Supreme Court Airs Dirty Laundry

0:11Welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I am joined by Catherine Rubino and Chris Williams. Hey, hey. And we are going to talk to you a little bit about the big legal stories from the week that was not a banger of a week as far as a lot of stories, but a lot of them, but a few with significance, I guess I would say. Yeah, the kind of stories that break through into the mainstream kind of thing. But before we get there. You know what that sound means? Small talk. We're going to have a little bit of small talk. How's everybody doing? Good? I mean, as good as we can get.

0:48Yeah. Buried under unpleasantness. We were counseled that maybe we should lay off using the weather as a small talk topic. But that was before the snow-a-cane hit those of us in the Northeast. Somehow the sausage is made. More context on the counseling. It was good counsel. We were told that the episodes are going a little too long. So if you're listening and you ever want to be like, here's the reason I don't give you five stars. give us at least four and a half and then say cut down on the time you know but yes we spent too much time talking about the weather which leads us into well yeah no it so snow a cane snow a cane uh i saw that a number of law schools are moving to online classes for the rest of the week because they think it'll take that long for them to dig out so for a full week uh well at least it's indefinitely so i guess not necessarily for the full week but they're saying oh there's more snow expected later in the week for large parts of the country.

1:46So, you know, we'll just, we live here now. Yeah. I guess it depends how good the surrounding infrastructure of your school is. Right. Right. Yeah. Harvard is apparently online. So. I think. To give you a sense. I think there's still snow outside of my house from October. So if I was, if I was in law school, we'd be fine. We'd be online to a 4.0. Anywho. So with all. Yeah. Go on. Unrelated to snow, but still involving a cold place in my heart. Have y 'all been following Punch the Monkey? No. No, I don't know. Oh, so there's a little monkey named Punch. I don't know the story on the name, but I think it's in - Oh, yes, I did.

2:27Yeah, I think it's in Japan. He got like, not scapegoat. He actually got excommunicated. It was like, I guess like the little run of the litter and he got kicked out and he has like this little plush orangutan sort of - Yeah. They gave him like a little stuffed animal to make him feel like he still was part of like his tribe or group or whatever. Yeah. Because he got he got banned from he got he got abandoned. Yeah. It was so sad. But apparently there was a there was a there was a punch development. At some point there was a there was a monkey that a human and not a human money, but a monkey with a that was alive, actually like embraced punch.

3:05And it was like, oh, but then I saw people and they were like, no, that monkey was just doing it for the likes and views. So, yeah, fair. So I didn't know that that was the name of this monkey, but I will say Non-Equity Partner, a good social media account to follow for some fun legal content, has a meme of Punch the Monkey holding onto his little stuffed animal that is Mark Jr. Associates and that one good job email from 2024. Yeah. It's a hole that's keeping it together right now. Which I thought was pretty good. It was definitely one of those, why am I crying in the club right now moments. So what we went through there are the lessons that lawyers can learn from Punch the Monkey.

3:53You will lose all attachment to human affection, but you can have a stuffed animal. Is that the right takeaway? You can buy something that will fill that hole in your heart, for sure. For sure. All right. Well, with that said, let's forge on to some stories of the week.

4:15Let's start off with the Supreme Court. So they ruled in the tariffs case. They struck down the IEPA tariffs that the administration – I think I got those letters right – that the administration had imposed on everybody around the world, including a remote island with only penguins. So those tariffs that Trump had put in force are now gone. It was a feisty decision, though. Yes. I think that one of our columnists, Liz Dyer, said that they hate each other like poison on the Supreme Court, which feels very, very accurate and makes me realize I have things in common with Supreme Court justices because I hate quite a few of them, too.

4:59Yeah. I firmly believe that somewhere right now, RBG and Scalia are looking up and saying, oh, my God, you're supposed to play nice with each other. Yeah. So the crux of this decision, of course, is that the statute in question authorizes a president to respond to a national security threat by, you know, shutting off freezing assets of that country, you know, if there's like a war or whatever. And then is supposed to report to Congress for like a congressional veto, basically, like every six months say like, oh, no, I think I think the attack's gone. So you've lost this power. Instead, what the administration was doing was saying this allows us to impose tariffs, which is not at all any in the text of the statute whatsoever.

