Supreme Court Narrowly Passes Reading Comprehension Section

0:11Hello, welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I am joined by my colleague Catherine Catherine Rubino. Hey friends. And we're you know from above the law. We talk here about the big stories from the week that was in legal. First, we usually talk about some small talks, some things from our lives, you know. Yeah. So obviously the 4th of July weekend just happened, which I feel like is like a weird it has a weird difference of import regionally. Right. Because northeast New York City, born and raised now live in still in New York state. That always feels like the start of summer to me, right?

0:56It's like very much the beginning. Schools always went to the end of June. You know, June 27th is around when it ends. So July 4th is really like the big kickoff in a lot of ways. But I was talking to friends who've been off for over a month because their schools ended in May. They're like, oh, this is the beginning of the end now. You know, we're almost done with summer. And I was like, I feel very much the opposite. I have no strong feelings about it on those levels. I will say I did just book my daughter's back-to-school photo session. So maybe I'm wrong about what 4th of July means for the calendar.

1:34But it feels like this is like I finally got into my pool this weekend. We have barbecues. I feel like we're just starting barbecue season, pool season, all that good stuff. Yeah. I guess the legal story that is my small talk adjacent thing is, I guess, I don't particularly care about this sport, but I guess we deployed a bunch of lawyers to win a soccer case. Yeah. I mean, I actually think I'm going to write about that today because it is kind of interesting. Yeah. But there was a red card issued to America, which meant that they can't have their star in the game against Belgium. Apparently, Donald Trump made a phone call to FIFA and, you know, not one to shy away from any appearance of corruption.

2:20FIFA was like, sure, we'll take away that red card. Well, he did win the FIFA Peace Prize. Yeah, you know, which, again, not an organization to shy away from the appearance of corruption. Yeah, my takeaway from it, I saw somebody on social media make a point similar to this that I love how Belgium's all mad about this and exploring their legal options. And it's like, yeah, our lawyers are still at work. Yours all are off until September. Yeah, the way messages is still September. Yeah, that is absolutely kind of my hook into the whole thing. The tweet. I was like, our lawyers work so hard. We have 45 % clinical depression.

2:58Which, you know, not a flex, actually. But, yeah, I think that that's definitely what my take is going to be. And I think it'll be interesting. But also, it wasn't really a red card. It shouldn't have been a red card. They slowed down their VAR, which obviously has the impact of making everything look worse. I know you have very strong feelings about slowing down replays in a different sport. I feel that way about targeting calls in college football, too. It's like, you know, once you slow it down, everything looks intentional. Yeah, because you don't actually see how fast these—you don't actually make a decision in.05.

3:38Like that is just – it's momentum. It's instinct. There's not malice aforethought going on in that amount of time. But when you slow it down, it seems like there would be an opportunity to stop your momentum or to do this or to do that, and it changes the way you perceive things. And I think that FIFA probably has the correct rule, which is that you're not meant to slow these things down in order to issue a red car or any sort of penalties. So that is probably the right rule if it was done in this case, which it appears that they did slow it down, which does change your perception. So, yes, it seems like that is the correct move, whether or not Donald Trump should have been involved in it, you know, separate, entirely separate question.

4:22But it does seem like this is the correct thing to have happened. It just seems like it's an intersection of lawyer ball and sports ball that I find interesting. Yeah, and the way that lawyering gets involved in sports is something we've written about, obviously, a lot before. The one that's, I think, still ongoing, the Jordan Childs bronze medal situation, which was absolutely ridiculous. And she 1 ,000 % deserves that medal. I think it's a horrible injustice, what they've done to her. But if there is an opportunity to undo injustice, what is sports law for if not that? Yeah. Well, all right.

5:03We should close off our and our small talk. We're having a technical issue today that's making it difficult for me to get sound effects working. So you're having you're having a gloomy day. Yeah. Speaking of sad and depressing, the Supreme Court has concluded its term. And we're going to transition talking about the last, the last, you know, the run to the season finale of Supreme Court 2025, 2026. So big impact stuff happens at the end. It seems as per usual that the chief justice in an effort to try to control the narrative put a quote unquote moderate decision at the end so that he can have the mainstream media claim that, look, the court is really balanced going into the summer, which is a lie because they are not in any way.

5:57The decision that they put up at the end, I guess we'll start here, at the very end in order to try to garner this reputation was the birthright citizenship case. This is a case where the 14th Amendment clearly states that people born here with the exception of, you know, children of ambassadors and stuff like that are U.S. citizens. That's what it says. That's what it's always said. That is what all the law about it has always concluded. and the Supreme Court decided in a split decision that— In a weird split. Maybe it doesn't. Which, by the way, this is very relevant to our small talk conversation because Florian Balogun is, in fact, a birthright citizen.

