The Fundamental Dishonesty Of The Supreme Court

0:11Hey everybody, welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the law i am joined by some colleagues i've got katherine vino over here hello and chris williams what it do and we're you know from above the law we do the thing where we write about all the big stories in legal but we take some time every week to chat with you all on this podcast about the biggest stories of the week that silk song yeah yes that is the biggest story small talk has already started. Dun-dun-dun-dun. Fanfare will have you. I've been waiting on this fucking game for five to six years.

0:48It is out. It is so good. It is great. It's amazing. And then I mentioned Silk Song. So I'm like, I'm just happy that it's out finally. What's the best track? Oddly enough, there is a soundtrack related to the game. I don't know any of the song titles. They're not really named like that. There are some good songs. They're good. But yeah, it's like a platforming game. Not sure if that means anything to you it's like a metroidvania yeah so so it's like pong but different no um but it's it's it's it's really good it's really similar to hollow knight for anybody else who's um part of the fandom but it's its own game they did really they really fleshed out hornet as their own character so that's going to make sense to what may be a good amount of the people listening to the podcast because as soon as it went selling the platform to buy it went down like there was immediate there so much traffic.

1:42So a lot of people are playing soap song. So it's cool. Well, my big personal big story of the week is the start of the school year. And my daughter started preschool. So cute. I also so you know, two year old program dropped her off at school and utterly unbothered. No tears, no nothing. Just like, yeah, they've got pretty cool stuff here ma see you later peace yeah i mean hey listen she's an independent queen we gotta do what we do okay we gotta stand those yeah and it didn't make me feel bad like i i thought maybe i would get a little teary or i'd feel some sort of a way but i was like great you're developing appropriately for your age i love that for you it's good to know you're not gonna lock her in a tower like Like the Rapunzel mom or something.

2:37That's good. Yeah, I like that you made a Disney princess reference right there, Joe. It's a fairy tale that predates Disney. Okay. Well, Brothers Grimm doesn't have the same ring to it. Mother Gothel, that's the Disney version. But yeah, that was a big thing on my agenda this week. We also started dancing school, which again, you guys, the pictures i am getting of all these milestone firsts can cannot be overstated yeah super cute you got to make sure you what is it photo booking whatever what's it called the the prior to internet pinterest thing scrapbook yeah yeah you got to make sure you got to make sure you scrapbook them so then once they turn 18 you're like here it is yeah we have like a family shared um digital album and um i think there are she's only two years old and i think there's like 9 000 pictures on that which i have to be very clear is already cultivated there are many many many more pictures on my just phone library these are the ones that i've curated for the sort of extended family and we're already at i was actually very i was very nervous what cultivated was going to mean in that sentence but then i figured out i was like where's this going i grew it in the backyard yeah meanwhile i got i got new cowboy boots oh gosh this is god damn it this is gonna be a legal tech conversation isn't it i i don't know what you mean i got i i said that i got cowboy boots i don't get one second one second one second i don't care where you got them what are they for are they made for walking There you go.

4:20There you go. So, yeah, no, I was in Austin. You know, it's interesting you mentioned it. I was, in fact, at a legal tech conference in Austin, and that was part of the gift that Grumble, grumble. That 8 a.m. gave people who attended the conference. Is that the time that you got them? No, that is the name of the company. But, yeah, 8 a.m. So did you get an email asking for your foot, like your shoe size, or did you just have them all lined up? Well, no, as part of registration, there was a it's part of registration. One of the one of the links was, would you be interested in getting these boots?

4:53Like, give us your info. Oh, they did say did you see where it said sponsored by Quentin Tarantino in the bottom right corner? No, they're fancy boots, too, I hear. Yeah. Yeah. Yeah. No, it was really nice. It was a very well, you know, amazingly well run conference. And I go to a lot of these all the time at these days. So it was really good to see what they were up to. I was on a couple of panels. We had a lot of fun on those. So, yeah. A good time was had by all. Yeah. Is AI going to take over the world, Joe? No. Good. I mean, it's going to do a lot of things. I don't know. Probably all bad.

5:30No, not. No, a lot of it's good, too. But, yeah, actually, some of the panels I was on were AI related. I had. No kidding. One of the arguably the best attended one, at least that wasn't a keynote or anything, was a panel that we did that went off really well about just like tips for lawyers who are interested in getting into AI. And we had, each of us had 10 tips and we rolled through use cases that they could have. It's really interesting. That sounds kind of fun for legal tech. Yeah, no, but really good. Some of us actually were talking about whether or not we should, you know, take that on the road, some of those tips and stuff to try to let other people know.

