Advisory Opinions - And May it Please the Court

Episode Date: July 22, 2021

On today’s episode, David and Sarah talk about the recent Supreme Court term with Kannon Shanmugam, a Supreme Court litigant and a partner at Paul Weiss LLP. Our hosts ask Shanmugam what it’s like to argue cases remotely, how much the Supreme Court has changed during Amy Coney Barrett’s first term, and about the court’s judicial philosophy on issues like free speech and qualified immunity. Shanmugam talks about the cases he argued this term and explains how he chooses which clients to represent pro bono. Show Notes: -Borden v. United States -BP v. Baltimore -Goldman Sachs v. Arkansas Teacher Retirement System -Henry Schein v. Archer and White Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French and Sarah Isger. And Sarah, I'm excited about this podcast. We're going to be looking back at the Supreme Court term with really one of the top experts in the country and also an FOS, friend of Sarah. So why don't you introduce our guest? David, we are talking to the Cannon Shanmigan.

He is like the Giannis, but instead of the Bucks of this podcast. He's going to come in. He's going to score his 50 points, give us the championship and leave. But seriously, I mean, he's got some triple doubles here or whatever the equivalent is in lawyer world of having argued in all 13 appellate circuits. Wow. Yeah. All 13. All 13.

So he has 32 Supreme Court cases, including four from this term, which put him in the number two slot. And his win record was quite impressive. We'll talk to him about all that. But by way of background, he's the head of the appellate practice at Paul Weiss and is a litigator, which means he clerked for Michael Ludig out of law school. For those who are in the know of such terms, they really do have a name for themselves, guys. Not pretentious at all. And then he clerked for Justice Scalia. I mean, he has quite the credentials on the conservative side of the ledger. He was an assistant solicitor general. I mean, he's the man. What are you going to say? So without further ado, Cannon, welcome. Well, thank you, David and Sarah. And I think that's the first time I've

ever been compared to the Greek freak. And so maybe that could be my nickname. And this is exactly the time to be compared. That's right. I don't know if y'all watched Game 6. I was watching it in Chautauqua, New York, and I was yelling at the TV screen and shock and awe at Giannis. So that's a fantastic comparison. Proving, by the way, that loss aversion is way more real. I assure you that if the Bucs had lost, my husband would be like moping. Maybe

there'd be a couple of holes in my wall, but like the Bucs win and he comes upstairs and I'm like, oh my God, the first championship of your lifetime. And he's like, yeah, it's pretty cool. I'm like, seriously? So frustrating. I also forgot to mention, by the way, David, that Cannon, I also forgot to mention, by the way, David, that Cannon, he did go to Harvard Law, but he's double Harvard with a little Oxford thrown in there. Oh, one of those guys. Yeah. Okay. All right.

So Cannon, let's start big picture. What did you learn this term? It was the first term with Amy Coney Barrett replacing Ruth Bader Ginsburg. We also had the COVID oral arguments. Someone, maybe you, once told me that every time there's a new justice, it's a new court. So what do we know about this court? Well, I think that's exactly right, Sarah. Look, it was a really strange term. I think because the court was operating remotely for the entire year, everything about it was kind of odd. And of course, you had the arrival of a new justice in the middle of the term as well. And so, you know, I don't know that we're going

to look back on this term as a particularly significant term in the years to come, except for the fact that it was Justice Barrett's first term. There weren't a lot of blockbuster cases on the court's docket. Frankly, the court's docket was smaller than historically it has been. And I think we can attribute that in large part to COVID-19 and the conditions under which the court was operating. But I think it remains to be seen exactly how Justice Barrett's arrival is going to affect the court in the long term. I think we got some early signs of that this year. But I think if this was an election prediction, we'd say it's too early to call. So what did you think of the remote arguments? Because as a listener, I flipping loved them. I didn't enjoy them as an advocate, I think in large part because there's something really

unsatisfying about arguing and not getting any feedback. If you're an open court, you know, occasionally the justices will nod in agreement. Sometimes they will frown in disagreement, but at least you get a sense of whether or not your points are landing. So in a remote format, it was tough. You're used to being a Broadway actor, and we just asked you to film Aquaman with a bunch of CG green tennis balls. There were a lot of green tennis balls. I think the major challenge was just that there really wasn't any feedback at all. It was like arguing into a void. And on the one hand, it was a Supreme Court argument, and it certainly felt like a Supreme Court argument. On the other hand, it was kind of like a giant conference call. It just so happened that nine-tenths of the people on the conference call were Supreme Court justices. So how did that alter your preparation? You know, for example, you're going to hear from

