Elie Mystal rejoins the Thinking Like A Lawyer crew to reflect on how Neil Gorsuch chose stupid over wrong and the bizarre fixation his acolytes have on doubling down in his defense. Justice Gorsuch asked the government why COVID amounted to an emergency when the flu kills a comparable number of people. The thing is, it doesn’t. But rather than be wrong, Gorsuch contends he said something else… that makes no sense and, if true, makes him look stupid. Quite the quandary!
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Joe Patrice: Hi! Welcome to —
Kathryn Rubino: Hi! Are you?
Joe Patrice: Good. I was welcomed them first that you want to —
Kathryn Rubino: Well, you know I thought —
Joe Patrice: Welcome to all of you for joining Thinking Like a Lawyer. I’m Joe Patrice. That’s Kathryn Rubino. We’re also joined as always like Chris Williams.
Chris Williams: Hello.
Joe Patrice: We’re from Above the Law, and we’re here to talk about big stories in the legal world of the week. A quick roundup of 30 minutes of what you need to know about what’s going on legally.
Kathryn Rubino: The week that was –
Joe Patrice: What?
Kathryn Rubino: The week that was.
Joe Patrice: The week that was will be forever. The time is a flat circle, yeah.
Chris Williams: Boo.
Kathryn Rubino: Okay.
Joe Patrice: Anyway, so we’re coming off of a long weekend, which you know what that means. We have plenty to small talk about.
Kathryn Rubino: I was kind of prepared for that one.
Joe Patrice: Oh, yeah.
Kathryn Rubino: It wasn’t as shocking “slash” upsetting as they typically are for me.
Joe Patrice: Fair enough. So, hey, what’s going on people? Anything exciting over the weekend?
Kathryn Rubino: I judged at a debate tournament. It’s not that exciting.
Joe Patrice: So, no.
Chris Williams: What was the topic?
Kathryn Rubino: This year’s debate topic is about “Antitrust Reform,” which as a former antitrust attorney, makes me very angry almost constantly.
Chris Williams: I did not know that. I actually enjoyed antitrust in my classes.
Kathryn Rubino: Which did you not know that that was the debate topic for the year or that’s what I used to do?
Chris Williams: Yes.
Kathryn Rubino: Fair. No, it is antitrust and for those that follow Legal News, you know that antitrust has been in the law more in the last six months than it has probably in the preceding 20 years so that’s fun for debaters and actually, most of the movement on antitrust reform and news happened after the college policy debate community selected it for its topic. So, it’s been a fun learning experience for everyone.
Joe Patrice: Yeah.
Chris Williams: I just really enjoyed the trajectory of antitrust jurisprudence. Like, how it went from this company is too big and we do not vibe with that to, “What’s a little price fixing if it helps everybody?” You know like.
Joe Patrice: Right.
Kathryn Rubino: That is a lot of the debates, actually. See, I should get you next time we need extra judges to judge at the debate tournaments.
Chris Williams: I mean, it was a good series of classes. It’s funny because — well, funny and not that how way, but funny isn’t like proxies were interesting, at least to me. Before I went to law school, I wanted to read Titan, which was a book about the Rockefeller. Like, John D. Rockefeller and it’s not even a book, it’s a tome and so much of the world stands in the wake of standard oil and just ways you wouldn’t even expect like, whenever I hear –if I see Facebook or I guess Meta, if the FTC litigation goes through a Meta has to get rid of Instagram and WhatsApp, I’m like, “Oh, shit. This is about to be a new standard to go buy stocks in one, and then I just see ripple effect money elsewhere but who knows?
Joe Patrice: Yeah. Sound investment strategy. More bang for your buck. I mean, certainly that was how some people dealt with Mabel back in the day when that broke up. Yeah, so somehow, we’ve managed to get our small talk conversation very legalistic.
Kathryn Rubino: Well, yeah –
Chris Williams: No, no. I have things to say.
Joe Patrice: Okay, yeah.
Kathryn Rubino: How was your long weekend, Chris? Hopefully more interesting than mine.