6:14Half panel will travel. Yeah, exactly. Anyway, point is, I wasn't going to talk about any of this. I was going to talk about the boots, but you decided that you really wanted to hear about tech. Stop it. Stop it. Everybody knows that that was just your sly way to pretend like you're playing our game, but really you could talk about AI. I don't know what you're thinking. I'm thinking about it. So anyway, I think with that, we can be done. Bum-ba-da-bum! There we go. Since we're doing that now. All right. So let's talk about what happened in the week that was. I wasn't here last week because I was obviously at that conference.

6:51So hopefully we aren't going to go over anything the same. So I think the biggest issue of the week, maybe not traffic wise, but certainly on our website, but certainly significance was a story you talked about that. But there was an interview where we now have federal judges who seem at least anonymously in some of their cases, I believe. Right. Were they? Yeah. Oh, were they all? Yeah. Yeah. I would have thought, but I guess I didn't. Well, it is somewhat imprudent as a federal judge to talk smack about the Supreme Court on the record. Fair. But point is, they're talking smack directly about the Supreme Court to journalists now.

7:33Yeah, they sure are. NBC News had some interviews with, I think it was 10 federal judges who take issue with the Supreme Court. Not just their sort of rightward bent, which, you know, is also a problem, but their overuse really of the shadow docket was a big call for concern. You know, we've talked about the shadow docket, which is the emergency docket on this podcast before. And we will continue to refer to it as the shadow docket, even though Brett Kavanaugh is on the record this past week saying he really would like it if we didn't call it the shadow docket. Well, stop doing shady shit and maybe we can stop.

8:17We could call it, what about the sneaky report? The sneaky report. Okay. just as evocative which i think is definitely part of the reason why um it it has stuck for so long so the the the shadow docket's obviously done a lot of damage because it's done without a written record right there's no opinion there's no press there's not supposed to be anyway any precedential value but at the same time even though that is true the court is also getting really mad when And without writing precedent, binding opinion, the lower courts are not referring to it that way or trying to do, you know, trying to divine what they actually meant by the shadow docket.

9:03Well, all right. Let's pull back and just explain what this is. So the point of the shadow docket in theory is that it is a non-merits-based decision. It's not presidential. They haven't had full briefing on it, whatever. It's their sole – it's an emergency petition to take action that needs to happen faster than a case would take to conclude. So much like any other kind of injunction, temporary restraining order, except at the Supreme Court level. So it's when there's something going on that's worked its way up to the court that the court is asked, hey, I know we don't have time to go through a full briefing, but can you put the kibosh on what's going on here for us?

9:42And they do that if they act on the shadow docket. Theoretically, it's part of the traditional restraining orders and injunctions. It's supposed to be done on a temporary basis with very little briefing, but that's hedged by the fact that it's temporary, and then they will revisit it later and make it right. The problem with the shadow docket, as we call it, is that this court in particular has been aggressive about utilizing it to make sneaky merits decisions. And it's gotten to the point where, as you pointed out, where you alluded to, I should say, it doesn't have presidential value, but this court is acting like it is.

10:24Gorsuch is straight up writing concurrences, calling anybody who makes a different opinion at the lower court level, defying them, even though technically all the Supreme Court claimed to have done is temporarily stayed one opinion until further review. When other unrelated issues come up that touch on the same ideas, Gorsuch is calling that defiance. Right. So that's kind of the background that we're dealing with. And without the sort of guidance of a full written opinion, they are very much leaving the lower courts in the lurch. Right. If there's a lower court that rules against the administration and then without explaining why they're doing what they're doing, the Supreme Court's just kind of coming in and saying, nope, we're ruling for the administration.

11:13It really amplifies the rhetoric of the Trump administration saying that the lower court judges were out to lunge, that they were somehow they were in the wrong, that they were they were out to get the Trump administration. All this sort of very violent rhetoric that's gone on around the courts, you know, in the Trump to reign. And we're seeing an uptick in threats against district court judges already when these judges do things like rule that, no, the Trump administration can't just lay off the entire National Weather Service or something like that. The response to that, if it gets to the Supreme Court and they're just issuing an order that's like, we agree those lower courts seemed wrong and then say nothing else, it just validates that.

11:57Right. Yeah. Right. And so these judges feel very justified that they are being left out to dry. They are not getting sort of the support that the system is built to have because whether a lower court judge is right or wrong, the fact that the appellate or Supreme Court decisions are written out, reasoned, go through all the reasons pro and con, you know, that all creates that kind of justification and built into the system. I mean, we're going to talk about this person a little bit more later, but Amy Coney Barrett had that famous instance where she said, you know, everyone just read the opinion.