Justice Thomas. I mean, that's got a sort of adjust your calculus. You know you're hearing from every last one of the justices. I mean, is this adjusting the way in which you're preparing at all? David, I don't think it really adjusted the way that I prepared all that much. I mean, the only real difference was that I did my moot courts telephonically rather than in person, in part just to get practice with the format. But it did sort of alter the way that I thought about the oral argument. I think in many ways, it felt like nine miniature arguments because each justice would get three minutes and you would know that you were having a one-on-one exchange with that justice. Whereas in open court, the justices sort

of pile on in an organic way, and you really don't know where the next question is coming from. And particularly in the cases that I thought were likely to be close and where we had a pretty good sense of where each justice might be coming from, it did feel as if each of the arguments, the many arguments, was somewhat more targeted. And that was nice to sort of have the opportunity to address what I thought would be each justice's specific concerns. So, Cannon, something that you and I have talked about and that I've heard from other Supreme Court advocates who are repeat players, they're really good at this, is that anytime you're going to change the format of the game, it's going to give someone a competitive advantage over someone else. So why don't you talk a little bit about your style of argument and whether the telephonic part of it you think helped your competitive advantage or hurt?

Because I think you and I can both think of advocates who were definitely hurt in terms of their argument style and the competitive advantage they might have had over other people when they're just very good at the attack, balls coming from every angle, sort of aggressiveness of the former format. Yeah, I don't know if it would qualify as a competitive advantage, but I do think that the court's remote format was really beneficial to those of us, and I put myself in this category, who aren't very glib, who aren't very good at answering questions with witty half-sentence responses. just that I'm a Midwesterner and need a little bit of time to warm up. But I tend to prefer being able to give paragraph-long answers to half-sentence answers. And I think in the one-on-one format, it was a little bit easier to give more extended answers. Now, I think as the term went on, I think the justices realized that if they wanted to get multiple questions in a three-minute segment, that they

would have to interrupt a little more aggressively. And I think even over the course of the year, we saw that happen. But again, I don't know if that was an advantage or not. And I think, quite frankly, all of the advocates this year really just had to adapt to the new format. And there were a number of ways in which it felt somewhat different. So let's dive into the substance of the term itself. So 10 years from now, you're looking back at this very unusual term. Which case or two is your best prediction that's going to stand out as the most significant case? And why is that? Boy, that's a really hard question to answer because I think, David, there were a lot of

moderately significant cases. But I don't know if there were really any cases that were watershed cases that sort of marked a radical departure in any area of the law. I think, frankly, the Cedar Point case, the Takings case, may yet prove to be a significant case. We'll see how far the court is willing to take that. But when you look at the cases that going into the term everyone thought might be really significant, cases like Fulton v. City of Philadelphia, the case involving Catholic Social Services and their placement of foster parents. You know, I think everyone saw that case at the beginning of the term and thought that's a case that could really mark a dramatic departure.

The court could overrule Employment Division v. Smith, and it turned out not to be all that significant. And it turned out not to be all that significant. And if anything, I think a theme of this term was you had a lot of cases that presented significant legal issues, but that had kind of bad facts. But I think bad facts, to coin a phrase, bad facts make for unsatisfying law, because when you have facts that are egregious, as in Fulton and as in the angry cheerleader case the court can often find a narrow way to resolve that case because it's so obvious which way the court wants to go and so i think if anything to me that was kind of the theme of the term was all of the cases that looked like being really big cases uh largely fizzled out so going to fulton going back you

know instead of looking back now looking forward it's plain that there are five justices who are deeply unsatisfied with Employment Division v. Smith. But it is not obvious that there are five justices who are on the same page as to where the court should land if it overrules Employment Division v. Smith. In other words, the moment that I've long been, that I've been waiting for, that I've been longing for, and no disrespect to Justice Scalia, is, in my view, one of his few misses, could not actually, even if Employment Division v. Smith is overruled, it seems to me from Barrett and Kavanaugh's opinion that they haven't

settled on going back to the old sort of strict scrutiny-ish standard. Where do you see that going? Or is that just completely up in the air at this point? I think it's pretty up in the air, David. I would say that the hallmark of the Roberts court is that it is pretty unwilling to overturn past precedents. It is far more likely to narrow them. And I just wonder whether what the court did in Fulton will sort of serve as the template in future free exercise cases where the court finds ways, even creative ways, to get around the rule of employment division versus Smith so that it doesn't really have to directly confront the question. Because at the end of the day, if the court is not willing to agree on a standard to replace Smith, it seems as if overruling Smith

is just going to be a recipe for chaos. And I think the court, until the court has a comfort level with that, it's sort of hard to see the court actually pulling the trigger and doing it, even though a majority of the court has, I think, congealed around the principle that employment division versus Smith is flawed. And so, you know, I think in a lot of areas of the law, this is kind of a pattern where the Roberts court perhaps narrows cases virtually out of existence, but isn't willing expressly to overrule them. I have been most dissatisfied with the Supreme Court's First Amendment stuff. You have angry cheerleader where if explicitly says like it's like pornography. We know it when we see it, like when you have free speech.

