The Fifth Circuit judge made a bunch of headlines last week and we jump into all of them. Plus Texas’s use of water saws and Ron De Santis isn’t faring well in his battle with Disney. (Always bet on Mickey.)
Kathryn Rubino: Hello and welcome to the Thinking Like a Lawyer podcast. My name is Kathryn Rubino, I’m the Senior Editor at Above the Law and my co-host is Chris Williams, also of Above the Law fame. Hi Chris.
Chris Williams: Hello, hello.
Kathryn Rubino: How are you this fine day?
Chris Williams: This is actually on a good note, but let me get there, I’m in pain. So on Saturday there was this thing called a GO Fest New York, so I went up to New York and I walked like 15 miles with my head in my phone to catch a Pokémon. It wasn’t just me.
Kathryn Rubino: Is that, is that a Pokémon thing?
Chris Williams: Yeah. But it was like, it was so, it was a Pokémon GO Fest in New York, 2023 of course, which you got to say the year, because there were other ones previously. This is my first one, and it was cool, because I was one of like 70,000 other people who were flooding like Randall Park, like Bryant Park, likes two of the parks in New York, and it was nice, it was cool.
Kathryn Rubino: It’s like the Eras Tour, but mobile you have to walk.
Chris Williams: Yeah, definitely.
Kathryn Rubino: So, what is the most rare Pokémon that you caught during your weekend? By the way, I appreciate that you pushed us right into small talk without me having to fake the sound effect with Joe Patrice being not with us today, he’s covering the ILTACON Conference Legal Tech. He’s immersed in the world of legal tech at the moment. But yeah, so what was the most rare Pokémon that you caught this weekend?
Chris Williams: Oh, well, I hope all the listeners are holding on to their butts, I caught a couple rare ones. I caught a couple Rayquazas. By the way, this is the part where if you don’t, think of Mongo, it’ll just sound like the parrot is talking and peanuts. It’s peanuts there —
Kathryn Rubino: Wa, wa, wa, wa, wa.
Chris Williams: Yeah, yeah, yeah, there you go. So I caught a Rayquaza, I caught two really good Carbinks. One was like 14-15-15 and the other one is 15-14-15. So if you see me in Great League terrorizing, just know it’s me. A couple Lucario, those, got to love those steel fighting types and a bunch of Shieldons. So I got some candy from a, XL Candy from a Bastiodon. So if you see me harassing your Pokémon, you know Rock Throw, oh Smack down, smack now, you know that’s from me walking 14 miles in a pair of shoes that I was not, should not have been walking in. They were sneakers, I thought they were fine, I thought they have support, turns out they just looked really nice.
Kathryn Rubino: Well listen, I am a big fan of just looking really nice. As my mother would say it’s the price of beauty. So —
Chris Williams: Yeah, and you beauty ain’t cheap. So if you saw, just so if you were at Pokémon GO Fest in New York, you saw some guy in a purple linen top and shorts with dreads in gray Adidas walking around in pain, not only was he in pain, it was, it was me, so nice to meet you.
Kathryn Rubino: Well it sounds like you had a great time regardless of the pain that you’re currently, see I appreciate how you got to the pain eventually.
Chris Williams: Yeah.
Kathryn Rubino: I had a fairly low-key weekend, but found, I found a new reality TV show that I’m now going to be binging on, which makes me very, very happy. It’s an old show, but it’s new to me Below Deck of Bravo. I’m not, as I love my Reality TV, but I don’t tend to gravitate towards the Bravo offerings in the Reality TV world. But —
Chris Williams: Before you describe it, is it a reality TV show about Pirates?
Kathryn Rubino: No. It’s about yachting.
Chris Williams: Okay. Oh okay, I knew it was boat related.
Kathryn Rubino: It’s definitely boat related, it’s a 100% boat related, but I kind of stumbled across it, this a couple days ago and I’m already on like Season 4 and there’s like spin-offs too. So I have so much, so much good TV in front of me. It is a freaking delight and I’m quite excited about it.
