Supreme Court Preview: It Ain’t Gonna Be Pretty

Episode Notes

Transcript

[Music]

Joe Patrice: Hello.

Kathryn Rubino: Hello.

Joe Patrice: Welcome.

Kathryn Rubino: Go on.

Joe Patrice: Welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice, Senior Editor from Above the Law. I am joined by other editors from Above the Law. I’ve got Kathryn Rubino, who has been here for a while, and Christopher Williams who has been on the show before when he was kind of part time working with us, but this is your first show as a full-time member of the Above the Law editorial team, so welcome to the party.

Christopher Williams: It feels good to have health insurance.

Joe Patrice: Yeah. Exactly right.

Kathryn Rubino: Is that little things, right?

Joe Patrice: Yeah. Well, I mean, feel like without any further ado, we should begin with the first segment we always begin to show with, which is small talk.

Kathryn Rubino: That seem particularly aggressive as a sound effect.

Joe Patrice: Really? Yeah. How’s everybody’s weekend? Good?

Kathryn Rubino: Mine was fantastic.

Joe Patrice: Oh, yeah. What’d you do?

Kathryn Rubino: I actually need a quick trip to Disney World this weekend.

Joe Patrice: Oh, interesting.

Christopher Williams: Okay.

Kathryn Rubino: Yeah. Well, a cousin was getting married in Florida and tacked on a day to visit Disney’s Hollywood Studios because I haven’t been since they opened up Galaxy’s Edge, the Star Wars thing.

Joe Patrice: Oh, the Star Wars thing. Okay.

Christopher Williams: Nice.

Kathryn Rubino: Which was super — 

Joe Patrice: That’s just a laser.

Kathryn Rubino: Wow.

Christopher Williams: Oh.

Kathryn Rubino: Wow.

Joe Patrice: Yeah. Go on.

Kathryn Rubino: Phew, phew.

Joe Patrice: Phew, phew.

Kathryn Rubino: Phew, phew. Yeah. It was crazy fun. There are two really great rides there; Rise of the Resistance and Smugglers Run.

Joe Patrice: You know, we are not getting any advertising dollars here from Disney, so you don’t need to go too deep on this.

Kathryn Rubino: Incorrect.

Joe Patrice: No, fair enough.

Kathryn Rubino: I mean, well, we’re not getting any Disney dollars.

Joe Patrice: Yeah. Well, cool.

Kathryn Rubino: I just take it in free park admission.

Joe Patrice: Yeah. Fair enough.

Kathryn Rubino: I’m pretty cheap.

Joe Patrice: And you’ve gone to Florida, and so you’re back and presumably — 

Kathryn Rubino: Hopefully.

Joe Patrice: — going to get COVID. So, that’s good for you.

Kathryn Rubino: Well, I am again fully vaccinated, and Disney just have some pretty (00:02:03).

Joe Patrice: Yeah, that didn’t work for me. Fair enough.

Kathryn Rubino: But Disney does have some pretty strict masking regulations for all indoor spaces, so was not, you know, of places in Florida, I imagine Disney is one of the safer.

Joe Patrice: Fair enough.

Kathryn Rubino: Just a bunch of qualifiers frankly.

Joe Patrice: Cool. Chris, what about you?

Christopher Williams: Well, now be handy and if I don’t get a pair of Mickey ears because that’s really what I was waiting for. I was waiting for it, and I thought of you, but, hey, whatever. I was so entertained in my house like a good person afraid of COVID. I started this show called The Good Place.

Joe Patrice: Yeah.

Kathryn Rubino: Oh, love that one.

Christopher Williams: I’m a fan of, and — 

Joe Patrice: Yeah.

Christopher Williams: — I don’t know if it’s because of my love of dead philosophers or the more obvious thing, my choice in glasses, but I’ve been compared to Chidi before and first I was like, “Who do you think you are? I’m not reducible to some character.” Then I watched it. I was like, “Oh”.

Joe Patrice: I am reducible to a character.

Christopher Williams: I feel like I’m old royalties because I thought I was the only person that displayed that level of indeterminacy and stress over choice making over hacks.

Joe Patrice: I’m actually stunned you haven’t watched the show before now because of your philosophy kick, like I feel like this show was made more or less for you.

Christopher Williams: Yes, but I was too busy reading Kierkegaard.

