Sam Alito’s In Distress Of His Own Making

Episode Notes

Transcript

Joe Patrice:

Welcome to another edition of Thinking Like. A Lawyer. I’m Joe Patrice.

Kathryn Rubino:

Hey, Joe. Patrice.

Joe Patrice:

Hey, I didn’t get interrupted. I’m so excited. That was like a professional opening.

Kathryn Rubino:

Wow. Wow. I love that you came back from a holiday weekend full of Vim and Vinegar.

Joe Patrice:

No, it’s just like that was very, we sounded like a real podcast there for a second with an uninterrupted opening. Don’t

Kathryn Rubino:

Worry. As soon as they listened to more than a minute or so, I’m proud of us. We will just abuse

Joe Patrice:

Them. I’m very proud of

Chris Williams:

Us. I do think it is fair. Let’s not compare Joe to vinegar. Vinegar has done nothing wrong.

Joe Patrice:

Vinegar has done everything wrong. It’s disgusting, but I’m Joe Patrice from Above the Law. I’m joined by Kathryn Rubino and Chris Williams also of the aforementioned publication, and we do our thing on this show every week where we talk about the biggest stories that were from the week. That was first. We have our small talk, small talk section, small talk. We chat about just anything. Yeah. What’s up everybody? How was the holiday for everyone?

Chris Williams:

Mine was restful. It’s one of those things where it’s like the idea is have done something super interesting, but sleep is important, so trying to be appreciative of that. That said, I still did something interesting. I have a wonderful life for those who have played Hades, super giant, phenomenal game. They dropped Hades two, which is early release and still in development and it’s great. It’s a great game so far. I’m a couple of hours in getting my ass beat and I’m like, oh, either I’m horrible or they did a good job then I can’t tell which, but it’s a really fun time.

Kathryn Rubino:

Well, I traveled for the long weekend. My nieces have their dancing school recital over Memorial Day weekend every year. Yeah, it’s great. Except they live in Texas, which is fine, except it’s very hot. Not as cute. Well, it’s very, very hot and they have an outdoor recital. It’s the pavilion that it’s actually just an outdoor performance stage or whatever, and it gets very, very, very warm there, especially when the performances are upwards of five or six hours, which it absolutely started at five and finished around 11. So it was a full day of performances and my nieces were, one of them was in the opening number and the other one was in the finale. So I got to see every moment opening to close

Chris Williams:

On topic of Memorial Day. Apparently it started like a black holiday. I wasn’t aware of that. Apparently there were some, the black soldiers that died weren’t getting respect, so I think it was in Texas, but there was somewhere where the folks got together to show support and at some point it became a generalized holiday to be about soldiers who have died. I think there was some person, some person in Congress that it was a Muslim moment. She shared a post saying, shout out to all the veterans, basically a veteran this day, pills. I was like, no, you got the holiday wrong. But there was spy in the comments. Actually, you all had the holiday wrong. This was Juneteenth when it started, and now we got all Alive mattered into being about everybody that died.

Joe Patrice:

I don’t know. The claimed origins of this holiday are kind of diffuse. It seems as though there were several smaller ones in various regional localities before it was all nationalized. But yeah, it’s interesting. I watched some sports over the weekend. That was my thing. The Rangers won, so that was exciting.

Kathryn Rubino:

Yeah, and Max Tappin did not win the Monaco Grand Prix, so all No, there you go. A Grateful Nation. Thanks Sean LeClaire.

Joe Patrice:

Yeah, I don’t know as though that’s a nation thing.

Kathryn Rubino:

Winner, world leader from Globe.

Joe Patrice:

Anyway, that can be our small talking for the day. I suppose. We have a busy agenda, mostly all about one story, but it’s one story that had a lot of action this week. So we’re done with small talk. We’re Sam Alito had a flag that’s the beginning of a limerick and I don’t know how to finish it.

Kathryn Rubino:

Santo had multiple flags as it turns out, but yeah,

Joe Patrice:

Well as it turns out, yes. It just is. The story that keeps on giving,

Chris Williams:

I just wanted to say, I thought you were going to say in heaven was its name mode.

