Alito’s Outburst And Tough Times For Partners

Episode Notes

Transcript

Chris Williams:

Hello. Welcome to this week’s episode of Thinking Like a Lawyer. You’re hearing me, so you probably know this is Chris Williams. I’m joined by Joe Patrice. Hello. And I’m also with Kathryn Rubino. Hey,

Kathryn Rubino:

Hey.

Chris Williams:

And this is where we talk about the week that was an illegal.

Joe Patrice:

Nice.

Chris Williams:

We usually start off with a segment that I enjoy, I think Cashbloom appreciates and Joe puts up with. It’s called Small Talk.

Joe Patrice:

Small Talk.

Kathryn Rubino:

Love that for us.

Joe Patrice:

So small talky time. We’re leading into a… We’ve got a holiday weekend coming up. I think a lot of people were… I was impressed with the festivities at the America’s 250th celebration. There were literally tens of people who showed up for

Chris Williams:

It,

Joe Patrice:

I saw.

Chris Williams:

Wait, the number went up?

Joe Patrice:

I actually saw that, I think it was Fox, one of those outlets started showing pictures to show that it was actually more packed, but they were showing pictures of the completely separate FIFA watch party that was going on for World Cup match and trying to claim that that was people at the 250th celebration. Yeah.

Chris Williams:

But what is worth? It is hard to compete with FIFA.

Joe Patrice:

I don’t know. I’ve not

Kathryn Rubino:

Watched. And Nicks would disagree.

Joe Patrice:

I’ve watched no more than 10 minutes of any of these matches.

Kathryn Rubino:

Is that deliberate or are you taking sort of a stance against

Joe Patrice:

FIFA? I just don’t care. That’s also fair. Soccer. And so if I see that something is close with 10 minutes to go or whatever, or I mean, how would I know? You don’t know that it’s 10 minutes to go. There’s 10 minutes of time and then it ends whenever they decide. But I will turn it on then, but yeah, I can’t bring myself to watch people fail to score for 90 minutes.

Kathryn Rubino:

It’s a whole thing. How about you, Chris? What’s going on with you?

Chris Williams:

Oh, preparing for unemployment. This is probably more a first segment rather than small talk, but this is my last episode with y’all, as y’all know, in the last week of writing for Above a Law Presumably. I was kind of doing a mental review of the last five years and at first I’m like, wait, it’s been five years. But then just trying to think about what’s next, what I’d like to do, what jobs are still a thing that haven’t been replaced by AI. It’s odd. But yeah, that’s kind of how it’s been in the weekend and the last day.

Joe Patrice:

So Chris is moving on after this. So this is going to be his last episode. So that’s why actually, well, let’s transition from our small talk directly into that because Chris wanted to have a bit of a retrospective here about – The last five years. What we’ve done. So yeah, talk to us about the last five years.

Chris Williams:

Yeah. Shit happens, I guess. No. So I went into law school with expectations of wanting to get a law degree to teach because I’m a nerd at heart. It doesn’t take much time interacting with me in person to realize that. And the thought was that I would get a JD and go on to teach jurisprudence, but COVID happened and my wonderful alma mater, WashU, decided to increase tuition by a few thousand dollars while everybody was off campus. And in my mind, I was like, it doesn’t make sense that the campus costs will go up by $3,000 when nobody’s there. So I knew Joe and Kathryn from policy debate that I used to do in undergrad. I didn’t read about the law because my attention was spent playing RuneScape, which I feel like more law students should be doing. But anyway, I hit him up. I hit him up because I was like, “Hey, my school just increased tuition by a few thousand dollars.

Can I write a shit piece on them?” And he was like, “No, but we are interested in writers sending an application.” So that’s kind of how it happened. So shouts out to WashU and Networking. And as a spent, I don’t think I have occasionally written things about WashU and occasional gold bears, but not all of the coverage that I’ve done has been positive, but you get what you pay for. They didn’t give me a full ride. And so that’s the consequence.

