Amy Coney Barrett Wants Her Cake And To Enact Sweeping Constitutional Rewrites Too

Welcome to another edition of Thinking Like a Warrior. I'm Joe Patrice from Bob the Law. Hi Joe Patrice. Yeah, you have heard the interjections of Katharine Vino and Chris Williams. We're here all to discuss as we do every week the big stories and legal of the week before that we covered here at above the law. And with all of that introductory stuff said, I mean, most of you have I assume been long time listeners, new, new listeners welcome. Everyone else, you know, the drill. That means we began with some small talk so that we can seem so that we can we can seem like we're normal people. Small talk, we just came out of a holiday weekend, everybody good on that. No one was like stuck at burning man or anything. Yeah, unlike former acting solicitor general Neil Katio. I did not get stuck at burning man. So points for me. I did see Katio always stuck there. And that's a former guest of the show actually. So good to see he's okay. I didn't have I didn't have one of my my spinny multicolored fan hat. So it was, it was 10 this year. Yeah. Yeah. Burning man. Yeah. So the real tragedy was not the the rains that that made it the ground muddy. It was that hat. Yeah. I don't know if they're a fashion police at burning man, but arrests should have been made. There are definitely not. I've seen lots of pictures throughout the years. But for those wondering what we're talking about. There was a story this week that former solicitor general Neil Katio. Current Hogan levels partner was at burning man. And he posted a picture of himself wearing a multicolored spinning top beanie or hat of some sort that is attached to the story. So you should definitely check that out to get the visual. The true point of what we're talking about here. Yeah. I mean a burning man is is a vibe. Okay. We have to retire the word vibe now. I mean, I don't I don't know. So that's a route. Why would we retire the word? You used it. You used it. Utterly uncool. Yes. Oh, we're declaring that mere usage by me. That is what it's saying. Okay. Which is a high bar. I mean, it has been I mean, you're like a decade by using vibe. So, you know, there's there's some there's some aging. But once it becomes relevant to joke at trees. What are you talking about? Vibe has been a word always like it's always. It is the increase in popularity over the last like three years, right? You know that. That's why you're using it. Right. I mean, it's been in headlines of mind dating back three years. I'm looking at one now. I've been doing that. Yeah. No, this is that is not a that is not. Wait, no, did you think and the and the fact that it is slang suggests to me that you're all behind. Yeah. Joe, you just literally did a real time vibe check. Yeah. Yeah. Do you get it? Do you get it now? Yeah. No, it seems to me as though you are all just behind on the times since I've been doing this for years. So it's once again, once again, I'm I'm the one with my finger on the pulse of the youth and culture. Yeah. The rest of you. Do the stuff you do. That's probably what's happening here. Well, then fellow kids. How was y'all's weekend? My weekend was great. Hang out with some friends. Enjoyed the fall-like weather for the first real weekend of college football or something. I personally enjoy quite a bit. Watch Deon Sanders revolutionize the Colorado football program. Yeah. That's that's what I did. Yeah, that was wild. I tell you, I don't know that I thought for sure that Deon would win in his opening game against the runners up to the national championship from last year, TCU. I didn't necessarily think that he would win, but they think they were 21 point underdogs going into the game. And I was like, there's no way Deon Sanders loses by 21 points. Yeah, they're going to beat that spread for sure. But yeah, no, big win. That was exciting. It wasn't exciting game for sure. Yeah. What'd you do, Chris? I went to the beach. There's like a real summer thing. Yeah. Yeah. And it was real hot. The contrast, the water, which was frigid for some reason. Welcome to the beaches in the Northeast. Yeah. I was thinking I'm used to beaches in like, because I'm thinking of the beaches I was at before, right out of the country. So like, this is my welcome back to the States, still. Yeah. Growing up, we always went to the Jersey Shore and the water is definitely like ice picks into your feet. Yeah. It was, it was brick out. There was one point where like we had some water and like, uh, you know those, those sparkling juice bottles, the glass ones, we decided to fill out with water. And it got hot. So I had the bright idea of seeing if I could just put it in the ocean for a little bit to cool down. So I was just a goof, a goofball with a glass bottle in the ocean. It didn't work. But it was still a nice, it was a nice excuse to get out the house. We went to a chicken bone beach and Atlantic City. It was the formerly segregated part of the beach. Hence the name. It's because they didn't allow black folks to eat on the boardwalk. So they bring their own food and they didn't have the cleaning folks didn't really take care of the beach. So they'll be chicken bones. But yeah, it was a nice beach. That's awesome. How about you, Joe? Yeah. No, I watched, watched sports just like you did. Very exciting times. I'm getting some technical errors on my computer. And I just want to make sure that those weren't