Joe Patrice:

I see. There we go. Yeah, it’s a grand old flag. It’s an upside down flag. It was how it began. Yeah, so that’s how we started. That was when we learned that we had an upside down flag flying outside of his home in this was what the New York Times reported on last week. That was the subject of last week’s show. We talked about it at the time. All we knew was that it was an upside down flag was flown outside of his house three years ago at the height of the insurrection. Since then, things have gotten more ridiculous. Of course, yeah. So since our last show when we thought this was going to be the end of it things, it turns out he has more flags,

Kathryn Rubino:

So many flags. Yes. He put an appeal to heaven flag at his LBI, long Beach Island, New Jersey Beach home, and that is a flag that dates back to the revolution, but I think it was like Circuit 2013 Christian Nationals started reclaiming the flag and the theory being that there is no appeal, but God, that’s why it’s appeal to heaven flag and is very much was also flown quite a bit during the January 6th insurrection. And it’s just very clearly linked to there is to a very Christian worldview, which is very much in tension with the Constitution.

Joe Patrice:

It’s also somewhat ironic because of course the line that appeal to heaven line is a call. It’s a call out to John Locke and that Locke was making that comment to be why there shouldn’t be a divine rite of kings. So it’s weird that this is coming up in this context, but yes, it’s a naval standard from the revolution that literally nobody knew anything about really because a lot of early American flags could more or less faded into obscurity in the real world outside of naval history museums until the Christian nationalist movement jumped on it. Alito has one and flies it

Kathryn Rubino:

As of 2023, not just occasionally flies that like Google Street view view of his house has him flying that flag.

Joe Patrice:

Amazing.

Kathryn Rubino:

Far, far. It’s on the top spot of his flag pole. It’s one of those kind of, you can put multiple flags up in the very top is the appeal to heaven flag. Below it is a local LBI the island flag, and next to that is the Philadelphia Phillies penant flag from 2022.

Joe Patrice:

Yeah, it’s priorities in order.

Kathryn Rubino:

Yeah, I mean, yeah,

Joe Patrice:

Exactly. So anyway, what we have here is obviously with the upside down flag, he blamed it on his wife. We have since learned that this excuse that his wife had done it is a very old one. It was actually the excuse they gave at the time. At the time. Now you might be thinking, what do you mean they gave this excuse? At the time, we didn’t learn about this until just now. The reason is the Washington Post over the holiday weekend decided on a little news dump to go, oh, by the way, we knew about this three years ago. We just didn’t report on it. Crackerjack journalism. I mean,

Kathryn Rubino:

What I think is so interesting about that WaPo story is that they obviously let the scoop die three years ago, but rather than admit that the times got them on the story, they made it clear that no, no, no, we were on top of it. We’re just terrible at our jobs. No one would’ve judged you if you just hadn’t told us all that it happened.

Joe Patrice:

You might think we got scooped, but in reality we just we’re just

Kathryn Rubino:

Bad at our

Joe Patrice:

Jobs. We’re just incredibly negligent about the one thing that we do. If the Washington Post was going at this rate historically, Nixon would still be president. They botched this pretty badly. Although part about it that gets me is the account in that story is really wild. The reporter came to the house to ask about the flag and the justice tries to downplay it and tell him to leave, and his wife keeps getting in and out of the car to scream at the reporter. And I got to be honest, it’s bad enough that they didn’t report on this when they had all of these facts. But given the completely unhinged response that’s being described here, I mean that becomes a story in and of itself. If I were the reporter,

Chris Williams:

My thing is they must have some amazing retention rates. Like did nobody over those years just go to some other reporting like some other newspaper like, oh, by the way,

Joe Patrice:

Yeah. So what I think the take I had on this is that this is kind of indicative of the real problem with the Supreme Court Press Corps as a whole, right? I mean, we have talked about Clarence Thomas and Alitos financial issues a lot over the last year and when ProPublica started coming out with that, there were a lot of folks who said, where’s Nina Totenberg or any of the mainline Supreme Court reporters, why do they not have this story years ago? And I think a lot of the feel is that those reporters don’t really push on these sorts of things because they feel like they won’t be able to. The charitable explanation being that they feel they wouldn’t be able to have the relationships with the justices that they need to report on the actual business of the court if they get into the business of pushing them on these ethics issues.