5:46But they gleaned it from the concept that that would be like freezing assets, sort of. Sure. And they imposed them and then refused to talk to Congress about them. The Supreme Court 6-3 determined that that was not proper, which makes total sense. But, and this gets back to the main Liz Dye point, the opinion is like 170 pages of settling old scores. We settle all family business today. It was like 20 pages of the actual decision and then a bunch of footnotes and bitchy concurrences and dissents where everybody tried to settle everything, in particular Gorsuch who – that guy. It must be wild to clerk for him at this juncture because your whole job is not so much writing an opinion that's going to have the force of law but to write 63 pages of diss tracks about everybody else that you work with.

6:45one quick thing speaking about opinions that don't have the force of law i made the dumb decision of trying to watch trump run through aipa as he called it and he kept saying well kavanaugh great mind totally wonderful mind sober minded no beer at all he kept talking about the dissenting opinion as if it was the majority yeah but yeah uh gorsuch was great he was like you three are idiots and you corrupt you got him saying that the other judges are idiots why am i agreeing with these people so so gorsuch's opinion my favorite part of gorsuch's opinion is he tries to he tries to snipe at people yeah i mean gorsuch was sniping at people in the majority with him uh he would he went after the liberals saying like oh well now you must and you must support the major questions doctrine you didn't when you were you know saying that mask mandates uh were authorized and i thought kagan handled that brilliantly with a little footnote where she was like i mean he seems to want some converts and i feel kind of bad telling him that we're not yeah that was a good one that was a good all of all of these kind of back and forths uh i think maybe distracted from the craziest part of what was contained in the decision which is Clarence Thomas's dissent, which is like, but we used to have kings.

8:12Yeah. Thomas took the argument fascinatingly that, well, kings could impose tariffs kind of unilaterally. And there's nothing really to suggest that the constitutional conversation took that power off the table for a king. And therefore, I guess a president has it by right. And there was a war in between there. Well, I mean, no, I mean, no, like theoretically, the things the powers that existed at common law continue to exist in his mind, unless the Constitution overrode that. And yeah, I will say there were some people on social media who said, say what you will about this Gorsuch concurrence.

8:50He does one thing that frighteningly few justices have done over the years, which is explicitly call out Thomas for being crazy. And he does just go straight to that and be like, well, I'll be this is obviously insane. I mean, we're laughing about this, and I think for court followers, it is pretty entertaining to read and to think about and to have folks highlight the lines you might have missed on your first reading. But, you know, as Chris alluded to, there was the follow-up press conference, and now there are more tariffs because, you know, nothing says arbitrary and capricious, like deciding it's 10 percent one day and then being like, I meant 15.

9:28Well, yeah, that's – yeah. So the issue with the new tariffs – so one of the reasons why he was so happy with the Kavanaugh opinion is the Kavanaugh dissent does spend a lot of time explaining other statutes that could be invoked to impose tariffs. That said, all of those statutes have other problems, like the most obvious of which was there's one that I believe the one that they're now trying to utilize specifically has a 150-day tolling period. So it can't really be imposed long term, which then sort of ameliorates any value it might have towards any company who's trying to make a business decision about a strategic decision because 150 days is not anything to really sneeze about.

10:18And there was also the issue that some of these statutes and whether or not a president could invoke them in these situations, those are questions asked at the oral argument in this case. And the government's official position was, no, no, no, we can't. That's why we need these. So if you believe in estoppel in any sort of way, it seems as though they are a stop. The government definitely doesn't. It seems as though they should be a stop from trying to take the contrary position now. But I would love to be in the room when some lawyer has to try to explain to Donald Trump the concept of estoppel and then hear Trump try to repeat it forward.

10:58You know, like like like how does that get mangled in that dementia addled brain of his? I think that would be a really fun thing to be able to watch. I don't think he could generally process the word stop. Well, fair. I mean, you you now remind just trying to explain just remind me of a totally different topic. but of my favorite onion headline of the weekend, which was, Aid Wearily Begins Fifth Explanation of Why Trump Can't Pardon Prince Andrew. Yeah, it does seem like trying to explain to Trump how things work must be a difficult task. It's a terrible task that you can absolutely avoid if you just don't work for the president.

