Trump’s Awful No Good Day At The Supreme Court

Episode Notes

Transcript

Joe Patrice:

Hey all, welcome back. This is Joe Patrice from Above the Law. I’m here.

Chris Williams:

Hello, Joe Patrice.

Joe Patrice:

Hello. Welcome you to another edition of Thinking Like a Lawyer. I am here with some other above the Law people. You just heard Chris Williams pop in and Kathryn Rubino’s here too.

Kathryn Rubino:

I am. I’m here in presence, if not spirit. I’m a bit exhausted, but here we are.

Joe Patrice:

Wow. So yes, it seemed like you were drifting into small talk. I

Kathryn Rubino:

Was.

Joe Patrice:

I had to cut that

Kathryn Rubino:

Off. Easy to do. Yeah. I like that you still want to cut me off even though you know what we’re going to talk about here.

Chris Williams:

Yeah. My favorite drift from that interaction was the new word. I’ve never heard exhausted, but now when tired and exhausted, don’t do.

Kathryn Rubino:

It is more than exhausted. It’s like

Chris Williams:

Extra.

Kathryn Rubino:

Yeah. Like bonus tired.

Joe Patrice:

Well, so yeah, we got an action packed week here of stuff to go over, but we do chat a little bit beforehand so that we seem like we’re people and not Notebook LM. Which actually, that’s a thing we could do. We should try to put our stories into Notebook LM and see how fake sounding it comes out.

Kathryn Rubino:

I doubt we should do that. But speaking of the small part of the small talk or at least the more friendly version, yes, this weekend, the regular listeners know that in addition to my duties at above the Law, I also work with the college policy debate community. And this past weekend was the Cross-Examination Debate Association’s National Championship.

Joe Patrice:

Sure

Kathryn Rubino:

Was. Yeah. So yes, I tab that tournament, which is how the pairings happen. We decide who debates each other. So I am one of the people who is responsible for that. So it’s a lot to do, but it all happened. And congratulations to Kansas that defeated Iowa in the final round after. It

Joe Patrice:

Was like a real Big Ten,

Kathryn Rubino:

Big 12 championship. Yeah. It was Midwest centric, although it did not take place in the Midwest. Binghamton University hosted, I think it’s the third time in the last 20 or so years that they’ve hosted, but it was a good time. But I am exhausted.

Joe Patrice:

Yeah. Dexhasted.

Chris Williams:

Tea exhausted. Yeah. That’s a debate joke. I’m sorry for those who don’t listen. But those who know debate, that was almost like- That was funny. That was almost. Yeah. I had a good weekend. I’ve been doing a lot of runscaping recently. It’s one of those things you just … I started in middle school and now my big age, I’m still playing. Another game I’ve been playing is a Slave Aspire II, which is like a strategy deck building game. So my hope is that by getting my ass beat and slay the spider too, I’m helping to fight Alzheimer’s, keeping the brain activated and thinking about strategy. And as I’m thinking about strategy, I’m just seeing how bad it seems like America is getting their ass kicked into war. That might be a little bigger than small talk, but it’s just on the mind.

Joe Patrice:

It seems like one of those things where it’s not that we’re losing, it’s that there’s no plan to win.That’s a critical distinction, I think. But yeah.

Chris Williams:

Critical distinction in theory, but in effect, it looks a lot like …

Joe Patrice:

I mean … Well, not really. But I mean, when you look at casualties or anything like that, none of that’s happening. It’s not like the losing ground or anything. It’s just things blow up and nothing is accomplished.

Chris Williams:

Well, not that we’re allowed to know. There was a point where reporters aren’t even allowed to report on death tolls. And that’s of course the thing you do when you’re winning a war.

Joe Patrice:

Yeah, that’s fair. I mean, not that sort of stuff. It doesn’t stay hidden for long. Sure. There’s too many people involved. But yeah, no, I mean, it just seems like it’s a hazard mess that involved … I saw the chief staff, the army, for those of us who have loyalties to a branch that our chief of staff got told to resign, which that’s never a good sign when people are preemptively being told to resign. That suggests there’s a problem of a breakdown in the system. And it’s certainly impacting gas prices. I saw that just casually as I was driving.

Kathryn Rubino:

Almost $4.50 a gallon.

Joe Patrice:

Yeah.

Chris Williams:

Yeah. I went to the gas station around my way. The gas prices walk.

Kathryn Rubino:

Just basic advice there.

Chris Williams:

Yeah. Run even.