Joe Patrice:

You’re also underselling that you had spent some of that time, you were an admin on a Facebook meme group that was hilarious. And it still has some fun stuff, but it’s lost a little bit of its, a lot of people who were part of it had moved on, but for a while that group was putting out hilarious stuff every day that you were administering.

Chris Williams:

Yeah, I was a bit of the hilarity. And frankly, it makes sense if I was some big wig, or that feels too British. If I was like some moderate wig at a law school at the legal version of TMZ and there was some dude who was in the largest meme group for law school students, I’m like, “This is a clear tie-in. We want to be able to get… ” I’m like, “It makes perfect sense.” Also, law school means for edu T14s is in Harvard Law Review by the way. So that is a claim to fame that I rarely share, largely because the reason we were cited in the Harvard Law Review was I think before my tenure there, but it counts. It counts. I’m abstractly in Harvard Law Review, which is cool. Mom doesn’t care, but if she did, she’d care. My mom was one of those parents that was like, “Oh my God, my baby got into law school.” I could have told her it was at DeVry.

She would’ve just been happy that I was in law school. But yeah, so this is the first gig that fell into my lap after law school and I thought to myself, I was like, well, I wanted to teach her as prudence. This will still let me talk about legal concepts that I find interesting, but I get to make more poop jokes and there’s probably less –

Kathryn Rubino:

100% more poop jokes so you know.

Chris Williams:

Yeah. And there’s probably less grading involved. Time has been a whirlwind. It’s a thing where day-to-day, not because of above the law gender specifically, but day-to-day feels like judgery sometimes, but then you look back and you’re like, wait, half a decade passed? Yeah,

Kathryn Rubino:

That’s what people say about parenthood. I hear all the time as the days are long, the years are short.

Chris Williams:

Yeah. And there was definitely some times where I documented a lot of childish shit in the job. The thing that comes to mind was one of my favorite things to cover when I did cover it, Clarence Thomas’ completely above board ethical behavior and the money being full to him. And part of me is the story what it is because he’s the Black justice because Scalia was getting paid under the table too, but I’m like, well, he died before it was really a thing. But also it’s like Clarence is brazen so it’s so obvious the case, but I’m like Sotomayor who’s like, “No, I can’t take these bagels. It’ll be a conflict of interest.”

Joe Patrice:

Kagan couldn’t take

Chris Williams:

A

Joe Patrice:

Basket

Chris Williams:

Of bagels

Joe Patrice:

From her high school friends because she was worried about it.

Chris Williams:

Yeah, but not everybody has that… What comes to mind is ethical chutzpah. I don’t know if that makes sense, but that’s the wording in my mind. But yeah, there was the moment where Clarence was like, “Oh, it seems like everybody was doing this. ” And I’m like, “That’s the story. What do you mean? It seems like everybody was doing this. Your other judge friend said this was okay.” And I do wonder, I do wish that more of that was discussed. There was some other things that happened. There was a justice who got a six-figure seat at a fishing trip I think that Joe covered.

Joe Patrice:

Well, so Scalia went on this fishing trip and Alito took the luxury private plane trip to hang out with someone who had business before the court and then he preemptively wrote that this is a fake scandal and that he didn’t really even know that guy, which was defeated by the fact that our former colleague, David Latt, had actually written years ago about an event that he attended where Alito and that guy were introducing each other as good friends, which ran somewhat in the face of Alito claiming, “I never heard of this guy.”

Chris Williams:

Yeah. And people I really don’t know mean comments on Reddit. They don’t invite me to six figure trips. So I guess that’s what the seat on the court gets here. But yeah, I’ve had some stories that were fun. I think of them as at least the ones I remember. There’s always, oh, X firm, Grant Swiss salary, it’s X more than last year. Those stories are fluff, but the ones that stuck out to me were fun for different reasons. I think I wrote one thing in 2022 and I was in my Nicheyan bag. I was saying the establishment clause is dead. And then just seeing the series of the growth of Christianity and the state grow since then and the waning and respect toward other religions that has been happening since the Pauline Newman coverage, which I did not expect to be a thing I’d be doing for years, but that’ll be a thing I’ll look back on because the job here as I’ve experienced it, I guess we’re some kind of journalist.