12:36You know, don't criticize us. Read the opinion, which was always absolutely bullshit considering she exists in a world where her own court issues monumental, significant decisions without an opinion all the time. But it speaks to that era. Read the opinion. Well, if there's no opinion, then that's when these things start to fester. I also would go back to the annual report that the chief put out last year on the judiciary where he addressed the uptick in threats against lower court judges. And his response to that was not, you know, we're going to do these – take these measures to protect them or make it – invest in these sorts of measures to instruct the public about not doing it.

13:17He just kind of wrote, you all should stop criticizing judges because we rule you like gods. That was not really the message that was particularly helpful, and it's one that, if anything, I think, as opposed to fixing the problem, this is kind of why that mentality exacerbates it. Because if that's the position and you start from on high saying, no, no, of course the lower court was wrong with nothing else, you have put them in those crosshairs. Yeah. And obviously there's a fair amount of criticism about the sort of not explaining yourself, like not showing your work is really been a problem in that.

13:57And I think that that's a big part of this story. But the other sort of big part of this story is the who of who's calling them out for for the shadow docket. And, you know, I kind of alluded to it in the top of my comments, but the fact that the lower court judges are doing this is I can't remember a similar instance where they are going out of their way to say this system has worked for a really long time and it's it's breaking in front of us. Yeah, I mean, well, we in this recent last couple of months, we had an instance where most of the Supreme Court is aggressively in an aggressive assault mode against trial courts.

14:41That's part of that whole injunction case. I do think, look, there were reasons why the nationwide injunctions needed to be reformed. They were out of hand in a lot of ways. But the answer to that was not get rid of all of them. because they did exist for a purpose and getting rid of all of them. It almost seemed as though the abuses that were happening over the previous four years existed largely to lay the groundwork for the more destructive response that the Supreme Court had. But during that injunction period, during that that those cases, we did have, you know, Alito and folks like that saying like, oh, you know, we have to do all these things because trial court trial judges, yada, yada, yada.

15:25Meanwhile, the only people on the Supreme Court who actually understand what it's like to be a trial judge, the hard work of being a trial judge, are the two people who are voting the other way. Because Sotomayor and Jackson are the only ones who've even done this job. But the way in which the majority wraps themselves in this idea that they understand how trials work so much better than everyone else by virtue merely of the fact that they were bigger hacks for the Federalist Society than the poor people who ended up on trial court situations is just ridiculous. uh it yeah it's bad and it's gonna be an ongoing problem because the you know we're going to have more of these injunctions stuff and so on and we are going to have more threats against judges and as long as this court won't show its work and i think that was a you use that that term and i think that's a really good term because do you remember in math class and so like middle school or whatever where it was like certainly where it comes from where you get credit for uh partial Even if you get the wrong answer, you still get some points because you showed your work.

16:32But the flip side of that is the reason they wanted you to show your work was we were, at least for me. To prevent cheating, but yeah. Well, yeah, because I was definitely in the era where we were on that cusp between the people who were still, the teachers who were still saying, someday you're going to need to do math and you won't have a calculator in your pocket, which is untrue. And we were on that cusp of where, yeah, of course you can use a calculator, but we need to know that you didn't just cheat your way to this answer. So you've got to show the steps that the calculator otherwise is doing so that we know that you got it.

17:02It proves the logic. Even if you, you know, maybe add three plus two incorrectly, knowing that that was how you had to get the answer is part of part of it. But I mean, this is this goes to the Calvin Ball conversation that we've been having. Oh, that Justin Jackson calls them, accuses them Calvin Ball. And that's the issue. You can't show your work when there is no work. When you're just reverse engineering from a result, it's a lot easier to just say I've reversed engineered from a result than to try and explain yourself. All right. Switching gears a little bit. So kind of a sandwich. The meat of the Supreme Court sandwich is going to be about law schools.

17:40Never say that sentence again, please. Yeah, yeah. No, Paul Campos, a law professor from Colorado, obviously wrote a – years ago wrote kind of the definitive work on how expensive law school was getting and all. He's back on this subject, and it's interesting. He did some numbers and broke them down, and I wrote a piece about what he – what his findings were. And as it turns out, even correctly adjusted for inflation, the price of law school wildly more than it ever used to be, obviously. But for the first 10-year period since 1955, the price of law school didn't go up all that much, a mere 4 % over where it was from that 2015-2016 school year.

