A Wild Week At The Supreme Court

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

A Wild Week At The Supreme Court

06/23/2020

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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.

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Joe Patrice: Oh hello, didn’t see you there. This is another edition of the Thinking Like a Lawyer podcast. I don’t know, I felt like shaking things.

Kathryn Rubino: I like it. I like it.

Joe Patrice: I have done the same intro every time for several years now. I am Joe Patrice from Above the Law, which you probably knew if you were listening to this. So I am joined by one of my fellow editors at Above the Law, Kathryn Rubino, how are you?

Kathryn Rubino: I am doing pretty good. How about yourself?

Joe Patrice: You know, not bad. So we are here in the midst of a fairly busy week and a week that I think a lot of us assumed was a full five day week just a month ago, but I have been informed that Donald Trump has invented Juneteenth and so therefore —

Kathryn Rubino: Listen, I am not going to — I am not in the business of ranking the ridiculous/offensive things that Donald Trump says, that would be a full-time job, but it is pretty both ridiculous and offensive the notion that he invented Juneteenth, since you know it predates his birth by many, many years.

Joe Patrice: So yes, as of a few months ago or a few weeks ago even the concept of June 19^th being a holiday was one that was foreign to a lot of folks, it was even the subject of some popular culture efforts to make it a holiday given its longstanding significance in the African-American community and in the wake of what’s been going on perhaps not really reparations or anything, but in the wake of what’s going on it has emerged and bubbled up as something that corporate America by and large is viewing as a long overdue holiday. So tomorrow people didn’t think this was going to be a holiday, but tomorrow for a lot of people it is, isn’t it?

Kathryn Rubino: It sure is. It’s pretty good news. You mentioned that pop culture has kind of been pushing this for a little bit. There was an episode, I think it was just last year of Black-ish about Juneteenth and one of the things that they say there, because I have covered the effort of Biglaw firms to take the day as a holiday and it’s not — listen, getting Juneteenth as a holiday, recognizing it as a holiday is not the end of racial issues in this country, but as the show said, it said it feels like a good step and it’s in a lot of ways forcing White people to recognize, not only that slavery happened, but that it was something that a war was over as opposed to just something that’s the faraway past or some distant memory.

Joe Patrice: So what’s going on in the Biglaw world vis-à-vis this?

Kathryn Rubino: Well, like much of corporate America, a lot of folks are getting the day off. We at Above the Law first became aware of it last week when Skadden announced and sent an email to everybody at the firm that they would have the day off, that it would be — that it should be a firm-wide holiday and they should treat it as such, which was a pretty great thing. And since then quite a few firms have joined on. I am currently tracking 55 other Biglaw or boutique law firms have told their firm that it is a holiday.

I guess a couple have it as a half day; one has it as an optional holiday, but that’s significant considering it was absolutely not a holiday last year for any of these places.

Joe Patrice: No. So we have been tracking kind of over the past few shows some of the response of law firms to recent events and it seems as though this is a new one. By the time this episode comes out obviously the holiday will have passed, but it is —

Kathryn Rubino: And I aspect that — this is not a complete list by any stretch of the imagination, but it’s a floor, at least 55 firms have done this.

Joe Patrice: And getting 55 firms to agree on anything other than following Cravath’s bonus schedule is really hard.

Kathryn Rubino: Yeah.

Joe Patrice: So it’s a testament to what Skadden managed to get going here and I mean, we can track that Skadden is the first actor.

Kathryn Rubino: I have not heard otherwise and I have been saying that for a while now. And it is — listen, Biglaw is very much follow the leader in a lot of ways when it comes to compensation and when it comes to bonuses, when it comes to hours requirements in a lot of places. If it’s already been done by other folks, firms feel very comfortable saying that they too will do this. And this is a great instance of that, where Skadden came and said, this is a holiday and a good amount of firms have agreed.

(00:05:11)

Joe Patrice: Well, we will see and be keeping our eyes on firms making this a permanent holiday as opposed to thinking they can do this as a one-off.

