Doth Protest Too Much? Not According To The Supreme Court

Episode Notes

Transcript

Joe Patrice: Welcome to —

Kathryn Rubino: Hello.

Jose Patrice: Welcome to the show.

Kathryn Rubino: How are you?

Chris Williams: Pretty good.

Joe Patrice: I’m good, yeah.

Kathryn Rubino: We’re the Above the Law crew as it turns out.

Joe Patrice: Yes, and we are here for Thinking Like A Lawyer hour podcast as the Above the Law crew, our most of the Above the Law crew actually, don’t want to say we’re all of it but we’re most of it here. We’re a quorum of the Above the Law crew. I’m Joe Patrice, you’ve also heard from Chris Williams and Kathryn Rubino there, we are here to give a rundown of the big stories of the week in law that you might have been already reading about in the pages, the digital pages of Above the Law. But if you haven’t, we’re going to do a little run down on them anyway,

Kathryn Rubino: Before we get there —

Joe Patrice: Wait, there’s something before we get there.

Kathryn Rubino: Well, usually.

Joe Patrice: What great fanfare do you want to introduce?

Kathryn Rubino: Oh wait for the fanfare.

Joe Patrice: Small talk.

Kathryn Rubino: Chris, how was your weekend?

Chris Williams: It was pretty good. I played through Kingdom Hearts 3 and I kept off about a decade of nostalgia, for people listening, you know that Kingdom Hearts makes about as much sense as Biden appointing pro-abortion judge immediately after saying he wouldn’t, he would support the women’s rights to not be incubators but oddly enough like the third take it has nice cohesion, it didn’t have any Final Fantasy characters which was odd. I miss seeing Cloud and Sephiroth, what have you —

Joe Patrice: This is of course the game that historically makes a bunch of Final Fantasy characters play with Donald Duck and Goofy to do something or other, right?

Chris Williams: Something or other. It makes about as much sense as most democratic campaigns. It’s like, let’s beat the bad guy. What are we going to do, though? I don’t know. We are going to be the bad guy. The bad guy can’t win. So there’s been that for three games and you know, it was fun.

Joe Patrice: I love that I’d given him two bites at the — makes about as much sense as joke. And then he had two in the hopper.

Kathryn Rubino: I mean yeah, it was a real professional give and take there.

Chris Williams: You know, it happens.

Kathryn Rubino: I got to see the new Marvel movie, speaking of Disney intellectual properties. The new Thor Love and Thunder, and I was pretty tired when I saw it, but I really enjoyed it. And I know that some people kind of were nitpicking about some of it but honestly, as like a two hour experience, highly recommend, cannot recommend enough.

Chris Williams: Was there any kiss references?

Kathryn Rubino: No, it was all Guns and Roses.

Joe Patrice: Yeah, it was very Guns and Roses heavy, I also saw it yeah.

Chris Williams: Come on, like God of Thunder and rock and roll like.

Kathryn Rubino: It was very Guns and Roses.

Joe Patrice: Guns and Roses, yeah.

Kathryn Rubino: Yeah.

Chris Williams: Okay.

Kathryn Rubino: Quite enjoyed it, to be honest.

Joe Patrice: Yeah, well —

Kathryn Rubino: How about you Joe did you do anything fun recently?

Joe Patrice: Yeah, I had had a little mini reunions with a lot of folks that I hung out with over the years who moved away and so on but they were all back in town. So had a nice little mini reunions with some folks and yeah.

Kathryn Rubino: Good stuff.

Joe Patrice: Yeah. So like with all that said we can put a stop to our friends at small talk here. Okay so —

Chris Williams:  So it gets me every time.

Joe Patrice: Yeah, nice.

Kathryn Rubino: It’s a thing. It’s a thing that we’ve continued to do

Joe Patrice: Yeah.

Chris Williams:  Let it be known, I have a memory of a — what we are talking about.

Joe Patrice: Yeah. So with that said, let’s move on — the biggest story of last week, actually couple of stories for us at Above the Law, both dealt with a similar issue which was the aftermath of the Dobbs decision and the Bruin decision and a series of problematic decisions for the country is that there are a lot of people protesting Supreme Court justices and Supreme Court justices.

