John Roberts Realizes He Made A Huge Mistake

Episode Notes

Transcript

Joe Patrice:

Welcome back to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law. I’m joined by some other, Above the Law folks. I’ve got Kathryn Rubino and Chris Williams here.

Kathryn Rubino:

Hey friends.

Joe Patrice:

We are doing our usual, where we talk about the week that was in legal so that you don’t quick and dirty rundown of the week.

Kathryn Rubino:

I mean, there was a lot that happened last week. I feel like more than ever this is, we are truly doing the Lord’s work over here.

Joe Patrice:

Yeah, this is a great digest for you for a pretty hectic week. But let’s start with some small talk. Small talk.

Kathryn Rubino:

Yeah. We’re actually, they can put the sound

Joe Patrice:

Effect in.

Kathryn Rubino:

Alright. But part of the reason why things might sound a little bit different is, Joe, you are conferencing or something of the like,

Joe Patrice:

Yes, I am in Austin for Apes virtual conference that’s happening this week.

Kathryn Rubino:

So wait, wait, wait. You had a ghost somewhere for a virtual conference. I just want to make sure I get that all through my head.

Joe Patrice:

The attendees can be virtual, but the presenters are in person. That’s a fair point.

Kathryn Rubino:

Fancy, fancy, fancy.

Chris Williams:

I’m still stuck on the fact that you survived the flight. Things were a little iffy at that point.

Joe Patrice:

I’ve survived several flights. I was in LA last week.

Kathryn Rubino:

You’re just taking your life into your own hands, huh? Or to doer’s hands. That’s even

Joe Patrice:

Worse. True. I was in LA to receive an award from the Association of Media and Entertainment Council.

Kathryn Rubino:

Well, congratulations. Joe Patrice.

Joe Patrice:

Thank you. Forced me to get into a tuxedo, which was a journey relearn how to tie a bow tie, which is one of those things that you learn then never do for years and forget, and then you learn again and then forget.

Kathryn Rubino:

Okay, maybe I didn’t have this particular right of passage. How old were you when you feel like this was something? Did your dad sit you down and was like, Hey, this is information you need to know?

Joe Patrice:

Oh, no, no, no. It was just you go online, you find instructions and learn it.

Kathryn Rubino:

You are too old to have gone online when you needed to find this

Joe Patrice:

Find. No, I’m too old to have gone online and there have been a video of it, but I just old enough where there was written instructions, but yes, so I did that. Now I’m in Austin for this. It is also south by Southwest here in Austin, which

Kathryn Rubino:

Seems great timing. I mean, do you get to participate in any of that?

Joe Patrice:

No, I could have. There was some talk about going downtown to do that, but we’re staying a little bit outside of town and I thought trying to fight with hundreds of thousands of attendees downtown was not worth it. So I stayed out here.

Kathryn Rubino:

Fair, fair. Did you bring your cowboy boots though now that you’re in Texas?

Joe Patrice:

No,

Chris Williams:

No. You don’t need to bring cowboy boots. As soon as you hop off the plane, they issue them. It’s like when they give you a delay, the whole phrase is, don’t mess with Texas shoe wear.

Joe Patrice:

All right. Well let’s get moving onto our topics. We had a lot of them. So the end of small talk, what’s our first topic?

Kathryn Rubino:

There was a congressional address by the president and Joe, you had a story that kind of detailed the interaction between the Chief Justice and the President of the United States, and it doesn’t make me feel warm and fuzzy.

Joe Patrice:

So at the State of the Union, for some reason the court shows up.

Kathryn Rubino:

It’s not the state of the Union though, right? It was not technically the state of union. It was the presidential address to Congress. Isn’t it Somehow different? Somebody said that. Am I wrong about that?

Chris Williams:

I don’t think so. There’s probably some technical, distinctive, doesn’t really matter. It was effectively the same shit.

Kathryn Rubino:

Sure.

Joe Patrice:

There may technically be a reason why the State of the Union has to be given by the president who was president at the beginning of the year or whatever, but it’s never done that way. It’s done this way. So anyway, the court showed up, which not all of them obviously, but none of them have to. There’s no reason it’s an address to Congress, but they

Kathryn Rubino:

Feel the need to. Well, they absolutely have to if they’re going to heckle like San Alito does.