Chris Williams: Is one of the spin-offs Above the Deck?
Kathryn Rubino: No, it’s like above, Below Deck Mediterranean, Below Deck Down Under, it’s like an Australian.
Chris Williams: Okay, like Survivor.
Kathryn Rubino: It’s a different location. It’s like yeah, well except those are different seasons like meant to be three different seasons of the same show, these are different shows, do you know what I mean?
Chris Williams: Okay, okay.
Kathryn Rubino: Like, like there are like seven seasons of the Down Under version, but there’s ten seasons of the original. You know what I’m saying, where it’s like Survivor, they were always still the original show, it wasn’t like a different show.
Chris Williams: Got you.
Kathryn Rubino: I hope that makes sense. But yes, I’ve been watching a lot of Reality TV. It’s a good thing to do while I’m pumping, so you know.
Chris Williams: That was right.
Kathryn Rubino: It is what I’m doing. All right. Well I think that pretty much ends our, we are real people, not just legal amalgamations, we’re not just some AI, you know point in the direction of legal topics, we are real people.
Chris Williams: Quick interim between small talk ending and the start of the story.
Kathryn Rubino: Yeah.
Chris Williams: While I was walking Pokémon at Bryant Park, I saw somebody sitting on a bench talking about like Scalia’s jurisprudence and I almost threw up.
Kathryn Rubino: Which park was it at did you see this?
Chris Williams: I think it was Bryant Park.
Kathryn Rubino: I was going to say, if it was Washington Square Park, it’s definitely an NYU Law student.
Chris Williams: Yeah. I was like, I was like, bro it’s the weekend, like —
Kathryn Rubino: So Bryant Park it’s probably, it’s potentially some Fordham Law kid, it’s my guess, it’s just location wise, but it’s pretty hilarious.
Chris Williams: And it looked like it might have been a date. Okay, go on.
Kathryn Rubino: Speaking terrible jurisprudence though, this is a really smart transition. I really enjoyed it Chris.
Chris Williams: Totally deliberate, totally deliberate in plan.
Kathryn Rubino: Totally deliberate. You wrote about James Ho last week. Fifth Circuit Judge James Ho wrote a dissent that you want to tell us about.
Chris Williams: Well, want is a strong word, but I will tell you about it. So, it was a case. So the underlying case dealt with the cost of school in Texas and the underlying facts of the case are interesting. So for our students are in state, they’re paying about $50 per credit hour.
Kathryn Rubino: Totally about college credit?
Chris Williams: Yes.
Kathryn Rubino: State schools, okay.
Chris Williams: Yes, yes. So they are paying about $50 per credit hour and out of state students are paying like $450 per credit hour, vast difference.
Kathryn Rubino: Sure.
Chris Williams: If was an out-of-towner, I do want to take 50. I wouldn’t want to pay nine times as much either, I get that. The meat of the case was about what in state means. So it turns out that residents who didn’t have papers, so like legal immigrants who lived in the state of Texas, were able to pay the $50.00 per credit hour rate, because they were in the state.
Kathryn Rubino: Sure, I mean that seems accurate, if nothing else seems accurate.
Chris Williams: Right, right. And it’s like, so guess like the gist of the suit was like, sure they’re in the state but they’re not of the state, right. And whenever and when that, that this lawsuit reminds me of the — I think it’s like a Bill Clinton bid, where he’s getting asked about fidelity and he’s like, I guess, it depends on what the definition of “is” is, right. This —
Kathryn Rubino: The very famous line, yes.
Chris Williams: Yeah, so this is a —
Kathryn Rubino: I do remember it.
Chris Williams: Yeah, so this is like a what does in mean in the case, right. And my thing is, it’s interesting case sure, but it seems like something that should be dealt with by legislature. It shouldn’t be somebody with a gavel deciding what the price of attending college should be right. This seems like on a 16 Judge Panel, 15 judges agreed or felt like it wasn’t really a thing, but Judge Ho on the other hand is the lone dissenter, took his opinion.