18:28that's significant uh because and when i say oh it didn't go up that much i i want to be clear the previous two decades worth were uh the 2015 was 33 percent in real terms more expensive than tuition was in 2005 which itself was 33 percent more than it had been in 1995 which was 46 percent more than 1985. And that was 63 percent more than seven 1975 to give a sense of how like aggressively out of control this has been. But now down to four percent up uptick. What do we think about this? I mean, I think it's interesting, especially given the time frame that we're looking at, because some of the bigger legal education stories within that, you know, post 2016 timeframe has been the Trump bump of law school applications.

19:23You know, in 2016, we saw an increase in the number of people applying to law school. This cycle, again, in the Trump II era, we're also seeing, well, more people taking the entrance exams. We'll kind of see what happens at the end of this cycle. We're in the middle of it at the moment. So it's not necessarily that there are people who are just noping out of law school. I think that might be part of it. And And that's sort of part of Campos's analysis as well. But it's not like, you know, they're not trying to scrounge people going to law school. And they're also at the same time, in the same time frame, also, you know, minimizing the import of the LSAT.

19:57You know, a lot of schools are accepting the GRE. They're exploring whether or not entrance exams are even required. So kind of opening up the doors of law school in the same way. Well, they need to. Yeah. Because enrollments are up but down. like there's a temporary uptick over whatever but they're down as a general matter largely because it had eventually reached the point where it cost too much for somebody making a decision who could sit there and go I could also just work for a bank for a couple of years and make a lot more money and have no debt and that's an issue you're losing talent on that and the argument as he talks a lot of the argument had been And people used to pay a lot, you know, pay what it was charged was what you paid.

20:47Now, more and more people are not paying full sticker price, but that's because they're charging a massive amount and making all sorts of adjustments to bring people in, some of which have been for noble reasons. But a lot of it was just to keep asses in seats because they were charging too much, you know, and that eventually is going to catch up with them. I do wonder how law schools, the price will trend as the student loans from the government aren't as robust as they were in the past. Because like as we're already starting to see with this administration, you're going to get less money from the state to go to law school, even if you have to pay it back eventually.

21:23And I think that will be a big bottlenecking force. Because quite frankly, I don't know if I would have went to law school if I had to take out private loans, at least to the amount, to the degree that I was able to get like, what is it like? I don't know if Stafford loan is the word for it, but you know, like the things that came from the government. And I think that that's going to be one of the big things that incentivize people to look elsewhere. Yeah. I also think it's really interesting because lawyers, new lawyers, don't actually make that much money. And I know that that's a weird thing to say, as we've talked a lot about sort of big laws, compensation race, which is still true.

21:59I should have a sound effect for the binomial distribution. distribution. Yeah. And that's because the majority of people who graduate from law school are not going to big law. Right. The majority of them are doing something else. And the amount of money that they're making is not really enough to service those loans. Also petition for the binomial distribution sound to be really loud, but then really soft. And then loud again.

22:27And for if you're curious as to what we're actually talking about, if you look at the graph of starting lawyer salaries, there looks like there are two big humps of a camel. One is for the folks who are kind of going to big law and that's a much higher number. Then there's kind of like a dead zone where there's not a lot of money, not other people making that amount of money. And then again, around less than half, I think, of those starting salaries of big law, you get another big. hump of people who make that salary. Yeah. So that's what we're talking about there. And, you know, when we're talking about law school and whether people are willing to stop by don't we're saying it wrong.

23:05It's bimodal. But I like as I was saying it, I was like, I don't think it's binomial like that. But I've been doing all these like math trivia questions that makes the Spinozian and me happy. But like with the one mode will be loud and the other mode will be soft. But the other sort of, I think, aspect of whether the future lawyers is the question of technology and how that plays into the future of the profession. Yeah. You got to be a little nervous about the aforementioned AI situation. Not with those boots. But I think it is interesting to me that AI sort of hangs over the question about whether or not people want to go to law school, because I think out of of the professions, lawyers are amongst the best protected from going out of business entirely.

23:54First of all, because of professional organizations like the state bars and federal and national bars kind of creating ethical rules around when you can and cannot use AI kind of means that there will always have to be a person involved. I don't think that will allow that to be. Yeah, that's not really my issue. I just think that you will not need the level of associates. It's like functionally, AI is never going to be particularly like there's there's huge problems with it. It's never going to replace human thought on these sorts of things. It's stupid. It does a bunch of dumb things. That said, so do Summers doing research memos.

24:36And you don't need them when you have AI and they're and they're cheaper because they take shorter lunches. Sure. And I there's yeah, cute. But I mean, obviously, there's going to be some impact to AI to the legal profession. But what I'm saying is that somebody who's considering potential careers out there, I think that the legal career is more insulated from some of those AI pressures than others, right? Coding is not really a good job anymore because of AI, right? Like there are other professions that are going to be hurt a lot more, a lot more quickly than legal. So I think it'll be interesting.