Chris Williams: Oh, yeah. I watched and completed not over the whole weekend, but over like the last week or so. One of the biggest cartoons on depression recently. I finally finished BoJack Horseman.
Joe Patrice: Yeah.
Chris Williams: That was a fun watch. Season five, episode six is basically is a so long soliloquy where the main character is BoJack Horseman, talking about a (00:04:11) person. That was a big impact in his life and it was funny because it was like 20 minutes just some dude talking and you don’t really see that much anymore. It wasn’t even like the family guy hurting me like it was a gag. Like it was –
Kathryn Rubino: I love that gag.
Chris Williams: Which is great but it’s good to see a full commitment to a bit and it was good. It was really good. Didn’t enjoy most of the show that much but that episode sold it for me.
Kathryn Rubino: It takes a lot of episodes to get to the payoff, though.
Chris Williams: Yes, but I also watched Naruto. Naruto: Shippuden, so those are series I have a lot of filler actually. Suppose long points to get the payoff so I’m like, “Yeah, I’m like I committed to this.”
I almost sat through the Twilight trilogy because I started the first movie just out of commitment so that’s the type of movie that I am.
Joe Patrice: And that’s not even a trilogy. Aren’t there like four? Didn’t they break one of them into multiple?
Chris Williams: They want the Matrix route?
Joe Patrice: Yeah. I think of it as the –
Kathryn Rubino: No, it was the Harry Potter.
Joe Patrice: Harry Potter route, where they split one of the books.
Kathryn Rubino: Because Matrix wasn’t first books, right.
Chris Williams: I was thinking Matrix trilogy forever and then he dropped the fourth.
Kathryn Rubino: Sure, sure. But what did you do this weekend, Joe?
Joe Patrice: I wrote some tweets.
Kathryn Rubino: You tweeted?
Joe Patrice: Yeah. I guess –
Kathryn Rubino: Good job with that.
Joe Patrice: This is also quasi-legalistic.
Chris Williams: Hey, that’s my job.
Joe Patrice: Yeah, but — so the Supreme Court exists.
Kathryn Rubino: It does.
Joe Patrice: We’re going to talk about it a little bit more later but Jeffrey Toobin, who everyone remembers from CNN and —
Kathryn Rubino: Is that what we remember him from –
Joe Patrice: Yeah, and not having a job with New Yorker anymore. He –
Chris Williams: I thought that was form of category.
Joe Patrice: Yeah. So, he decided to tweet out last night that there was an imminent Supreme Court retirement. Favorites for that job Ketanji Brown Jackson, more on that and second Leondra Kruger, longshot VP Kamala Harris. Stay tuned to CNN for more. This triggered a flurry of people wondering if someone was about to retire, most likely briar in that situation? Why that person would choose to tell Jeffrey Toobin involve people at this point about it. I replied — and why a person who views themselves as a serious commentator on legal matters would misspell the name of the person, he thinks is the favorite to take that job as “Canta G” is not how you spell that or pronounce that. Okay, and now on that note, actually, we’re bringing in a guest because we’re fluid here.
Chris Williams: A guest who wears pants on Zoom meetings, presumably.
Joe Patrice: Oh, yes. A perfect transition as we were just talking about Jeffrey Toobin. So, yes, Elie Mystal has joined. Our former host of the show. Everybody knows him from the New York Times Crossword, in which he was a clue last week.
Kathryn Rubino: That’s true. I got so many friends reaching out, being like, did you see this? And I was like, “I have. I have.”
Elie Mystal: Hi, friends.
Joe Patrice: Hey.
Chris Williams: Nice to meet you.
Elie Mystal: Nice to virtually meet you, Chris. I’ve loved your stylings on the Internet. I’ve gotten so many friends joe asking, “Hey, don’t you know this guy about Joe after his Toobing slam dunk on Twitter?”
Kathryn Rubino: That’s actually super perfect. That was actually we were talking about.
Joe Patrice: Perfect transition. That was actually what we are talking about. After misspelling the name of Judge Brown Jackson, I just decided to bang out this little tweet, which was that people make fun of him for misspelling the name of a federal judge but it’s difficult to type with only one hand and people would –
Kathryn Rubino: Bottom chink
Joe Patrice: Yeah.