Kathryn Rubino: It’s a, it was a motion to be heard en banc, right?
Chris Williams: Yeah.
Kathryn Rubino: So it had already gone through the regular circuit court process and now they were appealing it to see if the entire 16 Judge Panel was willing to hear it, and only Judge Ho had an opinion on that one.
Chris Williams: Right, right. And his opinion was basically a round of applause about how great citizenship is, which is phenomenal. Great cool. But it felt more like a grab for attention than a Judge doing their job.
Kathryn Rubino: Yeah, yeah.
Chris Williams: So yeah.
Kathryn Rubino: Yeah, I mean it’s kind of ironic that Texas, the state best known for putting up these deadly flotillas in the middle of the Rio Grande, when it comes to immigration is being accused by Judge Ho being soft on immigration?
Chris Williams: Right, you’d think the killing would be a good defense against that description.
Kathryn Rubino: Good deterrent. I don’t think that people are willing to face a deadly obstacle to get there just for the sake of cheap college credit.
Chris Williams: Right, right. I mean, you got to also be there for like, the Chuck Norris printout, so, that’s the little thing I remember, when like —
Kathryn Rubino: No, no.
Chris Williams: In my head, in my head, the Don’t Mess With Texas and Chuck Norris, are like wed together.
Kathryn Rubino: Well, he was the star of Texas Walker Ranger?
Chris Williams: Yeah, yeah, so like —
Kathryn Rubino: There is a reason why he’s associated with Texas I think.
Chris Williams: Yeah, yeah, yeah, that’s the reason, yeah.
Kathryn Rubino: Yeah. Well that was not the only noteworthy case that Judge Ho got to the news with last week. The Abortion Pill Case came up through the Fifth Circuit. You’ll remember Judge Kacsmaryk who was the District Court Judge, who ruled terrible things for the access to the abortion pill and the majority is a Three-Judge Panel, this was not an en banc situation, this is just Judge Ho placed on it, all three Judges were actually Republican appointees. The two in the majority said that whether or not the FDA’s approval of the drug was not under question but did institute a bunch of restrictions on access to it that the FDA more recently had loosened sort of restriction, your ability to get prescriptions online, over the mail, that kind of stuff, they got rid of all those sort of loosening of restrictions on the drug, but did not touch the drug’s approval.
And side note is none of these, none of this is actually put in action until the Supreme, until it is potentially going to be appealed to the Supreme Court because of a lower court decision, because it had already been appealed and it’s stayed at its current state until these fully briefed to the Supreme Court. So assuming if it, if when and if it is going to be going be go to the Supreme Court, but the point is that Judge Ho’s dissent was attention-grabbing. I think is the mild way to put it.
He would do away with the approval of the drug entirety despite the fact that it has been on the market safely for decades, decades saying that some doctors have aesthetic injury, have standing to sue over the approval of the abortion drug, because of the aesthetic injury to some doctors, because some doctors like seeing the pictures of the unborn babies and like that their patients have them. So that he would recognize that as an injury. He borrows the concept of aesthetic injury from Environmental Law kind of as a nanny nanny boo boo to the liberals, were like, well, you care about the environment so now I’m going to apply this environmental law concept to women’s bodies because those are the exact same thing, saying that doctors who should be able to sue because they would be sad, they would be sad if their patients got an abortion. That is not really what people mean when they are talking about standing though, is it?
Chris Williams: No, no. And the unfortunate thing is right now we’re at a point where this is like patently ridiculous, but my worry is that if judges keep making dumb arguments like this, at what point will it catch on?
Kathryn Rubino: Yeah, I believe (00:11:04) it pushes the Overton Window right.
Chris Williams: Yeah.
Kathryn Rubino: Once this is out, every far, far right thing pushes the window of what we consider the middle further to the right, and there’s not really a counter left wing force putting out further and further left-wing ideas. If anything I think the left has been pushing itself towards the middle which again pushes the Overton Window only in one direction towards the right, which I think is it incredibly problematic.