I think we’re really propagandists of some kind. We’re reaching these things. Pro commentators is what

Kathryn Rubino:

I might call it.

Chris Williams:

Well, that’s what a propagandist would say, but I do think some of the news that we get on the back end, it’s like, “Oh, the news coverage is liberal or blah.” And that’s a note, that’s a mean nothing categorization. But I do think that there is a political bent to the content that we write and the way that we write it. So I do think we are propagandizing in some way, even if that’s not our intention. But I say all that to say to the degree that we are some kind of journalist, I have felt the most journalistic in my coverage of Pauline Newman. I think that that was fun. I actually went to a place, did a recording, took notes and it was nice.

Joe Patrice:

Yeah, I think we are journalists. I think we create, what is it, creative nonfiction. We try to create a style around our coverage that makes it more interesting than a incredibly dry situation. I always quote the Hunter Thompson quote about objective journalism that you should never bother to look for it because that is a fake thing and the attempt to make something dry and objective is one of the most glaringly subjective things you could actually do with your coverage.

Chris Williams:

But further, I think we go out of our way to shape opinion. I mean, I would hope so

Joe Patrice:

As an analyst. Yeah.

Chris Williams:

Yeah. But I think that Shadow Docket wasn’t a term we coined, but I think that our constant use of it has entered the discourse and how it’s thought of. There have been times where things we’ve written or that say List Eye is written that has crossed over into public consumption that has shaped opinion in a way that I think is beyond journalistic. And not saying it’s in a pejorative way, just being descriptive. Now I think that the things that we write are received. And I think that’s interesting. That’s one of the things I think is fun about the job.

Joe Patrice:

All right. We should probably take a break and we’ll get back in a second and talk about a couple of big stories from the week that was. All right. Well, last week was kind of a slow news week altogether I thought, but we did have a few stories that stood out, one of which is the aforementioned Sam Alito broke with tradition at the Supreme Court and after delivering an opinion that I will go ahead and say as a legal analyst was somewhat superficial and riddled with logical errors and failures to back up claims that are being asserted. Justice Sotomayor responded to this by reading from her dissent, which is not every decision has that, but it is a common –

Kathryn Rubino:

It is a tradition within the court that if you have a dissent that you feel particularly strongly about, you’re welcome to read all are part of it from the bench. That is a thing that happens with a fair amount of regularity.

Joe Patrice:

And Justice Sotomayor read from her dissent and the selections she read had the impact of pointing out a series of clearing logical fails and weak argumentation on Alito’s part rather than just sit there and take it, which while it’s personally embarrassing to the extent that we don’t have video of the courtroom or anything, it’s something that he could have… Yeah, I mean, that’s a whole other thing. It’s not happening. Which he could have just sat there and let it happen, but in true strice and effect form, he decided to break with protocol and snipe back at her that, well, I could have said a lot more if I’d known that she was going to do that.

Kathryn Rubino:

I mean, a couple of things here. First of all, Sam Alito has the impulse control of a two-year-old and literally that is accurate. Remember, he was the one who decided to heckle President Obama during the state of the union. This is not a man that knows how to just not say anything. If a thought crosses his brain, he has to say it. He literally has zero impulse control. But also the whole notion, if I had known, you did know, you read the dissent already. This is not the first time. That’s not how the Supreme Court does business. It’s not like, “Oh, this is a new surprise dissent.” He was aware of the argument. They have conversations. The dissent in every case tries to get the other people onto their side. They have conversations about what it means and why I don’t agree with your point.

They have these conversations you knew already and you had an opportunity to write your response.

