Get used to this out of the Supreme Court.
Kathryn Rubino is a member of the editorial staff at Above the Law. She has a degree...
Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a...
The SCOTUS Term is over and so is any remotely text-based interpretation of the Voting Rights Act. Justice Alito pulled off a smooth rewriting of the statute with nary a peep from his textualist colleagues. It looks like this is going to be our future for a while. And it’s a future that will apparently include Justice Breyer who appears to have locked in to staying on the Court, all common sense aside. Speaking of common sense, how much money might you sacrifice to have work from home flexibility? For most of you out there, it’s a lot.
Joe Patrice:°Welcome to the Thinking Like a Lawyer podcast. I’m Joe Patrice, that’s Kathryn Rubino. We’re from Above the Law which you theoretically are reading, but if you aren’t and you’re just listening to the podcast, you can also check out our work
Kathryn Rubino:°Yeah, I think it would be interesting to note — to know if there were people who only listened to the podcast and not the —
Joe Patrice:°Not the — get the Reader’s Digest version from us here.
Kathryn Rubino:°Yeah, yeah.
Joe Patrice:°Not necessarily, yeah. No, it would be interesting. Anyway, yes so once again we are here to talk about some of the big legal stories of the week to keep you informed on the world of Above the Lawing. So, came out of a holiday weekend?
Kathryn Rubino:°But it was — we just left a very big legal week as these things go.
Joe Patrice:°That is true, the holiday weekend came right on the heels of a lot of supreme court news..
Joe Patrice:°Both not necessarily great, as well as the continuing push towards races and stuff which we’ve already talked about.
Kathryn Rubino:°Ad nauseam, but you know.
Kathryn Rubino:°People are excited with getting money.
Kathryn Rubino:°And we’re here for that.
Joe Patrice:°Yeah, no. But yeah.
Kathryn Rubino:°How was your holiday weekend Joe, before we kind of get into the nitty-gritty?
Joe Patrice:°Sure, good you know?
Kathryn Rubino:°So that cataclysmic climate change in?
Joe Patrice:°Yeah, I mean it was cold and rainy on —
Kathryn Rubino:°It was in the 60s on July 3rd.
Kathryn Rubino:°That is not normal.
Joe Patrice:°Yeah that’s — that’s more what should be happening in places like Portland, which were instead 118 degrees. But yeah. No, it’s —
Kathryn Rubino:°Are you ready for like the “Mad Max” level of climate change that I’d feel like we’re about to enter in on?
Joe Patrice:°Yeah, no I mean, I’m stockpiling gasoline and —
Kathryn Rubino:°And milk, I think, right?
Joe Patrice:°And shotguns, yeah. No it’s going to be just like Mad Max.
Kathryn Rubino:°Yeah, but you’re not really, right?
Joe Patrice:°No, no, no, no.
Kathryn Rubino:°Well, it’s concerning there are actually people in this country.
Joe Patrice:°That’s right, there —
Kathryn Rubino:°That are actually doing those things so —
Joe Patrice:°Right, yeah.
Kathryn Rubino:°Let’s clarify.
Kathryn Rubino:°Okay, well that’s good. I’m glad that you’re not actually a doomsday prepper.
Joe Patrice:°I have baby doll heads and stuff for the elaborate outfit I’ll have to do and –
Kathryn Rubino:°Yeah, I mean you’re ready for it, I guess.
Joe Patrice:°Yeah, yeah. Well, I mean it fits my general style now.
Joe Patrice:°That’s what people think when they think of me like did I dress you know and that kind.
Kathryn Rubino:°Yeah, yeah, I mean a bandoliero of bullets and —
Kathryn Rubino:° And baby doll heads.
Kathryn Rubino:° That seems right.
Joe Patrice:°I mean, look nice.
Kathryn Rubino:° That seems nice on brand.
Joe Patrice:°Yeah, well I mean that’s what I had been preparing for, for a long time, you know.
Kathryn Rubino:° Yeah?
Joe Patrice:°Yeah, well some people haven’t prepared for it.
Kathryn Rubino:° Oh —
Joe Patrice:°Some people went to law school to be a lawyer, not an accountant or you know a post-apocalyptic warlord, but —
Kathryn Rubino:° [Laughter]
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Kathryn Rubino:° So now that we have this unsettling image of you in a post-apocalyptic dark world.
