So, Are We Just Ignoring The Supreme Court Now?

Episode Notes

Transcript

[Music]

Kathryn Rubino: Hello and welcome to the latest episode of Thinking Like a Lawyer, my name is Kathryn Rubino. I’m a Senior Editor at Above the Law and today, you know, my co-host is Chris Williams also of Above the Law. Hi Chris.

Chris Williams: Hello. Hello.

Kathryn Rubino: How are you doing?

Chris Williams: Pretty good. I guess until we get into the small talks segment.

Kathryn Rubino: Well that as good a transition as any, we don’t have any sound effects once again. Joe Patrice is on Family leave, new dad, so he won’t be here. So we don’t have any official sound effects so bum pata, small talk.

Chris Williams: Cool, yeah. So, what did I do this weekend? I do not see Barbie still on the list of things to do, but I did see —

Kathryn Rubino: Real shame.

Chris Williams: Shakespeare in the Park.

Kathryn Rubino: Oh nice.

Chris Williams: Yeah so there was a –

Kathryn Rubino: What’s like.

Chris Williams: I think it was two Gentlemen of Verona.

Kathryn Rubino: Very nice.

Chris Williams: Have you seen it?

Kathryn Rubino: No, no, I haven’t left the house much in the last couple of the months.

Chris Williams: So play by the bard and they took some liberties with it, one it was a musical and two, everyone was like dressing like 70s clothing. So it was like one character who had like a white tux and a black shirt like he was fresh out of Boogie Nights, who’s doing like the veils and vows, and it was fun. It was fun.

Kathryn Rubino: Or Saturday Night Fever, the actual movie from the 70s that it was referencing.

Chris Williams: Yes, yeah. Yeah it was nice, got some recuperative sleep in, which is the good kind, and not I got 20 minutes, right I do the next thing sleep, and a bit of nerd drum, it was Poliwag Community Day. So for any Pokémon go players out there, I got a rank 12 Poliwrath. So if you see me beating ass, that was from this weekend.

Kathryn Rubino: Wow, that that really feels like a blast from the past. I definitely in the — when it first was released was all into it. I can remember seeing at the –

Chris Williams: You were playing?

Kathryn Rubino: Yeah, for sure. I mean I was a person in 2012 or whatever it was released.

Chris Williams: With Joe?

Kathryn Rubino: I can’t remember still in the AT — yeah, for sure.

Chris Williams: Oh my God.

Kathryn Rubino: I can remember sitting in the ATL offices and David Ladd, our former coworker, Joe and I all being like, if we go into the kitchen, we can catch up whatever I don’t even remember what it was, some carp, maybe a magic carp, is that a thing. I feel like that’s a thing. Yeah, I mean I definitely played for a minute but I don’t know you have to go places to play that game.

When really, when I play games on my phone, I want to just kind of dissociate for a minute or two and just sit down. And I think that if you could, I would get those, were those things when the things would come to you.

Chris Williams: Oh, the words?

Kathryn Rubino: Yeah, yeah, yeah. And then like that was fun. That was fun. I can remember definitely like playing in cabs as I was like going from places in the city and be like, oh, there’s one on that corner. If we stopped at that light, I can get it in and like the laziest version ever. I think is the opposite of what they intend with that game but here we are.

Chris Williams: That’s cool. Yeah. It was – I felt like everybody from like 8-year-olds to 86-year-old, clan members played that like it was a closest thing to world peace.

Kathryn Rubino: It was a real vibe for a minute like I remember being on like a family vacation and like my little cousins playing it and being like oh well I’ll go take a walk to the beach so that we can all catch some I don’t know, whatevers, I mean in my defense zone, I don’t know any of these names. I was never particularly into Pokémon pre the game, you know, I feel like it wasn’t like a property that I was already very familiar with unlike something like Barbie for example where I was like Peaches N Cream Barbie, Day-to-Night Barbie. That’s exciting, little different but yeah.

Chris Williams: And what about you?

Kathryn Rubino: Oh, what did I do? I went to my godmother’s 70^th birthday party, it was a surprise. I did not know it was a surprise party until the day of. So I’m just very glad that I didn’t mess anything up. So points for me, but I was unaware there was a surprise party but it was good. It was fun. It was my daughter’s first party she’s ever been to. So that was a weird, weird thing but when you have a newborn baby, you become the default kind of center of attention in a lot of ways and a lot of people come over, want to see you, want to touch the baby, want to hold the baby.