Joe Patrice:

It’s too bad that unlike say, I don’t know, Sam Alito, she didn’t previously leak her opinion to somebody and then maybe we would’ve been able to see it beforehand. Yeah, no, it’s also weird because given that there’s no cameras in the courtroom or anything, what actually survives into the historical record is the written dissent. So the fact that he’s sitting around complaining, “Well, I could have done more.” You should have done more on the written part then.

Kathryn Rubino:

Great.

Joe Patrice:

Yes. Figure out the writing part.

Kathryn Rubino:

Yes. It was an open book exam and you chose not to respond.

Joe Patrice:

He then attempted, his team attempted to characterize this as, oh no, it was just he didn’t know that she was going to read from her dissent and he would’ve said more to kind of balance it out in the moment. This got shot down by the Supreme Court Public Information Office who said, “Oh no, he was absolutely informed she was going to do this.

Kathryn Rubino:

” Of course, because this is not weird for her to do. This is a thing that happens with, as I said, some regularity.

Joe Patrice:

Yeah. I mean, but they talk about like, “Oh, I’m going to be doing this.

Kathryn Rubino:

“

Joe Patrice:

He was aware of this and it’s being written off as a misunderstanding. No, I mean –

Kathryn Rubino:

Don’t worry. Sotomayor’s going to have to apologize from reading from her dissent before this is all said and done.

Joe Patrice:

Yeah. I very much had the take on it that it is… I totally have a girlfriend. She lives in Canada. You don’t know her. His claim, “Oh, I could have written more.” All of that was just cover for the fact that he got exposed for not having anything because he doesn’t. This particular case was the immigration case where largely in the post-Holocaust world, we internationally created a series of treaties to avoid one of the contributing factors to the Holocaust was as Jews tried to escape Europe, their boats would be turned away from reaching ports. And the reason was if they got to the port, they could claim asylum and that these countries didn’t want to give them asylum, so they would not let them reach the port. So in the international regime that built up in response to that, we said, “You can’t do that.

” This case, however, was the Trump administration and the Biden administration. Let’s be very clear, this was a bipartisan wrongdoing. They both pursued a policy of physically blocking immigrants from reaching the border in a way to avoid triggering the asylum petition requirements. Now, again, you could listen to the asylum requests and deny them. That’s always an option, but they just don’t want to deal with the possibility of listening to them so they are blocking people from reaching the border. That is in violation of statute and treaty and everything, but it is what the two presidents now have done. Alito said, “That’s fine.” I mean, they’re not at the border technically. And so to my or was, that’s not how this works. He did not really provide anything to prove this other than some dictionary definitions of what – Vibes, man.

Kathryn Rubino:

The vibes.

Joe Patrice:

Yeah. Which when you’re interpreting complex international law by looking at Websters,

Kathryn Rubino:

You fail. Which is dictionary says.

Joe Patrice:

Yeah, you failed. And that’s why he got pantsed in it by Sotomayor on stage and he felt the need to snipe about it. But yeah, no, I think it speaks to his judicial temperament. It speaks to the kind of laziness that has taken over the way in which they’re writing these opinions. I mean, I make a point in the article where I write this up that I think this speaks to the shadow docket concept too, because we’re dealing with justices who have reached a point where they don’t really like having to justify these things because they can’t.

Kathryn Rubino:

They can’t defend their arguments.

Joe Patrice:

Yeah. And they know intellectually somewhere back there that they’re making stuff up. And when they are voting to push a loser of an argument that would failure 1L class, you prefer not to write and shadow docket is a good way of getting around that in this instance because otherwise you’re going to write something and then get humiliated from the bench.