Kathryn Rubino: See, there was a moment.
Chris Williams: This one would have won it.
Joe Patrice: I immediately responded to it because he’s never taken a touch-typing course, which is what I was wondering. I didn’t know the rest of you, where your heads were by.
Elie Mystal: It’s called –
Kathryn Rubino: One head.
Elie Mystal: It’s called folks, it’s called (00:08:17). When you jerk off at work, you subject yourself to this for the rest of your life as a bare minimum. As a bare minimum. In a just world, people who jerk off at work don’t get to go back to work.
Joe Patrice: But tends to not.
Elie Mystal: That’s how would actually –
Joe Patrice: Well, it depends on your job.
Kathryn Rubino: That’s true.
Elie Mystal: But since he gets to go back to work, the very least that can happen to him is for people to bring it up every freaking day of his life.
Joe Patrice: Look, debating people with this news of a retirement which debate seem like it’s going to happen, yeah, we’re working on it. But then, to just kind of jerk us around with that news and then –
Chris Williams: Come on now.
Joe Patrice: But to misspell the name of the person that you think is the front runner for that job I thought was the true (00:09:16) of this whole situation.
Elie Mystal: Look, I would love to slammed on him too for that. Unfortunately, with my handicaps. I’m liable to misspell the New Republican nominee, Bob Jones. Bobb with two B, I’ll make something stupid like that so I can’t get on people from misspelling people on Twitter. Other people and I’m happy that happens.
Chris Williams: I’m sure he also got on himself about it.
Joe Patrice: Oh, yeah.
Kathryn Rubino: Wow. Okay.
Elie Mystal: I’ll be here all week. I’ll be here all week.
Joe Patrice: Here we go.
Kathryn Rubino: By the way, about time. I have to deal with this damn sound board over dumb shit and the times when the bottom chink actually makes sense it takes like, ten minutes to get there.
Joe Patrice: I was –
Kathryn Rubino: Falling down on the job, Joe.
Joe Patrice: Yeah, fair enough.
Elie Mystal: Oh, the sound work. Well, I’m sorry I’m late, friends. I was up late last night watching, “Don’t Look Up.” I finally watch that. I felt very akin to the Jennifer Lawrence character in that movie. And I also finished the main story for Final Fantasy XIV: Endwalker.
Chris Williams: Quick thing, we did finish small talk. We hopefully we can make an exception for you. I hope people get that Leonardo DiCaprio is not the good guy like, he’s actually one of the worst people.
Elie Mystal: Oh, my God –
Chris Williams: I haven’t been hearing people talking about that. It was just, “Oh, my God. I can’t believe the Facebook guy character and why is my voice like this?” We’re like, “No, DiCaprio is a dick.” You’ll get that he’s most liberal.
Elie Mystal: It’s so critical to the freaking movie. The moral destruction of Leonardo DiCaprio’s character over the course of that movie is critical to making the thing true and the least realistic part of that movie is that the DiCaprio’s character comes back because that guy don’t come back. I don’t want to spoil anything but the rebound that guy has that in real life, that guy never comes back and I think, watching it for me as a person who has but recently gotten swept up into the TV world. Like you meet Leonardo DiCaprio’s character every goddamn day back before COVID, every goddamn day in the green room. You need that and you know that guy.
And so, for that movie to quite accurately show how a person who gets swept up into that basically gets their heads swept up into their own ass. How that person goes from a force for utility towards a force literally selling crap and literally becoming what he beholds. It’s so critical to making that movie work. I thought it was great.
Chris Williams: Also, second thing, which I think that I didn’t see much of also for because I haven’t been actively Googling it because I have to do the morning docket shameless plug here.
Kathryn Rubino: I think you just triggered Elie right there.
Chris Williams: I’m just trying to enjoy some shared suffering. But another thing, there is a point where the second Hail Mary is worked on and it gets described as there being an accident but I’m like, that wasn’t an accident. You know what I’m talking about.
Elie Mystal: Yeah, of course not.