Joe Patrice:°Yeah, dressed like Zardoz, yeah.
Kathryn Rubino:° Yeah.
Joe Patrice:°Which isn’t the name of the character in that movie. I actually don’t know what the name of the character in that movie is. Anyway, point is —
Kathryn Rubino:° Now that we have an even deeper —
Kathryn Rubino:° Understanding of your brain, it’s just not-not great for anybody actually.
Joe Patrice:°So, speaking of people’s brains that aren’t great for anybody, there was a voting rights case last week.
Kathryn Rubino:° Oh.
Joe Patrice:°And it was —
Kathryn Rubino:° Democracy was a fun experiment while it lasted.
Joe Patrice:°It was, Brnovich came down, it was 6’3. There had been some as it was delayed and delayed —
Kathryn Rubino:° Wishful thinking?
Joe Patrice:°Wishful thinking had existed that maybe Alito, who won by reading tea leaves could have assumed was writing the majority opinion that he had gone so far that he had managed to lose a majority and there was some scrambling as it turns out —
Kathryn Rubino:° Nope.
Joe Patrice:°that’s not the case. Not only was there not — did he not lose the majority, he also managed to fend off any kind of watering down concurrences and there’s one concurrence that actually goes the extra mile of — you know we were kind of thinking maybe we could just get rid of this altogether. But as it is, what happened is — I mean look, there were a couple of voting provisions questionable whether or not — you could make good faith arguments against them if you wanted to, but that’s not really how —
Kathryn Rubino:° That’s not how this works?
Joe Patrice:°That’s not how Supreme Court decisions work. It has very little to do with what the actual provision that they struck down was what we got was Alito drawing up a new five-part test that essentially rewrote the actual statute with no real reference to anything that’s actually in the statute. in fact, it was pointed out by — I think Scot we knew on Twitter, I can’t remember who it was from Lawyer’s Guns and Money.
But he uh he put up a fang somewhere that pointed out that there was an effort in 1982 to write a more restrictive version of the voting rights act that Roberts was actually very involved in at the time.
Kathryn Rubino:° And it failed and it?
Joe Patrice:°And it —
Kathryn Rubino:° But it didn’t matter at all?
Joe Patrice:°It explicitly failed, but what really happened here in this opinion is Roberts along with Alito rewrote what actually happened as though that law had passed, even though it was round and rejected.
Kathryn Rubino:° I mean that’s really a moment where the myth of textualism —
Joe Patrice:°Oh yeah, no.
Kathryn Rubino:° Gets blown up right? Because there was an option for this more restrictive version when the law was passed. But rather than acknowledge that that is not what
congress decided to pass in the 80s, they just went as if it had gone the way they had advocated for.
Joe Patrice:°Yeah, I mean I think a lot of us know that there’s not really much principle behind some of these legal theories.
Kathryn Rubino:° I mean here — back up for a second, right? Because I think that —
Kathryn Rubino:° I think that —
Joe Patrice:°Beep, beep, beep.
Kathryn Rubino:° Are you old? Are you done now?
Joe Patrice:°Maybe? Beep, beep.
Kathryn Rubino:° No, no but I think that savvy court readers or observers are very aware that textualism and originalism are just words that are given to a very clear political point of view without any sort of rigorous academic underpinnings. But, I do think that the terminology, the PR battle that the right wing of legal jurisprudence has engaged in for generations has been very effective.
Joe Patrice:°Oh, yeah.
Kathryn Rubino:° And it makes young folk or people who are not currently enmeshed in the world of legal jurisprudence, it often will grab people because it seems like there is some sort of a clear doctrine that you can follow and there’s a process involved as opposed to
a pure naked politicalism. And I think it’s important to constantly point out what it is.
Joe Patrice:°Yeah, there is none. It is a very snappy public relations booth.
Kathryn Rubino:° Right.
Joe Patrice:°And God bless them.
Kathryn Rubino:° And I think that’s incredibly important to constantly point out and point out when they make the sort of counter allegations about the left wing of jurisprudence.
Joe Patrice:°Yeah, yeah. Yeah, no I think that’s fair and Justice Kagan wrote a dissent that was very good.