going to debilitate the show, but they seem like they're not going to. So I think you can multitask like that. Well, I mean, it could have been single-tasking if it was going to screw up the podcast. So felt like it was it was worth it. I appreciate that. All right. Well, uh, with that's all finished, we'll transition to our topics. The first topic of the week. What do we want to do? I guess Amy Coney Barrett had some things to say. We'll kick off with some Supreme Court talk. Yeah, Amy Coney Barrett gave some comments at a seventh circuit gathering. And she notably did not talk about the ethics quandary that the court finds himself with finds himself in with her colleagues mostly Clarence Thomas, but also Samuel Lito and a little bit John Roberts. But she didn't talk about that at all. What she did mention though was talking about how she thought it was less than ideal that the Supreme Court's offices are now sort of public figures. She talked fondly about when she was a clerk of the court, which was in the late 90s, that people who would be visiting the Supreme Court would ask the justices to like take their picture. Not that they wanted a picture of the justices, but rather can you take my picture because, you know, it was pre-selfie days. And they didn't recognize that it was in fact a Supreme Court justice because they weren't recognizable like that. And she said that she thinks that that's better. I don't think justices should be recognizable in that sense, which is, whoa, a lot. I mean, it says a lot that she wants the Supreme Court to be in that kind of level of obscurity when these are nine unelected people who have the ability to radically transform the rights and duties of people in this nation. Right. I don't think that that's a job that you get to do and hide behind obscurity. They're the highest, the highest officers of one branch of government. One would assume we should know who they are. You should know who they are. And I also, I actually kind of, I call BS on her whole logic that they weren't recognizable. You know, like, yeah, there were, I'm sure a lot of people didn't know what suit her looked like. But the, there were, there were some grand standing justices at that point who were very aggressively making it known what they looked like. I mean, I think particularly when you're talking about people who are deciding to visit the Supreme Court, they probably are folks who have a higher sense of who the justices are. But I do imagine that justices probably could operate in public without that sort of notoriety, right? I think that without sort of a row or even necessarily formal clothes on, even someone like Scalia probably could go grocery store shopping without being stopped constantly. Yeah, but you know, if you need, put them not in a suit and in that context, it's entirely possible that people wouldn't recognize him. I think that that's that's fair. But it's not fair to say that Supreme Court, that somehow better that justices should be allowed to do that. It's not like she thinks that the president should be able to operate an obscurity, right? That's also the highest figure in an entire branch of government. And I don't think that it's fair to say the other. And she went on to say that that she talked about sort of the failing popularity and approval rating of the Supreme Court. And she said that that was created by that what that did was create misimpressions of what the court does. Oh, okay. Yeah, yeah. No, I mean, obviously, it's not a misimpression to say that the Supreme Court took away rights in the Dobbs decision. It's created an accurate impression for possibly the first time. I want to go back to this recognizability thing because there's a couple of angles to this that are worth exploring a little bit further. One of which is if her complaint is the security issue, that also came up in the news last week, which is that Clarence Thomas finally disclosed that he took some private plane trips paid for by Harlan Crow. Notably, he only told us about ones that happened post-Dobbs, post-Dobbs leak. I should say, are those the first ones he ever took? Almost certainly not. But he those are the ones that he disclosed and then he spitefully informed us all that the reason we did it, he had to do that was because, you know, after the Dobbs leak. What a fantastic descriptor that he used there spitefully because I think that the justifications that Thomas put in his disclosure was absolutely spiteful. Because the idea, of course, well, one, the opinion was going to come out eventually anyway, so there's nothing to do with the leak. That's the part that constantly gets me is these completely different. It's just when people knew about the decision, not their reaction to the decision. This disingenuous bullshit where they act like literally one month difference. So put that to one side. But his argument is that he takes money from billionaires who have business tangentially before the court, if not directly in front of the court, because we make him, because it's our fault that that has to happen. It's a good thing to blame me. Yeah, really, really bad. But to the extent, and also as Elimistol former co-host of the show, pointed out on TV last week, if that's the argument, then we should, as taxpayers, demand back all the money that Congress allotted to them for security last year, because there was a bit, this was the reason why the Supreme Court demanded more money from