Kathryn Rubino: Sure. And that is very fair and absolutely something we need to very much be mindful of. We are not going to solve racial tension in this country before 2021, it seems unlikely.

Joe Patrice: Fair enough. So what else has been going on this week; I hear that the Supreme Court was active?

Kathryn Rubino: Oh yeah. I mean I think that — and I struggle to really know whether a pair of new cases that the Supreme Court handed down are actually good news or we are just so starved for good news in this country that even small things seem like a really big deal. Although of course the Supreme Court holding that Civil Rights legislation did extend — the concept of sex did extend to sexual orientation was something that was very — and LGBTQ folks, that was something that was obviously incredibly important.

Joe Patrice: Unfortunately, because this is the crux of that case, we need to be a little bit more precise. The 1964 Civil Rights Act does not protect sexual orientation, it protects discrimination on the basis of sex, it just happens to be that the Supreme Court utilizing their logic, which is pretty sound in this case, realized that sexual orientation is kind of wrapped up in the basic concept of discrimination based on sex. So it’s not like it expanded it; it just said that there is no way —

Kathryn Rubino: Including underneath that umbrella.

Joe Patrice: Yes, yeah, there is no way that you can discriminate on sexual orientation without implicitly discriminating based on sex and to that extent it is covered.

Kathryn Rubino: I mean — and it is something that is a pretty big deal. There are quite a few states where people could absolutely be fired if their employer wanted to fire them because they were gay. The fact that they cannot do that anymore is absolutely something that should be applauded and celebrated.

But I know that you also wrote that liberals should be careful before they celebrate a little bit too much, because the opinion was written by Neil Gorsuch, which doesn’t sound exciting on the surface.

Joe Patrice: So it was a 6-3 opinion with Roberts and Gorsuch both on top of it; Gorsuch wrote it and it is heavily, heavily influenced by doctrines of textualism. It is a love letter to the concept of textualism. He dumps a bunch of dictionary definitions in there and says —

Kathryn Rubino: As Webster’s Dictionary defines.

Joe Patrice: Yeah. He is that guy at a wedding. Yeah, no, so he said that — he limited his decision to hey, this is just what I am forced to do because this is what the text says. That is a little problematic given that some of the arguments being made in the case reached towards broader issues, constitutional issues about equal protection and so on and so forth. None of that comes through; it becomes a straight statutory determination that the words have to be defined this way.

But it is also in the way it is written a warning for anybody who is concerned about things like the Chevron doctrine that these are — this is still a very hostile court and it’s a court that’s going to use lines from this opinion as marching orders for lower courts to do a lot more mischief I think.

There is lines about how reading anything beyond what Congress explicitly put down is particularly dangerous. I can see that line being quoted in the next district courts saying that some regulation against a toxic chemical in a river can’t possibly be covered by the Clean Water Act because the Congress didn’t say it. These are the sorts of collateral attacks that are going to be born out of a decision like this.

And so while everybody was celebrating the result, I was the Debbie Downer who pointed out to everybody that a lot of what’s being said here is going to be etched — a lot of the way it’s said is going to be etched in your nightmares going forward as multiple progressive legislation is going to be run afoul on the ground — run aground on the rocks of what Gorsuch writes here.

Kathryn Rubino: You were a bit of a Debbie Downer I think on that decision, but I also think that —

Joe Patrice: Thanks. No, that’s great. Oh, you did say on that decision I guess, but I was going to say, like I — when you said that I felt like oh, you were saying that I am just generally a Debbie Downer, because I think I am a super fun person.

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Kathryn Rubino: I am not attacking you as a human, nor do I think that Debbie Downers are necessarily a bad thing. I think that — listen, I watched that movie ‘Inside Out’ and Sadness was the real hero there, right?

Joe Patrice: Okay. Fair enough.

Kathryn Rubino: So I am not — listen, I am not making that kind of a claim, but I also think it was really necessary and I think that the left in particular is very desperate for good news and this felt — this is good in a lot of ways, but making sure that we are still ever vigilant and wary of what it means and we don’t — there aren’t a series of articles and social media posts lionizing oh, the great in between jurists, the great moderate Gorsuch is something that we should be aware of.