Joe Patrice:

All right. Well, let’s get back to the topics at hand. So last week, we had a bunch of stories. The last week was a weird week for stuff because we had bunches of stories about the same few topics. The first one, so the big news of the week was the birthright citizenship, oral arguments. Supreme Court was hearing the challenge to … Trump has an executive order where he claims that he has rewritten the 14th Amendment. This prompted a bunch of quote, unquote, originalist academics to say, sure. Yeah. We also always have thought that the original meaning of this was that birthright citizenship doesn’t exist despite never having talked about it before.

Kathryn Rubino:

Yeah. I mean, Steve Ladick I think has a piece that really goes into sort of the sham of the legal academia on the far right that is kind of trying to paper over the trail and be like, “I’m sure we always thought that. ” And here’s how you know it wasn’t always true. Not that long ago, James Ho, now of the Fifth Circuit, wrote, “Well, of course this is what the 14th Amendment means.”

Joe Patrice:

Well, I’ll go further. Randy Barnett wrote to that piece in, I think the Wall Street Journal backing up the, “Oh, as an originalist, I think that maybe birthright citizenship isn’t real.” And I’m like, “You wrote a book about the 14th Amendment and you didn’t mention any of this. ” A sign that you never thought this was an issue until … It’s just the cynicism runs all the way down.

Chris Williams:

Yeah. My thing is, it’s easy to be like, “Oh, all of this begins and ends with Trump.” But no, Republicans have not liked Mexicans for a very long time. So if this was a thing, they would’ve brought it up during the other presidencies.

Joe Patrice:

Yeah. No, very true. And they’ve in the past complained like the phrase anchor babies, a thing that they’ve thrown around- Because they knew

Kathryn Rubino:

That was the law.

Joe Patrice:

For years. But yeah, everybody always were like, “Well, obviously this is the law and we’re going to complain about it. ” Nobody ever thought, what if to get all Royal Tenenbaum Z, what this argument presupposes is what if it isn’t the Law? All right. So there’s a few things to talk about with this case that we covered. The first of which, let’s go through it chronologically. The first of which happens before the oral argument even begins, which is that Donald Trump declares he’s going to show up.

Kathryn Rubino:

Wild stuff. And this I think actually provides kind of a neat parallel to the stuff we were talking about earlier, which the sham of the far right academia papering over the reality. When he said he was going to go, there was a big storm on Twitter being like, “Well, of course the president goes all the time. There’s a special chair reserved, especially for him.”

Joe Patrice:

That’s Harmeet Dylan, the head of the Civil Rights Division currently at DOJ, though it sounds like maybe getting a promotion. We’ll talk about that in a minute too. But Harmit decided to say, “Well, there’s a special chair for the president, which no one ever sits in. ” And I understand Passover happened, but there’s not like an Elijah Chair for the president to just show up and they never do. Yeah, so the president does not have a special chair, but he did go down to the oral argument and sat there for a while.

Chris Williams:

Just to be clear, he also didn’t even sit in the special chair that was mentioned. He just sat in the front row so he could be seen and probably smelled.

Joe Patrice:

Well, right, there is no special chair. And he sat in the public gallery like every other

Kathryn Rubino:

Person. Yeah. And the best part is when people are like, “Look, we ask Rock, can the president attend?” And it says he can. Therefore, you are all wrong when you’re making fun of Harmit. And I’m like, “It’s this he came because the public can attend. There’s ways for members of the public to attend, not that it’s somehow special to the president.”

Joe Patrice:

Yeah. And the justices have a box for observers too. And there are ways in which people can attend Supreme Court hearings. There was no special treatment really in this instance, or there’s definitely not a dedicated chair. Anyway, so he’s attended for a little bit. He left before the oral argument was finished, just got up and left mid-argument, which displaying the sort of respect for the process you would-

Kathryn Rubino:

Well, the good news is that it’s probably because he knew they were getting smoked.

Joe Patrice:

Yeah, it didn’t go well.

Kathryn Rubino:

It did

Joe Patrice:

Not go well

Kathryn Rubino:

For the

Joe Patrice:

Administration. Well,

Kathryn Rubino:

I was going to say it went well for someone.

Joe Patrice:

Yeah, that’s right. It did not go well for the administration. John Roberts still stinging from the past hits he’s taken from this administration, decided to get a good one in by saying, after the Solicitor General said, “Well, things are different now because there’s airplanes and it’s a modern world and it’s a new world.” And Roberts just was like, “Well, it’s a new world, but it’s the same Constitution.” But I’m shaking. You don’t get to change that. At some point, Sauer decides to … Had mentioned Indians at some point in the conversation, and Gorsuch decided to take up this topic as one might expect and asked about what this interpretation would mean for Native peoples. And Sauer was like, “Wow, I’ve never even thought about that. ” And it’s like- That’s a

Kathryn Rubino:

Shame.