Yeah it’s a really, it’s a terrible kind of decision and then shortly after that came out The Lever did some reporting about Judge Ho’s wife, Allyson Ho, she is a partner at Gibson Dunn, a well-respected appellate attorney, who’s received a bunch of money and honorarias and works with occasionally the Alliance Defending Freedom which coincidentally enough were lead counsel. They were lead counsel on the exact same case that James Ho made a bunch of headlines on for a ruling in the — having aggressively right wing ruling.
James Ho said that he has not violated any ethics rules and it’s not clear that the amount of money that she received, and it being honorarias etc., would have tripped the ethics rules, but it is pretty clear that, the mere appearance of impropriety is not really a standard anyone’s, anyone thinks we should be held to, judges should be held to anywhere.
Chris Williams: Yeah. I think at this point, we need to call it pulling a Clarence, like when you rule on something, you know your wife’s involved with.
Kathryn Rubino: Yeah, it’s, it’s very, very clear that this is, this is from the, the Thomas Playbook, both Ginni and Clarence Thomas. And I think that, this is goes to your point kind of about the Overton Window, once these ideas, once they’re out there and there’s no punishment for them, there’s no sense of, oh, you can’t continue to do this or there will be consequences, more people feel like, hey, it’s not a big deal. I will also note that Judge Ho said that his wife’s practice is to donate the honoraria, like this, she’s a partner at a big law firm and she doesn’t need the thousands of dollars, I’m sure that she’s getting for these speaking engagements, but she donates it to charity, did not specify which charities and I will note that the Alliance Defending Freedom is a 503(c) nonprofit. So question mark where that money actually winds up.
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Kathryn Rubino: Well we started the last segment talking about Texas and we have another story about the Republic of Texas, shall we say.
Chris Williams: Oh no.
Kathryn Rubino: And water saws?
Chris Williams: Well, are they water saws, are they defense against Mexico declaring war, right. I think the way that the Texas lawmakers are framing it was like, this is a war effort, like they were like, this is an invasion that they were trying to put in into.
So, what the Texas Lawyers, what the lawmakers did was they put these buoys up to try to fight the people illegally immigrating into Texas, or whatever, but they had rotating buzz saws on them.
Kathryn Rubino: That sounds bad.
Chris Williams: It sounds bad. But also —
Kathryn Rubino: It sounds like a cartoon villain.
Chris Williams: Yeah. Like, I’m expecting it to be like a Wile E. Coyote collab, but no, this is apparently a real thing. And as to be expected, the Federal Government was like you can’t do that and that’s where Texas got into the legal arguments of justifying why they’re killing people.
Kathryn Rubino: Killing people without due process. Let’s be clear, this is not a death penalty argument here. This is, this is just murder.
Chris Williams: Yeah. And so the Federal Government does their part, they try to say that they have the authority to regulate what Texas is doing with the waters, because they do according to the Federal Law and Texas comes up with a bunk argument that oh, these Waters aren’t navigable because there are times when they’re not able to have boat across them and if you really think about it, the whole world wasn’t navigable at one point because of Noah’s Ark when God flooded the land and it’s like wait, this isn’t —
Kathryn Rubino: That is, that is an interpretation.
Chris Williams: Yeah this is something you see in VeggieTales, not in the courtroom, right. And my take on it is, yes, this is a horrible human tragedy, like people being killed over this but looking at it legally, I think that this is just shows like how far we’ve slidden, we’ve slidden, is slidden a word, slid.
Kathryn Rubino: I think just slid.
Chris Williams: Yeah, I will, might as well don’t have (00:16:34) as it. It shows how much we solidified when it comes to Establishment Clause jurisprudence. Why is the government citing Genesis, even if it was Leviticus, it shouldn’t be something that lawmakers are citing to justify why they’re taking the policy action that they are taking?
Kathryn Rubino: Yeah, it does seem like the government is not supposed to be quoting the Bible to justify murdering people.