We got our a fair dose of germs and now our home. I think that that might be all for small talk and we can start on our first story. The first story we are going to talk about this week is actually in the US v. Hunter Biden case.

(00:05:02)

Although it’s not about Hunter Biden, it’s actually a big law story, but it was revealed that there was an order to show cause why Latham & Watkins, who is representing Hunter Biden should not be sanctioned and when you go into the docket, it turns out the court believes that an attorney or a staff member at Latham & Watkins misrepresented who they worked for when they called the court.

Apparently there was a document filed by an amicus and there were some information in the brief that the attorneys at Latham & Watkins wanted either redacted or taken off of the public docket. And when they had somebody call on behalf of the firm to have that information redacted, according to the court that person said that they were working with the party that filed the amicus brief, not somebody who was representing Hunter Biden.

Latham very strongly denies this claim. And I think the more I kind of dug into it and read the underlying documents, I have to say that Latham’s story definitely passes the smell test. It wasn’t an attorney who was working on the case, it is somebody who’s barred in New York, but somebody who works kind of in their litigation services kind of managing attorney doing the administrative stuff for not just this case, kind of a bunch of cases they don’t know any of the substance of the case.

And indeed when they called and the, whatever party they spoke to, had a couple questions about the specifics of the information they wanted redacted and the person who the managing attorney that called was like, oh, I don’t know. I have to talk to the actual attorneys. I don’t know the answer because I don’t know the substance of the case.

Additionally, as they know in their letter that the caller ID generally reflects that it’s from Latham when they call places so it seems like it would be highly unlikely that they would try to pull one over. And again this is somebody the litigation services, the staff member is somebody who’s worked at the firm for 18 years and no one works at a firm like this for 18 years has no kind of personal interaction on the case. It’s not actually working on the substance of the case and decides to throw their entire career away because of what that there’s some kind of a lie that they think would benefit their client that they don’t even represent them directly, right. They work for a firm that represents them.

This is somebody who’s spent a lot of years doing this kind of very technical work, it just seems it would be shocking to me if there were some kind of actual ill intent as opposed to some sort of a just miscommunication and the Latham letters talks about how somebody else from the clerk’s office called back the Latham staff person and they think that somehow in that so there’s some sort of miscommunication as to who the caller was and that’s kind of where it happened.

And since then I’ve looked back at the docket and there are no sanctions for Latham but there is an order that the judge put in saying that if anybody has any issues with anything on the docket, they have to speak to the clerk — not to the clerk’s office generally but to the judge and the judge’s office. So to kind of try to minimize these issues but it seems unlikely that this kind of a professional was doing something deliberately untoward.

But because it’s the Hunter Biden case and that is like some sort of magic talisman for the far right say Hunter Biden three times in the mirror and see bloody Mary comes or something. It feels bad that this became a big bigger story than it probably needed to be because of that.

Chris Williams: Yeah if it was anyone who wasn’t Hunter Biden or Hillary Clinton, clay and they will be like a non-issue.

Kathryn Rubino: We wouldn’t even notice if it happened, even if the judge did think some sort of similar malfeasance was going on, we wouldn’t even know about it because no one’s following every docket that closely that when a misunderstanding happens and maybe it’s my own personal set of experiences.

But, you know, when I worked at a big law firm and working with the managing attorney or litigation services offices, those are always the people that know their shit the best, right. Those are the ones that make sure that you’re not missing your deadlines and the ones that are counting the days on the calendar to let you know that this is they send these automated emails like this is due on this day, that kind of stuff.

These are people who really know their Ps and Qs and they’re kind of — that’s what their job is, not the substance of the law. That’s their job is to make sure that you’re filing your briefs on the right paper and that you have the right to blue cover because you’re filing in this court and/or it’s in this font because this judge’s local rule say that it has to be in point 12 or whatever.

(00:10:06)

So that’s certainly been my experience with these kinds of litigation services offices. And so that’s my take.

Chris Williams: It’s one of those things where people just sometimes they just want to make more things out that needs to be.

Kathryn Rubino: Oh for sure. And certainly and you don’t listen, at Above the Law, we get a lot of unsolicited reader emails, a lot of them are wonderful and if you have any tips about things that are going on in the legal world, you should feel free to reach out to us at [email protected], we well plug there.