Kathryn Rubino:° Glorious, it was a glorious dissent.
Joe Patrice:°Just really — really just kind of playing with like look, in my issues with Justice Kagan a lot of the time is I feel like she uniquely stands up for some of those empty PR things in an attempt to subvert them, like she will be the one who says, “well you know we’re all liberal textualists now.” Like yeah and it’s like no you don’t try to glom onto those tools as though you’re going to use them against them, but whatever. But in this instance, it was a very good, very textualist response explaining how this statute is ridiculously clear about what it intends. There was no question about it and it is a real breach of any kind of judicial ethics to try and rewrite the text of the statute like they did. And I mean if you read Alito’s opinion, it is — it’s like embarrassingly transparent what’s going on. there’s an effort over a couple of paragraphs where he’s like, “well, if random house dictionary defines
this one word out of context as this and random house also has this other word out of context, this and then if you put them together as a phrase, but use those definitions its’ then what it means is”
Kathryn Rubino:° As opposed to in context yeah.
Joe Patrice:°Yeah. Real bad.
Kathryn Rubino:° I mean here’s a follow-up question to some things you’ve said on this podcast before, right? Given the sort of naked politicalism of the Alito’s decision.
Joe Patrice:°Is “politicalism” a word? I don’t know, maybe is? I mean it’s clear what it means.
Kathryn Rubino:° Now it is.
Kathryn Rubino:° [Laughs]
Joe Patrice:°I guess you’ve — now, that you’ve made it a word, I mean that’s kind of similar to how they made “originalism” word, I guess so.
Kathryn Rubino:° Fair, it’s —
Joe Patrice:°It’s your new judicial philosophy.
Kathryn Rubino:° All words are made up.
Kathryn Rubino:° FYI. No, but given the sort of the reality of the decision and given
the court’s current composition, it doesn’t look like any voting rights protection would be upheld in the way that any congress would intended, given those kind of — that kind of background and your historic opposition to court expansion.
Kathryn Rubino:° How do you think, given this decision, how do you think that plays into your
opinions on expanding the Supreme Court?
Joe Patrice:°I still feel — my issue, I still standby as bad as things are, I just feel like the long-term solution that we need is not a knee-jerk add more people at this point because it does it’s broken; it’s to develop a consistent staggered term limit policy that has every president getting two picks per term.
It will not immediately fix things but it will fix things better over the long term and that’s like ultimately the problems with the structure of the court right now are not. There’s a bunch of you know 40-year-old conservatives on it which is a symptom but the problem is we have a court that rewards pushing zygotes onto the bench so that they can stay for decades and decades and be a dead-hand extension of not what America necessarily is voted at.
Kathryn Rubino: Is at the moment, yeah.
Joe Patrice: If you — if you think that the key to the supreme court is that it be as the founders clearly did a kind of lagging indicator of American politics that it’s not turning with the with the whims every year but that it reflects what people thought in the past when they voted for a president and congress in the past and then stuck around. Then the way of fixing that is to say, hey it will be a lagging indicator by 18 years that you — your presidents get two picks they go, you know, every two years, they go on they and they get to stay until their run is up at the end of 18 years and that maintains the don’t push children onto the court because 18 years you can have a little bit older a person who can still make it to 18 years in a job and you can have a system where it is that good extension of the past but not one that allows a president to basically control dead hand policy for 50 years.
Kathryn Rubino: Yeah and the other part about it is particularly when you look at John Roberts’ role in the — in the ‘80s and — and his effort to change the voting rights act and now his role in actually changing the voting rights act. I think that there is also an argument for playing the long game.
Joe Patrice: Yeah.
Kathryn Rubino: And we’ve seen sort of that play out on the conservative side and — and perhaps there’s some room for that on the — on the left wing to play the longer game which I think is what you’re advocating for.