Joe Patrice:

Sure. If they’re going to do that, which is part of the reason Santo doesn’t go anymore because of that famous incident where he tried to heckle and lie about what the Constitution says. So anyway, they were there and in their interaction, the camera caught the President saying to Justice Chief Justice Roberts, thank you. Thank you. Again, won’t forget it. Obviously a reference to the Chief Justice making a decision that presidents have the power to send Seal Team six to assassinate political rivals, which was an argument in the case and a point that theoretically would’ve normally militated against the opinion that was issued. But instead they did that so that Trump could get reelected and Trump thanked him for it. And basically the takeaway from it from my perspective was you can’t quite see it, but there is definitely that moment where the Chief justice is saying on the fixing democracy, A for you.

Chris Williams:

Yeah, you didn’t have this version in the article, but there was actually a, no, I’m just making this up. But what they should, every single reporting source should have had that Like a curb. Yeah, curb your

Joe Patrice:

Democracy. Yeah. Curb your democracy. There you go. Yeah, no, I actually, as far as we’re talking television analogies, I actually think the better one was the Arrested Development where a recurrent theme was going. I made a huge mistake and that was where Roberts was right there. Yeah. I mean, look, he obviously did this for, I think we all know enough about how the law works and having read the opinion to know for fairly cynical reasons. But as I put in the article, the first rule of Federalist Society Fight Club is you do not talk about Federalist Society Fight Club. You don’t.

Chris Williams:

We talk about what

Joe Patrice:

Federalist Society Fight club. Yeah,

Kathryn Rubino:

Right.

Joe Patrice:

Oh

Kathryn Rubino:

Yeah.

Joe Patrice:

See, the thing is that’s not the second rule like it is with normal fight club. The second rule is enjoy Chick-fil-A. But yeah, no, so the whole point is to pretend that this is normal and very neutrally applied and it wasn’t, and the president blew that up because he does not understand those sorts of subtleties that you’re supposed

Kathryn Rubino:

To pretend. Yeah. You don’t say the quiet part out loud, right? Yeah.

Joe Patrice:

That’s which he did in another level in that speech, which we didn’t necessarily cover, but a multiple court cases dealing with these budget cuts make the argument that Elon Musk can’t do it because he’s not, doge isn’t legal because whatever, because he’s not appointed by Congress. And for that reason, the government has taken the position in multiple litigations that Elon Musk is not the person running Doge, but we can’t tell you who is. And then they eventually found somebody and said that she was in charge, which was news to her when journalists called her to follow up. She was on vacation and had never heard of it. But that’s the other thing, the quiet part out loud, which was while that’s the argument in multiple pieces of litigation, Trump made the point of saying, and Elon running Doge up there, which blew that up and immediately ended up in those cases,

Chris Williams:

Yes, it hurts me to say this, but in Trump’s defense, I think after he went on Trump’s social and he was like, I was thanking him for swearing me in at the inauguration or something like that. So to be fair, Trump said it is not completely clear what he was doing was like, thank you for getting me out of jail, buddy. That’s probably what he was doing. That’s what I’m assuming he was doing. But it is

Kathryn Rubino:

Worth, I won’t forget it. It’s not just like, thank you for doing your job. That is, you’ve done me a favor aspect and swearing me in is not that.

Chris Williams:

I agree. I get you. I understand that’s part of the nature of interpreting dog whistles, but just for the nature of patching people ups, there was some response from the president,

Joe Patrice:

I do love that you opened the loop after closing it, which is also how you tie a bow tie to get backTo That

Chris Williams:

And here’s where it goes.

Kathryn Rubino:

There was more from the State of the Union. We also wrote a story that, it’s weird that your story as well as the one that I wrote about, Amy Coney Barrett is such a visual medium. They’re based on the clips that we have from cspan. And I think it’s really interesting that we are writing about the subtext of the court based on these visual cues that not too long ago wouldn’t even have really happened. We wouldn’t have had the technology to really isolate that. But in the moment when Donald Trump walked past Amy Coney Barrett and was about to thank the chief justice for doing him a solid, she gave him quite the look. I mean, I’ve seen that look before. It’s when my teenage niece tells me that I’m the dumbest thing that ever dumbed. But it is quite the look and very much made it feel like perhaps she does not agree with a lot of what’s been going on. And of course, that was kind of backed up by her recent decision. She sided with the chief justice as well as all of the justices appointed by Democrats saying that you have to pay your bills. I mean, this is for work that’s already been already done. You actually can’t stiff people,

Joe Patrice:

Which is the dose, which

Kathryn Rubino:

Is very an anti-Trump measure.

Joe Patrice:

Yeah, no, it seems though I do not think anyone should be under an illusion that Amy Coney Barrett is going to be a great justice or anything, but she does seem to have a bit of a firewall on the whole fascism thing.