the government for security, because they blamed this Dobbs thing. And if the 700 billion or a million or whatever we threw, million, we threw in for that is not doing getting the job done, then we should get it back. If she's making this argument that it was better to be in obscurity because it allowed them to avoid security concerns, yeah, great. Well, you've chosen a life as the leader of a branch of government. Sorry. But the second point that I think is more worth focusing in on is that, sometimes there's these in-argumentation, you can assume, you can assume an imply an impact, whether it isn't really one, and you need to state out what it is. When she says, it was better when we operated in obscurity, the question, then it really is beg-why. Why do you think you were better in obscurity? Do you think that you made decisions better in obscurity? Because that isn't something that anybody seems to be saying. So really what you're saying is you didn't want to ever be blamed for making the wrong decision, which flies in the face of the whole concept of having judges. They're supposed to be out there and notable to the extent that they stand by these things, if they believe in them and they believe it is right, then that is what they do. Obviously, with all the security concerns that we rightfully have given the money to deal with, this idea that they should be able to pass judgment silently is really a problem, because that's the implied issue, because she says it's better when we weren't implies being harassed, but really what she's talking about is she wants no accountability. I think that you can also glean that attitude from when she talks about the misunderstandings that people have based on an actual understanding of what's going on. I think it's this bullshit that says, oh, the court is this perfect body that just calls balls and strikes. This is just what the law means. If you don't think that you're wrong. That's what I'm trying to get at. I didn't say it nearly as eloquently. The impact to what she's saying that she's leaving out their unsaid is that she believes in a world where accountability should not exist, where the justices should not be treated as though they have made a decision. They have merely reported what the Constitution says. They didn't do anything, which is a lie, and it's an obvious one. That's the part that the obviousness cannot be overseated. There may be certain justices, if you look throughout the course of the course of the court, that really kind of adhere to that worldview and really do kind of try as best to not read politics onto these court decisions. But even if that was ever true, and I'm not sure it ever was, it is definitely not true of the current court. And it's definitely not true of Amy Coney Barrett's jurisprudence. I mean, there's a reason there's nine of them, right, as opposed to, and obviously that's not fixed by the Constitution, but as opposed to one. The reason why there is a panel is because it is assumed that there is not one glaringly correct answer all the time, and that someone would have to, I'm going to use bold term here, judge what the result would be. And given that that judgment is inherently subjective. Yeah. And that accountability needs to go with that. And it's really frightening that this is the way people feel that they can talk in public. Absolutely. And it also waves away the legitimate complaints that her fellow justices have raised about the court's current trajectory, like saying that it's it's somebody who doesn't understand the workings of the court when they criticize the court. Do you think that Elena Kagan doesn't understand the court? She's been on it a lot longer than you have. Yeah. I mean, this is just, you know, it's just what happens when you put people who probably should not be on courts on courts for a lifetime. Yeah. Anyway, I do want to say, I do think it is interesting that it is, it isn't anomaly, the celebrity that American judges have. Like, for example, say the people, most at most members, most people in Canada don't know the members of their Supreme Court. So like, I do get that, you know, this was her way of saying, I sure do wish it didn't have accountability, but I do find it interesting looking at like the cult of personality that surrounds our jurists, that she's hating on a problem that is her fault. I mean, like, well, not her fault in particular, but she's attending public events where like, there was a trying to talk about how there is not clearly by decisions happening where they are, you know, it's a weird move to be a figurehead of the popularity of the court and also want to abstain from it. And there are other countries that do it differently, but I just love that it's interesting. Well, I mean, part of it is, of course, as parliamentary systems don't nearly, it don't give nearly as much power generally speaking to Supreme courts because, because the government is arguably more accountable at all times, you can change both the executive and legislature at the same time theoretically. But it's true. And look, a lot of people still can't recognize Supreme Court justices. That's the other part of this. This is so ridiculous. Like, we are talking about, it's not that more people recognize now versus before, it's always been a small segment to the population. It's just that more of that segment of the population is angry right now, because she's blowing past that large swaths of the