Joe Patrice: You know it’s interesting — it’s interesting you mentioned the longer game because over at Slate Dahlia Lithwick and Mark Joseph Stern just wrote a piece that there was in the middle of the term there were some people saying oh no this isn’t a 6-3 court it’s a 3-3-3 court and all this kind of attempts to horse race it in ways that didn’t really make a lot of sense but I do think that they — they make a great point that there is a 3-3-3 breakdown here but what that breakdown is about is the three — and sometimes four because Gorsuch kind of flips between the two of them. But the three conservatives who look around and go we’re going to be here until 2040 or 2050 so we don’t need to move very quickly and the old conservatives
who are like is there a way we can remove the first amendment tomorrow. So though — well not all the first amendment just parts of the first amendment that don’t allow you to discriminate against you know gay people.
Kathryn Rubino: Sure.
Joe Patrice: But that’s the distinction is the people who know that they’re playing a long game and are willing to have decisions that kill the precedent by a thousand cuts because they know they’re going to be there forever.
Kathryn Rubino: Yeah.
Joe Patrice: I think it’s a very interesting distinction and you can kind of see it when you read those.
Kathryn Rubino: What you’re looking for, yeah.
Joe Patrice: Yeah. Anyway, so that happened. You know one of the great before he joined the supreme court you know, what Justice Breyer was known for being a nationally renowned expert in admin law. And I’m going to talk about this because may be — may be you have administrative tasks that you want to stream like I’m trying here. So, let’s hear from our —
Kathryn Rubino: You’re definitely are trying?
Joe Patrice: Let’s hear from our friends from Lexicon and then we’ll chat a little bit about Breyer.
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Joe Patrice: Yes.
Kathryn Rubino: So before we get started, here’s a trivia question for you.
Joe Patrice: Okay.
Kathryn Rubino: Who is the last supreme court justice appointed by a democrat to retire?
Joe Patrice: Yes. So well I asked you this question so I do know the answer. That would be Byron “Whizzer” White who retired in the ‘90s having been appointed.
Kathryn Rubino: Only the — also the only supreme court justice to have played professional football.
Joe Patrice: Correct. Correct. Yeah no and that’s —
Kathryn Rubino: Yes, that’s a long time ago. It is possible you can retire. It’s not — it’s not a personal failing to retire.
Joe Patrice: Yeah. And unfortunately that is how some people think of it. It’s — it there is a weird quirk to how justices who were actually in fact republicans but shifted to the left as the years went on are more responsible about keeping the court institutionally protected and moving in kind of a more quasi-bipartisan way than the actual democrats or republicans generally have been.
Kathryn Rubino: Perhaps they understand the notion of bipartisan-ism in a more profound way.
Joe Patrice: Yeah cause like your suitors and Stevenses are you know have done more to kind of contribute to keeping the court as an institution on track anyone else. It’s just really unfortunate I mean the thing that really burns me and this is a good transition because you were talking about how originalism is ultimately completely empty philosophy —
Kathryn Rubino: Empty signifier.
Joe Patrice: But it, you know it, it’s — it’s good PR but at least it’s a good PR that they can kind of always concoct a story of how they’re really following it because it’s that empty signifier. Breyer seems to very much in his books at all play to this idea that he’s a pragmatist. He’s not liberal or anything just happens to be that he’s a pragmatist and that tends to work out this way but this is equally an empty judicial philosophy. I mean he’s — it’s a basic center-left legal philosophy that he just dresses up in a political language because nobody wants to make it sound like they’re political on the court. And the proof of why and where he kind of fails compared to the originalists is in trying to find a way to constantly live out that rhetoric because if you say you’re a pragmatist and —
Kathryn Rubino: You should retire.
Joe Patrice: Soon to be 83 refused to retire, it really does raise the question how much you really think about the pragmatic effects of stuff because he’s soon to be 83 he seems to be in perfectly fine health and all that. But again if you don’t retire now the odds that you are able to get replaced before the midterms which are likely to be problematic for the white house party as they usually are, are very low. At that point, it’s not even about being replaced by a democrat, it’s being replaced period because the republicans have made explicitly clear in the past that they feel that they can hold the seat open forever if they have a senate majority.
Kathryn Rubino: I mean, they’ve actually said that?
Joe Patrice: They straight up said they would vote against it forever. If that’s the case then you’re setting up a situation where if you, god forbid something happens and you are unable to continue serving, in you know, longer than a couple months from now, you’re going to put the court in a situation where there’s going to be eight seats for an extended period of time which is institutionally bad. It was institutionally bad when it happened for a whole term in the Merrick Garland debacle.