Chris Williams: And that one was so subtle but I feel like the subtlety on that point, and then I feel like this is like a third wheel in Joe because he’s not interested but no, but that accident/explosion and realizing that DiCaprio is a villain, I feel like those are the two points that makes the movie and I’ve heard complaints that the movie is hand fisted, which it is, sure but I feel like those two things are pivotal. But they were done in such a way where it’s hard to pick up on what’s happening there because it’s easy to see the boom moment as being like, “Oh, I can’t believe all these country work together and messed up.” Like, “No, that was deliberate.” And that was never explicitly said.
Elie Mystal: No. I thought it was great. I thought it’s ideocracy too. But the difference between this and the first ideocracy is that when you watch ideocracy in real time you’re like, “Oh, what a fun comedy.” “Oh, might real.” You don’t realize that it’s talking about you in real time that that becomes more apparent as you go, right? Don’t look up you realize who they’re talking about in real time. It’s not a comedy. It’s a farce. It’s a satire.
Chris Williams: I wish I had a French accent, sat—
Joe Patrice: Does anybody want to talk about law for a little bit? Or —
Chris Williams: I’ll tell you what, here’s my transition, Joe. The thing about don’t look up and Endwalker, Final Fantasy is that very subtly both of those pieces of media. Both of those pieces of content are shut outs to peer review of having your colleagues and your peers check your damn work which is a very Thinking Like a Lawyer way to look at content.
Joe Patrice: No, that is good. It’s all about peer review and using data that is peer reviewed as opposed to I don’t know. Things you saw on TV and just saying –
Kathryn Rubino: That’s a transition.
Joe Patrice: Saying –
Kathryn Rubino: There is a transition –
Joe Patrice: Oh, no, I mean, I was set up to see like we’ve worked together for a long time.
Kathryn Rubino: Set and spike.
Joe Patrice: For instance, peer reviewed data does not suggest that hundreds of thousands of people die of the flu every year, right? But the supreme court we were treated into Justice Gorsuch telling us that hundreds of thousands of people died of the flu every year. Now, there’s some controversy about that and that’s one reason why Ellie is here because we talked about it.
We all wanted to break this down a little bit. I want to start without any conversation about the audio stuff, because I think that’s a sideshow to this whole thing. What happened in the hearing on whether or not there should would be an OSHA mandate about getting the vaccine? In this hearing, there was an exchange in which Justice Gorsuch asked the solicitor general about the flu and the argument being solicitor general’s position is 800,000 people have died of this thing in the last year’s –
Kathryn Rubino: COVID.
Joe Patrice: COVID. So, maybe it’s an emergency and Justice Gorsuch asked a question about like, “Well, don’t we have that many people dying of the flu every year, basically?”
Elie Mystal: You pointed out that OSHA does not regulate — does not mandate getting the flu shot.
Joe Patrice: Right.
Elie Mystal: I believe maybe hundreds of thousands of people die every year from the flu.
Joe Patrice: Right.
Elie Mystal: And Prelogar was like, “Well, Prelogar — by the way, just as an aside, if I need somebody to argue for me in front at the pearly gates, in front of Peter, I am calling up Solicitor General, Prelogar. She’s really good. She’s really good, guys. I have her number one right now in my Solicitor General league. Anyway, so Prelogar response — first of all, she makes quite frankly, because we’re an honest show, right. She makes a bad argument first of all, right. She deferred the flu is a seasonal and COVID and that’s just dumb. That’s not a good answer right. But she’s trying to say basically that the flu is not as deadly as COVID without calling Gorsuch out on his complete misrepresentation of the facts.
Joe Patrice: Right, that’s how I took it.
Elie Mystal: Gorsuch gets angry and if you listen to Gorsuch enough, you know that he has a real — I think the scientific word is a dick. Like, he has a real pissy dick edge to him. He takes it like it a dick and he’s like, “Are you saying the flu is not a grave threat?” And that word grave is going to become important later. But he comes back at Prelogar saying, basically, don’t you think the flu is a grave threat? And then Prelogar is like, “No, no I don’t think the flu is not grave. I’m just saying.” And then she kind of gets into her back COVID’s killed X thousands of people and more people.