Kathryn Rubino:

I think also because it’s this lifetime tenure on the most important court in the nation, there is an overly uncomfortably friendly relationship between a lot of these reporters and the justices. And it’s not just on the right, and I’m saying Nina Totenberg, you mentioned she wrote that book Dinners with Ruth, which is about her relationship with Ruth Bader Ginsburg and does not reads, and I think the subtitle is either even something about Friendship does not at all Read. This is a person I’ve been covering in a critical and important and insightful way for the last 30 years. It’s somebody that I’ve developed a friendship with. It’s about friends rather than a reporter and their subject.

Joe Patrice:

I’m kind of sympathetic to what’s going on because to have that level of reporting, because of the structure, it’s not even the reporters, it’s the structure of the court. Like you mentioned, life tenure. It is notoriously secretive. It cuts it. Only now do we have audio of these things they used to cut themselves off from that. It is designed to force reporters who want to have any hope of covering it to be as deferential as possible. And that institutional rot is spilling over into the press, meaning the press can’t cover them and the way that you would want a government organ with that level of power to be covered. So this is bad look for the Washington Post, but it’s really something that rather than just kind of point and laugh at the Post, which everyone is fine to do, it’s worth taking some time to consider that. This is why court reform is so critical is the court as an institution has built itself into something that doesn’t even let the press cover it properly because of the way it’s built. And that’s a real problem. So that said, the court came out with some opinions last week and Elena Kagan had what I would like to say. So I, I’m reading it as she had some fun with this.

Kathryn Rubino:

Well, I’m not sure if she had fun in the sense that she was writing the dissent as opposed to the majority. I think she probably has a lot more fun being clever when she’s in the majority, but it was the South Carolina Racial gerrymandering case where functionally the court just said, yeah, racial gerrymandering, that’s not really going to be a problem for us anymore. Which is very much a change intact. Although they did not say that they were officially overruling anything. I think that it’s fairly can be read that way, but, and you have to remember also that Elena Kagan wrote the previous majority on gerrymandering. So having that knowledge of the decision of the original sort of the court’s precedent on gerrymandering says that the current majority in the South Carolina case is upside down in there. There we

Joe Patrice:

Go. Reasoning.

Kathryn Rubino:

And she actually makes that reference a couple of times throughout the course of the dissent. And as bad as the Supreme Court can be about metadata, we don’t know exactly when that particular turn of phrase was added to the dissent, but I have to believe it was after the Alito story broke. And to be clear, also, Alito wrote the majority opinion, which is also just wild. But he wrote the majority opinion and I think that Kagan very clearly was going after this upside down flag.

Chris Williams:

To be fair, it would’ve been a good joke for the last couple years or so. You weren’t aware of the upside down flag hanging.

Joe Patrice:

Yeah, that’s fair. Who knows how much the actual Supreme Court knew even if the New York Times and Post weren’t on top of it. But yeah, throwing in some upside down references when talking about Alito. Very fun. Elena is notably snarky in some of these opinions and has been for years. I feel it has to be intentional because that fits the mo, but very exciting work must be if you have to be in the descent, at least have some fun with it

Kathryn Rubino:

And be pretty biting about it. For sure.

Joe Patrice:

And then the only other thing that we really have on this front, I guess is the, you mentioned that Alito also flies the Phillies Penant. The Phillies don’t seem all that excited about him either.

Kathryn Rubino:

Well, at least some fans are pretty bummed about Alito being a notable Phillies fan. There’ve been stories throughout the years of his sort of relationship to the team.

Chris Williams:

I just think it’s hilarious that the literal balls and just strikes people don’t want Alito.