But, we get a lot of people who read our stories who have opinions. So we get a lot of kind of unsolicited responses to our work and this one and pulled out a lot of the craziest just who have some like Hunter Biden Google alert on their phone saying this is obviously the worst thing that they could have done.

I was like how, wow, I mean this is even if it was somehow deliberate which I don’t think that that’s what happened in my opinion, that that’s not what happened, but regardless, it was easily discoverable, right.

Like besides the caller ID literally says, the name of the firm. It would take about 3 seconds for them to contact the actual attorney’s office, who actually filed the amicus brief to find out whether or not this person — where this pressure works, this is not some sort of like deep fake going on here. This is at best I think an honest mistake and I don’t know which side necessarily the mistake was on but man, people are like this is obviously the worst thing and this is Hunter Biden trying to get away, oh come now people.

Chris Williams: But you don’t understand it looks like an honest mistake because it’s so corrupt.

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Kathryn Rubino: So you wrote a story about some shenanigans in Alabama.

Chris Williams: God bless Alabama. No one else will. But yeah it’s the –

Kathryn Rubino: And you’re not talking about the football team.

Chris Williams: No, no, no. But yeah, so there were, I guess this is some Supreme Court gerrymandering shenanigans. There was a recent case where kind of surprisingly the Supreme Court shot down the independent state legislator theory that would led –

Kathryn Rubino: Correct. Well, I mean that’s how crazy the independent state legislator theory was.

Chris Williams: Even the Supreme Court.

Kathryn Rubino: This Supreme Court was like nah.

Chris Williams: Yeah even unreasonable minds differed and they were like, oh, people are not going that far and then go Alabama, they were like oh, we know our people better than federals courts would have you and that’s just pretty language for. We don’t want to Black people vote. So that’s what happened.

Alabama did an Alabama. And it’s a weird thing because their people let talk about separation of powers issues. All for like, for example, does Congress have the authority to impose an ethical code of conduct on Supreme Court? Interesting questions. But this is just straight-up not paying attention, they’re not listening to the authorities that be.

And it’s just a weird, it’s just a weird situation to deal with from the law and order party. So the Alabama legislature basically just has a map of that cuts out what’s supposed to be a second district of Black voters.

Kathryn Rubino: Correct. So they were specifically mandate – they are going to have at least two districts that were predominantly Black.

Chris Williams: Right. Just because it’s like demographics and equity in voting dumb stuff, but still just a dead rock of democracy.

(00:15:00)

Kathryn Rubino: I think the order said that two districts, it required two districts in which Black voters either compromise the voting age majority or something quite close to it.

Chris Williams: Right.

Kathryn Rubino: And Alabama was like, nah, we’re just going to make a map and so we are going to have one.

Chris Williams: And I think the vibe was very much be thankful you have one.

Kathryn Rubino: It is interesting to this, it is kind of defiance of court orders in this way is interesting kind of how legal academia has been responding to. We also wrote some stories this week about that Notre Dame law professor Derek Muller tweeted out that he couldn’t see how Alabama’s maps defied the court’s order, apparently getting a two is a rough one here, and of course, of course, he’s a expert in election law.

Chris Williams: And like, I think that there is something to say about, like math being difficult. Like, I think, what Bertrand Russell spent like two books in like Principles of Mathematic or trying to prove that one plus one equals two but this wasn’t like a complex set theory argument. This was a guy who was like nah, you could have done the fingers test for this. He is like one, one.

Kathryn Rubino: I know maybe the map was — I don’t, like there’s no justification. He since deleted the Tweet after like a bunch of other people on Twitter, I guess, are we calling it – we are still calling it Twitter, right, we are not calling it X.

Chris Williams: We’re not going to make fetch happen.

Kathryn Rubino: Okay. Thank you. I appreciate the reference. Yeah, a bunch of people piled on were like it’s too hard. Is that — is that pay attention Notre Dame law students you have an expert who can’t manage the basics.

Chris Williams: Yeah and like do you trust this person to calculate your grades. Like if Johnny has one apple, Johnny has one more apply.

Kathryn Rubino: But so he deleted the tweet with no explanation sort of what his thinking was there. But it seems a lot like he got called out and then all of a sudden deleted the tweet but don’t worry people have taken screenshots so it lives for forever.

