The Supreme Court Ethics Scandal That Just Won’t End

Episode Notes

Transcript

[Music]

Kathryn Rubino: Hello and welcome to the latest episode of the Thinking Like a Lawyer Podcast. My name is Kathryn Rubino. I’m a senior editor at Above the Law. And today, I’m joined by my colleague Chris Williams, also of the Above the Law. Welcome to the podcast, Chris. You will notice our compatriot Joe Patrice is not here, so there’ll be less sound effects and less annoyance coincidentally. How has your weekends, Chris?

Chris Williams: It’s a good weekend. I just got a second tattoo done.

Kathryn Rubino: Oh.

Chris Williams: Yeah.

Kathryn Rubino: Is it like a deeply meaningful or just pretty art?

Chris Williams: It’s deeply meaningful to someone.

Kathryn Rubino: Are you that someone?

Chris Williams: No. Maybe one day. Yeah, so it’s a Sak Yant tattoo, like a traditional Cambodian style tattoo, and it’s like, supposed to be like a protection from bad luck, you know, things like that. It’s nice. I did like a small little prayer ceremony before I got the tattoo. But I won’t even pretend to know exactly what it’s about. I’ll either have to Google or ask the guy to be like, yo. What is this. But it looks cool and you know, if I ever find a need to wear some hoochie daddy shorts or peek out a little bit, so it’ll be like.

Kathryn Rubino: There you go. I mean, listen, I hate to admit that I am fairly superstitious, but I am, in fact, fairly superstitious. So, I think anything that can keep the evil spirits away is — I mean, what’s the harm, right?

Chris Williams: Right. There’s the old, you know, the Neils Bohr’s story about the horseshoe?

Kathryn Rubino: No. Oh, we have to catch you to turn it up. The right side up so that it catches the luck. Otherwise, it goes on the ground. Is that what you’re talking about? Or, is there some other horseshoe story?

Chris Williams: Well, tangentially related. So, Niels Bohr, who was a scientist, and he had a barn and he had a horseshoe on it too, like ward off bad spirits, but then when his friends came to his house and he was like, you’re a naturalist. You’re a straight up scientist, materialist. You don’t believe in this shit. And he was like, yeah, I don’t, but I was told that it works even if you don’t believe in it.

Kathryn Rubino: Yeah.

Chris Williams: So, I’m hoping it’s the same thing on my tattoo. Like somebody, somebody says it’s protective, so hopefully that’s good about it.

Kathryn Rubino: Yeah. You know, I’ll be honest, I think I’ve never realized how superstitious I am until I was pregnant. And then everything was potentially bad luck. I think for the first, you know, you’re not supposed to say anything for the first 12 weeks, and I didn’t say anything for 20 weeks because I kept on being like, I don’t know. We should wait. Let’s double check. Let’s make — let’s really make sure. Let’s wait until after this test or that test because there’s a lot of them. And I was like, this is just asking for trouble. Why are we spreading our good news? This is just the universe is just going to want to shit on us now. Keep it to yourself. Don’t brag to the universe that things are going well.

Chris Williams: I didn’t know superstitious was a thing until today, but now, now I know. Supers for the normies.

Kathryn Rubino: Yeah.

Chris Williams: But yeah, how about you?

Kathryn Rubino: Yeah. Well, I, you know, coincident, not coincidentally, since I am, in fact, almost to do with this baby, but spent a good portion of my weekend putting together baby furniture.

Chris Williams: Okay. Like baby Ikea or?

Kathryn Rubino: Well, we haven’t begun because it’s bad luck to get this crib too early. I haven’t gotten a crib yet.

Chris Williams: Okay.

Kathryn Rubino: Because then, you know, it’s very bad luck. My friends actually, a very good friend of mine who was one of the people who threw my baby shower last weekend. She actually found a baby furniture store when she was pregnant that wouldn’t deliver the furniture until after she had had the baby. So, from the hospital, she had already purchased it and all that kind of stuff picked it out, went to the store, picked it out. And she called them from the hospital so that they would schedule a delivery after she actually gave birth because she thought it would be bad luck to have it in the house before she actually had the baby. So, I don’t have the crib yet. But I did put together the swing, the bouncy seat, the playpen, all accoutrement that you apparently absolutely positively must have for a newborn infant.