Kathryn Rubino: Right.
Joe Patrice: How is any pragmatist doing this and doing this — hey look he’s not a beautiful and unique snowflake either like he – he’s very good at his job. But you know who else is good at that job any one of the number of elevatable judges who are waiting for an opportunity to not —
Kathryn Rubino: Just because it’s a difficult job doesn’t mean that it’s impossible to replace you.
Joe Patrice: Yeah.
Kathryn Rubino: And I think that after watching Amy Coney Barrett do disgrace to Ruth Bader Ginsburg’s seat, it would be thrown into particularly sharp relief but it — that is inaccurate, that’s not what happened. And it takes a special kind of self-importance and narcissism to continue and I don’t think it’s — it’s just a democrat thing as you were saying. I think it’s really just the — it’s only the sort of actual bipartisan that recognize this because look at I think that conservatives want just wanted Justice Thomas —
Joe Patrice: Absolutely.
Kathryn Rubino: To resign for the same reasons.
Joe Patrice: Now I will — I will, in defense of Justice Thomas here, he actually is a unique and beautiful snowflake in the level to which his judicial philosophy is not something that would be replaced by a pull off the rack conservative appeals court judge which — so I can understand how he can justify to himself, I can’t retire because literally nobody thinks the really extreme stuff that I think. So I get that and to some extent Alito too. But Thomas I feel he feels he has carved out a philosophy that is so unique that no one can replace it. I don’t see and maybe Breyer has convinced himself he has but I would like to think that he’s cognizant that he hasn’t really and that any number of those DC circuit judges are more than capable of doing that job.
Kathryn Rubino: Yeah I mean — and as much as you may think that about or Thomas may think about his — his judicial philosophy, the truth is that in terms of actual voting which is how the majority of these things get done, right, because Thomas doesn’t write the majority of opinions that he signs on to right?
So in terms of actual sort of the math of it and yeah there was actually a ton of people that would fill the exact same role.
Joe Patrice: Yeah. Well so that’s — I think that’s all our court talk for– for now, right? We’ve got a term over. We did not get a retirement so we’ve got, you know, a few months to sit around and wait before the horror starts again.
Kathryn Rubino: Indeed.
Joe Patrice: Well what do you want to talk about? Do you want to talk about people going back to the office? Speaking of horrors that will happen again in the fall. So we have talked a bit about how we’re in this sort of crucible moment as far as the future of work where firms have invested a lot in their tech infrastructure. They know that working from home works. People have made decisions over the last year about how they handle their lives though where that work flexibility helps. We have some law firms who are moving forward with I need everybody back in the office. We have others who are eyeing three or four day in the office work weeks with the flexibility around that. We did see one firm recently had a, we’re going to do three days but they have to be Tuesday, Wednesday, Thursday which I think is a little weird. I think you’re better off allowing flexibility so that not everyone’s in the building all at the same time but whatever. All of these raises the question of like where we’re going to end up going and it is going to take a while to shake out. But we did a survey at Above the Law if you haven’t check it out. We had a survey which — where we asked hundreds of lawyers what would it take to get you back in an office or get you to feel like going back to the office was the right thing? For instance, if we gave you a 10% raise would you be cool giving up work flexibility? And the answer, nope, is no. Even though 10% is a large amount of money when people are making a 205 scale no, 78% said, no we’d prefer work flexibility over 10% raises. When you move that to a 20% raise, the numbers didn’t actually change.
Kathryn Rubino: Wow.
Joe Patrice: Yeah. In fact slightly more people wanted the work flexibility but I think that’s a rounding error. When you get to a 30% raise, now to be clear for first years, we’re now talking about $60, 000 a year worth, it got closer but it still was almost a two to one margin preferring work flexibility. Which brings us to if you’re a firm right now and you’re trying to go hard on the everybody come back to the office, you are really missing a trick because your associates are willing to take pay cuts to have a firm that is willing —
Kathryn Rubino: I don’t think that’s accurate. I do not think there’s that reverse causality in those numbers.
Joe Patrice: Okay not take pay cut, to forgo pay increases.