Chris Williams: Yeah.

Kathryn Rubino: It’s interesting too because you called sort of the GOP, the party of law and order, and the other ones who are going around to find court orders. But they’re not the only ones who are taking that as the political path forward.

Mark Tushnet, a Harvard law professor wrote an open letter to Joe Biden along with some political scientists saying that they thought that what Biden should do is just ignore the Supreme Court because they’re unpopular and their opinions do not reflect the majority of what the country thinks about all these issues. Therefore we should not be beholden to them.

Chris Williams: What were your thoughts on it?

Kathryn Rubino: I mean listen, it’s very tempting to say like this Supreme Court is ridiculous but that isn’t it wildly dangerous move in my estimation. The whole point of the court was that they weren’t supposed to – they were supposed to protect the minority against the tyranny of the majority, right.

And if the only thing that matters according to this theory, this kind of popular constitutionalism is what does the majority think? Well, then there’s no protections right and right now, liberal ideals might benefit from this kind of worldview but I don’t think that historically, that was true and I don’t think that that’s a good path forward.

I think that that’s just a way to break this system. Now query is the system so broken that it doesn’t matter, maybe but if we ever going to kind of salvage a workable constitutional system, we’re going to need a court and maybe their reforms that we can have, but something to kind of protect against the tyranny of the majority seems like a good idea. There’s a purpose for that, I think.

Chris Williams: Yeah, I feel like I traded similar waters especially around the overturning of Roe and also with the Bruen the gun decision, there were a bunch of constitutional sheriffs. There were like, we will abide by this law. We won’t abide by this law and it’s just interesting to see those places where people decide if using discretion is the proper thing to do.

Kathryn Rubino: Yeah, I mean the only way the system actually works is if you listen to the court regardless of whether or not you enjoy the results of the court.

Chris Williams: Yeah.

Kathryn Rubino: And I think it’s listen the people who are really mad. The only, only people really who are talking about this Tishnet open letter are far-right sources being like look at, we told you the Dem, the Liberals were terrible. Look what they’re saying, we should do with the Supreme Court. Don’t worry, they’re utterly silent when it comes to what the Alabama is actually doing in respect to listening to the Supreme Court.

Chris Williams: Can you believe they’re doing the things we’re doing.

Kathryn Rubino: Precisely, precisely.

(00:19:58)

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Kathryn Rubino:  So our last story, our colleague Staci Zaretsky wrote, and it’s about how wildly out of touch incoming law students are. Yeah, there was a new study by the University of Illinois College of law professor Jennifer Robbennolt and Illinois law graduate Sam Barder talking about or studying the opinions of incoming law students and how well they think that they’re going to do in law school.

They all think they’re going to do fucking great.

Chris Williams: Yeah and this is another one of those things where it’s like, if Johnny has two apples but it’s harder to see water when you’re a fish, you know. Because like I was in the similar boat, I thought okay, I was top of my class. I will be top in my class here, but then we get in and I’m like, oh everybody was top of their class where they were.

Kathryn Rubino: Exactly. Exactly.

Chris Williams: That’s not enough.

Kathryn Rubino: Yeah. Something I think it was 95% of incoming law students think that they are going to be in the top 50% that is not how math works and that’s going to be like the sub theme of this year.

Chris Williams: If it is how the (00:22:03) work, there should be some ABA issue.

Kathryn Rubino: Yeah you can’t all be in the top. And I think that and I’ve spent some time at my years at Above the Law, talking to potential law students and law students who have options about where they’re thinking about what law schools to attend, and I always refer them to Law School Transparency.

It’s a website that can kind of is an amalgamation of all the different data points that we have of law schools, and I always tell them to look at the what, how many people at the law school, when they graduate, how many people are getting jobs? What kind of jobs are they getting? Are those the jobs that you want?

And, you know, people tell me, oh, yeah, I want to be a big law attorney, cool law school I want to go to, or I think I’ve gotten into more accurately about 10% of people go to Biglaw and like well, those are great odds. Maybe you should consider or 2% or whatever like well, I’ll be one of the ones that do it. I’m like, how much of this class do you think thinks they’re going to be the ones?

Chris Williams: Yeah.