25:10All right. Well, in the last 30 seconds or so that we have, we'll talk about the third story, which back to the other the other slice of rye in our Supreme Court sandwich. Amy Coney Barrett has a book out. Does she? she's going to anyway yeah no she was talking about it you know and uh you know she just she had to talk to her brother-in-law about the dobbs decision and he he said he read it because she told he told everybody to read the opinion she was really uncomfortable and it was sad that she had to talk about that decision with people on her vacation and supreme court justices they're just like us yeah i well when these sorts of major changes to rights happen if do you think that her vacation should be more sacred than anybody else's these things these conversations were happening across vacations everywhere oh and also like and like it's such such nonsense like supreme court justice is like talking about their jobs that's why they're those kind of awful gunners right like of course the reason she doesn't want to talk about it is because she knew there was no real basis to any of the garbage that she was signing her name to.

26:24And she knew she was about to get called out by her probably non-lawyer brother-in-law about it. And that must really sting if you're like a Supreme Court justice that when you say read the opinion and then people who don't know anything about the law read the opinion and they're already going, we've read it and now we understand how completely out of left field you guys are. This reminds me of that some judge at Stanford, I think his name was Kyle. yeah the kyle duncan bit yeah yeah the the students who actually read his opinions were like hey man what the fuck and he's like how dare you yeah she's just doing the polite version of this yeah that's a great analogy this like this feeling of well i wrote this opinion that i assume will just exist in kind of a hermetically sealed uh court report as a federal reporter somewhere And then if it comes up, they freak out and are upset about it.

27:17I feel more like – I think that was a great analogy. I think what's happening here is a little bit more insidious. Like everybody who deals with Federalist Society people, like there's always one of them, right? Like a lot of them are just like aggressive trolls who are interested in having Chick-fil-A night during every night of Pride and stuff like that. And you know who they are because they're wearing bow ties. Well, see, and I'm not necessarily going to go there because some of the bowtie people fall into this category. I feel like there's also there's always at least one who is the reluctant executioner, like the people who are like, oh, you know, I really do feel for you.

27:55And I wish I wish there was a better way. But, you know, the courts just can't do it. And it pains me to say that we can't have, you know, the 14th Amendment anymore. but like I really am with you. It's some, it's like a compulsion, like a - It's like they don't want to be mad, be somebody to get mad at them. Yeah, it's like a suck up compulsion of like, I'm going to ruin everything, but I'd love to be able to still go to the party. And all of these clips, and obviously we don't have the full book here, but all of these little passages that CNN had of it fell into this kind of mentality. this oh you know I feel so bad that I have to do these awful things and hurt people and I'm like you don't have to indulge that folks you don't have to respect people who give you that kind of line like they can do the right thing or not you don't have to let them get around it but anyway in the next element of Amy Coney Barrett is going to make me become the Joker she had another conversation another interview that talked where she talked about how I don't think there's a problem with the constitution constitutional crisis at all okay uh but as part of it she said she tried to defend all of these attacks as saying well you know we make decisions they're not an opinion poll and i'm like she said she said we make these hard decisions because they aren't an opinion poll which is absolutely insane because in her book so this is the thing she said in this interview in her book one of the passages that cnn had was her going off about how justifying Dobbs and saying it's not the first step toward tearing down, you know, marriage equality or access to contraception.

29:39She said, well, because unlike marriage and contraception, you know, these things are the those were more broadly popular. So one, she says that the reason she's not going to take those rights away is because of an opinion poll. So I don't even understand what she's talking about here. But moreover, the opinion polls are wrong. Like, way less popular historically than abortion had been. Like abortion was widely popular when they struck it down. You know, like going even further under her logic of, well, it has to be because it's not broadly popular. We can't do it. I defy her to look at what the numbers were on interracial marriage when they did loving, because I'll point out it didn't tip into the, okay, I guess maybe numbers until the 90s.

30:29Like, it's just such an act, and it's such a tired, lazy act, and I feel like she gets away with it because there's just too many fawning people who fall for that. Like, oh, you know what? She's trying. She can't help it. Yeah. There needs to be some academic, and I don't know when the time would start, but there's a shift when the Supreme Court became a PR department. Because this is just PR. like i think about what is it the i think the average canadian or so doesn't even know the names of the people in their supreme court like there's like there's this point in american culture where the justices were able to amass this sort of like cult personality where we cared about them as anything outside of being decision-making automatons and i kind of wish we were back there you know yeah i mean so does amy coney bear right that's another thing she had said in the previous interview, right?