Alito's Outburst And Tough Times For Partners

0:11Hello, 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 Catherine Rubino. Hey, hey. And this is where we talk about the week that was in Illegal. Nice. We usually start off with a segment that I enjoy. I think Cash doesn't appreciate and Joe puts up with. It's called Small Talk. Small Talk. Love that for us. So Small Talky time. You know, we're leading into a, we've got a holiday weekend coming up. We just, like I think a lot of people were, I was impressed with the festivities at America's 250th celebration.

0:55There were literally tens of people who showed up for it, I saw. Wait, the number went up? Yeah. 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 a World Cup match and trying to claim that that was people at the 250th celebration. Wah, wah, wah. Yeah. But what is worth? It is hard to compete with FIFA. I don't know. I've not watched. The Knicks would disagree. I've watched no more than like 10 minutes of any of these matches.

1:34Is that like deliberate or are you taking as much of a stance against FIFA? I just don't care. That's also fair. soccer like a and so like 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 whenever they decide but uh well you know i i will turn it on then but yeah i can't bring myself to watch people run fail to score 90 minutes it's a whole thing how How about you, Chris? What's going on with you? Oh, you know, preparing for unemployment. This is probably more of the first segment rather than small talk.

2:15But this is my last episode with y 'all, as y 'all know, in the last week of writing for Above the Law, presumably. I was kind of doing like 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 But then just trying to think about what's next, what I'd like to do, what jobs are still a thing that haven't been replaced by AI.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. That's been a weekend and the last day. 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 what he's done.

3:03So yeah, talk to us about the last five years. Yeah, shit happens, I guess. No. So I went into law school with expectations of wanting to get a law degree to teach because, you know, 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 three thousand dollars when nobody's there.

3:41So I knew Joe and Catherine from policy debate that I used to do in undergrad. I didn't read above the law because my attention was spent playing RuneScape, which I feel like more law students should be doing. But anyway, I hit them 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. Send in an application. So that's kind of how it happens. So shout out to WashU and networking. And as it's spent, I don't think I have occasionally written things about WashU, like an occasional Go Bears, but not all of the coverage that I've done has been positive.

4:22But, you know, you get what you pay for. They didn't give me a full ride. And so that's that's the consequence. 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 still it still has some fun stuff, but, you know, it's lost a little bit of it's like a lot of people who were part of it have moved on. But for a while, that group was putting out hilarious stuff every day that you were administering. I was I was a bit of the hilarity. And frankly, it makes sense. Like if I was some big wig or that feels too British, if I was like some moderate wig at like a law school at the legal version of TMZ and there was some dude who was in like the largest meme group for like law school students.

5:07I'm like, this is a clear tie in. Like we're going to be able to get like, it makes perfect sense. Also, law school means for edgy 14 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 before, I think, before my tenure there. But it counts. It counts. I'm abstractly in Harvard Law Review, which is cool. My mom doesn't care, but if she did, she'd care. My mom was one of those parents. I was like, oh, my God, my baby got into law school. I could have told her it was at DeVry. She would have just been happy that I was in law school.

5:46but yeah so this is like the first gig that fell into my lap after law school and i thought to myself was like well i wanted to teach you 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 100 more poop jokes so you know yeah and there's probably less grading involved um so time has been a whirlwind it's it's a thing where like day-to-day not not because of above the law gender specifically But day to day feels like drudgery sometimes. But then you look back and you're like, wait, half a decade passed. Yeah.

6:17Yeah. That's what people say about parenthood. I hear all the time is like the days are long. The years are short. Yeah. And there was definitely some some times where I documented a lot of childish shit in the job. Like the thing that comes to mind was one of my favorite things to cover when I did cover it. Clarence Thomas is completely above board ethical behavior and the money to him. And part of me is like, 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.

6:55So like it's it's so obvious the case. But I'm like Sotomayor, who's like, no, I can't take these bagels. It will be a conflict of interest. Kagan couldn't take a basket of bagels from like her high school friends because she was worried about it. Yeah, but I'm like, not everybody has that. What comes to mind is ethical chutzpah. I don't know if that makes sense. 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? Like, what do you mean? It seems like everybody was doing this. Your other judge friend said this was okay.