Kathryn Rubino:

Yeah, so some Phillies fans got together and rented a truck, one of the trucks that kind of has billboards on the side, offering to trade a lead out to the Braves because of his upside down flies a flag upside down, takes away your rights, brings bad luck to the Phillies. Let’s trade him to the Braves, which is kind of fun. The worst people actually have a point I say as a New Yorker

Joe Patrice:

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Kathryn Rubino:

We wrote actually a couple of stories over the last week or so about this topic because we’re getting more financial information from 2023 coming out. But the very tippy top of firms are offering their biggest rainmakers $20 million a year. That’s sort of the high water mark and not just, it’s sort of keeping up with the Kirklands of the world. That is Kirkland last year I think made over 7 billion in revenue. So that’s a lot of money and they have a lot of it to throw around and to offer and to entice high value lateral partners to their firm by offering these very, very large paydays. So Kirkland’s been able to do that. Latham, Paul Weiss have all been able to throw these very, very large paydays around for potential laterals. And now we’re finding out that more and more big law firms are changing the way that their partner paydays are structured in order to compete to get these high value lateral partners. Davis Polk is talking about prioritizing the lateral market while Gotchu revised their partner compensation standard. Clear Gottlieb, which used to be known for a lockstep partner. Compensation is reportedly backing off of that standard in order to compete. And it’s also just creating more stratification that people who can afford to pay $20 million to get those rainmakers in the door and the firms that can’t.

Joe Patrice:

Unfortunate, I mean it’s expected but unfortunate I think to get quality and get people who have big books of business, you have to spend a lot of money to do that. Said I was a Cleary alum and as somebody who was there, I always felt that the lockstep process bled out into the entire firm and made the entire firm more collegial than other places I had been when it was structured that way. When it’s structured that way at the top, it filters down and everybody, I think at least vis-a-vis some other firms that I worked with, everybody kind of had a different attitude and benefits from it. So it is sad to see that go. That said, query notably got rated a few years ago in a big way. And so this doesn’t shock me in the least that this is the way of the world now. And while there are benefits to it in that talent is being rewarded and where it can be, it’s a little sad for the institution of a law firm I guess.

Kathryn Rubino:

But I also think in terms of how we conceptualize the big law industry, I think it also changes some stuff. We talk in big pictures. There’s the AM law 200, it’s 200 different law firms. There’s lots of variation there. And then you sort of say, well, there’s a difference between the second hundred and the top one, the AM law 100. Then we start talking about the top 50 because there are sort of notable financial criteria that those top 50 firms have, and this is even smaller than that. It’s more niche even than that. But that very, very top of big law that top maybe 20 or so firms that are able to make these kind of paydays are creating sort of a mini industry or and of themselves that are able to really get the biggest rainmakers, which pays dividends. You don’t pay $20 million for somebody just for shits and gigs. You do it because you think you’re going to be making more than 20 million as a result. And that’s how firms like Kirkland winds up with 7 billion in revenue.

Joe Patrice:

Generally speaking, these paydays are contingent on what they bring in, right? They’re guaranteed some amount that is probably far less like a million, and then they get upwards of 20 million With these. You get to collect X amount of what you bring in and that’s how they get up there. Historically, they didn’t let people get all that much, but you are right. It’s also a change in the business that single teams can bring in this kind of money wild times in the big law world. Alright, law school time, most law school at this point is done. I know the summer associate programs are beginning, but there was a law school that had a bumpy ride to its ending of the year.

Kathryn Rubino:

Yeah, periodically. I’ve been Above the Law for a number of years and this is not my first, nor will it be my last time writing about some manner of final exam scandal. I don’t know why they can’t seem to get it together in a consistent way. But at Washington and Lee, there was absolutely an issue when two professors of criminal law of two different sections decided to have the same exam. In and of itself, that’s not a problem. But how it got tricky is that one of the two professors decided to release several of the questions that will be on the exam ahead of time, which is fine for their class, but it’s not okay when another class is using those questions and is not providing that information to everyone. The school has apparently a very strong tradition of their honor code and really just relied on that.

Like, oh, if you share this with your classmates in another section, that’ll be a violation of the honor code. But that’s not really fair. And there’s also plenty of ways that are not even deliberate that somebody could find that these questions exist. Somebody could have the questions pulled up on their laptop as they go to use the restroom when they’re in the library and somebody walks by happens to see them. You could say, oh, I know my friend Jill is in the other section, and oh, that’s weird. They seem to really be studying about double jeopardy a lot and all of a sudden you have a clue as to what one of those two questions might be.