Kathryn Rubino:

Yeah. Listen, we’ll take the firewalls wherever they are better than no firewalls for sure. And that was something that I had actually written when she was first nominated to the court and people were saying, well, maybe she won’t be that bad. Maybe Amy Coney Barrett can save us. And I was like, listen, please stop with that kind of language. That is not what’s going to happen. And I think that her very much disastrous vote in the Dobbs decision makes that abundantly clear. She’s not some sort of liberal savior in any way, shape or form. But may she toe the line to prevent fascism.

Joe Patrice:

Well, wait, wait, wait, wait, wait. Are you not counting the way in which she had Hamilton sung at Justice Jackson swearing in? That’s clearly she’s a liberal plant, which by the way, that is actually

Kathryn Rubino:

A story. It’s story all the backlash that’s going on now. Yeah.

Joe Patrice:

Yeah. That is actually a thing that is currently happening on right-wing Twitter is they found out that because the previously most junior Associate Justice is supposed to throw a party for the new one, A CB did that for Jackson, and that’s the new right-wing proof that she’s a woke plant.

Kathryn Rubino:

Well, that plus her recent decision in the a d case too, right? Those things happened or revealed right around the same time. So I think that when things happen in a similar timeframe, that is just fuel to the conspiracy theorists fires. Right.

Chris Williams:

Well, we all know Scalia is a well-known woke plant grower, right? She Scalia’s clerk.

Joe Patrice:

Was she Scalia? I think so. I can’t remember whether she was Scalia or Rehnquist. Yeah, I think so. But I

Chris Williams:

Will say there was already some right wing vetting to get her where she was. For sure.

Joe Patrice:

Well, and that also, justice Scalia’s son actually was one of the first people to reply to this right wing conspiracy theory going, guys, you got to get a grip. It’s like that’s just not how the Supreme Court works. People

Chris Williams:

As great. Many Manis said, come on.

Kathryn Rubino:

And I do think it’s interesting though, right? And the analogies that I think a lot of these right-wing conspiracists have been drawing to Amy Coney Barrett are not to Anthony Kennedy, but to Sandra Day O’Connor, which I think also goes to this kind of misogyny and distrust of women in positions of power, et cetera, et cetera. But it is worth pointing out that this is a tune they’ve played before.

Joe Patrice:

Yeah. Well, alright, let’s take a break and move on. And we’re back. So what’s our next story?

Kathryn Rubino:

Speaking of women, the backlash against DEI programs has continued unabated two stories. I think actually we wrote about them the same day and I think the reactions are worth pointing out and contrasting with one another. The first was when the Trump administration came out and similar to what they did to Covington and Burling revoked the security clearance for attorneys at Perkins Kuey because Perkins Kuey was involved with the Steele Dossier as well as all the work that Mark Elias has done for the DNC and for elections generally. Although he’s absolutely taken that work away from the firm at this point. He has his own firm that we’ve talked about on this podcast, but he wrote an executive order saying that he is ordering an investigation of big law firms that hire black people. And I think that really the silence has been the most deafening on that. It is terrifying from a legal industry standpoint to think that this is something that’s going to happen. And there’s been very few statements in defense of either diversity of their own independence to do whatever they want, all these sorts of things from legal industry, from big law generally.

Joe Patrice:

And contrast that of course with not to bring in a new story, but contrast that of course with what we’ll probably be talking about next week, the Georgetown.

Kathryn Rubino:

Oh, that was actually, that is the other story we were talking about. We wrote about that last week. Alright.

Joe Patrice:

But that’s a good contrast, which is where we have some law schools standing up to this insanity.

Kathryn Rubino:

Right.

Chris Williams:

Before we move on to that one, the thing that gets me about trying to root out DEI from law firms is that the degree to which what appears to be diversity focused equity initiatives is actually just racism with the tiers of non-equity partners being disproportionately people of color and women. But it’s being done in such a way that it has the benefit of equity partners getting tax benefits. So not only are they the face of diversity, they’re also going to be the reason that they get kicked out. So then the non-equity partners are going to be blamed for making the firm look bad because now they’re DEI folks,

Joe Patrice:

Which

Chris Williams:

I think is crazy.

Joe Patrice:

It’s

Chris Williams:

The problem and the solution.

Joe Patrice:

That is a great point. It is both. Yeah. That’s a goods a great angle actually.