7:30Like, and I and I and I do wonder, I do wish that more of that was discussed. There were there were some other things that happened, like there was a justice who got like a six figure seat at like a fishing trip. I think that Joe covered. Well, yeah, it was. So Scalia got 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 yeah And people I really don't know leave me mean comments on Reddit.

8:20They don't invite me to six-figure trips. So that's what the seat on the court gets you. But yeah, I've had some stories that were fun. I think of them as at least the ones I remember. Like there's always, oh, X firm grants Y 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 like 2022 and I was, I was in my, I was in my niche AM bag. I was saying the, uh, establishment clause is dead. And then just seeing the series of, uh, the growth of Christianity in the state grow since then. And the, uh, the waning and respect toward other religions that has been happening since the Pauline Newman coverage, uh, which I did not expect to be a thing I'd be doing for years.

9:11yeah but that'll be a that'll be a thing i look back on because the job here as i've experienced it i don't i guess we're some kind of journalists i think we're really propagandists of some kind where uh we're commentators is what i might call it well that's what that's what a propagandist would say no but i do think that like i do think i mean some of the some of the news that we get on the back end it's like oh the news coverage is liberal or blah and and that's that's a that's a no that's a mean nothing categorization but i do think that there is a political bent to the content that we write in the way 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 journalists i have felt the most journalistic in my coverage of pauline newman yeah i think that that was fun like i actually went to a place did a recording you know you know took notes you know And it was nice.

10:06Yeah, I think we are journalists. I think we 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 can actually do with your coverage. But further, I think we go out of our way to shape opinion. I would hope so. That's – as an analyst, yeah. 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.

11:03There have been times where things we've written or that, say, Liz Dye has written that has crossed over into public consumption that has shaped opinion in a way that I think is beyond journalistic. Not that I'm not saying it's in a pejorative way, just being descriptive. I think that the things that we write are received. And it's interesting. That's one of the things I think is fun about the job. 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.

11:37But we did have a few stories that stood out, one of which is the aforementioned Sam Alito broke with. broke with tradition at the Supreme Court. And after delivering an opinion that, you know, 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 a not not not every decision has that but it is a common there's it is a a tradition within the court that if you have a dissent that you feel particularly strongly about you are welcome to read all or part of it from the bench that is a thing that happens with a bare amount of regularity and justice sotomayor read from her dissent uh and this the selections she read had the impact of pointing out a series of glaring logical fails and uh weak argumentation on alito's part uh rather than just sit there and take it which you know 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 which he could he could have just sat there and let it happen.

13:03But in true Streisand 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. I mean, a couple things here. First of all, Sam Alito has the impulse control of a two-year-old. Literally, that is accurate. Remember, he's the one who decided to heckle President Obama during the State of the Union. Right? Like, 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.

13:43You 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 the conversations. She tries to, 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. 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 have been able to see it before.

14:18Yeah, 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 descent. 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. Yes. Like figured out the right figure out the writing part. It was an open book exam and you chose not to respond. He then attempted his his team attempted to characterize this as, oh, no, it was just he didn't know that she was going to read from her descent and he would have said more to kind of balance it out in the moment.

14:53This got shot down by the Supreme Court Public Information Office who said, oh, no, he was absolutely informed she was going to do this. Of course, because this is not weird for her to do. This is a thing that happens with, as I said, some regularity. Yeah, I mean, but they talk about like, oh, I'm going to be doing this. He was aware of this. And it's being written off as a misunderstanding. No, I mean. Don't worry. Sotomayor is going to have to apologize for reading from her dissent before this is all said and done. I very much had the take on it that it is, you know, I totally have a girlfriend.

15:25She 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 just he got exposed for not having anything because because he doesn't. This particular case was the immigration case where in the post – 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 people like these countries didn't want to give them asylum so they would not let them reach the port.

16:07So 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 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.

16:44That 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 Sotomayor was, that's not how this works. He did not really provide anything to prove this other than some dictionary definitions of what Ian means. Vibes, man. The vibes. Yeah. Which, when you're interpreting complex international law by looking at Webster's, you failed. The dictionary says. Yeah, it's you failed. So and that's why he got pantsed in it by Sotomayor on stage and he felt the need to snipe about it.

17:31But 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. They can't defend their arguments. 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 fail your 1L class, you prefer not to write.