Joe Patrice:

Well, that’s the one that gets me. And that’s like the most innocent of things. No one is doing an honor code issue there, but you start to notice that when some of the questions are out, you notice people in the other section are only studying certain parts of the book and that’s going to tip you off. That’s not an honor code issue. That’s just a tip off.

Kathryn Rubino:

And it’s not fair that the students who happen to have friends in the other section potentially completely innocently get some heads up about what those exam questions are going to be on where kids who don’t have friends in that section don’t have that heads up. And the really thing that gets me is how wildly preventable the entire issue is. I think that each professor should probably write their own exam, but okay, fine. You want to share exam questions. The bare minimum, the bare minimum should be that you have the same rules about when these questions get released. That does not seem out of pocket at all. That seems very, very easy and it just seems like all of this could have been avoided all, and potentially the grading in that section is very much impacted by the fact that some people had a heads up or potentially had a heads up as to what those questions half of the exam was about. It was not all the questions that were released. To be clear, it was like two out of four essay questions,

Joe Patrice:

Right? Sure, sure,

Kathryn Rubino:

Sure. But it was also, it was a timed exam too. It wasn’t like a 24 hour test, I think it was three hours. So if you knew what half of the test was going to be about, you could more effectively spend your time on that. And that affects the curve in a really powerful way. And with first year grades being pretty much the sole determinant of whether or not you get a big law job or where your big law job is, it seems pretty shitty.

Joe Patrice:

What bothers me is whenever this comes up, it seems though law professors are quick to try to put the blame somewhere on students, oh, you should have followed an honor code. Oh, whatever. It’s like, you made this mistake. This is on you. You’ve got to own up to this.

Kathryn Rubino:

And several tipster at the law school sent us multiple different emails from administrators about the issue, and the administrators very much seemed to be washing their hands of it as well, saying, oh, well we don’t have any concrete evidence about an honor code violation. People will be expelled If this was really an issue. And it’s like, or maybe you talk to the professors about what the standard is. If you share tests, you have to share rules for the same test. That’s easy. That is such an easy fix to a problem that you now have that you didn’t have to have. And this isn’t like, oh, I can’t believe I managed to come up with this answer to the solution. This is incredibly obvious. It’s shockingly obvious how easy the answer could have been.

Chris Williams:

I might be a little slow here. I’m not really seeing what the pedagogical value is of giving out half a test before it happens.

Joe Patrice:

Well, there’s also that. That’s a great point. That’s a great point. There’s not even a good argument for doing this. Yeah,

Chris Williams:

Open book. Okay, I can get open book, but why?

Kathryn Rubino:

My guess is that it was kind of splitting the baby between a timed in class kind of timed and a take home essay exam that was a weekend long exam versus the benefit of an in-class. What do you know in these two hours or four hours or whatever it was.

Chris Williams:

I mean, as far as the splitting the baby, is the thing you do to prove that idea is bad? I don’t. I’m not sure that’s the metaphor you want to go with here.

Joe Patrice:

People have missed the point of that story.

Chris Williams:

She was like, yeah, let’s split it. King was like, okay, that’s not your baby.

Joe Patrice:

Alright, on that note, on the note to baby killing, we are going to

Chris Williams:

Finish here. We’re going to end

Joe Patrice:

This. Thanks everybody for listening. You should subscribe to the show, give it reviews, all of those things. You should listen to other shows. The ot, which is Catherine’s other podcast. I’m a guest on Legal Tech Week Journalist Roundtable every week on legal tech stuff. You should listen to the other Legal Talk network programs. You should read Above the Law, so you read these and other stories before we talk about them. You should follow it on social media. It’s at ATL blog. I’m at Joseph Patrice. Catherine is at Catherine one. Chris is at Rights for Rent saying things over at Blue Sky, except I’m Joe Patrice there. And with all of that said, I think we’re done. We will.

Chris Williams:

With all that said, if you’ve known any weird flag behavior from a Supreme Court Justice for the last few years, please let us [email protected].

Joe Patrice:

Yeah, that’s a great point.

Chris Williams:

It’s tips ed Above the Law dot com. That too.

Joe Patrice:

Yeah, so when you find more flags, let us know because unlike the Post, we will run those stories. Alright, let’s check in with you all again next week.

Chris Williams:

Peace. Peace.

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