Kathryn Rubino: How very Chidi of you.

Joe Patrice: Yeah, exactly.

Christopher Williams: That’s the point. That’s what I’m saying.

Joe Patrice: Yeah, yeah.

Kathryn Rubino: This is all amazing. How far into it are you? I got a bunch more binge or did you finish the series?

Christopher Williams: Oh, so there was a point yesterday when I was on Season 2 and now, I’m on Season 4, Episode 3.

Kathryn Rubino: Nice.

Joe Patrice: Okay, cool.

Christopher Williams: Yeah. So, like I think I slept at some point.

Joe Patrice: Yeah, okay.

Christopher Williams: Once the sister (00:03:59) boulder gets rolling, it gets rolling like I run through shows.

Joe Patrice: Well, all right.

Kathryn Rubino: How about you, Joe?

Joe Patrice: Yeah. I was less exciting. I drank a lot of stuff that — new stuff. Stuff I won’t necessarily try again. Yeah. Tequila and soda are now a thing like I did not know that, but apparently that’s the new hard seltzer option out there instead of having the kind of vaguely vodka soda. It’s now vaguely tequila soda.

Kathryn Rubino: The green alcohol.

Joe Patrice: Yeah. I don’t know.

Kathryn Rubino: Mr. T is not my friend.

Joe Patrice: No. I mean, I’m fine with Margarita because you put enough sugar and anything. It’s — 

Kathryn Rubino: Palatable?

Joe Patrice: Palatable. But yeah, anyway, cool.

Kathryn Rubino: Yeah. I mean, any time I even get a whiff of tequila, I am just transported back to bad decisions. It’s a terrible smell in my mind.

Joe Patrice: Speaking of bad decisions, let’s get back to talking Above the Law.

Kathryn Rubino: That was not smooth. It’s not my favor transition of yours.

(00:05:00)

Joe Patrice: I mean, do you not think that becoming lawyers is bad decision on all of parts? Says, here we are. Well, anyway, I’m just going to keep going — 

Kathryn Rubino: Okay. Keep going.

Joe Patrice: — because I will not let you bring me down here.

Kathryn Rubino: You’ll leave it to the Supreme Court to bring you down this week.

Joe Patrice: See, now that’s a professional level of transition.

Kathryn Rubino: You’re welcome.

Joe Patrice: So, yeah, we’re going to talk about the Supreme Court this week because the Supreme Court term just kicked off, that means it’s that time of year again.

Kathryn Rubino: Do you not have a kick off sound effect?

Joe Patrice: That’s a great question. Yeah.

Kathryn Rubino: I can’t believe I am full in Stockholm syndrome over here when I’m asking for the sound effects.

Joe Patrice: Yeah. I got a sound effect for this year’s Supreme Court.

Joe Patrice: Yeah. That work?

Kathryn Rubino: There.

Joe Patrice: That make you happy?

Kathryn Rubino: No.

Christopher Williams: Peace of advice, I prefer like the SpongeBob, “My leg,” but —

Joe Patrice: We’ll have to start beefing up the sound board. I know I said that every week, but anyway, I just have kind of the originals. Hey, so the Supreme Court’s kicking off, which means that we need to get into that if you have not — 

Kathryn Rubino: Guard your rights while you still have those.

Joe Patrice: Yeah. Yeah, well, that’s not going to last all that long. Hey, you haven’t taken our Supreme Court quiz. We have that up on the website. So, by all means, go there and test how much you know about the upcoming term. We’re going to talk about some of the primary cases here, and maybe after the show take our quiz on the website because then you’ll be armed — 

Kathryn Rubino: You have a chance to do a little bit better. Yeah?

Joe Patrice: Yeah, exactly.

Christopher Williams: Oh.

Joe Patrice: All right. Cool. Well, where should we start? We have so many.

Kathryn Rubino: Field — your choice. Your choice. Is it fielder’s choice or batter’s choice? Is that a thing?

Joe Patrice: Fielders? Its where you could get the person out at second or first and you throw it to second for instance. That means it’s a fielder’s choice means — 

Kathryn Rubino: Baseball is not my sports.

Joe Patrice: It means the person at first didn’t really get a hit because they would have been out, but the fielder made a choice to let them get to first to get the other guy.

Kathryn Rubino: Oh.

Christopher Williams: Let’s start on the bad foot and then work our way toward whimsy.