18:14And 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 on, you know, from the bench. Yep. Did you notice how right leaning media covered this? Was it like a legal owns woke liberal justice? Or was there any? You know, 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 like so classless that, you know, it's not something they would want to talk about in any event. But as far as the opinion themselves, yeah, they just they just jump on the a lot of how they like to reason in these situations.

18:52And, you know, you can see it in his opinion is just to make the argument as facile as possible. That's not what in means. Well, 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 block people 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.

19:33Obviously, 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 was 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. We have another story here. When do we get back? All right. Let's talk a little big law. Let's talk 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, you know, that firms can dangle 20, 30, even as much as$40 million in annual salary to get targeted, you know, rainmakers to leave their firms and join new ones.

20:32But where does that money come from, right? It's not like they just magic the additional money that these guarantees are. It comes from, you know, 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. And there's a lot of partners kind of in the middle or the bottom that are not going to make the same amount of money as they did last year. And mid-year, you know, we're at the end of – we're right at the six-month mark of the year is when those messages start to be communicated to the partners. And, you know, a lot of partners are aware, you know, they have a client that hasn't given them as much business.

21:14They, you know, or they just don't have as much, you know, legal business or whatever it is. They're aware, you know, I think of their hours and what's going on and what matters they're bringing in and what originations they get credit for, etc. 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.

22:00It's interesting this is all being discussed at the same time. 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.

22:41We're having the whole structure that has long defined the legal industry is eroding and is very up in the air. 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. Yeah. I wonder how long it'll take or if it even be coherent for there to be an even newer tier of partner. because I would imagine that I'm like, no, seriously, because there was a time like partner meant you got a share of the firm.

23:21Like that was a thing. And like salaried partner, it sounds like a contradiction terms, which they are normalizing. I 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, very lockstep, right? There was a lot of firms. It was like, well, it's the number of years you've been here. It's, you know, there's a very clear formula that everyone kind of shares in equally.

23:54And increasingly, it's not, right? You know, even if you're an equity partner, you're not getting, 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, you know, new matters. And a lot of these laterals that are coming over are being given guarantee paydays of, you know,$20 million. Right, yeah. Which, you know, the firm certainly hopes and the partners all hope that, you know, they're bringing business that's, you know, that justifies that payday. But who knows? Origination partner sounds like a fun title. Then it'd be like origination.

24:26Then it'd be equity. Then it'd be non-equity. It'd be pseudo equity, you know. I mean, the origination credit stuff is largely a pyramid scheme as a concept because, you know. Well, yeah, and it locks in a lot of inequities too. Right. Well, because, yeah, exactly. 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 I. Not anymore. Well, right. And not anymore. But I will say, and obviously, you know, 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.

25:03But I really did feel that the lockstep formula at the top trickled down to influence the culture of the whole organization. You know, everybody 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 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. It was – they had arguments about how much would be distributed versus reinvested, and that's a very normal we-own-a-company-together jointly conversation.

25:50And yeah, 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, you know, like there are practice areas that don't make as much money for a firm, but they are important to running a full service firm. And paying those partners the same mattered a little bit to that. And it's just. Well, look at 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.

26:32You know, it used to be like the notion that a Wachtell partner would lateral somewhere else was wild. But like, lols, no, they are not. Are they moving to Utah? Is that why they're lateral? Like, there's no reason for them to do that. But now we're seeing they're just as vulnerable as any other partnership. You know, you see a lot of Wachtell partners going here, going there. And, you know, that lockstep structure does not allow them to retain and to incentivize the real big rainmakers to stay put. Now, in fairness, they make within their lockstep system, they make orders of magnitude more money than most other firms.

27:10Which is why they've retained it, why they're the last remaining lockstep firm. Yeah, no, it's 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 five years. Yeah. So first of all, just so the viewers know, I did a give my heart to you salute that did not look not see in any way. It's been a good five years. Yeah. That's one of those clips that will get taken out of context. It'll be like, see, everybody uses not to salute. 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.

27:55You should be following the Jabot, Catherine'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 you read these and other stories before we talk about them here. You should be following social media, abovelaw.com. I'm at Joe Patrice. She's at Catherine One. Chris is at Rights for Rent. And I started to sub-stack. Oh, it's rights for rent. I know creative, but it's rights for rent. The numeral for, I took a little page out of Catherine's book. So if you want to see me writing more, having more hyperlinks in my text, follow me there.