Kathryn Rubino: I mean I think a couple of things. I think first of all that is probably not true given the volatility of the lateral market, right, that there are plenty of firms offering top of the market money as well as flexibility and what I think this actually signals to firms is not something that’s actually is great for associates because what it means is that there won’t be any official policy that folks could learn about ahead of time, make decisions based upon instead there’ll be much more informal ways in which you — you subtly force people back into the office. I don’t — I think every firm will say but of course you know if you’re needed for a thing you have to be there. And then all of a sudden they become more and more things that you have to be there for based on you know what firms are doing, what your practice group area is but making it not a policy and making it this kind of informal structure which I think is what these numbers are actually saying to firms is don’t make an official policy, that is flexibility. No policy is flexibility and instead what that means is that there’s not a lot of transparency for people either lateraling or new associates entering the big law market. And then that’s when the sort of inertia comes in because once you’ve already invested the time and money and effort to transfer firms if you’re lateraling or you know start out your career to firm your chances of then moving again or in the first instance are somewhat lower right, because there is inertia, you’re already there. It’s easier to stay where you are even if it means slowly you have to increase the number of days in which you are functionally if not by policy mandated to be in the office.
Joe Patrice: Yeah. I mean I don’t know. I feel one thing that I’m seeing in the lateral market is a rise in people who are now considering because of technology, considering lateraling in a way that flattens the
world a little bit more. For instance, what I’m saying is there are people who work in say Nashville, Transactional Lawyers in Nashville who are like, you know, I’m going to apply to a New York firm because I can do that work and if we don’t have to go into the office I’ll just do that.
And that’s going to be the real question for these big firms of how far they want to go with this because there is talent out there that they theoretically could capture if they were just willing to really go in full force with the work flexibility thing. Because you know it doesn’t necessarily work with all practice groups but there are definitely practice groups where somebody, a tax lawyer out there doesn’t necessarily need to be in an office. I mean in my experience tax lawyers — I feel like the firms I’ve worked in with tax lawyers they were treated as the smartest people in the room which was probably true and they also were treated like how sometimes they treat monsters in movies where like a bucket of fish heads is thrown into the room and then it’s slammed because they were they just were big
brains that you handed a project to and like three hours later they walked out and said here’s the answer. But that’s the sort of job that I think you could easily do from a remote location.
Kathryn Rubino: I’m not saying that there’s no role for flexibility but I do worry that without sort of policies in place that this sort of informal flexibility has negative impacts that folks aren’t really considering. Even if you do get hired as oh it’s okay you don’t really have to be in the office maybe you just come in once a month you know you could take whatever. Even if you are hired in that capacity and it seems like everything it works out if you’re in a you know maybe it’s different if you’re a partner level but if you’re an associate trying to forge that path you know what does it look like in two years when you know that kind of office culture has returned and your peers are getting the sort of benefit of facetime and perhaps getting better assignments because they are there and they see you know partners see their faces in the office. And that kind of informal mentoring that happens in terms of work assignments in terms of all the stuff what does that look like if you don’t have some — this sort of formal policy. And even though in the short term it may seem like you know, yes I’m winning because I’m able to live you know where my family is in Nashville or wherever. I’m able to do these things and still have the career. I don’t know that in five years the benefits will be there or if there won’t be you know a second class of associate a full remote associate maybe they don’t get the promotions at the same rate that you would expect for in-person associates. And I think that that’s something you really have to think about before you commit to that career path.
Joe Patrice: Yeah no that that’s very fair. Well that brings us to the very end of our show here I think, so you get the last word on that. We’re nice yeah. Yeah well thanks for listening the show you should be subscribed to the show you should give it reviews, stars, write something to show engagement. You should be reading Above the Law of course. You should be following us on social media. I’m @joepatrice and she’s @kathryn1. You should be checking out the Jabot her other show. I’m also on the panel of the legal tech week legal journalist roundtable. You should be listening to the other shows by the legal talk network. Thanks again as always to Lexicon and Nota powered by MT Bank and I think I just ran through
everything in almost record time. Peace
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|Published:||July 7, 2021|
|Podcast:||Above the Law - Thinking Like a Lawyer|
|Category:||Legal Entertainment , News & Current Events|
Above the Law - Thinking Like a Lawyer
Above the Law's Joe Patrice and Kathryn Rubino examine everyday topics through the prism of a legal framework.