All The Court's A Stage And Trump Judges Merely Players

0:11Hello, welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I'm joined by my colleague, Catherine O 'Bino. Hey. And we're here to kind of chat about the big stories from the week that was in legal. But first, we'll, you know, we'll chat like humans for a little bit. How are you? Yeah, we are very dedicated to proving that this is not some AI generated podcast. So here we are being humans. Yeah. I am in Chicago, where I am about to begin Relativity Fest. which is coming immediately off of me spending the whole last week at 8 a.m.'s Kaleidoscope Conference. So I've been busy.

0:51I feel like this is something we say every year and super niche content in the sense that not very many people are aware of the legal tech conference schedule. But the way that they have always put them back to back to back, first of all, sucks for everybody who's not there who works for Above the Law, because we are literally down one of our writers on a pretty regular basis for basically two months. It's basically all of September and October. Yeah, it's not great. You also don't sound great. You sound like not well. Interesting. Do you feel sick? I don't feel sick. I don't feel like great, but I don't feel sick.

1:34You know, like kind of that free floating below, slightly below average that I get for, you know, all of September and October. Bringing it straight back to that. Yeah. I mean, all fair, all fair. I am currently living on a diet of zinc. Nice, nice, nice. Yeah. I mean, listen, I have a toddler and this is her first year in school as a regular thing. Like she's in five days, full days. And week three, she was already down for the count for a couple of days with some, you know whatever toddler grossness and i was also affected and i was like absolutely not i talked to a good friend of mine who's been a preschool teacher for two decades and she was like let me tell you the exact schedule of zinc pills that you should be taking so um i i am fully on apparently elderberry also should play a role in my life going forward i'm here for it whatever Whatever it takes, whatever it takes to not be out full time, you know, with whatever toddler grossness exists, I'm into.

2:41We should get to talking about, you know, the law these days. So what are we talking about today? What the f*** is up with the Eighth Circuit? This has sort of been an ongoing story. And some of the biggest things have just happened. So, Joe, this is very much your beat, so you'll walk us through it all. But my immediate take is the Eighth Circuit was really jealous that the Fifth Circuit got the reputation as being the Trumpiest of Trumpy circuit courts. And now they're trying to level the playing field a little bit. What's your take? I think there's a little bit of that. So the Eighth Circuit situation that we're talking about is that Missouri gerrymandering map that we've had some previous conversations about.

3:26This is a map that was passed mid-cycle by Republicans to take away basically the Kansas City congressional seat. They passed it, but the Constitution of the state of Missouri says that if you make a change like that, if at least a certain percentage of signatures are reached, then it must be held in abeyance until there's a statewide ballot measure on it that happens at the next election. So that happened. They gathered those signatures, and the Republicans realized that that meant that while they probably would win and get this map, they would not have this map until after this particular midterm election.

4:06And so their response was – and the state attorney general said it on the record, which was kind of a shock, which was – Useful, useful. Yeah, let's just delay this because that will help us. And what they did was they waited to pass judgment on whether or not the signatures were valid until the last possible second, at which point they ran the primary with the illegal map and said, well, you know, it's too late now. And the Missouri Supreme Court said no. They filed that, then appealed to the U.S. Supreme Court, who said, well, they didn't really – the U.S. Supreme Court didn't so much say anything as much as said, we're not changing what the Missouri state's court did.

4:48Yeah, they said nothing, which actually turns out is pretty freaking powerful. Yeah, they just issued a, we're not changing that. At that point, the state went to the federal courts, which is not how these things are done, but they went there. And then the Eighth Circuit allowed this to get back up to the Supreme Court, who then said, no, you can't do this. At that point, the Eighth Circuit decided, are you sure? Let's try again. And so they did and authorized the new map. And then it went back to the Supreme Court and the Supreme Court yet again unanimously went, how many? This is the third time we've had to tell you this.

5:27No, this seems to be the end of it now after three times. But that's what was going on. and why were they doing this? Now, this is the question. Like, I got some flack from right-wingers who say, because I wrote an article where I said that, you know, this is, I think, an impeachable offense. I feel that this isn't like, but this isn't like judges disagreeing, you know, which is fine, even if they're - Yeah, this is refusing to listen to the authority of a higher court. And refusing to do it in, like, premeditated to the extent you're doing it a third time. It is wasting judicial resources on frivolous stuff, which you know isn't going to work.

6:09It was a stunt. And that was the part that got me, more so than whether or not they're right or wrong, if you have judges who are wasting the judicial resources on publicity stunts. And it's not just them. And I think that what they were doing was trying to establish their credentials as willing to bend the law for this administration, even if those meanies at the U.S. Supreme Court won't. And it worked out. Two social posts from Trump applauding what they did and being mad at the U.S. Supreme Court. I view this, though, in a broader context. You mentioned the Fifth Circuit already. The Second Circuit had an opinion yesterday.