Kathryn Rubino: Well, they took away a bunch of people’s rights so, you know that’s going to happen.

Joe Patrice: Supreme Court justices are very upset about this.

Kathryn Rubino: This is kind of the price of doing business like you want to take away rights? Okay, you know what you’re going to get in return, a bunch of protests. That doesn’t seem strange but it seems in fact incredibly predictable.

Joe Patrice: So there were two incidents really that drove this over the course of last week. The first is that the Marshal of the Supreme Court, who you may remember from various conspiracy theories that were pushed for a while, I don’t know if anyone does remember this but for a while, there was this weird conspiracy theory going around about how the Marshal of the Supreme Court is the person with unilateral power to cause an impeachment and stuff, whatever, it’s all —

Kathryn Rubino: Well the Marshal was also recently asked to look into the leak of the Dobbs decision, right? It’s funny how we haven’t heard any more about that though.

Joe Patrice: Yeah, it’s almost like when they figured out who it was, they decided it was somebody they didn’t want to tell everybody about.

00:05:05

Kathryn Rubino: That’s the feeling like what happened.

Joe Patrice: Yeah, anywho, the Marshal of the Supreme Court wrote a letter to the governors in Virginia and Maryland, ask them to step up their efforts to force people to stop protesting outside of Supreme Court justices’ homes.

Kathryn Rubino: How very un-American of them.

Joe Patrice: Well, look there —

Kathryn Rubino: I mean the Marshal.

Joe Patrice: Yeah, well look, there’s people marching outside your house is an annoyance. It is something that theoretically a government officials should be prepared to have happened, but you can definitely have laws that minimize the impact of that intrusion upon somebody’s day to day life. You can say you can protest in front of the Supreme Court but don’t bring it into private residences because it disrupts other people beyond just that. You can have rules about how many feet away people are allowed to be to protest. You could have rules about what times they’re allowed to protest. Theoretically, I say you can have all these rules. The issue is you can’t have any of these rules because the Supreme Court already ruled that you can’t have those rules.

Kathryn Rubino: Front row.

Joe Patrice: Several years ago —

Kathryn Rubino: Hoisted by their own petard.

Joe Patrice: And it is very much their own petard as this was opinion driven by the conservative majority of the court who said it’s perfectly fine for people to follow abortion clinic workers to their houses and stand outside their houses and protest all night. That was an opinion way back in the 90s where there was a rule that said you had to be 300 feet away from a private residence, to minimize that they ruled that that wasn’t fair and that you can absolutely follow people home from work and to protest what they do at work. So you know, that’s —

Kathryn Rubino: Exactly their petard.

Joe Patrice: That’s what the petard is. Look I just want to say —

Chris Williams: You all are so lucky, I’m not writing this article because if it was it would have been like oh Supreme Court justice is not allowed to stop you for protesting our further house because of abortion clinic jurisprudence and it’ll just be a picture of Brett Kavanaugh saying, oh you’ve got to be kidding me.

Joe Patrice: Well, you know, that’s a great transition because the second story that really happened on this note was that Brett Kavanaugh decided to go to a steakhouse on Wednesday and —

Kathryn Rubino: And Morton’s got involved in some constitutional jurisprudence.

Joe Patrice: Yes, so protesters showed up outside of that steakhouse, not inside. So still in public property, protesting and Morton’s Steakhouse helped Kavanaugh escape through the back door because the only alternative is the back alley at that point.

Kathryn Rubino: Woah.

Chris Williams: Woah. (00:07:47) it was a bad joke, you said it’s a really bad state for American jurisprudence.

Joe Patrice: In fairness I think you might have pitched that joke in our internal chat so full credit.

Chris Williams: Don’t put that on me, no, no, no, you take the fall here.

Joe Patrice: Okay. So here goes out the back door and Morton’s then decides to issue statements complaining about how this breaches the fundamental right to congregate and eat dinner which is not mentioned in the constitution —

Chris Williams: Not in the constitution.