6:43His mother was visiting family and was told she couldn't get back on the plane, right, because she was too pregnant, and he was born in Brooklyn. Yeah. Well, so let's put a pin in that situation because that comes up later on in this conversation, I think. So it is a split decision, which is shocking. And Clarence Thomas wrote like 90 some odd pages, which are, you know, a collection of largely blog posts and stuff of that ilk that are purporting to rewrite the history of the 14th Amendment, which is all the product of a cottage industry that developed after the Republican Party decided that it was going to become deeply anti-immigrant.

7:24and the Stephen Millers of the world have a, are ascendant and are pushing kind of a white nativist worldview. Suddenly, birthright citizenship became a block to that. Yeah. Some right-wing law professors, including several who have never voiced any reason to believe that the 14th Amendment doesn't say what it plainly says until now, have spent the last year writing mostly newspaper articles, blog articles, putting stuff up on SSRN that are not peer-reviewed or anything like that, attempting to build a false history narrative that can be cited for the idea that, no, it's always meant that, and that's what the basis of Thomas' decision was.

8:08I think that it's really interesting because it kind of has become this kind of current litmus test where people are changing their opinion about what the 14th Amendment says and means and all that kind of stuff in a pretty interesting and profound way. Robert's sort of the main opinion deciding that, what are you guys all talking about? Joined by Barrett. So you've got five justices there. Now, it's difficult to scorecard this one. It does read like a long gone by logic game. Yeah. Joined in part. So you got – theoretically, it's 5-4, although it's kind of 6-3 because Justice Kavanaugh writes separately to say he doesn't think the Constitution says what it says, but he still thinks that the birthright citizenship exists as of now and that the Trump executive order does not operate to take that away because of something – Right, but it says that Congress could.

9:06Congress could do it. Yeah. So in a lot of ways, it's it is five, four, even though the result is technically six, three. On the other hand, and this brings us back to your soccer analogy. I was intrigued by Justice Gorsuch, who joins the Thomas opinion, which is just gibberish. So weird that he chooses to do that because he then follows with this six paragraph separate dissent. It's the very last thing in this doorstop of an opinion. But I thought it was interesting because in some ways he is functionally with the majority, it struck me, that he takes the stance that he reads a whole third way of interpreting this amendment to say that birthright citizenship does exist probably for undocumented migrants who have been living in this country.

9:59their children would be birthright citizens. But the specific scenario of, say, this soccer situation where somebody just happens to be in the U.S. and trying to go home, that they would not have access to it. It is interesting and, you know, not the most objectionable interpretation by a hefty margin. It just becomes, I think, unruly to manage that world. You know, like there's – it's not like an undocumented migrant, you know, makes an attestation that they are meaning to immigrate here or whatever. You know, like what would happen? It just – it's a weird – how does that even work? You'd have to kind of go by like vibes of like, well, I don't know.

10:48This mom seems like she meant to stay here or, you know, it would be – it's weird. it seems a lot easier certainly as an administrative point of order to be like no if you're if you're born here we could tell we could tell who was born here and that that that's how we're going to go forward on it yeah no but it but it wasn't like he's just he's just a chaos agent who's willing to do to just not not like the most ringing endorsement for one of the nine most important people in this country yeah but very interesting i will say it was interesting that he did not manage to bring up indigenous sure that does treaties which was an issue for him at oral argument so i thought that was interesting that that didn't come up because that of course actually is relevant to this conversation what what to do with native peoples was part of the conversation with the 14th amendment and yet somehow neil gorsuch of all people chooses not I'm sure it'll be fine.

11:48It's also, I think, kind of interesting to see how the far right has absolutely lost their mind over a decision that changes nothing. Yeah. Yeah. Like this, like nothing about this decision changes the status quo in any way at all. Right. Yeah. They're all like, it's a disgrace that Robertson made up new rules. This will open up the floodgates. No, it hasn't. Yes, it is what we already had. It is what it is. And until people started pretending that, making up fake history, it's what everybody understood it to be. Literally, like, all far-right people were like, of course, this is what we think the 14th Amendment means until it became Donald Trump's hobby horse.

12:36And that is kind of the sci-fi book scariness is the level to which people have memory hold the fact that this was upheld as a very obvious thing as recently as – I mean as recently as the early 2000s. All right. Well, let's take a break, and we will be back to talk more about the end of the Supreme Court term, I guess, in a minute. All right. Well, we still had a few more aspects of the Supreme Court worth talking about. If we assume that the birthright case was the one that Roberts wanted to end the session on, look, we're really just calling balls and strikes note. He led into it right beforehand.