Kathryn Rubino:

And the other story that Joe alluded to that we were also talking about in this segment is Georgetown Law got a nasty Graham from Ed Martin, the interim US attorney for Washington DC complaining about their DEI programs and saying that they needed to approve the school’s curriculum, otherwise his office would no longer be hiring alumni or anyone associated with Georgetown Law, which that kind of a play is something we’ve seen right Wingers do before, led by James Ho. A bunch of right wing jurist have said that they will not hire people from law schools that I think specifically targeted Columbia and other schools, that they don’t like their programs. So they will hurt them by not hiring people that have absolutely nothing to do with creating those or enforcing those programs. And Georgetown, William Trior, the dean there was like The fuck you will, he wrote,

Joe Patrice:

That is not a direct

Kathryn Rubino:

Quote, but Well, it was close, but if you read it, it’s the sentiment. It’s

Chris Williams:

Close. It was the fuck you will because Jesus,

Kathryn Rubino:

That is the best part. That is the best part. Obviously Georgetown University is a Catholic institution, specifically a Jesuit institution. And man does that letter lean hard into the Jesuit tradition. And listen, Jesuits, they have a well established history and tradition of education and they believe so strongly in the value of diversity and educating everyone and a free flow of ideas. It’s everything that you think you want a religion to be.

Joe Patrice:

Yeah, and the Inquisition.

Kathryn Rubino:

Sure, that too.

Chris Williams:

Well, what was the Inquisition, if not a moment in DEI? What is conversion if not inclusion? Nobody expects it. Alright.

Kathryn Rubino:

But led very, very heavily into sort of the First Amendment, both in terms of their academic freedom to create their own programs as well as into their religious freedoms, saying your own department of education has already been on record saying, of course we can’t mandate what universities teach. The fact that you are singling us out is clearly because we are a religious institution and we have the freedom to do what we want. And I think that there is an interesting, the whole Catholics versus Christians kind of tension that has existed historically in this country, I think is something that is also coming to play as they’re going after Georgetown. And it’s interesting, Georgetown is not the only law school that has DEI programs, not even the only law school in that city that has DEI programs, but maybe the only one that was going to go to bat for him. And you know what? Good, good.

Joe Patrice:

The Trump administration’s mad at Georgetown. It’s like for those of you who are college football fans, it’s like seeing Catholics versus convicts come back. That is an old school college football reference that I guess Kathryn gets it probably

Kathryn Rubino:

It’s Univers the U. It was the University of Miami versus Notre Dame in eighties. I believe it was right before I was a fan of college football, but I believe they referenced it extensively

Joe Patrice:

This year. Year. Right. You’re like 25, right?

Kathryn Rubino:

Yeah. I mean it was before where I was conscious. Yes. That is also accurate though. But that has certainly a thing that it kind of has come up in the past. They referenced it historically as well.

Chris Williams:

I’ve thought about this over the years and it was kind of like a fringe argument, but do you think that over time, one of the things we might see is institutions leaning into or establishing religious affiliations or identities in order to be able to tap into the right to discriminate that Christian No seriously,

Joe Patrice:

That

Chris Williams:

Christian organizations are going to develop over time. What is it? I think it was the religious schools in Maine. They were like, oh, one of the reason you can’t give federal funding is because you’re a religious school and you discriminate against students coming in. But they were like, no, we have religion protections. We have to be able to express our faith. I feel like Georgetown is doing something similar here. I don’t know, maybe Penn out of, well, I guess Casey law one day they might lean into their Quaker heritage and be like, well, we’re going to have DEI because Quakers, and

Kathryn Rubino:

I mean that instance, I can actually see happening.

Joe Patrice:

I mean, so much of the private school and voucher movement is based on an attempt to resuscitate segregation academies in the south and utilize the veil of, oh, we’re a religious institution as a cover for discrimination. So yeah, I think what you’re identifying is the Jesuits seem like they might be attempting to use that for the forces of good. And you’re right, maybe other religious institutions will try to do the same.

Kathryn Rubino:

Well, on that happy note, let’s take a quick break before we come back for our final segment.

Joe Patrice:

The happy note was talking about segregation academies. Is that what you

Kathryn Rubino:

Identify? I was saying happy, ironically. So No, no,

Chris Williams:

No, no. A few things bring me joy like segregation.

Kathryn Rubino:

Although I mean for real though, I do think the notion of using religious institutions that were sort of the spear in discrimination as kind of the shield against discrimination that is kind of using the tools against itself kind of moment that you should be happy about.

Joe Patrice:

Alright, fair enough. Okay. Alright. What’s our final story?

Kathryn Rubino:

We are not talking about the Trump administration for this segment. We are talking about big law. This is actually a follow up to a story. We wrote, I think back in November at the time, in November, there was an email sent by a Goodwin partner, Alex Opolis, and he had a disagreement with his neighbors and he got all slurry. He responded to an all building kind of email about just moving just FYI. There’s going to be moving whatever. And he used a bunch of slurs about in complaining about his neighbor’s kids and how loud they were, et cetera, which is not great, but it is what it is. Well, since then things have gotten a lot creepier creep. There was a new TikTok

Joe Patrice:

Account, you don’t say.