Joe Patrice:

It’s like, bro, that was always going to be Gorsuch’s question. Yeah.

Chris Williams:

If you’re listening to the podcast, you probably know this, but if you don’t, Chief Justice Roberts is the Chief Justice at Supreme Court United States. Gorsuch is the chief justice. When it comes to anything involving native sovereignty, he’s the guy, he’s left of left. I’m sure wherever he lives, whenever he prays, he’s like, “I acknowledge I’m eating this on native land.”

Joe Patrice:

That was a viral tweet that I saw that somebody wrote that was like- Piscataway land. Yeah, Gorsuch on a normal thing. It is of course okay for employers to castrate their employees on a native’s case, I’m delivering this from Piscataway land.

Chris Williams:

Yes, yes. So Soaren not being prepared for him to ask a question on how changing criterion for meeting birthright citizenship would affect natives. His answer was like, “I guess, what do you mean you guessed?” Yeah. “You should have known this

Joe Patrice:

Twice.” So Trump bails knowing they’re losing, it’s kind of a generally embarrassing run. After it ends though, we get to see what we unfortunately get to see as social media has become kind of a cesspool, especially with Elon Musk’s running of one of the big platforms. We saw the usual outpouring of just general random racist people who aren’t even lawyers talking about how Justice Jackson doesn’t know what she’s talking about.

Chris Williams:

Right. This is a conversation that plays in my mind. Well, me and Joe occasionally have this where it’s like, how does the average person interact with the law? How do people who don’t read specialty law magazines for fun think about things that are happening in the legal world? This is one of the things that comes to mind. Justice Jackson during the case gave what was, in my mind, a brilliant discussion of this notion of a local allegiance. And by that means how does a person who’s not in some weird scenario like a sovereign citizen or something, how do the laws apply to them when they are in a foreign nation? The example she gave was a hypothetical where a person commits theft from Japan, that they could be arrested for that. And also if a person who’s not a Japanese citizen was robbed in Japan, they could rely on Japanese law to get their things taken back and punish the person that stole from them.

This is a neat example of local allegiance as it relates to being subject to jurisdiction of a government, right? Which makes sense in a case where that clause is up for debate. People whose qualifications that they drive a truck got on Alcore’s internet saying that this was the stupidest thing they’ve ever heard, that because somebody can get robbed in Japan, that Mexicans deserve to be citizens of the United States. It was just one of those things where you could see somebody not understanding the example, but not letting them recognizing they don’t understand, prevent them from talking. Because there was one guy, he was like, “What does she even mean? What does this matter?” And then he starts talking about Biden for some reason. It was stream of word salad. But yeah, it’s one of those things where, I mean, it was a great example for people that understood it.

Joe Patrice:

Well, one of the things that, and this has been something I’ve noticed about the way Jackson handles oral argument generally is Jackson is a big fan of not asking, unlike say Gorsuch being like, “What about Indians?” Jacx is not a fan of asking the direct question because she sets up a story that it seems she often sets up situations where she’s asking a question that seems a little bit outside of a direct engagement with the facts to tease out answers that then just kind of compound as it moves closer and closer to exactly where they are. Almost like she’s, I don’t want to say she’s trapping the advocate, but almost like she’s baiting the advocate in. It kind of is like a cross-examination, a real true cross-examination style where, well, what about this situation in Japan? It’s like it’s unsettling. I mean, I don’t know, but the answers as they keep coming move closer and closer to, well, then let’s get to what it means to be subject to the jurisdiction of.

And I think that style makes a lot of sense if you understand-

Chris Williams:

Understand

Joe Patrice:

What’s happening. … what’s happening. Yeah. If you understand what’s going to happen six questions down, that makes sense. But unfortunately, she’s not really built for a social media world where people are going to take the first question and go like, “I don’t understand,” and like mouth off.

Chris Williams:

Also, one thing, to be fair, I agree with your assessment generally, but just with this particular example, I do think that the way she posed a hypothetical was framed as a long-term gotcha. Gorsuches was too because when he led with the question was, “Well, how will this affect natives?” Well, it’s him. He knew in his mind that they wouldn’t be given citizenship because Native Americans had their citizenship because of statute. So when he was asking the question, how does this affect them, he knew that they wouldn’t be granted citizenship.