6:51Well, when we're recording this, whatever. Point is, they had an opinion. Recently. And, yeah. And, you know, it was easy. The whole bench was like, no, but it was dealing with Trump administration issues. And all of the, not all, I guess one of them didn't, but the most of the Trump appointed judges felt the need not only to dissent from this entirely obvious opinion, but to write lengthy, babbling and incoherent opinions about it, which weren't really designed to advance the law. Indeed, one of the lines in the majority opinion points out that one of the dissents advances a theory that even the government does not think is fit to advance.

7:38They're making up stuff that even the government knows is too crazy to even argue. It speaks to there is a culture among, in particular, the Trump 2 judges, but among Republican judges, that this is all a game. It is all a career advancing game and writing, you know, using your opportunity to write the craziest stuff is how you make sure you're you're ready to go in case the phone call comes about somebody getting moved up the ladder. Yeah. And I mean, I have a couple of thoughts about this. The first is if if lifetime tenure means anything, it should mean that we don't have to deal with any of this bullshit.

8:15But that is, you know, not the world that we live in. And I also want to kind of draw the parallels to reality TV, not just because I'm a fan, but let's not forget that the whole reason why we have a President Trump is because we had a reality TV star, Donald Trump, first, right? He got a resurgence in his career and his reputation because of The Apprentice. And that was, you know, a very public audition process. And I think that that model of public auditioning has absolutely been adopted by the conservative judiciary at this point. You know, it's not just the Second Circuit. It's not just the Eighth Circuit.

8:53We've written extensively about the Fifth Circuit and other judges across the spectrum really trying to get the attention of Donald Trump and the only way he seems to appreciate, which is bending the law for his personal whims. I think it's really problematic, but also the most kind of quintessential 2026 thing that could happen is the way in which the television process has informed the judicial process. And I think that that particular link is not something we're talking about nearly enough. It's not great. Yeah, I mean, it's professional wrestling brought to the global stage, you know. This is why we had a UFC fight on the freaking front lawn of the White House, right?

9:39It's all about the visual. It's all about the audition process. It's all about, you know, the kind of the 30-second social media version of it. And honestly, half of these decisions are written for social media, right? They're written for the tweet. They're written for the just being able to clip one line out of context that will get somebody in Magalans attention. That's what they're written for. That's that. And it's it's really depressing, even if you pull the politics of what they're saying out. Right. And that's really the thing. It's one thing to have political disagreements in legal decisions.

10:19If you're coming at it from a position of good faith, there's nothing. It's not great, but it's certainly not impeachable. I would never say that. But when you're doing this, when you're going out of your way to abuse the system for your own personal professional advancement, that's not good behavior as we would understand it based on the Constitution, or at least how I would understand it. I think you're 100 percent right. And I think that, you know, to the extent that you ever cared about what originalists would have thought about the world of 2026, this is obviously, I think, would be a problem.

10:57And the judges are not just saying whatever Trump wants to hear, but they're also going back on things that they've written in the past. We have federal judges saying, I don't know if they said when the amendments say two terms as president, maybe we could actually have a 2028 Donald Trump president. This is just trying to get Trump's attention. When James Ho comes out and undoes what he's written previously about birthright citizenship because that was Trump's hobby horse. This is just this is undoing the established, very obvious and like sort of little C conservative principles and in the sense of like not creating new law, but kind of, you know, being just, you know, not radical.

11:43And they are undoing those very principles in order to get a promotion. And it is, I think, reprehensible is too mild to word. Well, on that cheering note, let's take a quick break and we'll be right back. Every legal professional wants to put their clients first, but billing, payments, and case management get in the way. 8AM is the professional business platform that helps law firms get paid faster, manage cases more easily, and grow with confidence. Trusted by over 260 ,000 legal professionals, 8AM integrated solutions like 8AM Law Pay and 8AM My Case help simplify the business of running your firm.

12:25So you can actually put your clients first, first. Visit 8am.com slash legal talk to learn more.

12:59fewer missed opportunities no more hold music solos try it free at smith.ai mention above the law or use code no hold at sign up to claim 20 off your first two months of service so let's turn now to the world of big law okay uh legal cheek conducts surveys uh pretty much annually to find out how long people are working in the office. And obviously Legal Cheek is a UK-based publication. So this is based on surveys of trainees, but they're all American-based big law firms. And they ask them, what time do you get to the office and what time do you leave the office? And they actually rank them not by the total number of hours spent in the office, but in the time you get to leave, whether or not you have to cancel dinner plans.

13:53Joe, I wrote the story, I don't think you've looked at it super closely. What is the latest time people say on average that they are leaving firms in London? In London? I feel like it's probably better than here. So I'm going to go with like, you know, nine. Oh, oh, the top 10 is later than that. Every single firm and the top 10 latest is after 9 p.m. There you go. All right. Milbank, I think for the second year in a row, takes the cake as the firm that people stay the latest at. So they are leading not just in compensation, but also in lateness in the office. They leave at an average of 10.15 p.m.