13:20He led into it with the Supreme Court calls balls and strikes a Schrodinger's Schrodinger's umpire where it is both a ball and a strike simultaneously, which is where he wrote an opinion declaring that independent agencies don't exist and they're unconstitutional. and therefore the rules that we have for something like the Federal Trade Commission that has existed since 1914, those apparently, since 1914, they have been unconstitutional. We have just lived in a century-long amount of just lawlessness. Yeah, and therefore— It's been inaccurate. And therefore, the executive is perfectly fine firing the folks who are appointed with job protections by statute.

14:06He then announced a second opinion, which makes no reference to the first, and the first makes no reference to the second, where he declares, obviously, Trump can't fire a member of the Federal Reserve. It's an independent agency. Well, you know, that was established a whole year earlier, Joe. It was established in 1913. That is really the historical line that we're creating. So, right, because it is ingrained in the nation and history at night, you know, at one year earlier. A whole year, Joe. Right. To give him a little more credit, he does cite that there had been banks of the United States beforehand that had enjoyed some independence.

14:45He glosses over the fact that those banks that had enjoyed that independence in the past were also gotten rid of. Seems like also part of our nation and tradition that everyone rejected the idea of them being independent. multiple times yeah uh though if there's any real history that is stable it is the 1913 on one uh but apparently maybe that's the line 1913 yeah apparently apparently uh 1913 deeply embedded in our nation's history 1914 modern shit that we can get rid of with a mere shrug of our shoulders it's really embarrassing and you know the both sides around him call him out on it you know in In the Fed side, where he's holding up the Fed, his right-wing colleagues are annoyed and express that this is lawless and horrible.

15:39And on the other one, his more liberal colleagues say that this is a violation of the clear intent of Congress and the clear – when we talk about the nation's tradition and history, Sotomayor writes in this case and details how – As far back as the early, early days of the constitutional order, Congress was setting up independent agencies with job protections. So it is completely fictitious to try to. For sure. For sure. I will say I thought that your headline for this was particularly entertaining. Yeah, that he slaughtered the FTC and let the Federal Reserve cook. Yeah, because that's their names.

16:32Listen, I'll give you your flowers when they're due, and I'll give you your shit when it's due. As part of the FTC one, they executed Humphreys. Yeah, okay, okay, okay. Yeah. We got jokes. We got jokes, you guys. But it is particularly entertaining that the last names of the two people involved are what they are. So I guess we'll close out the Supreme Court side of this conversation before moving on to something else by just saying, as of this second that we are recording, Sam Alito is still on the Supreme Court. He is. He is. He has not retired. He has not. He has hired a full complement of quirks for the next year, does not appear as though he's doing, despite what Nina Totenberg may have inadvertently published.

17:23Yes. And, you know, we're sorry to our former host of the show, Ellie Vestal, who now owes David Latt lunch, I think, over this over this retirement conversation. Yeah, there was a lot of speculation driven and kind of sparked kicked off by Ellie about Alito retiring. There are reasons why you would think that conservative justice might want to do that right now. Sure. He also has a book coming out at the end, you know, in the fall, which would suggest he's going on a book tour in the fall, which is, you know, the time that you would think that a Supreme Court justice would be clearing their calendar.

17:58He's got things on his to do list in October besides selling a book. So there were reasons to have some suspicion. It seems as though, you know, veteran, the dean of Supreme Court reporting, Nina Totenberg from NPR, had written, as one does, had a pre-written Alito retires article that was ready to go in case it happens. And while she was still, in fact, in the Supreme Court building, she misinterpreted something someone said as Alito retiring and told her people to go ahead and hit publish. It was up for five minutes tops, I think. It was up so – it was down almost immediately after the Supreme Court press folks went to her and were like, what the hell?

18:44I think it's interesting. I'd also kind of point to the weird fetishization of being able to be the one who breaks it as opposed to it's actually if it was if it had happened, it would have been the fact that Alito announced it. And whether you got yours up at, you know, 1101 or 1102 doesn't really matter. I'm not crediting Nina Totenberg as breaking it when it was because of his announcement. Right. But there is a journalistic fetishization of being the first breaking the news. And listen, like, you know, we play that game, too. You know, we broke the Milbank raises, which we'll talk about later in this show.

19:21But, you know, there is that aspect to it. But it shows you how because everything happens so much faster in 2026 than it did when we first started caring about that, you know, like when you had to actually publish papers and stuff, that it could really – it could bite you right in the ass. Yeah, so you kind of feel bad for him. There's a – social media has a lot of – some conspiracy theorists who think she knows he's really retiring and she just accidentally hit it early. No. No. It reads – He would have done it during the last day of the term. Yeah. It reads the same – well, some people do it the day after, but, I mean, we're past that.