Joe Patrice: Okay. Yeah, bad foot, well, I mean, there’s a lot of bad feet, my friends.

Christopher Williams: Okay, Tarantino.

Joe Patrice: Well, start of — oh, wait we forgot our real quick. Our new feature that we developed last week, the running of the clowns, where we talked about the — absolutely ridiculous thing. Things in law that various Trump people do. I forgot about that one.

Christopher Williams: Oh, God.

Joe Patrice: This week’s dumb things in Trump bill, Omarosa was involved in a lawsuit. Yeah.

Kathryn Rubino: Wow. I forgot that. Yes.

Joe Patrice: Yeah. Who involved in a lawsuit with Donald Trump and Donald Trump’s people argued that she’d violated non-disclosure agreement. We have talked last week about non-disclosure agreement — I think it was last week, maybe it was week before, about Trump’s non-disclosure agreements and how much trouble they’re getting him in, because you can’t just say that the damages for a breach of the non-disclosure are — 

Kathryn Rubino: All the money.

Joe Patrice: Infinite.

Kathryn Rubino: All the money.

Joe Patrice: Well, she has prevailed with an arbitrator about the non-disclosure agreement that she signed. The arbitrator finding it was completely unenforceable because it included clauses like she was barred from speaking about Trump or anyone ever related to Trump including his children’s grandchildren for all of eternity, and the arbitrator was like, “Well, this is clearly just a joke, so I’m not enforcing it.” This praises the question whether or not this will end up blowing up all of his agreements because if we learned anything from the lawsuit involving Mary Trump and this one, it seems as though all of Trump’s NDAs were written with this sort of draconian insanity which is unenforceable so — 

Kathryn Rubino: But also kind of brings the point back to the mentality within Trump world, right? Which is that if you just throw enough threats into something, you’ll never actually have to enforce these things in court because I think every lawyer would say, well, I mean, a judge in arbitrary or whatever it’s going to say that these contracts are unenforceable like it seems like pretty obvious.

Joe Patrice: Yeah. Oh, well.

Kathryn Rubino: So, yeah, that happened.

Joe Patrice: That did happen.

Kathryn Rubino: That happened.

Joe Patrice: That is our weekly catch up I guess with — the clowns. I didn’t realize that was a double clown horn there that’s why I talked over it. All right. Now, let’s get to Supreme Court. We’ve wasted enough time on that. So, DAB(ph), let’s start there.

Kathryn Rubino: Okay. Why don’t we give us like, the — 

Joe Patrice: DABs is a case — 

Kathryn Rubino: It’s that a great one?

Joe Patrice: — rising out of Mississippi like most scary things do. It is the 15-week abortion ban that they have created or restriction as they call it. It’s not really a ban, they say, it’s just a 15-week restriction.

Kathryn Rubino: That is a distinction without a difference, my friends.

Joe Patrice: Oh, I mean, it seems like a bold take to not call this a ban, but nonetheless this would of course put it on at odds with the constitutionally protected right to have an abortion up through the end of the second trimester without any incumbrances with reasonable incumbrances, bla bla bla, Casey(ph), but this would seem to go after that. So, where are we on this?

(00:10:02)

Kathryn Rubino: We are about to have Casey no longer be the dominant standard within reproductive freedom is what we are.

Joe Patrice: Oh Casey, I think you’re going to lose bro tip.

Kathryn Rubino: That’s interesting. I do think that a number of legal commentators have said that the thinking is that role or die by a thousand cuts and they’ll never actually write the words, thereby overruling Roe v. Wade. And I think that that’s probably likely, I think that Casey may be very much overruled but I’m not sure.

Joe Patrice: I certainly heard that and then Jeffrey Toobin actually is one of the primary people who coined the thousand cuts theory and it’s because he’s used to things requiring a thousand strokes to get finished.

Kathryn Rubino: Wow. You want far for that and I appreciated every moment.

Joe Patrice: See — 

Christopher Williams: I feel like you owe me a beer.

Kathryn Rubino: Dinner?

Joe Patrice: This is a — we are not currently videocast but this is the one thing about being on video is as you started trying to make a Toobin joke, and I frantically started waving my arms and like on video that will come across and not look nearly as good but I was like, “You need to stop here. Yeah, I got it.”  Here it comes as Toobin might say, “Here it comes.”

Kathryn Rubino: Oh.