But it wasn’t the only time you were a Debbie Downer this week.

Joe Patrice: That’s true. I followed that up with —

Kathryn Rubino: So maybe it is you, maybe it’s not just the decision, maybe we have identified something. Would you like to talk about that, how do you feel when I call you a Debbie Downer?

Joe Patrice: I mean I feel attacked is what I feel.

Kathryn Rubino: Do you? Do you really? That’s very interesting.

Joe Patrice: Not really, not really.

Kathryn Rubino: Not really.

Joe Patrice: This is the sort of blame I get for everything I say all the time.

Kathryn Rubino: Yeah, life is hard as a straight White now.

Joe Patrice: Yes, it’s so difficult, yeah. No, but seriously though, I have heard, this is an aside, I have heard far too much of my fill of people explaining how hard their lives are as straight White people so I am moving on from that.

This week also there was another decision that Roberts handed down about the DACA program and there was — obviously the administration attempted to and that program, which was an Executive Order run program that was just a deferral of deportation for children who came to the country in an undocumented way and just basically saying we are not going — we know we technically can deport you, but we are going to all agree not to, and that’s what that Executive Order said.

And the Trump administration tried to get rid of it. There were multiple lawsuits all over the place. That was resolved today. That gives you a sense of when we are recording, that was resolved this week and the court determined that the decision to get rid of DACA was arbitrary and capricious, those magical words for anybody who took administrative law.

Kathryn Rubino: Ding, ding, ding.

Joe Patrice: And to the extent that it was arbitrary and capricious to get rid of it without in any way in their explanation of why they got rid of it considering reliance concerns and forbearance; therefore, the suits against the government can move forward. Any attempts kind of to post hoc determine why they did it in ways that are more — that are better — it’s the old Seinfeld, where he says he wants to return the jacket for spite and they say oh, well, that’s not a reason. He says oh, then it doesn’t fit, and they are like well, I am sorry, you already said spite.

That is exactly the determination that Chief Justice Roberts makes when he is arguing with Kavanaugh about it, saying that like look, our rule is pretty clear, it’s what debates — what was their reasoning at the time, and their reasoning at the time was arbitrary and capricious.

Kathryn Rubino: Yeah. I mean I know when the tweets started happening this morning — on the day the decision was released, my initial concern was that Sonia Sotomayor only agreed with part of the decision and I do think ultimately the distinctions that she was creating actually are pretty meaningful.

Joe Patrice: Yeah, as a technical matter the decision was bifurcated and it was a 5-4 on one issue, the issue that I just outlined, that arbitrary and capricious issue, and it was an 8-1 decision with Sonia Sotomayor as the only dissenting justice on the question of whether or not the plaintiffs had an equal protection claim that they could pursue.

Obviously these are at a preliminary — these were dismissed at a preliminary stage, meaning that the line for what constitutes a viable claim was pretty low and she said that given how low it was, they seemed to have pleaded that there were statements that suggest that this was done as a product of racial animus and that that should be something that the parties should be allowed to explore in discovery and further litigate.

Kathryn Rubino: That seems pretty reasonable to me.

Joe Patrice: Well, the argument of the other eight justices was that sure, you may be able to compile, as these plaintiffs did, comments that Donald Trump had made that suggested that he was against immigration from Mexico and South America generally, as a matter of policy that was seemed to be racist. And you could also point to specific things he had said about DACA that seemed racist. Obviously he doesn’t have these problems with all immigrants, just the immigrants from there, that all seemed like a problem.

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But the majority opinion says but this decision was really technically made by the attorney general and the acting secretary of Homeland Security and you can’t really say that things that Trump said were things that they were responding to as if they don’t work for him. And Sotomayor said that’s probably not true, that there is no real logical reason why we should blinker ourselves from the context surrounding these policies and say ignore all that.

Kathryn Rubino: Ignore the man behind the curtain, kind of getting the —

Joe Patrice: That’s actually — have you not read — I don’t think you have read my piece yet.

Kathryn Rubino: No, I have not.