14:36Wow. So Milbank, Paul Weiss, Freed, Frank, and Goodwin all say that they clock out after 10 p.m. Debevoise, Cleary, White & Case, Kirkland, Freshfield, and Paul Hastings rounds out the top 10. And Paul Hastings, the last one on that list, say that they leave at 9 to 25 p.m. Wow. And in terms of total numbers of hours, the one that spends the fewest number of hours in the office is Kirkland with 11 hours and 57 minutes. The rest of them are all over 12 hours a day. Wow. Good for Kirkland, I guess. Because those three minutes definitely matter a lot. But what I was going to say is what I think is really interesting about this is that it's not your billables.

15:22And I think the comparison between the number of hours you actually have to be at the office and the number of hours you get to bill for being at the office are two very different numbers. And I think that when you think about billables, you forget how much longer you actually have to be there. Yeah, that's always the classic error that people make. They assume that billable and actually being at the office time is the same. And you are at the office a lot longer than you are able to bill for. Just the nature of the beast. So yeah, I think it's very important to keep track of it as what the real time is because that's your lived experience.

16:00It's not your bills. Yeah. Yeah. I also thought it's interesting that everything in the top 10 people are averaging before 10 a.m. The latest, I think, is 940 at Debovois. They get in around 940. And I also always thought that that was my big law experience. OK, it was based in New York, which just, you know, time zones make it a little bit different. but uh someone when i think i was a second year associate an older associate pulled me aside and because i was coming in early because i i was working for a partner that used to get in at six o 'clock in the morning and he wanted somebody in the office early with him and so i was trying to trying to be that on this particular case that i was working on and she said brown nose yeah well i was leaving earlier i was on a big i was on a big case and we are the associate group we're really trying to we're friendly and trying to work it out so i would leave earlier so i would get in earlier, you know?

16:53So everyone else would stay much later and I was coming much earlier so that, you know, the partner always had somebody available on the case. But anyway, it was fine for that particular case. But one of the older associates kind of pulled me aside and was like, you know, don't do this if you're not working for this guy because they can't really control what time you get in. Like they can't make you come in earlier. They can always make you stay later because you're already there. And I thought that that was, that really affected how I kind of going forward approached it. And, you know, if I had to make a doctor's appointment at 9 o 'clock in the morning, yep, I'll get there 10, 10.30.

17:32It'll be fine. It'll be fine. You know, I'm going to stay till 10, 10.30, 11, 12. So I might as well get what I have to get done during actual working hours. Makes sense. No, don't miss that part of the profession. The only thing I miss is the large paychecks. Bonus season is the only time I'm filled with regret when I start looking at the increasingly large numbers. But everything else about my life is significantly better, I would argue. Yeah. Well, all right. Let's take a break and we'll be right back. So we are back. And what is the news? What's our final story of the week? Our final story of the week is the fashion police.

18:20You know, not just the legacy of the late Joan Rivers, but something that I think plenty of female attorneys deal with on a regular basis. The New York Times reported on a social media post from Texas defense attorney Mariah Medina saying that her outfit was put on trial. A judge called her attire inappropriate. It was not during a trial. It was a court appearance, but it's not a trial. And the dress, she posted a picture of her in the dress as well. And it is the most generic sheath dress, not low cut, long enough. You know, the only thing and the thing that the judge apparently focused on was that her arms were showing.

19:06Oh, uh-oh. Stone her, right? I mean, if you can't. I think a couple of things about this. I think in 2026, it is more than a fine outfit to wear to court. The judge did ask, do you have a blazer in your car? She's like, what? No. Do you really think this is appropriate for trial? She's like, we're not in trial. I'm just, that's not what's going on here. But I do think it's interesting. I think that there was certainly a time in the world where showing your arms in court would have been surprising. that is we are long since past that time and you know we talked about television earlier in this episode but i do think that sort of the the veep um and you know julia louis dreyfus this is like this outfit is like the most selena myers outfit you can imagine it's just like a sleeveless fitted sheath dress that is just like the most you do think very professional at this point because they've really been, television's really presented that silhouette as a professional one.

20:12I mean, in 1956, would that have gotten a different reaction? Sure. But that's not when we live anymore. Yeah. You know, like I feel like these fashion stories come up every now and again. And, you know, there's certainly the courtroom attire ones get a little bit more attention. although here, yeah, this seems ridiculous. But I've been kind of pleasantly surprised that the office ones have stopped streaming in nearly as much. Well, I mean, I think that big law firms are just happy at this point that people are in the office. The priority has shifted. You're here three days a week, four days a week.