American population don't know anything about any of this stuff. They have a short time recognizing presidents. Right. Anyway. Hey, Guy, what's up? Just having some lunch, Conrad. Hey, Guy, do you see that billboard out there? Oh, even that guy out there in the gray suit? Yeah, the gray suit guy. There's all those beautiful rich leather bound books in the background. That is exactly the one. That's JD McGuffin at law. He'll fight for you. I bet you he has got so many years of experience. Like decades and decades. And I bet Guy, I bet he even went to a law school. Are you a lawyer? Do you suffer from dull marketing and a lack of positioning in a crowded legal marketplace? Sit down with Guy and Conrad for lunch hour legal marketing on the legal talk network available wherever podcasts are found. All right. Well, let's let's do some sandwiching us so that we don't have to keep talking about the Supreme Court. Big law conversation. Yes. The chair at Crowell and Moring sent out an email to everyone. Some might argue bragging about his summer vacation. He took two weeks vacation and wrote to everybody about it saying that it was actually a good thing that he took a vacation. That it was hard to unplug because you kind of feel like you're so important to the workings of your case. And in his case, the operation of the firm as a whole, but that it's important to unplug, to rely on your colleagues to get the work done. And when you come back, you're actually better at your job. But a lot of folks at the firm, we heard from complaining about the email saying that it was bragging that younger attorneys at the firm associates, younger partners did not feel like they have the ability to take those sort of two weeks off and go go out and and take the time off. And it was tone deaf to say that as the leader of the firm, I can do this when you clearly can't. And I think that I'm sympathetic to that world view. And I think that if you're in the middle of a run of cases or deals or whatever, where you're really churning out the hours where, you know, it looks like you will never have two minutes to yourself or six minutes as in case maybe to yourself ever again, that having somebody to be like, well, I just took two weeks of vacation might might you might feel a certain way in response. But I kind of took the take that I think this was offered in the with the best possible of intentions. And I think that what the leadership of the firm is trying to do is say that it's important for all of us to take two weeks vacation. The only way that a junior associate feels like they're capable, they're able to unplug for two weeks is when they see it modeled by leaders of the firm, you know, all the way down, you're up the chain as a case maybe. And I think that it's important to say that this is something we value. Look at even the most important lawyers at the firm are doing it. You should do it too. Yeah, I kind of took that read of it too. I like it. I just think back to when I was an associate and like, yeah, you had four weeks of vacation and it was obvious you were never going to take four weeks, right? There was never a scenario where you were going to do that. And like, at best, you took a day here and a day there. The idea of a senior attorney saying, no, I don't want you taking a day here or a day there. I'm actually going to go for two weeks and it's good and it's important that you do that. That is valuable. And it's valuable because I'm sure the managing partner does not reflect what some practice group leaders believe. And some practice group leaders are going to be jerks about somebody saying they're going to take two weeks off. And it's important to say I'm doing the same thing that he did. I'm going to try to cover my work the same way he did. That's valuable. So I did read it that way too. I do too. And I think that this is a great first step. I think there are other things that firms can and some are doing in order to encourage folks to take those vacations. Some firms are allowing folks to count certain number of hours, maybe 40 hours of vacation time towards their billable hour requirement. Obviously that goes a step further and saying this is something we, if we let you bill for it, it's obviously something we care about you doing. So I think that there is, there are more things that people can do, but I think this is a great step in that direction saying, you know, and you know, we've talked about that I host another podcast and oftentimes talk to leaders of firm in a kind of a convert conversational way. And one thing I always wonder about is how do firm leaders know what it's like for associates on the ground, right? Because firm leaders like this is what our firm does. And it's like that is not necessarily what first year associate X life is like, you know, there's how do you go from what our stated goals and stated culture wants to be and how actual attorneys live their lives at your firm. And I think that there's always going to be a gap between what you want and what the lived experience is. But this modeling sort of behavior is one way to bridge that or at least start the process of bridging the gap. I don't think any of it happens overnight. Yeah, I think the next frontier is the allowing it to count in your end of your billable totals. They everyone were assumed that, you know, say it was four weeks or whatever if everyone was getting 40 hours that week or preferably 60 that counting as 60 