Chris Williams: And the like Overton Window, like if this conversation was happening like, 2,000, be like duh, but now with, what is it, Bremerton was the one case that started off the, that was the case with the coach praying at the 50-yard line, right?
Kathryn Rubino: Oh yeah, though from last term.
Chris Williams: Right. And then there were, speaking of term, there are a bunch of states that were passing abortion laws and they were like part of talking about how God has given, even fetuses inalienable right to life and their opposition to abortion being legal. So like we’re starting to see with increasing frequency religious texts being used as justification for laws that apply to everybody, regardless of their religious leanings or none thereof, and that’s worrisome.
Kathryn Rubino: Yeah.
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Kathryn Rubino: Okay, we are back and we mentioned our colleague Joe Patrice is at a Legal Tech Conference ILTACON, which actually is in Disney World this year. He’s I think staying at the, I don’t know, one of the hotels on property and everything is being run out of the Dolphin and the Yacht Club Hotel, which is ironic, well, not ironic, this is fitting, let’s say it’s fitting since we’re about to talk about to talk about a couple of stories about Disney.
Ron DeSantis is fatwa against Disney has been in the news yet again, you’ll remember he’s — he got his panties in a bunch because Disney put out some lukewarm response to the Governor’s Don’t Say Gay Bill.
And in response, the Governors try to basically take over the Reedy Creek which is the district, the kind of district surrounding Disney World that they had a Board around that kind of, that controlled the long-term planning for the area in Orlando, where Disney is and had tried to take it over.
But didn’t do a great job. I mean listen, Ron DeSantis is a Harvard Law educated guy, but I’m not sure the details are really his forte. Disney had done a bunch of kind of negotiating behind the scenes and was able to strip power of the board that DeSantis was about to take over and had to publish public notice of said move, which DeSantis and his allies just ignored or didn’t know about or whatever. But so now they’re fighting in court and DeSantis’ legal case against Disney, it appears very much to be going in one direction. And if you want to bet on a mouse, this is your time to do it. It doesn’t look, his legal argument still in great and they looks so not great in fact that he has come out in the media and said, that he’s moved on, not like he’s just missing a case or trying to negotiate a settlement or something like that, he’s just emotionally, he’s moved on. He’s over it. It’s apparently not a winning issue on the Campaign Trail, so he’s over it. So he has asked to Disney in statements, not in legal filings, don’t worry, but just in public statements to get over it too.
Chris Williams: Also, for all the lawyers listening do not ever use that for one of your clients, let over, we are over the accusation, it’s whatever it, or like —
Kathryn Rubino: Hashtag over it. But that wasn’t sort of the end of the Reedy Creek disaster for the Governor of Florida, it also came out that one of the members, one of his kind of cronies that he had installed on the new board of the Reedy Creek Development District can’t actually serve on said Reedy Creek Development District. He is a publicly elected or a public official, he has another job, and you can’t hold two public offices at the same time. Oopsie, Oopsie. So he’s not supposed to — he’s not supposed to be on the Board but there he is on the board.
Chris Williams: If you are going to attack Disney, do your homework. It’s a shame like, I’m feeling like third party, like regretting like, I know, I’m not evolved with it, but I feel like if my name was involved with this, I would at least want to do a quick Google search to see like who was involved and if they can be involved. But —
Kathryn Rubino: Yeah, and to be more specific, the actual guy, he’s actually who’s charged with, he’s running the Ethics Commission for the State and the tax and there’s actually State Law that prohibits public employees, which he would be when he was on Reedy Creek from serving on the Ethics Commission. So he can’t do both of those jobs at the same time. So it’s a real problem there and of course it’s ethics related because, hello. And it’s just, it’s remarkable. I think what more to the point that you were making that, do your homework before you go, if you go for the — if you come for the king, you best not miss right?
Chris Williams: Right.
Kathryn Rubino: And Disney has a lot of money, I don’t know why this is not obvious that, you can’t just, Disney is not some sort of kicking post that you can just throw up headlines about and try to mess with and not expect them sort of legal retaliation and not even retaliation just response. It’s just a response. They’re just trying to protect the rights that they believe that they are owed under the existing contracts and existing law.