Joe Patrice: Yeah. So, that’s the crux of this. The reasons why –
Elie Mystal: Well, the other crux was that he got in trouble for, right? Because when he said that — I was one of those people who was listening to it online and I tweeted out where’s the judge hundreds of thousands of people that have flu every year. This is false. Something, he needs to stop getting his back from Fox News. I think that tweet is literally right now my most like tweet of all time.
Joe Patrice: Oh, wow.
Elie Mystal: And I was not the only person in real time to call Gorsuch out for his straight up vaccine misinformation.
Joe Patrice: Yes. So, this happens, he asked this question. He’s being called out by folks like that. He’s looking like he’s wrong. What ends up happening then is that the transcript comes out and it is edited from its original intent to now say that he said hundreds “comma” thousands of people die of the flu, which is if that’s what he said, also wrong because that would be way undercounting the flu but also would make no sense given the exchange that he had with the solicitor general where he was trying to compare it to 800,000 people dying of COVID and called it grave.
Kathryn Rubino: I mean, it makes no sense if he said hundreds “comma” thousands.
Joe Patrice: Yes. No, it makes no sense within the context of what he was saying and bizarrely, he has these defenders who are going to the mat and saying that it’s wrong of us to suggest that he said hundreds of thousands of people when he meant something different and the irony of all this is their argument is we should accept that Gorsuch is stupid instead of wrong. And I don’t know, I feel like there’s some sort of maximum about this. It’s better to be wrong than stupid or something like that and I feel like that’s where we are. They really want us all to believe, no. He said this incredibly stupid thing not an actually incorrect thing.
Chris Williams: I don’t get it. Let’s be clear. Brett Kavanaugh is the dumb justice, right? Kavanaugh is the one who does not have the intellectual firepower to be on the court. There are many bad things that I can say about Neil Gorsuch, but dumb is not one of them. He’s a smart, considered, careful man that’s the other thing. He is careful with his words so to think that he would have set up an entire argument with a premise that blew up his argument at the start simply does not make sense.
There is no way Gorsuch would say this is what you would have to believe that Gorsuch meant to say, “We don’t – OSHA does not require the flu shot. The flu is way, way, way less deadlier than COVID and quite frankly, the flu is less deadly than most people think it is. Thus, we should not require a COVID.” That argument makes no sense.
Kathryn Rubino: It’s not sensical.
Joe Patrice: I actually took some time researching this, another corollary that he could have said if he wanted to say it that way is government, you’re taking the position that 800,000 people have died of this, but hundreds “comma” thousands of people die every year of acute vitamin C deficiency, why doesn’t OSHA do that? See how stupid that would have sounded in that argument? That’s why? Yeah, exactly right like it’s –
Elie Mystal: You got to say scurvy whenever. What deficiency is talking about scurvy? You got to – I’m like, “Oh, acute vitamin C.” What is that? From pirate?
Joe Patrice: So, the next aspect of this is that you got these audio truthers. Who are the people – yeah, go for it.
Elie Mystal: Before you go to the audio, right because I think the audio is weirdly, the strongest point but there’s a real Thinking Like a Lawyer aspect here and that is most people who are not kind of this world do not understand how the Supreme Court transcript gets made. How that sausage gets made. What happens is that there’s a transcript and people are like, “Oh, well, there’s a transcript so there’s some basically third party. Independent third party who simply dictates the notes and then produces them to the public. That’s not how Supreme Court transfer works, right? There is an independent third party, a low-level staffer person with absolutely no power who puts out the transcript. Then the justices look at their transcripts, and then the justices have the opportunity to be like, I didn’t say that or that’s not correct or change the transcript and the person —
Kathryn Rubino: Right, it’s like rata sheet from your depositions, yeah.
Elie Mystal: That’s absolutely no power to freaking push back because they are a peon. They are small and the justices are everything. So, if Gorsuch or one of his top clerks says, “Well, the judge didn’t say that.” There is literally no place in the process for somebody to push back on that and be like, “Well, we know that.” So, this idea that the transcript is some kind of invaluable gospel truth recording of the verse readings is just not true. That’s just not how the Supreme Court transcript gets made and then you really have to go to the audio.