Christopher Williams: Second beer.

Joe Patrice: Anyway. So yeah, we are dealing with a potential of an abortion case. This obviously is super-charged by virtue of the recent Texas decision on the shadow docket where the justices allowed a weirdly procedural abortion ban as we have discussed before, to go into effect which suggests that they might be willing to do that again.

Kathryn Rubino: Yeah, I mean, I think that the conservative justices have been on sort of a media tour being like we’re not partisan which is basically prelude to them doing an incredibly partisan thing, right? Yeah, I wish I could be more hopeful but I don’t think that reproductive freedom is long for large swaths of this country. And I think that that is incredibly upsetting and I wish that the congress would make some movement on that issue, but it appears we stalled as well. 

Christopher Williams: I wonder how long it’ll take them to a business to start doing. If you know how there are places have like two reasons to go out. I think I saw some article like there’s going to be an increase number of abortions around Mexico and the border especially for spots in Texas. But as Southern states continue to find creative and just clear ways to thousand cut row, I wonder what’s going to happen.

Joe Patrice: I know. Speaking of creative ways, the Texas case of course was the case in which the government — the State of Texas cannot enforce their law only private individuals can enforce and make it enforce it by filing private lawsuits against anyone who helped someone get an abortion, but can’t go after the people getting abortions themselves, or whatever. It was the screwy way to try and get around the fact that Roe still exists for the next couple of months.

That said, I will throw in regarding the creativity I heard from the person who wrote that law in Texas, who was complaining to me about an article I wrote in which I accurately described what he did. Yeah, but I think he thought he was talking to a non-lawyer and that like vague threats were going to —

Kathryn Rubino: Carry the day?

Joe Patrice: Carry, yeah and instead I was like, “No, I literally wrote this, because you said this, because you said that, back me up here.” But anyway, he put it — 

Kathryn Rubino: Facts will do that. Yeah.

Joe Patrice: Yeah, but he put in an amicus brief here in which he concludes and he says, “I’m not calling for that. My words were carefully chosen” and I’m like, “Yeah, they were carefully chosen to call for that with some like dumb plausible deniability.” But he concludes by saying that, “You know, I’m not necessarily saying you should use this case to overturn Obergefell but — 

Kathryn Rubino: If you did — 

Joe Patrice: But it is justified by this case to do that if you wanted to. Anyway, so yeah, he’s trying to get them to take a reasoning in this case, that would result in also getting rid of gay marriage because, why not?

Kathryn Rubino: I mean, they’re coming for everything, right? They have a clear majority on the court and will for generations at this rate, so I mean, why not?

Joe Patrice: Unless generations — unless we institute some sort of, I don’t know, staggered term limits or something.

Kathryn Rubino: Sure.

Joe Patrice: Anyway.

Kathryn Rubino: But yeah, absent some sort of legislative solution why wouldn’t they try to be philosopher kings for — decide what they want?

Joe Patrice: Yeah, well, don’t worry, we’ll see. This opinion of course is what should we call? It RBG’s hubris, if I will call it.

(00:15:01)

This is the decision that will undo everything she spent most of her life defending because she couldn’t bring herself to retire when everybody said, “Maybe you should retire.” Don’t worry, Breyer(ph) is going to do the same thing.

Kathryn Rubino: Well yeah, so is Clarence Thomas if it’s any consolation at all.

Joe Patrice: Who would be the first one removed if we had a term limit system, he would be the first one up to be removed after that, but whatever. Anyway, well, let’s take a break now for an ad and come back and talk about — I don’t know guns, but for now, let’s talk to — let’s hear from Lexicon.

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Joe Patrice: All right, so New York Rifle Association. I don’t even remember the exact terms. Anyway, these are the folks who are now suing to expand the Second Amendment further, obviously Heller decided for the first time in the entire history of the United States that the Second Amendment means you get to have guns which despite how much people like to “the right to bear arms,” it ignores the whole rest of the Second Amendment which does not mean that you get to have guns.

Kathryn Rubino: Well you know, the text isn’t really what’s so important for textualism.

Joe Patrice: Textualism. Yeah, I know that’s fair, that’s fair. This is the rule that says that well, New York here had a rule against you being able to go carry your guns in public. Obviously, you could own them but run around carrying them without a permit.

Kathryn Rubino: You don’t take your guns to town.