Chris Williams: I think that —
Kathryn Rubino: I think that they’re entitled to defend themselves and I think that in terms of court of public opinion, I think Disney pretty much has the right of it and who doesn’t love — who doesn’t love a Disney princess at the end of the day.
Chris Williams: Right. And not only are they very good at what they do, one thing we cannot forget, Disney is petty, like abnormally petty, like if some three-year-old somehow figures out how to upload a video to YouTube and it’s a small word after all is playing, there will be a team of lawyers on that kid’s ass like no hesitation, like they don’t stop.
Kathryn Rubino: Vigorously defends their legal rights.
Chris Williams: Aggressively.
Kathryn Rubino: That is a fair way to say it, yeah.
Chris Williams: There was a point where there were protests and I think the police officers because they don’t want it to be recorded, started playing copyrighted Disney music. Like they don’t stop just because you think you’re done with the thing. Yeah. They’re not stopping until what Disney comes back.
Kathryn Rubino: Yeah. Until he’s defrosted from Deep Freeze.
Chris Williams: Right. Yeah.
Kathryn Rubino: And the other thing of it is just what a freaking terrible PR move, right. It’s not from a position of strength that anyone says, I’m over it when they’re done, when they’re talking about a legal fight that they started, this is not portray a position of strength, but I guess DeSantis is used to not operating from a position of strength seeing as he’s been running a quite distant second in polls to the quadruply indicted former President Donald Trump.
Chris Williams: I feel like once you get past being indicted a second time, it actually just becomes impressive. It’s like, it’s like watching a reality TV show, it’s like will he hit quintuple?
Kathryn Rubino: I think we might have hit the end of the number of indictments but it is fantastic to watch. I will note there was some other quite little story we did speak as well about DeSantis and Trump saying there’s one other way that Ron DeSantis is beating, there’s one way at least that Ron DeSantis is beating Donald Trump, and it’s not just the number of indictments currently against him, Ron DeSantis has more lawyers donating to his political campaign than Donald Trump.
Chris Williams: I guess shout out to Cervath.
Kathryn Rubino: It’s Cravath first of all.
Chris Williams: Listen if you’re donating that guy, if you donate to that guy, I’m saying your name wrong. I know how to say. I am just kidding.
Kathryn Rubino: It’s actually Sullivan & Cromwell, is the number one firm. This is not the firm itself, right, this is not like the firm writing a check, this is lawyers who works happened to work for various big law firms or law firms or lawyers in general. But Sullivan & Cromwell is actually the number one contributor, individual contributor amongst lawyers to pull it off, to DeSantis’s campaigns that is noteworthy as well, it’s mostly S&C Lawyers who are big fans of Ron DeSantis.
Chris Williams: Shout out to Cromwell then.
Kathryn Rubino: All right. Well, I think that that of wraps up our stories for the week. Do you have anything Chris before I start telling people where to find us?
Chris Williams: It sounds like a threat. No, I’m okay.
Kathryn Rubino: See that was my position of strength unlike what DeSantis is doing.
Chris Williams: I respect it, I respect it. Take notes Harvard graduates.
Kathryn Rubino: Like things to do.
Chris Williams: Yeah.
Kathryn Rubino: Time is ticking and you can find these stories and so much more at abovethelaw.com. You can reach out to us on social media, on most things, it’s @atlblog, it’s the Twitter /X, etc., etc. all the new platforms that are coming up, ATL’s on it, ATL blog. I’m a generally available @Kathryn1, you are @WritesForRent. You should check out the other podcasts on the Legal Talk Network. You should check out my other podcast, The Jabot about issues of diversity in the law and Joe does a Legal Tech Writers Roundup, weekly Roundup that he’s very, very proud of, so, there’s that. And I think that’s all the things we had to say this week. Peace.
Chris Williams: Peace.