19:59And, you know, like we keep pre-written stuff for news that we expect to happen to. Like it is a thing that happens. And it reads like that because it has inconsistencies in it. It had been set up. The caption on the photo said he'd announced it on Friday, which was the day that they – the previous Friday was the day they thought the term would end. Right, right, right. It went to Tuesday. There were misspellings here and there in it. Not gotten – but which also, if she did think that, oh, he was about to announce it, makes me question their final editing process. Well, yes, there is a bit of a problem there.

20:34But yeah, no, it read like something that was put together that was expected to get a warm over before it goes up. And it did not. Well, in some ways, as far as you say, the editing process, I think it also speaks to her role in the Supreme Court superstructure of reporting. I think she probably was taken aback by the idea that she had to hit publish immediately. Without having had a little birdie on her shoulder. She figured she was going to get a birdie on her shoulder first, probably, which would allow her to do that. Take that, you know, 10, 20 minutes to warm it over. But whatever. So he is still he is still gainfully employed.

21:18So no need to fly. You conservatives don't need to fly their flag upside down or anything or anything. They've made an appeal to heaven and he's still there. OK, OK. All right. I think that this is, you've done what you needed to on this segment. All right. Let's take a quick break. All right. Bonuses. Nope. Not bonuses. A little bit bonuses, but mostly raises. Some people have bonuses, but you're right. Mostly raises. We are now officially past July 8th, or July 1st, rather, which is when the Milbank raises are effective. So currently associates at Milbank, Norton Rose, a handful of other firms are making more than their peers at Cravath, for example.

22:07I really thought that before the July 1st kind of deadline of the effective date of the raises that Cravath would show their hand in some way or another. It seems incredibly likely that they are at least going to match. I don't think that they are going to not be at the top of the market before the year is out. But what's the delay? What's going on? Why are they delayed? Why haven't they moved? You know, I gave them a couple of weeks grace, at least mentally, because, you know, I think a firm like Cravath doesn't necessarily like run when others run. But they, you know, have their, you know, previously scheduled partners meetings.

22:47There's plenty of time in the amount of the number of weeks. It's been over a month now since Milbank moved. They did their announcement in the beginning of June. Plenty of time to have moved, plenty of time to have met with your partners. This is not a rushed job at this point. This is just showing, I think, fundamentally in consideration for their associates. They either don't care that this sows discontent or they're planning something splashier perhaps later in the year. But I think that it is not a decision that it was expected for them to take this long. But we're still waiting. We're still waiting to see what happens.

23:27Yeah, it is interesting that we had kicked off. Milbank does these, and these raises, and while I don't want to diminish the importance of raises, Milbank is really not trying to rock the boat compensation-wise here as much as they are honoring cost-of-living adjustments. Like these aren't raises that radically alter the, you know, the baseline as much as they just say, hey, you know, a few years ago we set it here. Things are more expensive. Yeah, I mean, yes, and that is certainly, I think, part of the language that Milbank has put out regarding raises like this. But that's also, I think, slightly disingenuous because the people are not the same, right?

24:09A first year in 2023 is not your same person in 2026. They are getting raises. Assuming they're still at the firm, they have been getting a series of raises. Their cost of living adjustment has been more than made up by their just sort of run-of-the-mill raises because they went from a first year to a second year to a third year, right? So they are – their cost of living has not been impacted. It's only the cost of living as you imagine a fictitious constant first year. But it goes all the way up the scale. Right, but everyone continues to get raises. Every year somebody who's in the system gets a raise.

24:39Right. And now those raises, the scale is adjusted for the cost of living. Correct. Yeah. Anyway, the point is they're making a cost of living adjustment as opposed to a baseline of everything, which I think is significant because you see this resistance from these firms. It makes it a little more, you know, you look askew a little bit more at it because it's like, why are you upset about what is essentially a cost of living adjustment? The partners are unwilling to part with a little bit of extra money that matches the extra amount of money that things now cost. So you see, we saw like boutique firms join in and a handful of big firms, but the slow pace of the big firms is disconcerting.

25:31And, you know, probably speaks to a sense among them that they would rather keep things where they are. And if they have to compensate people more, do it on the back end through a discretionary bonus that they can walk back in a future year if, you know, the bottom falls out of the economy or something like that. Well, I think with that, we are done for the week. So thanks, everybody, for listening. You should subscribe to the show, get new episodes when they come out. You should also be listening to the Jabot that Catherine hosts. I'm also a guest on Legal Tech Week Journalist Roundtable. There are other shows by the Legal Talk Network to listen to.

26:08Social media, read above the law so you read these and other stories before they come out getsabovelaw.com I'm at Joe Patrice she's at Kaftman1 on the socials and with that we will talk to you next week