Joe Patrice: Yeah. Well, that’s the framing device for the whole piece.

Kathryn Rubino: Oh, oh, look at that.

Joe Patrice: Thanks. Yeah, wow, good job.

Kathryn Rubino: Look at that. I mean I guess it’s bad that I haven’t read your piece yet, but I have been busy, I have been working.

But this might be a little in the weeds for folks who are only casual court watchers, but it strikes me, what can we take away, what can we draw from the fact that Sotomayor stands alone on this issue? Oftentimes people consider Ruth Bader Ginsburg as sort of this like liberal lion and there are very reliable liberal votes from the other justices as well, why do you think there is this clear delineation on this vote?

Joe Patrice: That’s a great question. I feel like Sotomayor is the only one who seems to really have a grasp of these kind of broader issues. I feel like the other justices are a little more concerned about cabining issues. They like the idea of making hyper-technical decisions and not taking a look at the broad circumstances around things and recognizing that a lot of direct lines get obscured in broader movements.

They were content to say well, if he said that we need to build the wall to keep people from shithole countries out, that was two years before he did this DACA thing so I am sure those aren’t related. And she said well, it’s possible that maybe we should take the whole context into play.

Kathryn Rubino: You know guys, you see what’s going on over here.

Joe Patrice: And I feel like that really does speak to a more forward-looking and like this is, I wouldn’t say newer, but these were doctrines that were being discussed and theories that are being flushed out in the 90s, but I mean it speaks to kind of a critical legal approach to things, to not allow yourself to get tripped up by the technicalities of texts and stuff like that and to recognize that law exists within a society and all of the attenuating circumstances surrounding decisions are valid and important to understanding what’s going on in the law and she seems willing to do that and the other justices aren’t.

Obviously Breyer is well-known for being a ticky-tack sort of a person. He was instrumental in the creation of sentencing guidelines right, like that’s the kind of world view he lives in.

Kagan is a professor and thinks that way.

I think that — I don’t quite know what Ginsburg’s issue is on these issues, but yeah, Sotomayor kind of stands on her own on this.

Kathryn Rubino: Yeah. Again, my initial reaction was like uh-oh, why is Sotomayor by herself on part of the majority decision and I think that you are right that she is really the justice that is kind of looking at the whole picture, the bigger picture, the most consistently at least.

Joe Patrice: So anyway, that’s another thing to be a little down about. The court — this was technically the last day for the court to release opinions, obviously this was not the end of the opinions that they have. So there will be more to come, but we are going into overtime, I mean this was bound to happen.

Kathryn Rubino: OT.

Joe Patrice: Yeah. I mean this is overtime for Supreme Court. It’s one of those things which isn’t OT because that’s October term so I guess we have got to have a different — yeah, this is injury time for the Supreme Court.

Kathryn Rubino: Okay, nerd.

Joe Patrice: This is injury time and it’s — that makes sense because we had a lost month in there when we had to shut everything down.

Kathryn Rubino: So what other stuff — I know that another kind of angle you have been working this past week involves naming various law firms. This past week you learned that —

Joe Patrice: Oh yeah, you want to talk about that?

Kathryn Rubino: Listen, we learned that Aunt Jemima Syrup is no longer going to be Aunt Jemima Syrup, Uncle Ben’s is getting a revamp, in light of these kind of massive global brands taking a closer look at their — the reasons why they were named that and the heritage and sort of the history of these symbols, I think the same lens can very much be turned on Biglaw.

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Joe Patrice: Yeah, a lot of people don’t really think about the people behind Biglaw names a lot, unless they are super famous. Before Dewey Ballantine went under I think everybody was aware that that was the Dewey who “defeated Truman”.

And I think people know that Wendell Willkie of Willkie Farr was a nominee against FDR, but with the exception of those really, really high named, high profile people in law firm names, they tend to become names and you forget about them, but they are on the door because you are memorializing certain people and it’s worth remembering that, and to that end Davis Polk, which is a pretty well-known Biglaw firm and this is —

Kathryn Rubino: Top 20 law firm, right, Am Law rankings?