or 80 or whatever when it comes to the final meeting of minimums, I think that would do go along. That's a much stronger way of encouraging that, I think. Right. If firms care about it, they'll let you bill for it. That's been true when certain firms let recruiting count for billable totals, some let diversity initiatives count towards your end of year totals. And that's a way for the firm to say this is what we care about. You know, I worked at firms with two different models. One, you had the had it and it rolled over for the first six months and then you would lose it, but you'd get more or whatever. But even at there, like HR would would count up your past ones and still give it to you if you really had a reason. Then the next place I worked had the same, that same model, but ultimately changed it to one that I understand the change and I welcomed the change, but I think the change somewhat problematic, which was getting paid out for unused at the end of the year, which it is useful to the extent that, you know, what good is having six weeks in your pocket if it's all going to expire anyway to you, that said, it definitely set me on the incentive of why would I even why would I try to make it two week if I can get an extra week's pay out of this. So it mean partially because I'm at the time still trying to pay off loans and all like that's a loan payment. So it is it's interesting. It's a tough nut to crack. I agree with you. I think this guy was trying to. Yeah, I think that I think that the intent was correct. I think that this sort of attitude towards and again, the email was not just I took a vacation. You should too. It was saying things like we have to all trust our co-workers and this is how you do it. And I didn't just take the time off. I unplugged. I didn't respond to emails because it's very different to really take even just a one week vacation versus a two-way vacation where you're actually still billing six hours a day, which is still a vacation from your normal, but it's different mentally and your ability to recharge and come back as a better lawyer when it's over is just different. Yeah, and I think it was I think it was a good I think it's a good step for sure. Yeah, no, like, look, if you think that that isn't reflecting the lived experience, now you have something to cite. I should be getting this time off. Look, the leadership says I should be right or you know, even saying to I took a vacation, but the partner I ex-partner constantly required me to do the following. So I couldn't do what feels suggested we do when truly unplugged because of this and it's it's a good model to have out there at the firm. Yeah. All right, so coming to the end here, Clarence Thomas's former, a bunch of Clarence Thomas's former clerics, not all of them, but the vast majority of them put out an open letter in which they I mean, this stood up for his him in this ethical mess that he is in and talk about how he is unimpeachable, which is probably the wrong choice words as he is most definitely impeachable. But they should have said beyond reproach, maybe. I don't know, like this, that's actually the takeaway I had to this. There's a lot of takeaways here. The idea that John Eastman who is on try high likelihood of going to prison that they let him sign this and federal judges like say, James Ho felt, yeah, I'm cool. I will. My name right next to this right next to this is. Yeah. And also, these are people fundamentally who have a vested interest in their association with the name Clarence Thomas meeting something good in the future. Look, that said, like that point and a lot of people have talked about this elsewhere, but like Judge Katzis and Rao they are notably absent from this. It's almost as though they looked at it and said, I'm not sure I want to be on a document with John Eastman. I'm okay. I'm okay. Yeah, but the other part of it that really got me and it, you know, how being an example of this too, but also there were people on there who have real careers as big law attorneys and all. It's how badly written it was. Like that's a part to got me like they were assigning their name to something that read like a juvenile wrote it. You know, it sets up with this like flowery rejected from your high school literary magazine style, a conceit of we're not going to name Clarence Thomas in the first six paragraphs. I'm going to hint at him as this unspoken protagonist like just just really like the stuff that like it was a dark and stormy night style writing. I already mentioned the going with unimpeachable when they should have got gone with beyond reproach. Things where it could have been resolved and there have been no issue if someone had written a second draft like it instead of just like just like something I got it done. Let's just sign it. Just drunkenly typing out the first thing they thought and then going, let's roll with it and somehow convincing a bunch of people to sign on to it anyway. Really, really crazy how bad this was. You know, it makes you think like you're talking about Supreme Court justice clerks who are always valued in the legal space for being, you know, you've learned to write at the highest level and apparently not only is at least one of them whoever the main author was, not know how to write. The rest of them don't seem particularly interested in editing either. I don't know. I'm just thinking if I were the person and somebody was attacking someone that I cared