Joe Patrice: Yeah, don’t take it. Yeah, I know good.

Kathryn Rubino: Yeah, that’s a Johnny Cash reference, right? Isn’t that a Johnny Cash song? Don’t Take Your Guns to Town.

Christopher Williams: It is not we need to copyright it.

Joe Patrice: I thought it was Kenny Rogers? Am I?

Kathryn Rubino: Well, I feel like a lot of those songs people re-record, I think I have heard a Johnny Cash version, I guess is what I’m saying.

Joe Patrice: No, that is Johnny Cash, yeah, no.

Kathryn Rubino: Hold on, did I out-music you on — 

Joe Patrice: It is very easy to out-music me, I’m not — 

Kathryn Rubino: Not on 70s country western. We were like —

Joe Patrice: Really? Interesting.

Kathryn Rubino: Well, you are older than me, first of all.

Joe Patrice: Oh my God, that’s what this was. I fell for that. Wow

Christopher Williams: Memory goes at time.

Joe Patrice: Yeah. Well, set-up. I did not see this coming.

Kathryn Rubino: Well, did you also, at one point have pets named after 70s country western stars?

Joe Patrice: I did have a couple of pigs named Willie and Waylon, yeah.

Kathryn Rubino: Yeah, you definitely know more about country music than I do.

Joe Patrice: Fair enough. Point is, this is way off the topic, the point is, that New York says you can’t have guns without a permit which they limited to people who really needed guns that is being challenged obviously Heller — Heller even straight up says the right to have guns is not unlimited, however, they are going to try and make it unlimited here. All signs point to that being what comes out of this. The argument is that the word “bear” means you can have it at all times. Weird that the whole well-regulated militia part has disappeared here, but so what’s up with guns? Any thoughts anyone?

Kathryn Rubino: Terrible things? Yeah. I mean, I don’t know. I’m not sure. This one is I’m less certain of a negative outcome for than I am in the abortion Mississippi case. I don’t know. I think it’s really interesting. I think that Robert will I think side with the Liberals on this? 

Joe Patrice: Well, in this case it would probably not even the Liberals but a hillside with Scalia as weird as that sounds and just kind of stopped at Heller.

Kathryn Rubino: Right

Joe Patrice: Yeah, that’s a possibility.

Kathryn Rubino: And I guess the question is of course — another one that may be will — no, probably not. We’re probably going to have guns all the places.

Christopher Williams: This conversation that’s mean allow that I need to take the Supreme Court justice quiz on the website.

Joe Patrice: Yeah, see? It’s fun. No. I love how you kind of turned yourself all the way around there Kathryn. You started with, “I’m not a certain of a negative outcome” then went through numbers and went, “Oh my god, we’re going to die.”

Kathryn Rubino: God, we are screwed. A really long time, you guys.

Joe Patrice: No, this is very likely, it’s always a — that this course became the subject of some dumb law professor infighting when Josh Blackman wrote that thing about how there was an amicus brief that involved former Judge (00:19:57) where he was suggesting that no, in fact gun ordinances that bar you from having them in public predate the constitution under kind of a very —

(00:20:07)

Kathryn Rubino: Originalist.

Joe Patrice: — originalist, which he himself isn’t, but obviously, he knows that a lot of the court is, and that’s who this amicus brief is aimed towards, said, clearly, the Second Amendment was not intended to be a free for all, like it wasn’t meant to turn the city streets into fortnite, and yet here we are.

Kathryn Rubino: Yeah. I mean I do think it’s kind of interesting that Judge Luttig has written this brief, and I think you wrote about it as well Joe. Maybe somebody will agree with him.

Joe Patrice: I mean, yeah, he didn’t write alone but he joined it, and it’s just the pettiness of Josh Blackman to write this mean-spirited attack on a very, very conservative judge just happening to say, “Hey, wait a minute, there’s no legal justification for any of this.”

Kathryn Rubino: Because (00:21:00) come out on the right side of —

Joe Patrice: And Warren Berger was right wing crazy person and he was the first in his famous video clip to say that the idea that the Second Amendment means you get to have guns all the time is a lie upon the American people. So it used to be a much more common conservative belief anyway.

Kathryn Rubino: Well, yeah, did you want to talk a little bit about what Blackman said or?