Joe Patrice: Before we go to the audio really quick, I want to make a point about, in the interest of fairness and that erotic thing, Justice Sotomayor also made a major misstatement about what was going on. Did not try to change the transcript just owned up to what had happened. Her misstatement, I think is understandable within the context. She made a comment about how 100,000 kids were in serious condition with COVID that is not true. That mercifully, it’s way lower. It is like five in 100,000 because that’s how the CDC reports these sorts of numbers. They tend to do it like a number in 100,000. She clearly latched on to the 100,000, missed the five in whatever.
That said, her question was, “Isn’t it true that kids are being in serious condition with these higher rates than ever before which even at five and 100,000, is true?” And that was how the question was answered. So, it really didn’t — have a material impact on the discussion but it was a mistake. It was a serious misstatement of what was going on and she did not try to cover that up and certainly didn’t try to cover it up in a way that would make the argument made no sense. Which seems like that was probably the better move.
So, the audio comes out and I think the audio discussion is one of the dumbest things that’s ever happened because obviously we know he said hundreds of thousands because we can figure it out from context and that’s what the lawyers all thought and –
Kathryn Rubino: They answered the question.
Joe Patrice: Right, but then these audio truthers — among them, Glenn Kessler is like watching a post folks where he does what’s ostensibly a fact check but is really just like that. I find his version of fact checking so annoying because it’s completely devoid of any context of what’s happening. But they all go, well. We’ve slowed it down and really dug into it and we don’t hear the word of which I find ridiculously dumb because maybe it’s an accent thing, my accent is drawn largely from the Midwest and West Coast or whatever. But as a native speaker of the English language with those accents on me, I would never say it that way. In fact, I’ve said it several times throughout this show and I’ll bet if you slowed it down dollars to donuts.
You’re not going to hear me say, “of” in between any of those times either because that’s not how you say in a sentence hundreds of thousands of people. Like hundreds of thousands is kind of how I would say it.
Kathryn Rubino: Like a (00:25:13) there.
Joe Patrice: Yeah.
Kathryn Rubino: Yes. Hundreds of thousands.
Joe Patrice: It actually sounds like, “a” almost like a comma sound would in the way most people talk. That’s why you got to look at context. But these people are really dead on that like, if there is no of you must have quit.
Kathryn Rubino: What I think is that it’s people who have decided to divorce it from context. Slow down the audio to hear. If I hear a hard F. That’s F and stupid, right. The whole point of it is that you have to look at the context but that’s what we do. We take everything out of context, and no one cares what the larger argument was. What people in the moment actually understood? And it’s just like, “I don’t hear an F.” Well, fine.
Elie Mystal: I’ve been dealing with this for literally a week, and what’s weird to me there are people on kind of my side of the aisle, who are also I don’t hear the F. He didn’t say, A. Can we think for a second? What do we think was happening in the moment? Why do we think Prelogar responded as if he said that?
Kathryn Rubino: Yes.
Elie Mystal: Why do we think that when she responded that way, Gorsuch didn’t correct her?
Kathryn Rubino: Yes.
Elie Mystal: In real time, he’s going to, “Well, no, I said” — because she heard what he said. As much as I love the fidelity to audio, Prelogar is literally the closest person in that moment to Neil Gorsuch right. She’s not on mic. She’s not on Zoom. She’s in front of his face. The reason why she’s in front of his face and most people aren’t is because there’s been a COVID fucking outbreak and people allowed (00:26:50) anymore. Two of the four lawyers arguing the Republican point couldn’t be in-person because they got freaking COVID tested right. So, if we just think for a second about what actually happened, I don’t see how you get to a conclusion that there was a Gorsuch “comma” and he met hundreds of people die from the flu, which is factually wrong and stupid for his argument. I don’t see how we get there.
Joe Patrice: Not to go on how most people who are native speakers of the language talked but another one, if I wanted to say thousands and I accidentally said hundreds and then “comma” thousands, I would not say hundreds. Wait, and then say thousands. I’d say something like hundreds I’m sorry thousands –
Kathryn Rubino: Or I mean.