Chris Williams:

Yep. Did you notice how right leaning media covered this? Was it like a Alito owns woke liberal justice or was there any –

Joe Patrice:

It’s interesting. They didn’t really talk about the post decision sniping because that is above and beyond everything else. It’s just such a breach of protocol and so classless that it’s not something they would want to talk about in any event. But as far as the opinion themselves, yeah, they just jump on the… A lot of how they like to reason in these situations and you can see it in his opinion is just to make the argument as facile as possible. That’s not what Ind means. They didn’t make it to the border and it’s like, right, that’s why we have a whole legal regime about the possibility of governments preventing folks from reaching the border. But they’re like, “I don’t know. ” Says they have to reach a border. The people who framed these laws didn’t contemplate a world indeed they were explicitly trying to avoid a world in which governments

Kathryn Rubino:

Blocked people

Joe Patrice:

From getting to the border. But yeah, no. And I think he was very rattled by the fact that the Holocaust examples are mentioned specifically. Obviously that is still a situation where when you’re being pointed out that you’re taking the wrong side of the Holocaust, that stings for good reason a little bit more. And I think that

Kathryn Rubino:

Was what – I hope it does.

Joe Patrice:

That’s what triggered the Justice Snowflake a little bit more than anything else. Well, all right. Well, let’s take a break and we have a couple more and we have another story here. When do we get back? All right, let’s talk a little big law.

Kathryn Rubino:

Let’s have big law money. We talk a lot about big law and money, but we had an interesting story this week that kind of talks about the inverse. We talk a lot about raises, talk about those kind of big lateral paydays that firms can dangle 20, 30, even as much as $40 million in annual salary to get targeted rainmakers to leave their firms and join new ones. But where does that money come from? It’s not like they just magic the additional money that these guarantees are. It comes from profits and those profits in partnerships are shared. So law.com had some analysis about who is going to see a decrease in their salary this year. There’s a lot of partners in the middle or the bottom that are not going to make the same amount of money as they did last year and midyear at the six month mark of the year is when those messages start to be communicated to the partners.

And a lot of partners are aware they have a client that hasn’t given them as much business or they just don’t have as much legal business or whatever it is they’re aware. I think of their hours and what’s going on and what matters they’re bringing in and what originations they get credit for, et cetera. But oftentimes these mid-year reminders can motivate people to get more done, to get more matters into the door, to start the billing machine. But there’s also part of the messaging. You want to let people know so that they’re not shocked at the end of the year that their payments have gone down, they’re not making as much money. And you want to give folks an opportunity not just for their benefit, but because the firms want all these partners to be getting new business and bringing it in and all that kind of good stuff.

Joe Patrice:

It’s interesting, this is all being discussed at the same time. If we’re going through salary increases at the associate level, we are talking about the impact that AI might have upon, first of all, hiring at the junior associate level. We’re talking about where we just come off of the year where lateral hiring outpaced hiring out of law school for the first time in a long time. The economics of big law are in one of the more unstable flux periods that I can really remember. So we’re doing all that at that end. At the top end, we’ve got non-equity partners, we’ve got bonuses, we’ve got people taking haircuts for having… The whole structure that has long defined the legal industry is eroding and is very up in the air.

Kathryn Rubino:

And the amount of partners is kind of noteworthy too. Consultants are estimating like they wouldn’t be surprised if 20% of partners at some of these firms are being told they will not make the same amount of money as last year, which is a hefty amount of partners.

Chris Williams:

Yeah. I wonder how long it’ll take or if it even be coherent for there to be a even newer tier of partner, because I would imagine that I’m like… No, seriously, because there was a time where partner meant you got a share of the firm.That was a thing and salaried partners sound like a contradiction terms. Which they are. Normalizing. I

Kathryn Rubino:

Was going to say, I think that you’re right, Chris, and I think that that’s why you’re seeing… I mean, lockstep partnership is basically dead. And I don’t even just mean, oh, there’s a lot of firms that have income partners or non-equity partners, but even the way that the equity tier is being given their payday has changed. It used to be very lockstep. There was a lot of firms that was like, “Well, it’s the number of years you’ve been here. There’s very clear formula that everyone kind of shares in equally.” And increasingly it’s not. Even if you’re an equity partner, it’s not kind of across the board, people are getting paid what they’re getting paid. It’s about origination credit, it’s about new matters. And a lot of these laterals that are coming over are being given guarantee paydays of $20 million, which firms certainly hopes and the partners all hope that they’re bringing business that justifies that payday, but who knows?