But there's all these First Amendment cases bubbling up through the appellate courts and then even below that, if you will. Like as a society, I think we're really struggling with schools, frankly, like primary schools, secondary schools. uh, schools, frankly, like primary schools, secondary schools, uh, you have the coach, uh, out of the ninth circuit where, you know, he wants to pray on the 50 yard line after football games and challenge Garcetti. Uh, you have the eighth circuit case that David and I also just talked about where the university of Iowa, uh, like pretty knowingly violates the free speech rights of its students. And then that case now turns on really qualified immunity if it goes up to the Supreme Court. An angry cheerleader kind of did nothing to tell us where the justices are or how they're going to deal with these stickier situations than just a cheerleader who tells her coach to F off on Snapchat. Yeah, I think that's a fair criticism, Sarah, of where we are

in terms of the First Amendment. And I think you're absolutely right. And I think this case, the angry cheerleader case, really, I think, proves the principle that when you have these facts that everyone agrees are problematic, often you get a legal rule that doesn't provide a lot of guidance to lower courts. And I know that this is one of the things that you and David have talked about on past episodes, and the listeners should, of course, go back and listen to the entire back catalog of your episodes. But I thought one of the things that Sarah said that I thought was really insightful, I think, Sarah, you had this really complex taxonomy

of sort of an axis on which you can measure members of the court and particularly the Republican appointees on the court. I think this question of whether or not you provide clear guidance to the lower courts or whether you decide cases narrowly and kind of leave for another day, you know, resolution of broader legal principles. I think there's a real tension there, including among the Republican appointees on the court. And I think that there are, you know, some justices who are willing to go big

and to sort of state more general rules. And then, you know, you have this block of more pragmatic justices like the Chief Justice, Justice Kavanaugh, and potentially Justice Barrett, we'll see, who are perhaps more willing to decide cases narrowly. But I think one of the costs of doing that is that you don't provide clear guidance. And I think, you know, lower courts are going to have an interesting time, I think, in these school cases involving off-campus speech because the court's opinion in the angry cheerleader case, you know, just basically sets out a list of considerations without really explaining to lower courts how they're supposed to weigh them. So, you know, in one scenario, more limited decisions can be a little bit welcome in the sense of turning down a little bit of our national temperature.

I mean, that's not really a legal consideration, but it's, you know, one of the things that we constantly talk about are the judges or human justices or human beings, too. They're aware of their surroundings and they're aware of the national condition. of their surroundings and they're aware of the national condition. On the one hand, it can be somewhat welcome to sort of lower the temperature and avoid these big sweeping rulings. On the other hand, as you said, it provides very little guidance, which then makes the circuit court, all these very circuit court decisions, more important. But there's a scenario in which the court has narrow rulings but takes more cases that could kind of square that circle. Is there any indication? Can we imagine a scenario where the court actually starts to take more cases?

It seems to be that this is a, you know, we have the Supreme Court resolving a decreasing number of cases historically and then on narrower grounds. And it's kind of punting a little bit, maybe. And I'm not going to put any criticism of the court in your mouth, but it just seems to be kind of punting a little bit. Well, it won't surprise you, David, that as a member of the Union of Supreme Court Advocates, you know, I have to, I'm required to say in response to that, that of course the court should take more cases, particularly cases where, you know, we're representing the petitioner for Sir Shirari. But in all seriousness, for my entire career, people have been suggesting that the court should take more cases, but the trajectory has been a consistent, gentle, downward trajectory.

Justice Scalia would always tell us as law clerks, you know, when I got on the court, we were hearing four cases a day and we were hearing oral arguments after lunch. And, you know, in the time between when he joined the court in 1986 and when I clerked in 1999, time between when he joined the court in 1986 and when I clerked in 1999, that was over. And now the court can't even fill its calendar with two arguments a day. And the court is routinely having only one argument a day or even canceling argument days altogether. And I think that there is something to be said for the proposition that if you're going to decide cases narrowly, you should decide more of them because that is a way of providing guidance to the lower courts. But I also think more broadly that there's some tension here in that, as you say, David,