11:40Right. Thomas would probably say that Trump could, though, because that common law. Yeah. So now we enter in this interesting situation, I think, with Trump. And also, of course, part of the argument is you can't arbitrarily and capriciously do these things, as Catherine pointed out. Then he puts a 10 percent tariff on everybody under his imagined new power, and then he changes it to 15, which certainly makes it look like it has the same problems as it did before. But for a Republican majority facing a midterm that they aren't particularly popular in, it can't be great to now have Trump pushing this and demanding congressional action to authorize him to keep going when the dirty secret and the reason why three conservative justices were in the majority here is the conservatives probably don't like these tariffs anyway.

12:36so now you're going to have a battle where some of them cross lines and get sniped at so fun times at the supreme court people are mad at each other it is a lot of fun to dig through some footnotes to see who's you know the gossip girl moments of who's mad at who and who doesn't sit with each other at at the cafeteria i'm sure we'll hear a lot more all right well let's take a break and uh Be right back. Let's face it. You didn't become a lawyer to stress over summaries and analysis. You could hand it off, but you need an assistant you can trust. Co-counsel handles those important but tedious tasks that keep you from being a lawyer.

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14:33So a law school story kind of the week is that the Pentagon has blasted out to armed service members who are entering law school a little warning that they're not going to be able to go to several law schools. And by several, I mean all of the T-14 except for the University of Chicago and the public schools. That said, they say there is a follow-up list that will list the public schools, and my guess is Berkeley will be on there at least. So you could probably assume that all T-14 schools except Chicago are going to be on this list along with several others. So the Pentagon has decided that you do not get to go to law school if you're an aspiring military lawyer.

15:20You can't go to any of the good law schools. So the thing that really gets me about this – I mean, well, there's a lot. But one of the things I suppose that get me about this is that what a way to really stop people from applying to FLEP and the other government programs at a time when you need government JAG lawyers in a way that no other administration ever has. Right. People are leaving the DOJ in droves, and one of the many stopgap measures they're attempting to use is that by forcing JAG attorneys to go work for the DOJ in all these kind of ICE immigration cases. Plus, they're also using JAG lawyers as ICE – as immigration judges.

15:58That's another thing that's also happening. But you're using the JAG Corps as a you-can't-tell-me-no-you-have-to kind of legal jump team, right? This is what they're actually doing with the JAG Corps. So they really, really, really need it right now. And being like, hey, you can't go to Fordham Law School. Right. Or if you're currently enrolled, you have to disenroll, figure out a new plan, or continue and potentially have to pay all that money back that you're not intending to. Yeah, the transfer situation is more convoluted because it's not actually clear what they intend to do with people who are halfway through.

16:32Theoretically, they're going to force them to transfer. But this document, the document that got leaked, is specifically talking about folks looking to enter. Also, transfer to a lower-ranked school, by the way. That's the thing I think is hilarious. I want everybody to go to ASLAW. Yeah, George Mason is not on the list. So yes, ASLAW is an option. You know, a bunch of Ave Maria. I got good news and bad news, Mom. Good news is you're right. I didn't make it to Harvard. Unfortunately, they're too woke. I believe Washington is also on this list. Yes, I believe that's accurate. So all of our law schools would be banned too.

17:12I like to think there were just too many people from T14s and good schools that were complaining about them handing over everything to ChatGPT. And the only people that weren't complaining were from like ranked 64. No disrespect to whatever school is ranked 64. Yeah. Well, and Catherine's point is that they are utilizing JAG lawyers for a bunch of substantive stopgaps. query whether it's good that we help them do that. But the point is, they think they need JAG lawyers. So if they think they need JAG lawyers, having ones that are competent makes some sense. I want to add to the JAG lawyer thing another story that happened last week that we weren't going to dwell upon.