Chris Williams: Let me know when you put together the college fund. I’ll feel like 10 or 20 bucks.

Kathryn Rubino: Yeah. It’s a grandma and grandpa joint, I think.

Chris Williams: That’s cool.

Kathryn Rubino: Well, I guess that’s the end of our small talk. It’s less fun to make fun of small talk when Joe’s not here. I can’t lie. But —

Chris Williams: He’s complaining in spirit.

Kathryn Rubino: You know, I think he’s apparently very ill, so he’s probably actually complaining at the moment as well.

(00:05:00)

So, we would just get added on to his current list of complaints. So, the first thing that we have on today’s agenda is the New York bar exam. Apparently, once you’ve already created the test and administered the test, you would think at that point, the hard work of being of administering the bar exam is over, right? People have taken the test. You’ve graded the test. You just have to let people know whether or not they passed. That can’t be the hardest part.

Chris Williams: Right. What happened?

Kathryn Rubino: You’d be wrong. New York bar exam for the February test takers was supposed to send out the notification saying that at midnight there were results were available. However, when you actually plugged in your information, it was, you couldn’t log in.

Chris Williams: Yeah. That would have tormented me because my personally, because I don’t know about anybody else, but I was one of those people that had nightmares about failing a class after I had already graduated from the institutions.

Kathryn Rubino: Oh, no.

Chris Williams: So, like, I woke up like, “Oh shit, did I miss it too?”  Oh, I already got the JD.

Kathryn Rubino: They can’t take it back. Apparently in Texas, they can. But yeah, so, apparently folks spent the majority of the evening or not evening, because they don’t actually let you know until midnight. I don’t know why they’ve decided that that is the right time to find out. Because only good things happen after midnight, right? That’s when you can log in to find out whether or not anybody who had a JD was unable from an American institution, apparently, was unable to log in. But folks who were LLM folks, they were able to log in and find out whether or not they passed. But you could apparently find out.  You could register for the next administration of the bar exam. You could do that. You just couldn’t find out whether or not you’d actually passed.

Chris Williams: So, they were still accepting money for the next test? Just (00:06:58).

Kathryn Rubino: Correct.

Chris Williams: Got you.

Kathryn Rubino: People were losing their — I mean, rightfully losing their shit saying, “Is this like a subtle way that they’re trying to tell me that I failed the exam?”

Chris Williams: Are you sure you want the grades? We can give your final register. I mean, unless you show us that, a company still has its priorities in shared courses. Paying us on schedule.

Kathryn Rubino: That they’ve got that on lockdown. I know our colleague Joe wrote about it initially. And query, why after midnight is when it’s released? Why not 9:00 a.m.? Why not in the middle of the day at some point? Because I think that all of the phone calls started going to an automated voice messaging services, because they were not available to help people troubleshoot these issues. They were aware of the issues, and working on it. But no one was available to take people’s probably irate phone calls.

Chris Williams: Yeah. I think at some point, you have to just accept that people do things out of spite. Releasing them at a time where there’s literally no mechanism for feedback outside of mean Twitter posts. That’s deliberate.

Kathryn Rubino: Yeah. I mean, listen, when I had to log in to find out whether or not I passed the New York bar, it was — I didn’t see it. I didn’t have the big picture, at that point in my legal career, and it felt like I’m like, “Oh, they’re giving us plenty of time to drink before we find out our results.” And then plenty of hours still left before the bars close at 4:00 a.m. in New York City. So that’s kind of how I took it. I was like, oh, you’re giving me a chance to celebrate and or drown my sorrows. I will to be doing probably some combination of those things. It was a bit of a debacle. That, folks are dealing with. But now, everyone knows whether or not they’ve passed the bar exam, so congratulations to those.

Chris Williams: To most of you.

Kathryn Rubino: Well, I don’t know how good the bar passage rates were around the country. They have just not been where they have been historically.

Chris Williams: One of the fun things, I think, fun and like that cool abstract terrifying way. I do think that as we see AI continue to progress like we can start to see properly human things who become more obsolescent, opposite lesson, active, right? So, we’re already at a point where AI tends to get a better score in the bar exam than humans. So, it’s like it has to be like a new level of pain.