Joe Patrice: As elite as global law firm brands are. Davis was a well-known segregationist lawyer who used his legal practice to — he was responsible for securing the constitutionality of the Grandfather Clause, a term that we use fairly loosely these days, but was actually designed to allow states to use literacy tests to prevent Black people from voting, but they didn’t want to prevent the White people who just were hillbillies from being able to vote and so they created this Grandfather Clause that basically said, if your grandfather was able to vote, then you get to, which as it turned out meant that people who were alive before Black people were given the right to vote, so therefore it only would ever apply to White people, so it allowed White people to avoid literacy tests. That’s what grandfathering means.

And that was a case that Davis argued and it’s not just that he was an advocate who took a case and can’t be held — we shouldn’t hold lawyers all the time to the positions they take in courts, that’s —

Kathryn Rubino: A lot of times, but yeah, okay, I see your argument.

Joe Patrice: But I mean that — no, I mean I do think that people should be able to have zealous representation from people who don’t necessarily have to believe them. But there is something different when you are a prominent attorney, he served as Solicitor General for a while too, he was also a presidential candidate, he had the business ability to choose his clients and what he was was the go-to client of segregationists. He also was the lawyer on one of the companion cases to Brown v. Board arguing that South — it was the South Carolina case, arguing that South Carolina should be able to segregate schools.

Kathryn Rubino: Right.

Joe Patrice: That’s a case that he — there is some historical dispute about it, but that he may have taken pro bono, because that’s public service somehow in his mind. But that’s the Davis of Davis Polk and these are global brands and they should — if Aunt Jemima can do it, I feel as though they can —

Kathryn Rubino: For goodness’ sake we can certainly change a law firm’s name.

Joe Patrice: I mean yes, Holland & Knight is another firm, Spessard Holland was a US Senator who was one of the leaders of the filibuster against the 1964 Civil Rights Act, that’s the history that you are dealing with, with these firms and so —

Kathryn Rubino: And listen, these are firms who — most firms have come out now with very powerful statements supporting racial justice, perhaps it’s time to do more than talking and just blindly give money.

Joe Patrice: No, it’s true, true. On the subject of blindly giving money, it’s a thing that people sometimes do and they shouldn’t, because it can get costly.

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Kathryn Rubino: You really got me there. I thought this was a new subject of conversation that we were going to talk about.

Joe Patrice: Yeah, well, I will give people insight into the recording process. My computer crashed in the middle and so I got off and forgot the ad read for quite some time, which is why I had to kind of force it in in a awkward way there.

Kathryn Rubino: You got it done.

Joe Patrice: Yeah, we did. Well, anyway, yeah, so law firms, consider your names and how you feel about them and what they portray.

Kathryn Rubino: Yeah, it’s pretty important.

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Joe Patrice: Well, anyway, so that was our week of discussing what’s been going on.

Kathryn Rubino: Pretty busy week I think.

Joe Patrice: Yeah, of course.

Kathryn Rubino: Specially considering it’s only a four day week.

Joe Patrice: This was a busy week. We will obviously be back to talk to you about the week’s news next week as well. Until then, you should be subscribed to this show. You can get it on all the various podcasting subscription places out there. You should be giving it reviews and stars, it helps more people find it when the services say oh, this is a legal podcast, we know because people are giving it some reviews so do that.

You should be reading Above the Law. As always follow us, I am @JosephPatrice, she is @Kathryn1, both on Twitter.

You should be listening to the other shows we have. We have the COVID Cast, where we — ATL COVID Cast where we talk about COVID related legal issues and how that’s changing the landscape. We are going to talk to Jack Newton next week about it.

We have The Jabot, Kathryn’s show about diversity in law firms that you should be checking in and law schools too; I guess it’s not just law firms, in the legal world.

Kathryn Rubino: True, true, the legal profession.

Joe Patrice: You should listen to the other shows on the Legal Talk Network. I will give a particular plug to The Digital Edge’s 150th episode spectacular coming up, which I am on.

So check that out.

Kathryn Rubino: Have a good week you all.

Joe Patrice: With all that said, talk to everyone later. Bye.

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