Joe Patrice: Yeah, he just criticized the former judge to the extent that his father had been killed in a carjacking incident years earlier and Blackman decided to say, well, that’s why he (00:21:35) on guns which is untrue given that there are warrants in this whole opinion which is not just his. There’s a number of people —

Kathryn Rubino: It’s just despicable generally.

Joe Patrice: Yeah, it’s just kind of a generally despicable, but yeah, anyway.

Kathryn Rubino: This does not make me excited.

Joe Patrice: Yeah. Well, on the other hand, things can get fun when we’re all strapped up every time we have to go into the office.

Kathryn Rubino: That’s a terrible thing.

Joe Patrice: No, I agree.

Kathryn Rubino: I was thinking, my aim is terrible like I think videogames

Joe Patrice: I know it is. I am just saying when I need the water cooler, everybody better get away from the water cooler.

Kathryn Rubino: Well, good news, we’ll never have to go back to the office.

Joe Patrice: That’s true.

Kathryn Rubino: Because we’re in a constant COVID hell escape, which means we’ll be working from home for forever.

Christopher Williams: I mean you can call it a COVID hell escape, I call it my living room. It means the same, words without distinction, but hey, one feels nicer.

Joe Patrice: See it seems like you’re besmirching his living room. I mean I feel like, why are you besmirching his well-appointed living room.

Christopher Williams: As the front say, it is a shitty living room, but it’s mine.

Joe Patrice: Oh no. All right, well, maybe that was right, again, no video here. Well, before we move on, we’re going to talk about going to school next, so —

Kathryn Rubino: You went to law school.

Joe Patrice: Yes, I did. You know why I did?

Kathryn Rubino: To be an accountant.

Joe Patrice: No. I went to law school to be a lawyer not an accountant. Take advantage of Nota, a no-cost IOLTA management tool that helps solo and small law firms track client funds down to the penny. Enjoy peace of mind, with one click reconciliation, automated transaction alerts and real-time bank data. Visit trustnota.com/legal to learn more. Terms and conditions may apply. So talking about school, Harvard.

Kathryn Rubino: Yes, that is the school.

Christopher Williams: Never heard of it.

Joe Patrice: Yeah, Harvard is getting sued. This is the latest effort to go after affirmative action. After years of trying and failing to get all the justices on board with feeling sorry for white kids who are bad at school, they have now decided to create — I don’t know I have more thoughts on this, so I’ll just say it now and then we’ll break it down. Their new argument is that Asian-American students are being discriminated against by Harvard, because not enough of them are getting in, because of diversity mandates. It is kind of the latest dating back to the Bell Curve era of utilizing Asian-American as like a model minority proxy that allows them to make all the arguments that they want to make as white people, but everyone gets skived by is my kind of takeaway, but that’s where we are. This obviously brings us back to the old Abigail Fisher case, which we dubbed Becky with the bad grades case. That one failed largely on the back of Kennedy who is not there anymore, replaced.

Kathryn Rubino: See, this was the moment.

Joe Patrice: I mean as I said, the entire term is the moment for the sad trombone, but thoughts no what’s about to happen to Harvard.

Kathryn Rubino: I mean as you said, it was on the back of Kennedy that the original version got saved. I don’t see Kavanagh sticking with the Kennedy reasoning, so here we are.

(00:24:56)

Christopher Williams: The things that gets me about cases like these is that it’s a lot to do with young adults or frankly some of the teenager kids, who are (00:25:05) likely going to fail up. These are kids who are like, oh my God, they only had 3.97 while with me, maybe they got in because they’re black. No, they’re all excellent. It’s like looking it of like they don’t —

Kathryn Rubino: Well, the people who aren’t excellent, who are at Harvard — the people who are not — don’t have excellent grades are Harvard are legacies, which tend to be white folks. That’s the real problem.

Christopher Williams: I feel like that’s the big thing to tackle. This is the just the way to be like, okay, fourth generation Harvard, how do we keep the heat off of them. Let’s let the blacks and the Asians fight it out.

Kathryn Rubino: Absolutely.

Joe Patrice: Well, that’s why I find it so weird to choose Harvard. If you’re trying to build a case, the advantage of the Fisher case going after the University of Texas was you’ve got this kind of, A, a public institution, and B, one that doesn’t have this legacy issue. Inevitably, a case about affirmative action, and Harvard is going to require some reckoning with the fact that Bimble Bumble Shit, III is getting into the school with solid C average, and that’s —

Kathryn Rubino: And a library named after his uncle.