Joe Patrice: Not in there. Actually, I will say a lot of us made jokes immediately after they did this about how it’s not in the constitution because that’s the somewhat arbitrary fig leaf that is tossed around in jurisprudence these days. However, I really got to hand it to the new republic who went all in on this and actually did an originalist analysis of the Anglo-American traditions of the 1700s and medieval common-law England’s dealing with dinner. I was very impressed with them pointing — going all-in to make this joke. Anyway, so that’s what happened to him and once again, this was an argument that people aren’t allowed to protest or you know, fragile geniuses, the delicate geniuses who do all this because they have life tenure to undemocratically do whatever they want without any repercussions, which put aside whether or not there should be limitations on exactly the time place and manner by which you can go after a Supreme Court justice for what they do, the issue remains the Supreme Court already ruled on this.

Kathryn Rubino: And let’s be very clear, right? That Supreme Court justices have infinitely more resources to protect themselves in the case of protests in front of their house. For example, congress recently just put more money into the protection of Supreme Court justices than someone who works at a Planned Parenthood or some other clinic, right? So already they’re in — it’s much more privileged position than the folks that they were already willing to throw under the bus. So, at this point, it seems very clear to me that you just have to live by the cases as they’re decided. Of course, we live in an era where that is wildly untrue and jurisprudence can be undone just because. So, I fully expect when this becomes a case in a year and a half for the six justices that were appointed by republicans to change their minds about this.

00:10:15

Joe Patrice: Well, what gets me is it’s almost — it’s worse. I don’t think that they have any interest in actually changing the precedent. They just want it to not apply to them.

Kathryn Rubino: Right, and that will be the case, right? It’ll be well, here’s a carve-out for us.

Joe Patrice: And I don’t know exactly how they create such a carve-out in any jurisprudentially defensible way.

Kathryn Rubino: Oh I’m sorry, are we — is that the standard jurisprudentially defensible because I don’t think we’re there.

Joe Patrice: Yeah I don’t know. It seems difficult but yeah and that’s the real crux to this problem. I feel that a lot of complaints from the stories that I wrote from people saying well how would you like it if protesters were doing this to, insert somebody else. And I’m like, that’s not really here nor there. The issue isn’t whether or not people should be protested in this manner. It’s this is the bed that the Supreme Court made for itself and very much not just the Supreme Court —

Kathryn Rubino: The conservative justices.

Joe Patrice: Yeah. This legal movement that they all ascribe to, created this situation and yeah it’s the hypocrisy of it that they just don’t want it to apply to them. That really is.

Kathryn Rubino: Yeah. And while it continues to be galling it’s not surprising.

Joe Patrice: Yeah.

Chris Williams: Another thing that people act like is in the constitution but isn’t that I think actually under guards a lot of this conversation, there’s no expectation or requirement for people to be nice and so much of this, I think, is a consequence of respectability politics that people have swept up to them. I mean, if we just think about the Dobbs leak when it happened, SCOTUSblog was like this is one of the darkest moments in the Supreme Court. No, no, no, I think you should think about other things, like actual events, like plus when it happens or this happening, or overturning like civil rights, that’s the thing but the fact that this seems screams of being impolite has more weight than the fact that this is what American decline looks like, like we seems like we can be in the climate as long as we’re happy about it and smiling. No, the issue is you went back on civil rights and your complaint is what about my steak dinner, right? Like that’s absurd. And I think it’s important to address that you can’t expect politeness from people that are literally causing other people to die. You know, there was a — remember the thing about, there was a 10 year old girl who was raped in Ohio and let her have an abortion. Yes, to go to another state like that’s the —

Kathryn Rubino: Indiana, yeah?

Chris Williams: Yeah, that’s the travesty. It isn’t the fact that there was a leak or that some dude can’t eat dinner and making the discussion about what is polite and acceptable in the public eye loses sight of what’s really happening here.

Kathryn Rubino: Right. But then they can’t be victims. If we don’t care about the politeness, then then Kavanaugh doesn’t pretend like he’s the real victim here which is exactly what happened during his confirmation hearings as well, right?

Chris Williams: Like not about the raping, I drink beer you know, can I drink beer, you know?

Joe Patrice: Oh what’s that?

Kathryn Rubino: It sounds like a telephone.

Joe Patrice: It does, but we’re in the middle of a show.

Kathryn Rubino: Somebody quick get that, somebody who’s not me.

