believes that there is a fair argument that Justice Ginsburg could be a vacancy that could up under a Republican and the idea of replacing her with a White man would look pretty bad. But replacing her with a woman would smooth that over in a very Thurgood Marshall and Clarence Thomas sort of way. So whole —
Elie Mystal: Yeah, look how well that worked that out.
Joe Patrice: Exactly, but hold Barrett in reserve for that purpose.
On the other hand, I have also seen people saying that insiders at the White House are saying that Trump is very interested in someone who is — well, actually interested in someone under 40, which sounds absurd to me, but at least someone in their mid-40s would therefore be more attractive to him.
Elie Mystal: It’s because of that, it’s because of the age that my dark horse candidate is very unlikely and very dark. But if you gave — talking about odds, if you gave me the 100:1 odds here, I would put all of my money on Jeff Sessions and here is why. Here is why.
Joe Patrice: Oh, clears up the DOJ.
Elie Mystal: It clears up the DOJ. The thing that we know most about Trump is that the thing that he is most scared of is the Mueller investigation. He cannot get rid of Jeff Sessions. He can’t fire him. The Republicans won’t let him, Sessions won’t accept it, but if you promote him, if you promote him, Sessions has to take that promotion to Supreme Court.
Republicans have to confirm him to the Supreme Court, because he checks all the boxes. He is White, he is a bigot, he hates women, he hates drugs, he checks all their boxes, they have to confirm him. If they do, and that gets him out of the way from the DOJ and allows Trump to put an end to the Mueller investigation.
It’s a little bit three-dimensional chess when we are talking about an idiot.
Joe Patrice: It’s one-dimensional chess, it’s above checkers.
Elie Mystal: And I doubt that the Federal Society or the Heritage Foundation will allow him to put a 70-year-old on the court when he could put Doogie Howser on the court, right? So I doubt they will let him do this, but if he were to really look into his own personal interests and go rogue, 100:1, Jeff Sessions.
Do you think there is any chance?
David Lat: Not really. It’s a fun thought experiment. Like when people say, what if we put Barack Obama or Hillary Clinton on the Supreme Court, but with Sessions also remember, he could have problems from the Democrats. I mean people aren’t happy that he apparently or arguably might have lied to them about his contacts with Russia, not a good look. So I don’t know.
Joe Patrice: So one thing that was interesting is looking at the people on shortlist, the Kavanaugh, Kethledge, Barrett, Thapar, with the exception of Kavanaugh, we would actually have a possibility to break one of the hardest blockades in our current Supreme Court and one of the things that puts the biggest blinders on it, which is people who only went to Harvard and Yale. Because Kavanaugh went to Yale, but the rest of these folks went to different law schools, which was interesting.
David Lat: Yeah, that is true, a lot of them did, that’s right.
Joe Patrice: I mean Michigan for Kethledge, Notre Dame for Barrett and Thapar went to Berkeley.
David Lat: Yes.
Elie Mystal: I also like it when the rapist uses a condom, that’s super great.
Joe Patrice: That’s probably not where you want to take that.
Elie Mystal: Is there any way to stop this? Is there any way to stop this from happening? McConnell said that he is going to have this guy ready to go by October 1, by the time the new term starts. Is there any way to stop this?
David Lat: So I tried to play out a crazy hypothetical in my post. The filibuster is gone, the blue slips are gone, what if the Democrats try to pull a Texas Eleven and basically flee DC to deny a quorum? The problem is first, the Senate quorum is 51 votes and Republicans have the 51 votes. And second, to the extent that John McCain, because of his health issues is unable to travel, I think if it came down to it, he would resign. Republican Governor Doug Ducey of Arizona would appoint a successor; that person would become part of the 51.
For the people who were asking me about this on Twitter, no, apparently the Vice President cannot count as part of the quorum, even though he can break ties.
But basically, the answer to that is no, no, and no. No filibusters, no blue slips, no quorum games. I think the best strategy is I guess what I have seen bandied about in a lot of progressive circles about trying to lean on wavering Republican senators. But even with Gorsuch, you have got three Democrats to go along, so I don’t know.
Joe Patrice: Yeah, those Democrats are going to go along this time.
Elie Mystal: I don’t think Jeff Flake is going to evolve a spine in the next six weeks.
Joe Patrice: You know what’s interesting about that is, so Jeff Flake before this announcement happened put himself in an interesting position, because he publicly announced he was blockading all judicial nominations until the President gets rid of tariffs. So that’s the thing he already put himself on the record on. Now, obviously he was not expecting the Supreme Court enchilada to show up.
Elie Mystal: And he doesn’t have a spine.
Joe Patrice: Right. But I mean — but he might care enough about tariffs to make that his issue, that could delay it. Question is then does Trump back down on tariffs or does Trump just allow the Supreme Court to have eight people out of spite? Probably spite.
Elie Mystal: What does Flake say? Look, my way for stopping this, there is no legal way to stop this. If you are going to try to mount a challenge, it’s going to be illegal, it’s going to be civil disobedience, probably emphasis on disobedience and not emphasis on civil.
You are going to have to protest in the streets. You are going to have to block hearings. You are going to have to get arrested. You are going to have to stand up to the military. You are going to have to do a lot of things that people — and the only thing I can say to that is that you are going to have to do a lot of things that people have done in the past when they are minorities and trying to overcome majoritarian rule.
I don’t want to hear Chuck Schumer talking about a quorum, quorum fleeing if that’s all he has got. If Chuck Schumer wants to leave his charge, talk to me about the Chuck Schumer hunger strike that’s coming on the Senate floor. That I would be up for, that I would like to see, but if he is not going to have that and he is Chuck Schumer, he ain’t got that, then a lot of this progressive angst about how to stop, it’s just angst, it’s useless.
As the great Billy Joel once said, Go on and cry in your coffee. But don’t come bitching to me, because you ain’t got it if you are not willing to go there.
Joe Patrice: Yeah. I mean that was very much what former guest Rick Hasen kind of was saying in his piece too, that protest dissolves at the freak out level that David says is —
Elie Mystal: Did he do it with Billy Joel though?
Joe Patrice: He did not, he did not.
Elie Mystal: That’s key.
Joe Patrice: I mean, yeah, fair. So with that, thanks David for joining us. We have got to get you out of here because you have got other things to do.
Thanks everybody for listening. You should read Above the Law at all times. You should be giving this podcast reviews and subscribing to it. You should be following us on Twitter. You should do all of those things.
So with that, we will talk to you soon. Bye all.
Elie Mystal: Peace out.
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