Joe Patrice: I mean, thousands of or you’d say something like that because it would make no sense to just leave that hanging there that’s not like the natural way you would –
Kathryn Rubino: Also, hundreds is a multi-syllable word, so you probably wouldn’t have gotten to the end of it. You’ve like hunds — thousands.
Joe Patrice: Hundreds, I’m sorry thousands, yeah. Anyway.
Elie Mystal: I had met Taibbi, who was arguing that the once a great Matt Taibbi, which I think is the official title, right. Who’s arguing with me that Gorsuch actually got the number right. That he meant tens of thousands of people and I’m like, “Well, Matt, can we at least agree that whatever he said, tens of thousands, is not what he said.” The accurate number. The accurate estimation of the number was not what he said. Whether you’re one of these people who believe that he met a couple of hundred or thousand people or you’re one of those people who believes the truth, what we can all agree is that he did not get the number right. And how is that not the point of the story if we’re talking about something that a Supreme Court justice is basing his argument and decision on.
Remember, Gorsuch ruled against the OSHA mandates. He voted against the vaccine mandates. Gorsuch decided that the American worker did not deserve the same health protections that he himself enjoys on the supreme court and he did it on the back of made-up science. Whether he made it up too high, which is accurate, or he made it up too low because you can only see two inches in front of your fucking face. He made it up. He made up a number to justify his argument. How is that not the story?
Joe Patrice: It was incredibly frustrating to have these arguments with people because it’s just so illogical that they really want you to believe that he was dumb rather than wrong.
Elie Mystal: You guys – Kathryn, do you and Joe have a ranking of justices’ kind of on the conservative side? What’s it just says that we like the liberals?
Joe Patrice: Right, I don’t have a running power ranking.
Elie Mystal: We have a running power ranking.
Kathryn Rubino: I mean, I think at the moment it has to be Roberts in the top spot, right. Because he cares more about, I think, his long-term reputation of the “Roberts Court.” So, he’ll make decisions that aren’t – I mean
Joe Patrice: Occasionally, did he –
Kathryn Rubino: He’s the most likely to switch sides, right. Then probably Gorsuch. Probably Gorsuch.
Joe Patrice: Yeah. Because there’s a few weird libertarian issues.
Kathryn Rubino: But also, he’s principled and he seems –
Elie Mystal: In the right case.
Joe Patrice: Yeah, right. He’s so principled that when ordered by the chief justice to wear a mask, he won’t do that. This principle then cuts both ways.
Kathryn Rubino: But at least it’s a noble entity as opposed to just political expediency, which I think that Alito is probably worst, right. He’s probably the most objectionable.
Elie Mystal: I mean, Kavanaugh have tried to reach somebody. I can’t ever not put him in the bottom spot right. So, I kind of work my list backwards. Kavanaugh is clearly the worst person if you tried to raise somebody and he’s a fucking idiot. He’s number zero. Alito is the worst after him because he is not only — has all of the interpersonal dickishness of Neil Gorsuch and of all the –
Kathryn Rubino: Yeah. Let’s not forget that not true moment.
Elie Mystal: The crazy extremism of Clarence Thomas. So, he’s next. Then Clarence Thomas is ahead of Alito because he’s kind of interpersonally and kind of an affable Uncle Ruckus, but has all the extremism of San Alito. And so, they were kind of into the Robert-Barrett-Gorsuch part of the proceedings. I put Roberts next worst because I feel like Roberts has the wolf in sheep’s clothing problem. People like him. People think that he’s reasonable and so that allows him to be kind of far more unreasonable while operating under the sheen on the lacquer.
Kathryn Rubino: I think that’s a problem with people not with him necessarily, because I think if he wasn’t perceived as the center of the court, but rather what he is, which is the right of the court, then that would be fine. There are times when you can get him for a majority. There are times where you can — whatever. I think that him on the court would not bother me in a vacuum. He only bothers me in the sense that we have a fucked-up composition of the court right now. Do you know what I mean?