Kathryn Rubino: Well, AI is able to pass. I don’t know that it’s better scores, but they are able to pass.

Chris Williams: I’ll tell you what.

Kathryn Rubino: That’s all you need to have your (00:09:37).

Chris Williams: For the amount of people that fail, the AI is doing better than a lot of people.

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Kathryn Rubino: So, the Clarence Thomas ethics scandal continues apace. And I think the latest–

Chris Williams: Let’s be clear. We can’t talk about that because it will be racist.

Kathryn Rubino: No. Oh, okay. Okay. Ted Cruz appears to have insert himself in the conversation. What’s going on with him?

Chris Williams: Everyone’s — is it Senator Ted Cruz?

Kathryn Rubino: Senator, yeah. Yeah, Texas senator.

Chris Williams: Yeah. I stopped carrying what role he had in office once I realize there was like a crisis in Texas and he was caught getting off flight to Cancun. Once somebody just leaves their authority to like that capacity, it’s hard to get them an honorific. But anyway, zodiac killer.

Kathryn Rubino: Now, the voters in Texas continue to do that.

Chris Williams: Power to them. Power to them, yeah. But as a non-Texas resident, that guy, he recently called out the understandable frustration that people have had for Clarence Thomas having a sugar daddy for 20 years while still in the court and sitting on bribery cases.

Kathryn Rubino: Right. He got luxury travel from Harlan Crow amongst some other gifts throughout the years.

Chris Williams: Yeah. And a bunch of goofy stuff like one of the — last thing that he reported before he stopped reporting was like a $20-dollar Bible that used to belong to Frederick Douglass I think. Like just a lot of stuff. Crow donated a statue that was dedicated to, I think like some of the nuns that raised him, like boxes mother’s property. So, he’s technically his friend’s landlord, a lot of stuff. A lot of stuff.

Kathryn Rubino: His friend’s mom, is the landlord without charging her rental. Don’t worry.

Chris Williams: Yeah.

Kathryn Rubino: Completely above-board stuff.

Chris Williams: Normal things.

Kathryn Rubino: Very normal. Very, very normal stuff.

Chris Williams: Things bunnies do. You know, like who doesn’t have a friend that’s given us you know, $500,000 worth of — did you get the point? And this has been happening for decades. There are articles from like 2004 calling out Justice Thomas’ lavish gift receiving which is fine in and of itself but he’s not reporting it.

Kathryn Rubino: Right.

Chris Williams: And of course, that makes it, you know, hard to, you know, trust that a person is being transparent when all this undisclosed amount of money is flowing from somebody’s pockets to his and he’s not doing the simple thing of just saying it which is required to by law. All his other colleagues have been doing it. So, it really looks weird for anybody odd one now.

Kathryn Rubino: Yeah. I mean, I think that what was Clarence’s excuse for not reporting, the real estate transaction, he said, “Well, I didn’t make a profit on it. So, I didn’t think I had to report it”. Although now, he said that he’s going to amend those disclosures which is, you know, at the very least the acknowledgment that he, in fact, has to make those disclosures.

Chris Williams: Yeah. And for the other stuff–

Kathryn Rubino: What did Ted Cruz do in all this?

Chris Williams: Oh, you know–

Kathryn Rubino: Yeah, that was a story.

Chris Williams: I think he just — Ted Cruz all those people where he’s like itching to get a good feeling, like public eye. I remember, I think was one story where he said a thing that he immediately went to Twitter to see what his polls were.  I think this was the same thing.  He just wanted to be involved with having something to say about Clarence Thomas.  He said that this is nothing more than people being mad at Clarence Thomas for having the audacity to be a black Republican. And no, it’s the law breaking. Sorry. They know like it’s the 20 years of a person in a high position of authority and influence shooing away at that but then holding people accountable. It’s a really bad look for him to still be sitting on a bribery case you know. Like there are many things you can point to and be like, “Oh, he just happens to be black” which I’m sure Clarence Thomas would also say. Like this has nothing to do with his race due to the fact that he broke the law egregiously for decades. I’m pretty sure — I’m sure would hurt a little more for me to do but I write the same type of thing if Sotomayor or God forbid. Ketanji Jackson were caught doing the same things. And it’s wild thing like how the threshold for what council’s acceptable action has changed over the day or was it Abe Fortas, the prior justice who–

Kathryn Rubino: Resigned?