Joe Patrice:

Yeah. All right. Well, let’s take a break here and we’ll be right back. All right. Well, so we are back. The other big story that we had multiple installments of taking it outside of the big federal stories to random Texas site courtroom. We had a Texas judge who was caught on video berating an IT worker who had come in to help fix, seemed as though it was a phone issue, that the judge wasn’t connected to a Zoom call or a teleconference or something. The IT worker, who by all accounts is beloved in the courthouse, came and pointed out that, no, you’re connected. You just didn’t understand what’s going on and just-

Kathryn Rubino:

Use your error.

Joe Patrice:

Yeah, right. But rather than say something like user error, which is probably more accurate, tried to allow the judge to save a little face with like a, “Oh, well, false alarm.” That did not go over well as the judge started firing back about that. And then after he tells the guy to get out of his courtroom, he’s on video mumbling to his staff about, “Get me his supervisor and everything.” Just the judge Karen behavior, but how this works out, because sometimes we live in a world where you start to feel like maybe karma isn’t doing its job.This is one of those moments where Karma managed to prove that it’s still out there because everything that happened after this judge became famous in this viral video has compounded to get even worse for this judge. So we-

Kathryn Rubino:

Karma is in fact a cat.

Joe Patrice:

Okay. He instantly got a lot of notoriety because one lawyer who practices in the area wrote a letter saying like, “Hey, this doesn’t really look good. You probably should apologize.” And he responded by demanding that that lawyer appear before him for potential sanctions. So that was met with the entire criminal defense organization of the Houston area, like saying, “We’re going to protect him.” That was a black eye. Then on top of that, we started seeing more videos coming out of this judge’s behavior that weren’t particularly flattering. We had a … What was that? Oh yeah, his bankruptcy records come out because apparently the judge has been bankrupt. The records come out that he’s been fined for some election failing to be filing deadlines. And it’s all stuff where had he not been a dick on video, nobody ever would’ve known any of this. Yeah.

Kathryn Rubino:

I mean, and he was a real dick. This is real problematic behavior and not at all something that is acceptable for someone in that kind of a position.

Chris Williams:

And it will suck to work for the guy. I mean, one of the things that came out was he was being a dick about getting a clerk assigned to him.

Joe Patrice:

Yeah. Oh yeah, yeah, yeah, yeah. The series of emails came out of him yelling at the clerk’s office because every clerk that gets sent up there, he calls incompetent and fires. And surprisingly, that means there aren’t a lot of clerks in the office willing to work for it.

Chris Williams:

Yeah. And there was one point where he was like, “Oh, this better not be a political thing.” And it’s like, “No, you’re being a dick.” Yeah.

Kathryn Rubino:

And he also threatened the head of the Republican Party in the area.

Joe Patrice:

Yeah, some social media posts came out. Yeah, the other Republican Party officials in the city county, I guess, were talking about how problematic he was. He apparently had complained that they did not show up to his investiture ceremony. And then when all this went down on social media, he wrote that he was considering a bench warrant over it, just really petty, not really showing the judicial temperament that you would like to see stuff. But yeah, so he won his seat last time by 300 votes out of, I think, a million and a half or so cast. So I have a feeling he might not get reelected. Seems like this is the sort of notoriety that doesn’t work

Kathryn Rubino:

Out. Yeah. It’s obviously notoriety and also demonstrates a lot of internal squabbling within the Republican Party. So also not going to get a lot of institutional support. It’s not like the wagons are going to circle in his defense either.

Joe Patrice:

All right. Well, cool. So yeah, so we talked about that a lot. Let’s take a break and we’ll come back and unfortunately be back on the federal beat to close out. All right. So we have been running our bracket competition, which here at Bub Law, we do a bracket. And our bracket was what lawyer most deserves to be sanctioned of the Trump administration most deserves to be sanctioned after all this is over by local bar authorities. And congratulations to Pam Bondi for winning that competition and her parting gift was to be fired for it.

Kathryn Rubino:

She broke the glass exit door, Joe.

Joe Patrice:

Yes, that’s true. She’s

Kathryn Rubino:

The first woman, Attorney General to be fired.

Joe Patrice:

Wow. Yeah.

Kathryn Rubino:

That is how SNL characterized the moment.

Chris Williams:

Joe, that’s fair. I’ve got to be honest with you. I’m a little disappointed. As the resident soundboard guy, there had to have been a sound effect that you could have used here.

Joe Patrice:

Oh yeah, yeah. There probably was. Yeah. So she flew too close to the sun.

Kathryn Rubino:

Sure. There it is. There we go. There we go. Yeah. I’ll say it again. You ready? She broke the glass exit door. There you go. And that was the SNL line about her being unceremoniously canned. Really, really funny, hilarious stuff or again, more karma, but in a slightly different way. My favorite little tidbit is that minutes after it became official that Donald Trump made the announcement that she was no longer attorney general, there were pictures circulating online of her official government headshot in the trash can.