20:53Okay, you look fine. It'll be okay. Yeah, I remember there was a whole to-do about it when I first started working at Above the Law, where people were complaining that you should be wearing a suit in the office and whatever, and it's like, well, I mean, depends on what your client base is, like what you're working with. Like, if you're a Silicon Valley lawyer, it probably would not behoove you to be dressed up. You know, there's something to be said for that kind of mirroring effect of like, you know, people trust you when you make an effort to kind of follow the same, you know, cues. And so, you know, somebody in a zippy is probably the lawyer that they're going to trust if they've got a startup.

21:36So I just think that it's it is important to understand what you look like. But we also can just stop with the micromanaging. Yeah. And I think that making a public show of it also, I think, is particularly problematic. Right. If you really think that that's something that you want to kind of impart, on a younger attorney, you know, being like, based on my experience of the court, this is not, this is not something that you should wear in front of a jury. That is a conversation you can have without being on the record in front of other attorneys, in front of everybody assembled in the courtroom.

22:14Like you can have these conversations, be like, hey, you look great and professional-ish, but in front of, you know, I just, in my courtroom, I would prefer, or, you know, if you have a jury trial, you know, it's much more impactful if you have a full suit on, or something like that, right? There are ways you can have these conversations. And let's not pretend that, you know, what you wear is still important. You know, it would be nice if it was just, you know, the content of your speeches and legal arguments. But we all know that people judge people and make assumptions based on what you're wearing.

22:48And that's real. And I get that. And I'm not saying that you could wear anything that you want to a courtroom. To be very clear, in this particular instance, This was a very the most kind of basic work dress that you can imagine in your head was this dress. It was very, very much up the gut work attire. This is not somebody pushing the envelope, especially on social media. You see plenty of people being like, this is what I wore to my big law firm. And I was like, you probably shouldn't have. But OK, you know, but but the truth is, there is ways to have those conversations that are not meant to belittle and insult folks.

23:24and that was not what was happening in this particular instance. So don't be jerks, everybody. Yeah, yeah. Don't be a jerk. Don't be a jerk. Yeah. I like that lesson. It seems like a good one. That seems like a good one. That was kind of one of my sessions at 8 a.m. on a completely different topic. But the takeaway that I had was, you know, don't be a jerk was still a takeaway. We're talking about expanding your practice into new practice areas, taking on new things, which for Smalls and Zolas is a task that the purpose of this session was that that's something you may want to consider because there's certain aspects of the referral business where it becomes a one-way referral.

24:10Basically, immigration lawyers have long-term relationships with who they're working with. So when they get in an accident, they need a lawyer, you refer that out, but not every PI lawyer is going to say, hey, I found somebody who has an immigration issue, right? So like in the levels of trust and the longevity of a thing. So it changes the dynamics of how you refer. And one of the lessons from the session was that, you know, if you were trying to get into a new practice area, you need to find yourself a mentor, somebody who can like tell you and get you up to speed and competent in that new practice area.

24:46And I asked about gatekeeping and whether, you know, because it is taking business away, theoretically, from somebody who could otherwise get it. And the response was, yeah, there are people like that, but a lot of lawyers are just, you know, generally good people. And I was like, ah, so, you know, don't be a jerk was the real takeaway. So, but no, really fascinating session that was. That is kind of an interesting thing, too, about like kind of expanding your practice area because that from someone who had like a big law experience seems terrifying. Right. Like one of the things that was most comforting about working in big law was that everyone had done this before.

25:25You know, maybe I was new to the process, but the lawyers as a unit were very experienced. And I never felt like, you know, I was coming up with novel theories was always like, OK, we're working towards a thing. I will learn a process. I will, you know, I never felt like I was standing alone and terrified. So that was very comforting, I think, for my development in the legal industry. And I feel like people who work at small and solos are a lot more there by nature, probably much more of a risk taker than people who gravitate towards the big law, big firm. I don't know. This is how we've always done it.

26:03Yes, we always use this font. I don't know what to tell you. I think that's the only thing they've loaded on our computers. It'll be fine. Well, anything else? We good? I think we're pretty good. All right. Thanks, everybody, for tuning in. You should be checking out the show every week. You can do that best by subscribing. That way you get new episodes when they come out. You should leave reviews, stars, all that sort of stuff. You should listen to the Jabot, Catherine's other podcast. I'm a guest on Legal Tech Week, Journalist Roundtable, most weeks. You should be reading Above the Law. See you read these and other stories before they come out.

26:34Follow on social media, abovelaw.com. I'm Joe Patrice. She's at Catherine One, the numeral one there. And with all that, we will talk to you later, hopefully with me actually, maybe back in my home, potentially. We'll see if I can finally get done traveling for, well, it's only for a couple weeks. Then there's more conferences. But I do get an eight week off here. Well, enjoy that week. Thanks. All right. Talk to everybody later. Peace.