about their reputation and this letter across my desk as the attorney in me would have sent back a very, very detailed red line. It would have been a redline that was like in the- Send in the red lines, yeah. The red line to the extent where it might have outweighed the original plastic, you know. Yeah. I just, oh, there's passive voice. It's just, oh, so bad. Not a great example of legal writing. I mean, the other thing is, do you think the folks just signed it without really reading it too closely? Yeah. And that's the thing, like it's something of this magnitude, right? You're talking about your boss and mentor, yeah. But also it's something that's designed to get attention, right? You don't just sign this so it goes in some file somewhere. You sign this. It's written so that people like you write stories about it. They're hoping it goes the other direction, perhaps the tone of the story, but they want their name out there in the public conversation as taking a stance against the, you know, the questioning of their former boss, Clarence Thomas. They want to make a stand here and it's a terrible stand. I thought about- I thought a lot about just sentencing memos is something that I have a lot of experience in having done a lot of white color defense about writing them as well as I often was brought in to edit ones that other people had written. And, you know, it's a fine line because obviously when you're asking for leniency, you want to humanize the defendant that now convicted, or usually pleaded defendant. But you also, you can't lean so much on humanizing that it becomes kind of a glaring red flag that you're ignoring what's the substance is, you know, like, and that was always a balance. And you would see these sentencing memos that other firms would put in for their, you know, our co-defendants and stuff. And you'd just be, well, you'd roll your eyes like, these, like, 30 pages of all of the saintly charity work that they started doing immediately after they became a target of the investigation. All of that being 30 pages and then, like, five pages of, and, you know, hey, we did some bad stuff. People see that discrepancy and you have to kind of be upfront about what you did wrong and how it has impacted you going forward and why that therefore requires you not to get to the sentence. And you use the humanization to, like, tell that story, but you can't let it be this chunk of stuff that is independent of the story and act like that stuff means you don't have, you know, and you don't get sentenced. That's what this red like to me. When I read it, it's like two thirds of the document is just Clarence Thomas had such a hard life growing up and he's so cool and he was so nice to all of us and he was such a warm and loving leader and blah, blah, blah, one paragraph. And, you know, people are accusing of stuff, but we don't think that he would ever do anything wrong. Anyway, here's signatures. And that's, like, that's one of those, that's what I thought of. Like, it was one of those bad sentencing memos, like the sentencing memo that says, oh, this guy's totally guilty. Those are the ones where, you know, you don't get the request to go to the club fed prison camp, you know. Yeah. Anyway, that was, that was my personal take when I read it. But yeah, very bad. We don't know which of them wrote it. Several of us on Twitter or X or whatever that made clear that we have guesses. All of us kept coming back to one person, one of the clerks, but we'll see. Maybe we'll never know. Maybe it'll be like the dogs. The world may never know. Maybe it'll be like the dogs leaked that Alito did or we know that we also don't know who did it. So not like how many like the takes to get to the center of a to see pop. Oh, okay. Good reference. Yeah. Yeah. All right. Another week in legal news in the books. All right. Thanks everybody for listening. You should subscribe to the show. So you get new episodes when they come out. You should leave reviews, do stars, write things that all helps people see it. You should be reading above the law. So you see these and more stories as they come out. You can follow all of us on the socials. It's ATL blog. I'm Joseph Patrice at Twitter and Joe Patrice at Blue Sky. Catherine's Catherine won that both of those places. Chris is right's for rent on the X. I don't think still probably not on Blue Sky is my guess. Peace. No. No. Not even close. Not even close. I was just mostly to you. Yeah. Try to pay just even the mark of the pension. Also, you should check out the Chabot, which is Catherine's other show. Oh, yeah. So the guest on the legal type week zero is around table and check the other shows on the legal talk network. And with all of that now, I'm going to say that we are done. Peace. Now for you. Sure. If you're a lawyer running a solo or small firm and you're looking for other lawyers to talk through, which is you're currently facing in your practice, join the Unbillable Hours Community Roundtable, a free virtual event on the third Thursday of every month. Lawyers from all over the country come together and meet with me, lawyer and law firm management consultant, Christopher T. Anderson, to discuss best practices on topics such as marketing, client acquisition, hiring and firing and time management. The conversation is free to join, but requires a simple reservation. The link to RSVP can be found on the Unbillable Hours page at legaltalknetwork.com. We'll see you there.