Joe Patrice: Well, and that’s where you could bring virtual reception services like Posh.

Kathryn Rubino: It’s almost be like you know, exactly what you should do.

Joe Patrice: So let’s hear it from them.

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Joe Patrice: We are back and let’s talk now, continuing the Dobbs issue to the extent that that’s still kind of the most important thing going on right now. And now put a big spin on it. So Kathryn, we’ve talked in the past about your tracking law firms that have offices in Texas and other states that have banned abortion and what those institutions are doing and offering employees as far as coverage for reproductive health. What’s the latest going on there?

00:15:07

Kathryn Rubino: The Texas Freedom Caucus ironically named though it is, sent a very threatening letter to Sidley Austin saying that they believe that they were in violation of Texas law because they said that they would pay for travel costs for all of their employees and also said that they believed that they had facilitated someone taking the abortion pill in the state of Texas and we’re going to go after from that. It may told them that they needed to maintain all their documents related to the policy or any time that it may have been invoked and also said that they were planning on passing even more laws, making it not a felony offense for an employer to provide travel costs to their employees. And additionally, specific to sort of the legal world that any lawyer that was part of this, you know, either making the arrangements or an employer that provided travel costs would also be disbarred in the State of Texas automatically.

Joe Patrice: Yeah.

Kathryn Rubino: Well first of all, let me say there are a lot more firms that may expect letters although some of those firms also donate to a lot of republican political campaigns. So perhaps they won’t all see the letters. Even despite the fact that they are on record as saying that they are going to provide travel costs, we shall see. But yeah, obviously I think this is something that is — we knew was kind of coming. Certain Texas legislators have said that they were going to go after all sorts of employers and find them and do things to try to make it more difficult to cover the travel costs for folks seeking abortion care. But this is the first time it’s been launched at a law firm and honestly, I don’t know why it seems if I were playing strategy for the Texas Freedom Caucus which fortunately I am not, maybe you don’t want to start with a big law firm. Maybe someone who has all the legal resources that can be harnessed, maybe isn’t target number one. But here we are.

Joe Patrice: It strikes me as though there’s a bunch of problems with this. And I think there’s and you and I chatted internally. I don’t know if you’re ready to talk about the possibility that there are some preemption issues with this.

Kathryn Rubino: Yeah, I mean, obviously I’m sure Sidley has a wide variety of legal arguments at their disposal but one thing that some folks has have raised is that federal law preempts state law and most of the employer sponsored healthcare is done under ERISA provisions and there’s plenty of jurors — I mean, I don’t know the specifics of Sidley’s healthcare plan, obviously. But there is lots of jurisprudence saying that ERISA would supersede any state legislation. So then, as most of it is done under — most of the travel cost provisions are done underneath that firms.

Joe Patrice: Self-insurance, yeah.

Kathryn Rubino: So you know, I’m sure there are plenty of legal arguments that firms have simply at the moment has available to them.

Joe Patrice: I mean, I just think that’s a really interesting one because I always find ERISA very fascinating. I am not an ERISA lawyer, but I hung out with a lot of them are over my career and so I always find that an interesting area. So when you raised that with me, I thought that that was really interesting. There’s also of course, the more fundamental issue which is this is an attempt by a state to impose criminal sanctions on an entity for aiding and abetting something that is not actually a crime in the jurisdiction in which it would take place. That is a wild set of jurisdictional issues to say.

Kathryn Rubino: Yeah, so you know, it’s like, should Texas be allowed to prosecute folks who go to Vegas because gambling is not legal in Texas?

Joe Patrice: Right. Like it’s that level.

Kathryn Rubino: That’s what it is, that’s exactly what it is.

Joe Patrice: Well, I mean, it’s the level of New York prosecuting people for buying guns in other states that are regulated here. Like you can’t go down that road because it would get really weird. Because this weirdly would be aiding and abetting something where the underlying crime is not a crime because it happens in a jurisdiction where it’s legal. So I don’t understand how the aiding and abetting happening in Texas can matter if the thing aided and abetted is not illegal when the jurisdiction —

Kathryn Rubino: Well I think that there are two wrinkles, I guess to what you’re saying the first is that the one of the more common ways to get an abortion are a series of abortion pills, right? And while you may go to another jurisdiction to procure the prescription and perhaps even take the first dose outside of the jurisdiction, one of the points that the Freedom Caucus makes in their letter is that if the second pill is taken within the State of Texas, then they claim jurisdiction over the entire issue. But the second thing which let’s be clear, the letter does not limit it to taking the abortion pill in the State of Texas.