Chris Williams:

Origination partners are like a fun title. They’re going to be like origination, they’re going to be equity, they’re going to be non-equity, be pseudo equity. I mean,

Joe Patrice:

The origination credit stuff is largely a pyramid scheme as a concept because the –

Kathryn Rubino:

Well, and it locks in a lot of inequities too.

Joe Patrice:

Right, exactly. But it really is a pyramid scheme at that structure. Yeah. I worked at a firm that was famously lockstep when I started my career and I will say –

Kathryn Rubino:

Not anymore.

Joe Patrice:

Well, right, and not anymore. But I will say, and obviously I only worked at a couple of firms over the course of my career, so I don’t really have a… It’s not like I jumped around to everybody, but I really did feel that the lockstep formula at the top trickled down to influence the culture of the whole organization. Everybody felt like it was a cooperative, collegial environment when it was not, “Yeah, we all work for the same firm, but I got to get this under my origination so that I can get this extra and I’m going to fight with the people underneath me to claw back a little bit more percent of the billables because technically I deserve it because I was higher up on the food chain.” All of that never really happened. They had arguments about how much would be distributed versus reinvested and that’s a very normal, we own a company together jointly conversation and I thought at every point and I think it also impacted, and we also were famously generalists, which we weren’t, but we still pretended that was how we operated, but it also spoke to that.

There are practice areas that don’t make as much money for a firm, but they are important to be a full service firm and paying those partners the same mattered a little bit to that. And it’s just –

Kathryn Rubino:

Well, look, based on the current analysis, there’s basically only one lockstep partnership that exists. It’s Wachtell. And we’ve run a bunch of stories this year about how they’re vulnerable to lateral raids. It used to be the notion that a Wachtell partner with lateral somewhere else was wild, but Lowells, no, they are not. Are they moving to Utah? Is that why they’re lateraling? There’s no reason for them to do that. But now we’re seeing they’re just as vulnerable as any other partnership. You see a latter Walktel partners going here going there and that lockstep structure does not allow them to retain and to incentivize the real big rainmakers to stay put.

Joe Patrice:

Now in fairness, within their lockstep system, they make orders of magnitude more money than most other firms.

Kathryn Rubino:

Which is why they’ve retained it, why they’re the last remaining lockstep firm.

Joe Patrice:

Yeah. No, very true. Well, all right. I think that’s it. Yeah. Right? All right. Well, first of all, Chris, for being on our show here for a year over five years. Yeah. So first of all

Chris Williams:

That – Just so the viewers know, I give my heart to you Salute that did not look Nazi in any way. It’s been a good five years.

Joe Patrice:

Yeah. That’s one of those clips that will get taken out of context a bit like, see, everybody uses Knoxville. Yeah, everybody does. It’s not just Elon. Thanks everybody for listening and you should subscribe to the show to get new episodes when they come out, leave reviews and stars and all that sort of stuff. You should be following the Jabo, Katherine’s other podcast. I’m also a guest on the Legal Tech Week Journalist Roundtable. You should listen to other shows on the Legal Talk Network. You should read Above the Law. So read these other stories before we talk about them here. You should be following social mediabovelaw.com. I’m at Joe Patrice. She’s at Katherine One. Chris is at Writes for Rent.

Chris Williams:

And I started a Substack.

Joe Patrice:

Oh.

Chris Williams:

It’s Writes for Rent. I know creative, but it’s writes for Rent, the numeral for. I took a little page out of Katherine’s book. So if you want to see me writing more and having more hyperlinks in my text, follow me there.

Joe Patrice:

Okay. Yeah. Let us know and keep us informed about the Substack stuff and yeah, with all that, I think we’re done.

Chris Williams:

Peace. Peace.

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