Joe Patrice: Right. Well, Yale could use an international airport.

Christopher Williams: No, it makes sense though, but getting in on your own merit includes being fucking rich. That’s it. Wealthy grandparents, because you chose that. These folks shouldn’t have chosen Black or Asian, I mean it’s on them, eventually.

Joe Patrice: I mean that is certainly the argument. That’s the thing. Like why draw if your argument, if you’re one of these people trying to tear down affirmative action in college admission, like why choose a school that is going to necessarily involve making this a headline. I don’t know. Maybe it won’t, because the media is stupid in this country, but if anyone is really paying attention, there’s going to be a long conversation about the nature of what legacies do to admissions.

Christopher Williams: Are you saying this should have started with last law?

Joe Patrice: I mean, well, maybe. Yeah, any kind of — I mean certainly they tried. Again, they did try to do places like Texas. The other cases in the history of the court’s affirmative action jurisprudence are like Michigan Law School, UC Davis, like they tend to go for these big public institutions, and also institutions that obviously don’t have weird money to legacy issues. It’s just weird to do one that’s going to involve this conversation. That’s all I thought.

Kathryn Rubino: Although keep trying, eventually they’ll hit on the right combination of facts and justices on the court where it will be done.

Joe Patrice: Hey, I mean all of them except I guess ACB, most of them went to Harvard and Yale, so maybe they made a tactical error when —

Kathryn Rubino: Yeah, they’ll go for the home team.

Joe Patrice: When Alito finds out his kids can’t go to college anymore, maybe he’ll come around. Real mess for that one. Cool. Well, let’s see, we’re coming close the end, and there’s a couple that I wanted to quickly go through. There’s a ton more cases obviously out there, but I wanted to just go through — well, let’s just use this one because I found it hilarious. Austin, Texas, speaking of University of Texas, Austin, Texas is getting sued. They have an ordinance that says that you can’t build digital billboards, you can on your own property, but not just generally, you can’t build digital billboards. They’re being sued on the argument that that amounts to content discrimination, because it requires the city to look at the application and see what’s on it, which means its therefore content discrimination.

Kathryn Rubino: That is wildly inaccurate.

Joe Patrice: Well, that does seem to not how content discrimination works. That is certainly what the District Court believed too. The Fifth Circuit on the other hand decided that this was a viewpoint discrimination against people who like digital billboards, I guess.

Christopher Williams: Listen, I will see that this is facially goofy of an argument, but based on the grades that I got in con law, I am going to sit this one out.

Kathryn Rubino: But seriously, and maybe there’s hope for the court on this, because a number of them, ACB was a professor. So if you wrote that in an answer on a con law test, you’ll not be getting full credit my friends. This would never even be a con law fact patterns, because it is so obvious.

Joe Patrice: Yes. You would be considered — yes, that’s a great point. You would be considered hacky if you made this your con law issue spotter, because nobody would buy it.

Christopher Williams: To be clear, a month of two ago, you would have said the same thing about SBA.

Joe Patrice: Well, that is fair. All right, that is correct.

Christopher Williams: So just like it depends, and put an asterisk after it, and it can be like talk to me in a couple of months once these resolves, because that’s always the accurate answer. My teacher didn’t like that, but hey, I am able to sleep at night.

(00:30:00)

Joe Patrice: Yeah. The Fifth Circuit is — and they’re at the center of another case too which is trying to argue that a legislative body centering one of their own member’s amounts to a First Amendment attack.

Kathryn Rubino: That is also not accurate.

Joe Patrice: I mean I hate to be the originalist kind of person, but censuring people is, you know, that kind of old-school parliament thing that everybody knew was legal back then. And also, what the hell is the impact to it?

Kathryn Rubino: Nothing.

Joe Patrice: That’s the whole thing, centering is completely out.

Kathryn Rubino: It is meaningless.

Joe Patrice: You do need a harm at some point, you are male amount in the Fifth Circuit apparently, what I got anyway.

Kathryn Rubino: Okay. I’m still very hung up on this digital billboard nonsense.

Joe Patrice: Okay?

Kathryn Rubino: Because okay, I really don’t think that they will get five justices to say that this is content discrimination.