Elie Mystal: I hear what you’re saying. Look his Shelby County. I can’t get over Shelby County. Arguably the worst decision since last year, I just — I had an issue with Roberts, and that leaves me with Gorsuch and Barrett. The thing about Gorsuch and Barrett is that, first of all, I think they’re both very intelligent. I think Barrett — year one of Barrett has been – she’s asked consistently some of the best questions for her studies. She’s been really good on that. Barrett doesn’t think other women should be people. Gorsuch doesn’t think other minorities besides Native Americans should be people. So, like, which one — who you got kind of depends on which label you’re in. Barrett doesn’t think women or the LGBTQ community should be people. Gorsuch from Bostock thinks LGBTQ people should be people, thinks Native Americans should be people, just doesn’t think black people should be people.
Joe Patrice: Understandable.
Elie Mystal: Weirdly, I’ve got Barrett next and then Gorsuch in the top spot because while it hurts me personally, they’re fewer people Gorsuch doesn’t make us people than Barrett.
Kathryn Rubino: These are chairs on the deck of the Titanic, right? I mean, I have no problem with any of these rankings. I’m like, “Yeah, no, that they are also suck.” There’s lots of reasons, lots of people suck.
Elie Mystal: Chairs on the Titanic that are burning, yeah.
Kathryn Rubino: Barrett –
Joe Patrice: But wait the Titanic?
Chris Williams: Can Kathryn get the effects next show just the shivers.
Joe Patrice: I didn’t take that one, okay. So, we’ve come to the conclusion of this show. I think we’ve plumbed some of these minds. Yeah, so thanks, Ellie, for popping in because this was one where we thought you would have some good insights on this.
Elie Mystal: I had someone to save. Happy new year, guys.
Kathryn Rubino: Happy new year.
Chris Williams: Yes, a happy new year.
Joe Patrice: Happy new year. Obviously –
Kathryn Rubino: 2022 just as bad as the last one.
Joe Patrice: Obviously, before we let you go, let’s transition. Your new book has gotten a delay, but it’s coming when?
Elie Mystal: Apparently, the supply chain issues are real – my book got. The new publication date is March 1 for “Allow Me to Retort: A Black Guy’s Guide to the Constitution”. You could still buy them and pre-order from Amazon, Barnes & Noble, or your local independent bookseller.
Joe Patrice: Always remember that pre-orders like those do count towards the best seller lists.
So, by all means, go ahead and do that. With all that said, thanks, everybody for listening to the show. You should be subscribed to the show to get them when they come out. You should give them reviews, stars. Also write some stuff that sort of level of engagement gets more people to watch and listen yet so far. My transition to a full web show or whatever. Anyway, you should be listening to The Jabot. Kathryn’s other show. I’m a panelist on the Legaltech Week. Stop, you did that. I had it the Legaltech Week.
Kathryn Rubino: He doesn’t know the name of the show that his on. Every week.
Joe Patrice: Roundtable, you should also check out other shows by the Legal Talk Network. Read Above the Law all the time. You can follow us on social media. I’m @Joseph1 and if you go there, you can like this thing about Toobin.
Kathryn Rubino: You’re @JosephPatrice.
Joe Patrice: You’re right @JosephPatrice.
Chris Williams: Oh, my God.
Kathryn Rubino: I’m @kathryn1.
Joe Patrice: Yeah, I merge those things.
Kathryn Rubino: You don’t even know your own twitter accounts.
Joe Patrice: Because I was moving into the – I was transitioning into the Toobin joke and I didn’t really, yeah all right. Which now, I’m not even going to do because it’s all blown up.
Kathryn Rubino: Well, you did give the wrong information, so that was necessary.
Joe Patrice: I said hundreds of thousands.
Kathryn Rubino: Audio truthers unite.
Joe Patrice: Yeah, no.
Kathryn Rubino: It’s at @atlblogs ATL, @rightsforrent is Chris, @lenyc as LE. I remember everyone.
Joe Patrice: And you’re @kathrynI, the numeral one and read Above the Law so that you hear all these stories when they come out. Yeah, I think that’s it.
Chris Williams: Don’t miss Martin Luther King.
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 Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.
Podcast transcription by Tech-Synergy.com