Kathryn Rubino: You know and if you didn’t have the grades to get into the law schools where 80, 90% are going to Biglaw, what makes you think, then that now you’re going to be in that top percentage that’s going to be able to get that job that you say you want. I think and we see the same thing in law firm life too when there people are looking at what law firms to go to and they look at whether or not everyone’s getting bonuses or what the standard is for getting bonuses at the firms that they’re looking at and they say well I’m always going to be able to bill my hours.

Everyone thinks they’re going to be able to do that but is everyone actually getting that bonus; if not, then you should take it as a very real or you will not necessarily have control of whether or not you are the one who’s billing those hours are doing those things.

Chris Williams: I think, I think this thinking also factor into people that get conditional full rides because it’s like, they be like, oh I remember one of the schools I got into, I had a full ride if I could maintain a particular GPA, but then I was like, if everyone is getting this and the current there will be people that necessarily in the bank but they thought they had a few rides.

Kathryn Rubino: That’s a lot of stress. It’s not just you don’t get to do what you want to do. It’s like all of a sudden you got a bill that’s do with the end. You didn’t think you had a bill.

Chris Williams: Which I guess is some good motivation to read but, you know.

Kathryn Rubino: I certainly, all these things, there are good reasons to be diligent at the task that you’re doing but I think that what these numbers really show is that lot of people who are people who are going to law school, those are already, those are self-selected group, right, that’s not the average human that exists.

(00:24:58)

This is a group of people that already have taken very difficult exam to prove that they want to, which is a heartache, it costs money to do the application process. It’s more there’s a test, there’s essays, there’s all this other stuff. They’ve already kind of self-selected into this motivated group of folks. They already want the kind of job that being a lawyer is that they know requires time and research and all these other kind of built-in.

So, this is a self-selected, highly motivated group of individuals. Now that’s why I think that’s also part of why they all think that they’re the ones that are going to be in the top percentage, but it’s worth noting that or remembering for if you have want to be law student in your life, you may really think that you are the one that is going to be the very top. But everyone thinks that, everyone.

I think that what you’re saying about, you don’t notice the kind of temperature going up when you’re in the middle of, it is very accurate.

Chris Williams: And once you’re in law school, it’s weird and this is one of those things where it’s like you, it’s hard to know who has what grades, even the person that you think is the laziest person in the group still got there. It’s like tempting. That’s one of the things about being in a peer group is like sure, you can find ways to differentiate to stuff but also just like that’s your cohort.

Kathryn Rubino: Listen, there are plenty of school, there are not plenty, there are law schools where it doesn’t matter you graduated and you’re not failing. If you grow into a T14 school and you’ve got grades, good job. You’re probably doing all right unless you want and but you’re doing all right. You’re going to get a job. Are you going to necessarily going to get that clerkship that you wanted? No.

There’s — you think that you’re going to be at the top, but that doesn’t always make it true, want to end reality are often quite different.

Chris Williams: I thought you were going for a Thanos’ quote, I think is the point where he’s like reality is often disappointing. So –

Kathryn Rubino: Yes, yes, I should have.

Chris Williams: I’m sure, I’m sure they edit that in just changed my voice a little, they will never know.

Kathryn Rubino: Reality is quite disappointing. There you go. All right. Well, it looks like we are winding down here. Any other thoughts on the summer as its developed thus far, Chris.

Chris Williams: Cliché but the weather is really nice.

Kathryn Rubino: You and I have different definitions of nice but I appreciate that.

Chris Williams: I mean and it also could be enough of a geographical difference where there’s like some difference but my sky is great. I don’t know about yours.

Kathryn Rubino: At the moment yes, but we’ve just gotten off of some pretty brutally hot weather, which I did not enjoy.

Chris Williams: No, here’s the thing.

Kathryn Rubino: And lots of rain.

Chris Williams: Here is what might be different. The heat wave was cool for me because I had air conditioning, I didn’t leave the house.

Kathryn Rubino: Sure. Sure. In my house I wear a sweater but outside feels awful. All right, well that is a fair point but thanks to everyone for listening. You should be reading what the stories that we talked about on abovethelaw.com. You can find me on the socials @Kathryn1. Chris is @WritesForRent.

You should check out the other podcasts on the Legal Talk Network and I host a podcast about diversity in the law called The Jabot. I think that that’s all the things that Joe usually says at the end that I try to make fun of him for but Joe will be back shortly for those of you who have missed the Dulcet tones of his quite distinctive voice. See you all next week.

Chris Williams: See you next week.

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