00:20:04

They point that out as one possible violation, but certainly not the only one. The other thing I was going to say is that, don’t forget that in Brett Kavanaugh is concurrence in Dobbs, he specifically points out that folks can in fact travel to other jurisdictions to get abortions. He says that, of course, we wouldn’t be able to stop that because the right to travel etc., etc., but the thing that always struck me about that particular section of his concurrence is that it’s not in the majority opinion.

Joe Patrice: Yeah.

Kathryn Rubino: So does that mean that there are already four votes to ban travel?

Joe Patrice: Yeah, my Takeaway on — and I agree with you. My take away on that was that the chief and Kavanaugh are prepared to join that you know, basic tenets of federalism could prevent that but that the other four are not in that position.

Kathryn Rubino: I mean, that’s fairly tenuous. It doesn’t make me filled with confidence at all, particularly since the chief has not actually come out about this. You would think.

Joe Patrice: Given that the chief was not ready to overturn road, you would think that he would — yeah, that’s fair.

Kathryn Rubino: But I would also say that folks have changed their minds on lots of these things, people have made statements and then you know, had during their confirmation hearings then did pretty much the opposite so I’m not — doesn’t make me super happy and the fact that four justices seemed very willing by virtue not being in the majority opinion seemed willing to say that travel bans are okay, is an incredibly bad place for the whole American experiment, right? Like the tenant of federalism is sort of fundamental to how this country is organized and this hits at the root of it.

Joe Patrice: Yeah, for better or —

Kathryn Rubino: For better or worse.

Joe Patrice: Usually worse but in this case —

Kathryn Rubino: It does not seem to both particularly well for American federalism which again is the foundation of our country so, we have that to look forward to.

Joe Patrice: Okay, so now let’s transition to one of the other late term decisions there. So Chris you wrote about gun control last week. How did that work for you?

Chris Williams: Well, it was good in my book because I always love to deploy a nice little Futurama reference, but speaking of protesting justices and when they’re trying to get food. Yesterday, I was chilling in my house around 3:13 or so and I get some long hate mail from some dude, talking saying, oh don’t you know the second amendment agreement we have to protect us, I can’t believe you’re talking about — listen I was playing to Kingdom Hearts. I just sent him a quick message. I’m not reading all that. Have a nice day, took a screenshot of it. Put on Facebook. Me and my friends laughed at him and that was a good response but I take that to mean that people really don’t like the idea of being bullied for having guns which I think we should keep on doing. Like, when you see some dude with an AK walking to get a sandwich at Subway, people need to treat it like when you hear some dude on a really loud motorcycle going down the street like you’re being an adult like, none of this is like as cool as you think you are about it, you know.

Joe Patrice: I think it’s really commendable of you that you didn’t appeal to the fundamental right to congregate and post stories as the reason why no one should criticize you like some people have. See, that was a reference to (00:23:28), I’m tying it back to the first.

Kathryn Rubino: Yeah, I saw what you did, I just wasn’t particularly impressed by it.

Chris Williams: I was still thinking about Kingdom Hearts 3, I’m a little lost in that kind of reference.

Joe Patrice: Yeah. So anyway, so yeah, so that happened obviously we deal with funny hate mail all the time.

Chris Williams: And we laugh at you, like to be clear, we laugh at you like it doesn’t make us anymore any de-motivated or anything besides making us mumble our words.

Joe Patrice: In fairness, I don’t know, is that we should say you, my assumption is everyone listening to this show is not because it would be a real commitment to listen to this show every week just to send us hate mail.

Chris Williams: Hey, they read enough — anyway, that was you Queen’s U, the Queen’s U, you left the Queen’s U, okay go.