17:55But we had one of those JAG lawyers get sanctioned$500 a day by a judge because he para-dropped into the middle of a million and one habeas cases that were in the midst of DHS ignoring court orders on them. Yep. Yeah, this is all bad. And I think you're right, Joe, about the whether or not they should be or could be. But this is definitely an administration that is shooting themselves in the legal briefs here with this kind of motion. This is absolutely a group of attorneys that you are using aggressively. And now you're doing something that'll make it less likely for you to have that group of must act kind of lawyers on call.

18:34Yeah, I actually appeared on the Dan Abrams show on Sirius of which you can listen to. You can find online and listen to if you all want to hear my appearance there. But to talk about my argument that we need to seriously as a profession consider disciplinary action against Trump lawyers and disbar some people for the violations going on. And I got some flack from Abrams over not sticking to – he thought I was not sticking to my guns because I was not prepared to say that necessarily we disbar this poor JAG lawyer. But I think there are lower levels of discipline that people at the bottom can face.

19:13But it really was a testament to how everything has accelerated so much because when I wrote that article, I was very much talking about the illegally appointed interim U.S. attorneys, quote unquote. and the DOJ senior leadership, because those were the folks doing stuff. Lower level people were actually quitting in droves. But now we have a situation where there are a lot of people who are kind of locked in at the lower levels, like these JAG lawyers have commitments that aren't going to let them necessarily walk on a dime. And so those folks, I think, fall under a slightly different standard.

19:50But, you know, I think they still should be looked at for what representations they make in court because there are rules still about lying to tribunals. Yeah, I think that is 100 % true. And I think that that is a set of attorneys that are probably more aware of their ethical obligations even than most because they have a whole different set of ethical obligations for being in the military, right? So they're perhaps more sharply aware than even, you know, the average attorney. But and I do think there's a difference between like, you know, they're being sanctioned because the DHS is not producing documents.

20:22If you have a client that you're telling you must produced and they are not doing it, there's little an attorney can do except tell them these are the penalties involved. And yes, the attorney may be sanctioned in those cases because that's how that works. But you may not have the ability to do it. And I think that is a different situation in terms of legal ethics than saying they've already turned over everything. I'm sure of it. And in the back of your head, knowing there's a warehouse of documents that have not been opened up. And it's not just in this instance, it's not even discovery that we're really focused on.

20:51we're talking about human beings who need to be released from detention. And I think you're right. I think the stakes there are also increase the likelihood of higher sanctions by courts as well as from hopefully bar associations in the future. Yeah. All right. Well, let's take a break. And, you know, sorry, all the military lawyers who are going to have to get their Cooley degrees or whatever. We will be back in a minute. Okay. So we didn't really have, you know, other than the Supreme Court thing, it was kind of a weird week of small stories that, you know, that built up. And so I just kind of have like a practice hodgepodge for this last segment.

21:33Okay, I like it. It hit me because, and this comes up periodically, you see an article in the media like, can you believe lawyers are making$3 ,000 an hour? And I'm like, yeah. It's$4 ,000 is actually the top of it, but yes, continue. Yeah. So the point is that there's a gap of where some of the normies see us and understand our job and, you know, the reality of it. And there were a couple of stories this week that I. Yeah. This reminds me of a story I wrote like a year or two ago. We were having this conversation between like some of the lawyers are making the most money. And I was like, they're making like basketball player money.

22:12And Joe was like, I think people have a general understanding that lawyers make a lot of money. I was like, no, I don't think they get. I think this is like insiders know that lawyers make a lot. But the average person, they wouldn't see like people making thousands of dollars an hour. Yeah. So there's this there's this ongoing situation where people see the jobs differently. And where this kind of came up this week was we had this, you know, ongoing Epstein situation. We had Les Wexner, the Victoria's Secret guru, who was in a deposition with the House Oversight Committee. And he delivered an answer to have his attorney lean over and just say, OK, I'll kill you if your next answer you make answer any more questions with more than five words.

22:58I mean, that's fantastic lawyering. Yeah, it was caught on the microphone. So, you know, good work, audio engineers, for having a microphone that had that up. The unsung heroes of deposition. I think it was intended to be quiet, but it was not. I mean, it's way funnier that it wasn't kept quiet. But honestly, that is legitimately great advice. Oh, sure. So, well, this is what kind of got me thinking about it is the divide on social media was wild because there were all these people going like, this is proof of how guilty he is. This is how despicable lawyers are. And all of law Twitter was like, ha ha, good for him for saying it so bluntly.