Kathryn Rubino:

Yeah, that is not a word. I feel like we use a lot at Above the Law since we tend to write about the legal industry. But man, that was the overwhelming feeling I got when I watched this TikTok creepier account. Creepy, creepy, creepy as shit, man, you seem NYC Fam of Five is a TikTok account that purports to be from one of the partner’s neighbors. And it’s videos, largely a pastolis looking into their home videos of him going up to the window, shining a flashlight into the home, playing music outside of the home, really

Chris Williams:

Just smiling ly.

Kathryn Rubino:

It’s creepy, man. They’re not

Joe Patrice:

Great videos. No,

Kathryn Rubino:

It is. Is deeply, deeply, deeply disturbing. And as I did, when the story first came out in November, I reached out to the attorney as well as the firm. And this time I got an interesting response from the firm is that they confirmed that he is no longer an active partner at Goodwin. Indeed, when we were researching the story, it became clear that he’s no longer on the Goodwin website. So I believe the TikTok account went live on a Friday. I think it was maybe a Thursday. And by Monday night when we were starting to write this, he was no longer on their website.

Joe Patrice:

Quick action.

Kathryn Rubino:

Maybe we don’t have any more information. He left of his own accord for reasons, for other reasons that just are purely coincidental. But he is no longer Goodwin’s problem and these videos are not something that they have to worry about anymore.

Chris Williams:

Fair enough. Well, I’ve never creeped on somebody’s house, at least to my knowledge, but I’d assume that if I saw a camera in my face, I’d go away.

Kathryn Rubino:

It’s really disturbing too. I don’t know if you’ve spent any time on the TikTok account, but I’ve watched all the videos repeatedly trying to figure out what’s going on. And at first it seems like he’s sneaking around in the sense that it’s dark outside. He has a flashlight, maybe he doesn’t know that there’s a camera. It kind of seems very, maybe he doesn’t know that he’s being recorded, but by the end, he’s smiling at the camera and you can see it’s through a glass. You can see the screen that the video is being taken through. So the whoever’s taking the videos clearly inside and he’s outside on the roof. And the way that this building seems to work from the footage you can see is that there’s roof access for residents. And then that roof also, there’s a split level situation and there’s a wall and windows and another sort of apartment that is above a penthouse that is above some of the roof access. So he’s getting up to the roof or appears as if he’s using roof access to go and look at the windows. And according to the TikTok account, there are children at home in the rooms where he’s kind of peering, he’s playing loud music. I mean it’s, it’s deeply creepy. And when the one screenshot that I put in the story is him just kind of threw the screen smiling.

Joe Patrice:

Yeah, it’s not great.

Kathryn Rubino:

But

Joe Patrice:

Again, it seems like

Kathryn Rubino:

He’s no longer there. But apparently my P is now investigating according to the latest update from the TikTok account. So there’s that information we have

Chris Williams:

And just a little bit of insider baseball. Was this a story where we realized that people don’t expect us to have a TikTok presence? Yes. Yeah. So how’d that go?

Kathryn Rubino:

Yeah, I was looking at some of the comments of the story and someone accused me of being a fake person, and I was like, I assure you I am real. But somebody was, and it was funny to watch other lawyers come in and be like, listen, they deal with big law, but trust me, this is a thing Above the Law is a thing, which if you’re not a lawyer, you may not be aware. But the other sort of proof that I was fake was that the same person wrote the update that wrote the original story, and I was like, a, it’s, my story’s fake

Joe Patrice:

Because they’re consistent. It’s not real. Woodward and Bernstein seem to be writing all of these Watergate stories. I

Kathryn Rubino:

Don’t understand. Precisely. Precisely.

Joe Patrice:

All right. Well, I think that brings us to the end. Thanks everybody for listening. You should subscribe to show, get new episodes when they come out, leave reviews, all of that sort of stuff. You should be listening to the Jabot Kathryn’s other podcast. I’m also a guest on the Legal Tech Week Journalist Roundtable. You should check out other shows on the Legal Talk Network. You should be reading Above the Law, so you read these and other stories before we talk about ’em here. You can follow it at abovelaw.com. On Blue Sky. We are also there too. I’m at Joe Patrice, at Kathryn one at writes for Rent. And yeah, that’s pretty much it. Peace. Cool. Bye.

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