Chris Williams: — who resigned over 20,000 dollars. He gave the money back.

00:15:01

Both sides are like, “Yeah, you can’t do this.” But he’s like, “Yeah, you’re right.” And then to go from that to Justice Thomas saying, “Oh my friends said it was cool, come on.”

Kathryn Rubino: Yeah. I believe in accounting for inflation and whatnot. It is a stark difference in the amount of money that we’re talking about as well. Now, we live in some corrupt times.

Chris Williams: Which is — I mean, they’ve always been corrupt. Don’t get it twisted. But this is like super corrupt like can we at least keep up appearances, you know?

Kathryn Rubino: Yeah. You know, it is interesting and I know Judge James Howe also made comments sort of brushing off the severity of this ethics scandal for Clarence Thomas, but you remember the line is the mere appearance of impropriety–

Chris Williams: Mere appearance.

Kathryn Rubino: –is what you’re trying to avoid. It doesn’t even have to be improper. It has to appear a little bit improper for it to be bad and we have blown completely by that and past that and want to see, you know, “Oh, it’s only a problem if he explicitly promised Y result for X amount of dollars. It’s really different.

Chris Williams: And it also doesn’t actually see like across the different areas of politics, how people get mad at things. I remember there was also a time where people got mad at the president for wearing a tan suit. Remember if you were mad at Obama wearing a tan suit, but to go from a sitting justice.

Kathryn Rubino: That was also disingenuous though, so I don’t know why they actually mad about it.

Chris Williams: Yeah. But also, again, like the threshold was so low. You remember when I used to have like – anyway,

Kathryn Rubino: Well, I mean, it was, you know.

Chris Williams: Yeah.

Kathryn Rubino: There are reasons.

Chris Williams: Yeah.  And also, not necessarily judicial label. His name was John Cornyn being like “Oh, everybody does this.” Imagine if you ask all the senators that receive personal gifts, personal hospitality. That doesn’t make it better.

Kathryn Rubino: Right.

Chris Williams: Like the defenses to this has just been like “Oh, this is more”.

Kathryn Rubino: For telling on yourself, yeah.

Chris Williams: Yeah, yeah.  And it’s a hard time to believe in the rule of law really.

Kathryn Rubino: Yeah. Well, you know, welcome to the year of our Lord 2023, friends.

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Kathryn Rubino: Okay. Well, we did get some slight good news at the end of last week. The Supreme Court issued a stay in the abortion pill case, meaning that the very, very questionable decision of Matthew Kacsmaryk that was at least in part upheld by the Fifth Circuit will no longer be in effect while it goes through the appeal process and the abortion pill, will be as available as it’s ever been during the appeal process. It was done by an apparent vote of 7-2 and with Clarence Thomas publicly dissenting and not joining the written dissent though that Samuel Alito wrote, but dissenting as well. So, we believe it’s a 7-2 decision, but Alito got some — Alito got big mad, big mad about the decision and his opening paragraphs of his dissent call out three of the four female members of the court before things that they have said about the shadow docket. Although, Amy Coney Barrett is the third woman on the court. They get some of his ire, because Justice Jackson hasn’t had nearly enough time of the court to write stuff about the shadow docket, but he calls out, you know, and Elena Kagan has been very vocal about her opposition to the shadow docket and the way that the court has increased its use of this sort of extrajudicial mechanism for lawmaking as has Sotomayor. But I think that the key difference here that, Alito refuses to acknowledge is that by issuing to stay, they keep the law the same.

(00:19:59)

They keep the access to the abortion pill which is, you know, incredibly commonly prescribed in this country and incredibly safe as well. It keeps it going. It’s quite the opposite, that it isn’t lawmaking but rather preventing this kind of bizarre, extra judicial lawmaking by people like Judge Kacsmaryk from Texas.

Chris Williams: What was your immediate reaction to it being 7-2?