23:41Yeah, everyone who complained does not know the value of a good lawyer. Like that's the lawyer you take a lien out on your house for. You need a lawyer that tells you to shut the hell up and it'll be like, you're gonna thank me for this extra later. And in some ways, and this is a part that I think a lot of people struggle with. And I remember when I would prep witnesses, I would make this point to them a lot, which is it's not that you're like that they're guilty and you're trying to stop them from like a Perry Mason style confession. Gotcha, yeah. The reason why you tell them to shut up like that is for everyone's benefit.

24:17The questioner themselves has an agenda, and they need to get certain answers, and they aren't getting helped by you going off on tangent. You are probably going to find yourself lying because when you talk effusively like that, you start to ramble. You start to speculate. and what I used to tell witnesses is I know you kind of want to, in conversation, you want to help the person asking the question. Because it's a dialogue. And it's a dialogue and you kind of like go off. But I was like, but you need to understand you are obligated to tell the truth and if you're speculating, that's not the truth.

24:53Right. Right? And that's a hard thing for people to really glean. And I think that it is worth noting that there is a distinction between a Q and A, which is a deposition, and an act of conversation to which both parties are participants. And those are different animals and they sound similar sometimes. And I think coaching your client on the fact that they're different and the ways that they're different is ridiculously important. If my mom was to see this, be like, oh my God, did you hear that death threat? I'd be like, listen, mom, what you need to understand is that lawyers are a type of fairy and they use words differently than how usual people do.

25:31What he actually showed was that he cares so much about his client when he threatened to kill him wasn't that oj's uh line if i did it was because i loved i loved them so much yeah yeah yeah and i guess the other story from the week where uh you the real world saw a different world than lawyers did is we had another another in the you know now burgeoning cottage industry of legal you know little niche practice of litigating over boneless wings oh my God, this story just stokes a fire and flame in my heart. Because this is another one of those things where you don't understand the work that the lawyer is making thousands of dollars an hour do.

26:14They just make arguments that facially are, as the French say, stupid, but have legal weight. So there was the most recent one that really grinded my chicken. There was a case arguing that, effectively, that if you go to a place like, say, Buffalo Wild Wings, I think was the actual location. and you order boneless wings, that what you're ordering is chicken prepared in a particular way. Right. That when they, that a boneless wing is effectively winged, they take, you know, chicken meat, do whatever hot dog-esque science process that they do to it, batter it, fry it, and that's your boneless chicken wing.

26:53Yeah. So to put this into context, right. So before we get to that, I'm going to put the context of a few, like a year or so ago that we had a different case where somebody that focused on the boneless yes so this is this the side half so the boneless element was a while back in ohio someone bit into a boneless wing and nearly choked to death because there was a bone in it uh and the court decided as you would not expect yes because you wouldn't expect like you'd think you'd think because of the name they might have like deboned the boneless wing but but no apparently so uh in that instance the the state Supreme Court was like, you have no reasonable expectation that boneless means boneless, which I thought was a bit of a stretch.

27:36Now this is the wing side of it. Yes. Now, so this New York case is saying that you have no reasonable expectation that the wing be a wing. Right. Because it's because the the and here's the thing. It's one of those things where it's like sometimes the gunner wins in real life. Whoever was on the legal team said, no, actually wing does not refer to the part of the animal that's vestigial actually what it refers to is the style of cooking what have you which facially dumb because like i like i say in the article i see no reason why under this legal theory mcdonald's can't start calling their hash browns potato wings because you know it's it's you know and and before you make the before you make the argument well chris that's dumb because potatoes aren't animals they don't have wings that doesn't work because the court made an analogous argument between boneless chicken wings and cauliflower wings so they're not even paying attention to the anatomical aspect of bones at all so you can't yeah see i came down i came down on the i i think i think the wings is is correctly a style here and i know it's it's weird that it's that way but like there's no better way to make clear like buffalo that buffalo sauce is a thing that buffalo wings is a thing and so if you're making a boneless version of that out of nuggets the term wing probably is that.