Kathryn Rubino: I’m not sure though that that is accurate, because I’ve certainly gotten plenty of hate mail that is based either of the first sentence or the title and I was like did you read it because paragraph two answers everything you just said so I’m not sure that they’re actually clicking on these stories.

Chris Williams: Here’s the thing though. With mine, me saying we should bully people that are gun owners, that was like the last paragraph so that motherfucker read my shit. He read it. And my fault was, he read it, it was like, I don’t have anything constructed to say, I’m going to insult his parents, so then I posted to him on Facebook and my mom sees it and we’re laughing at him. So my mom appreciates the joy you brought. Keep it up.

Joe Patrice: That’s the thing. You all just bring us joy.

00:25:00

Kathryn Rubino: Everyone is bringing us join this week. Brett Kavanaugh less so though.

Joe Patrice: All right well real quick because this hasn’t gotten very far as of the time of this recording, but I think we would be remiss not to mention it at least as something that we will probably be talking about a lot come next week. But Elon Musk has pulled out of the Twitter deal. In a rare instance of Elon Musk pulling out. Dude has 10 kids, the point is including twins that we just learned about last week. Anyway whatever. So he’s not doing this Twitter deal which all of us said he wouldn’t be able to do the day he announced he was going to do it and we got a lot of hate mail for that too saying that of course he can do it because he could do anything and as it turns out we were all right, thanks. We should take ourselves on our little victory lap.

Thank you. Anyway. So he’s pulled out of this deal. Twitter is now going to sue because the merger agreement that they had signed, had a provision that if he botches the deal he owes them a billion dollars. They have hired Wachtell Lipton to help. They already had Simpson and Wilson Sonsini on the case too. So now they have a triumvirate of big law firms working together to sue him and they plan to sue him early this week according to reports. So you know this will be fun.

Chris Williams: When you have that much money, a bad pull out game cost you.

Joe Patrice: Yeah. And so he is represented by Skadden who has sent some letters about this deal that a great piece in Bloomberg by our former colleague met with him who used to work at Dealbreaker which is of course the sister site of Above the Law covering finance but now he’s at Bloomberg. Matt Levine wrote a very detailed description of why this Skadden letter doesn’t seem to make any sense. And why Musk faces a very uphill battle if he plans to defend himself against Twitter’s claims. So yeah, we’re setting up for what could be a very interesting litigation.

Kathryn Rubino: I mean it’s certainly going to give us many, many, laughs and chortles. So let’s do this.

Joe Patrice: So, sometime after we’ve recorded this and before next week, we should have a complaint to review and see what the most fun allegations in there are. And yeah so —

Chris Williams: What’s the over-under on Grimes releasing the dissed track?

Joe Patrice: Yeah, I’m actually surprised at how Grimes hasn’t done that yet, but I said, yeah, I’ll be honest, I don’t know anything about Grimes other than other than apparently a musical artist who’s had a couple kids with this guy. Does anybody like —

Kathryn Rubino: That’s enough.

Chris Williams: Again, Kingdom Hearts 3, I’ve been focused on the gaming and pissing off racists.

Kathryn Rubino: Hey, listen that’s a pretty busy week.

Joe Patrice: Yeah, anyway so, we’ll look forward to all of these Musk coverage probably going forward. With all that I think we’re done for the week so thanks for everybody for listening. You should subscribe to the show if you haven’t already, so you get new episodes when they come out, you should give it reviews, stars, write something up about it, all helps. Make sure more people find the show and get to hear the dulcet tones of my voice and you know, everyone else is too. So yeah, so do that, read Above the Law so you can see these and more stories as they come out. You should be following us on social media. I’m @josephpatrice, she’s @kathryn1, Chris is @WritesForRent, you should be following the @ATLblog Twitter account as well to get new stories as they come out. With all that said — oh, follow, we have some other podcast, Kathryn host a podcast called The Jabot. I’m a panelist on the Legal Tech Week journalist roundtable for all the legal tech nerds out there of which I assume there’s at least a few who like hearing about how AI is changing the legal tech space.

Chris Williams: It’s three of you. We know it’s three of you, we’ve seen the data. Shout out to you and Sacramento, Steven.

Joe Patrice: You should also be listening to the Legal Talk Network’s other universe of shows, and now thanks to our sponsors.

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