Kathryn Rubino: I mean, not surprised. I mean, I guess, you know that’s — those are the people who publicly dissented, it could have been a slightly different breakdown. But I think that Judge Kacsmaryk’s decision is wildly out of line with even Republican talking points about abortion. I also think that if allowed — if that decision goes through the Fifth Circuit and comes up to the court and they kind of endorse it, then I think we don’t have a functional FDA in this country, means we don’t get cancer drugs anymore. I think that those sorts of repercussions are things that someone like Amy Coney Barrett probably cares a lot about. So, I think that this is bigger than just the talking point, the pro-life talking points, but I’m quietly optimistic that this will not be a bad decision, because it will come back around, right? To stay just, means that you continue to have access to the drug in the status quo, the same way you did before Kacsmaryk got involved. It doesn’t mean that at the end of the appeal stage that this doesn’t come before the Court or the Supreme Court again. I think it’s highly likely that it does come before the Supreme Court again, and we’ll see what they do with it there, but it is at least encouraging that there appear to be a few votes in support of the Federal Drug Administration. This is how we’ve done things for a really long time and I think that those who want to watch the world burn, don’t particularly care or aren’t really concerned with what the repercussions are, but I think they will be vast. I think they’ll be vast.

Chris Williams: You know, things are bad when Big Pharma is like, hey, you know?

Kathryn Rubino: Yeah.

Chris Williams: There was like a list of like a bunch of pharmaceutical company CEOs that got involved and was like, “Oh yeah, there’s too much money in this.”

Kathryn Rubino: Yeah. I mean, the decision would completely unwork the entire way that drugs get approved in our country. It would be wild in the worst way imaginable. I think that that has a lot to do with why it was, why we have the current stay and why I don’t necessarily think it is an easy conservative victory, should it come back to the Supreme Court. You know, for generations, conservatives made their nut by pointing out that they were on the side of big business. You know, big farmer was their big friend, you know. And I think that this really complicates the situation. It’s like Chris Christie recently went on the attack against Ron DeSantis because of Ron DeSantis’s sort of vendetta against Disney, saying, “I thought we were conservatives. I thought Republicans were on pro-business. This is not pro-business. This is personal. This is what I thought liberals did. This is not what conservatives do.” And I think that there’s this kind of push and pull, in the far-right movement right now between these policy goals that the more religious, more side of the party want to do and those that have just been pro-business and they’re the ones that have been funding it for — that’s where the money is. So, it’ll be interesting to see how it all gets squared away.

Chris Williams: Yeah. I think there’s some trouble brewing between the religious right and the religious right to profit. I think. But yeah, I think it’ll go buttheads on the issue of abortion. I’m just waiting for there to be a religious gun case, because that’ll be hard. Like who do you support in that innocence? And now, you’re ready in the church. And I’m just looking forward to — not looking forward to optimistic but just like, these will be interesting times.

Kathryn Rubino: What I wouldn’t give to live in some precedented times these days.

Chris Williams: Could a thing to be precedented for years?

Kathryn Rubino: Yeah.

Chris Williams: That’s some term. A good four years of precedent.

Kathryn Rubino: Oh, yeah. We’ve seen this before. This makes a lot of sense.

Chris Williams: Yeah.

Kathryn Rubino: I would love. For once, that to be my reaction to some new story. Oh, that makes sense, not –oh. What is the right wing going to do when they have their anti-abortion crusade come to a loggerhead with their support of big business? Who wins in that one? Because I don’t think it’s us.

Chris Williams: Yeah, yeah. I mean, I wonder how many cases it’ll be until you’re like, “You know what? Other countries look good.” Some of those things (00:25:03).

(00:25:03)

Kathryn Rubino: All right. Well, it seems like we are running low on time, but you should definitely check us out. We’re on Twitter at ATL Blog. I’m on Twitter at Kathryn1, Chris is on Twitter at —

Chris Williams: The numeral 1.

Kathryn Rubino: The numeral 1. Chris is on Twitter at rightsforrent. You should definitely be reading our stories at Above the Law. You can kind of get a preview about some of our bigger stories are before we start talking about them on the podcast. You should be checking out the rest of the podcasts on the Legal Talk Network as well as the Jabot podcast, which is an interview show that I host about diversity in the law. I think that that is all the things that Joe makes a really big deal about at the end of the show but those are things that have to be touched on. So, have a great day, y’all.

Chris Williams: See you next time.

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