Joe Patrice:

Yeah. Kind of had the, for those of you who are old enough, felt like follow the Berlin Wall, people pulling down statues of Lennon kind of a thing, like pulling down the Saddam statues. Moments after this was over, all the iconography of Pam Bondi was being destroyed ritualistically throughout the-

Kathryn Rubino:

Well, I mean, it’s actually really funny though, that her portrait was in the trash immediately because she quite famously demoted a career prosecutor because they had it changed out the portraiture in the main office where they were fast enough. So they saw the prior administration’s portraits up, meaning Biden, Harris and Merrik Garland, and they were demoted because of it. So people, well, if that’s the standard, she’s no longer AG, right in that church. We’re moving trash. Right in that trash can.

Joe Patrice:

Yeah. I mean, I think no one has suffered more than Pam over the way this war is going because the Dow being a well under 50,000 has seemingly sealed her fate.

Chris Williams:

Also, I’m not reporting this. I have no insider that gave me this information, but I like to imagine that as the Porsche was being thrown out, somebody was like, “Hey, throw on YMCA.” They liked the little dance.

Joe Patrice:

Obviously, she also had been pushing the … Yeah, she had been very, “I have the Epstein files, I’m going to release them.” Obviously, that did not go well for the administration. She is now replaced, at least on an interim basis, by Todd Blanche, who had been the number two, who had been working very diligently and mostly to block the Epstein files from being released, at least key matters of the Epstein files, including a couple weeks ago, we learned that he seemingly personally intervened to prevent a document that detailed some of Epstein’s accomplices from being seen by the Senate. So we have that coverup artistry on high display that will Blanche be the long-term replacement? Seemingly, no. There are conversations that it could be one of many number of people, Lee Zeldin being the most- Confirmable? Confirmable, the EPA administrators, because he’s already been through this sort of process and

Kathryn Rubino:

Is kind of

Joe Patrice:

A normal legislator.

Kathryn Rubino:

Although the far right has sort of put their weight behind someone we talked about earlier, Harmit Dylan, the far right is saying that that is at least the terminally online section.

Joe Patrice:

Yeah. Yeah. I’ve also heard that Trump would prefer to have Alina Haba there, which-

Kathryn Rubino:

Okay. Let’s be very clear on why Alina Haba is a particularly hilarious option, right? She was never even nominated for her role as US attorney in New Jersey because they didn’t think she could get confirmed. So that’s a subordinate role to Attorney General. The notion that she would be put up for that position and potentially have to have a confirmation hearing is hilarious.

Joe Patrice:

Well, I mean, she goes by Judge Janine, I suppose. The US Attorney for DC, Janine Piro is also an option. This is a person who has been confirmed. That said, since being confirmed, she’s run an office that gets no build in historic ways.

Kathryn Rubino:

Yeah. And I think actually in terms of whether or not Trump will elevate hers, probably will be her undoing because she’s a loser.

Chris Williams:

Yeah.

Kathryn Rubino:

She’s had a bunch of really public L’s and I can’t imagine that’s the figure he wants to celebrate right now.

Chris Williams:

Well, there was a recent Trumpism. He was like, “Losers, I love losers. I love having people losing around me because then I get to feel much better than them or something along those lines.” So that might be in her favor.

Joe Patrice:

Yeah, no, the DOJ is in something of turmoil and it doesn’t seem like there’s a plot to have it not be that anytime soon. Now, obviously it’s not the department that’s doing the most work right now, but it is, from our perspective as a legal observers, it is fun to watch and it is providing almost daily sarcasm. Well, cool. Thanks everybody for listening. You should be subscribed to shows to get new episodes all the time, leave stars, reviews, all that sort of thing. You should be reading above the Laws who read these and other stories before we talk about them. You can listen to The Chabot, Cathryn’s other podcast. I’m a guest on the Legal Tech Week Journalist Roundtable. You should be listening to the other shows on the Legal Talk Network, social media abovelaw.com. I’m at Joe Patrice. She’s at Kathryn one, the numeral one.

And Chris is at rights for Rent as in rights, not like writes like a birthright citizenship, but writes as in typing. Yeah.

Chris Williams:

Rights, not rights.

Joe Patrice:

Yeah, rights, rights. Right.

Chris Williams:

Right.

Joe Patrice:

And with that said, we will talk to you later. Peace.

Chris Williams:

Peace.

Continue Reading