Joe Patrice: All right. Here’s the new question, what are the odds that whoever — whether it’s the majority or the dissent — what are the odds that whoever is pro the plaintiffs in this case tries to twist Marshall McLuhan into the argument like well the medium is the message, so digital has to be — yeah I’m eager to see the violence done to that sentence before this is all over.

Christopher Williams: The point I found interesting was that, let’s say you had a digital billboard in front of a church, right? And you could advertise your church using that same billboard, you could not advertise a church across the street and that I find to be in Roe’s into making the content argument.

Joe Patrice: Right? You can have digital billboards on your own property, but you can’t like have a digital billboard along the freeway for whatever you’re doing.

Christopher Williams: But you also can have the digital billboard on your property advertising for something that is not on your property. And that’s the example that — so that way, I guess officially I’m like why can’t you use your billboard to talk about whatever you want or why can’t you talk about that other church. So I see it at least having — I don’t think it’s like to get this off the docket, I think it would be like wait, it might be dumb, but you know, maybe.

Joe Patrice: Yeah, I guess there is some argument there that is contentee because you have to at least make sure that they aren’t —

Kathryn Rubino: You’re doing a lot of work.

Joe Patrice: That is some work, but I mean, see this is why Chris just came from having to take con law issue spotters so he’s like, thinking that way like well we both want it.

Christopher Williams: I’m just trying to put my best foot forward in case somewhere down the line McGarry(ph) hears this, I want him to know his still appreciated as a teacher you know I thought it was something to flash, that’s all. I can issue spot afterward, it was the room, the room had (00:32:57), that’s it.

Joe Patrice: Always. All right. Well, that’s a perfect note to wrap up this particular run down of Supreme Court cases. Obviously today, as we are recording this, we just had the first arguments go, Clarence Thomas asked the question, even if they back in person, so seems like this whole actually participated —

Kathryn Rubino: Well, Trevor Kavanagh.

Joe Patrice: Well, right who’s got COVID and yeah. This is where you would say that we wish you the best for somebody who’s sick. So I’m going to move on now to — 

Christopher Williams: That’s what we would say, yes.

Joe Patrice: That’s what we would say it. Moving on, thanks everybody for listening. You should be subscribed to the show to get new episodes when they come out. You should be leaving reviews, stars, writing things that helps more people know that the show even exists. You should be listening to our other programs, the Jabot which Kathryn hosts about women and minorities and diversity issues in law firms generally.

Kathryn Rubino: Yeah, diversity in the law.

Joe Patrice: Yeah, diversity in the law. I am a guest on the Legaltech Week Journalist’s Roundtable.

Kathryn Rubino: It sounds painful when you say the name of it every week.

Joe Patrice: Well, the problem is it doesn’t roll off the tongue.

Kathryn Rubino: So you did not name this podcast?

Joe Patrice: I did not. It does not roll off the tongue. The Journalist’s Roundtable is a great name, but it doesn’t like —

Kathryn Rubino: Legaltech Journalist’s Roundtable.

Joe Patrice: Yeah, that’s not what the name is though, that’s the whole problem. Anyway, the point is, you can listen that too, you should listen the other shows by the Legal Talk Network. You should be reading Above the Law that way you see these stories obviously putting another plug for that Supreme Court quiz to see how much you know about the upcoming term. And have some fun little landing pages based on your score like tell you how you did on the test and you should be following us on social media. I’m @JosephPatrice, she’s @Katherine1, the numeral 1. Chris, you have a new — it’s Williamswrites, is that it?

Christopher Williams: I do, wait one second. It is — I’m @WritesForRent.

Joe Patrice: Okay, Writes For Rent

Christopher Williams: But the name is Williamswrites, so yeah, look at you good doing those plugs. I need to learn.

(00:35:02)

Joe Patrice: Yeah. So @WritesForRent is the–

Christopher Williams: Yeah.

Joe Patrice: I just knew the display handle. I didn’t realize that wasn’t the app. But yes, thanks to Nota powered by M&T Bank and Lexicon for sponsoring the show, of course and now I think that is everything. So good luck to everyone out there in a new Supreme Court Term.

Kathryn Rubino: Peace.

Christopher Williams: Enjoy your billboards.

Outro: The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by the State Bar of Texas, Legal Talk Network or their respective officers, directors, employees, agents, representatives, shareholders or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

 

Podcast transcription by Tech-Synergy.com

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