if the court is really concerned about the perception of the court and the perception that the court is doing radical or dramatic things, then perhaps that's one of the factors that pushes the court to write these narrower, more incremental decisions. But the tension there is that that doesn't provide a lot of guidance to the lower courts. So I think that all these things are kind of floating around as the court is deciding not just which cases to hear, but how to go about deciding. Why are they taking fewer cases? Four people can't agree or because nobody really knows the outcome anymore, four people are afraid to make bad law? No, I don't know about that. I mean, I think that what I suspect members of the court would say

is that the court has criteria for granting cert. And in particular, the court is hyper-focused on the existence of a circuit conflict on lower courts reaching different results on a question of law, really as a prerequisite for the court granting review. And the reality is that there aren't that many of those cases. It isn't as if the Supreme Court is turning down bucket loads of cases where there is a circuit conflict, a disagreement in the lower courts. And frankly, in these days of easy electronic access to opinions, you know, lower courts are sort of wise to the fact that if they don't want their decisions to be reviewed and potentially reversed by the Supreme Court, there are all sorts of ways to avoid creating a circuit conflict. the Supreme Court, there are all sorts of ways to avoid creating a circuit conflict. And so it's pretty rare nowadays that you read a lower court opinion and the lower court says, the second, fourth, and sixth circuits have said X, we disagree with that.

That seems not to happen all that often. But qualified immunity? Why haven't they taken that yet? That's a mess, a hot dumpster fire mess. It is a mess, but it's also an issue that is intensely case and fact specific and therefore doesn't lend itself to the kind of pure binary circuit conflicts. If you have five circuits saying that the statute of limitations for a particular type of claim is three years and six circuits saying that it's five years. Well, that's just the classic question for Supreme Court review. If what you're trying to do is instead to determine whether a particular officer violated clearly established law, well, that's obviously intensely case specific. And so, you know, intensely case-specific. And so, you know, I think that the court is aware that there are areas of the law where lower courts are struggling, but it's often hard to translate

that into the criteria for granting review. So it sounds like to me that you're saying, reading between the lines of your answer, you're saying that this is not likely a court that's going to take a case that's just going to say, rather than looking into whether this officer violated clearly established law and tweaking that and expanding what clearly established law means, sort of, this is not the kind of court that's going to be doing the home run, grand slam, we're going to fundamentally rework qualified immunity. we're going to fundamentally rework qualified immunity, as has been, you know, as numerous groups across the political spectrum have sort of been pleading for a couple of years now. You're skeptical they'll take that kind of case? You know, I would never say never, David. And, you know, I think one of the things that often causes issues to bubble up to the Supreme Court is when thoughtful lower court judges write opinions on the issue. And obviously, that has been happening in the area of qualified immunity. I think my point is just a more modest one, which is that to the extent that reviewing cert petitions is a volume business, say you're a law clerk making a recommendation to the justices.

It's a lot easier to recommend cert on an issue that meets these, you know, fairly objective criteria, like my statute of limitations example, than it is as a law clerk to say to the Supreme Court, you know what, it's time for you to revisit qualified immunity. And so I think the nature of the process, I mean, the court's considering somewhere in the neighborhood of 7,000 cert petitions a year. The court has to try to come up with criteria for that. And what the court has really done is to say, again, that the existence of a circuit conflict is basically a prerequisite. And if you don't have very many circuit conflicts, you're not going to have very many cases. Well, Cannon, I don't like that criteria.

going to have very many cases. Well, Cannon, I don't like that criteria. Well, look, I think to get back to our discussion of employment division versus Smith, the problem, Sarah, is if you don't like that criterion, what are you going to replace it with? You know, how are you going to provide guidance, particularly to the law clerks who, you know, have a significant role in the cert process as sort of the point of first review of cert petitions. And that's not an easy question to answer. I mean, I've always thought that one thing- I have an answer. It's not a good answer, but I do have an answer. All right. What's your answer, Sarah?

Pick out our like five to 10 favorite dissenting appellate judges and go read their dissents and see which ones you think merit a response from the court to their dissent. And obviously there's some good candidates for dissenting judge on the Ninth Circuit. I mean, you basically could just read all of Judge Willett's opinions on the Fifth Circuit. I don't, I mean, I know he writes majority opinions. I'm kidding here. But like, seriously, the guy dissents plenty. You've got like good judges flagging problems. DC Circuit, I didn't necessarily agree with the dissent, but this idea of defamation of public figures and you had two justices even say like, huh, yeah, that is a hot mess there. The judges are trying to flag things at the lower court, even when there's not a circuit split. Clerks, please, clerks, maybe flag some of those and say,

hey, I'm going to pair this cert petition with this dissent from Judge O'Scanlan. Maybe you could just have a little love note to Judge O'Scanlan about why he's right or wrong. Sarah, I think that actually does happen, you know, which is to say that there clearly are some lower court judges whose opinions carry a lot of weight with the court. Judge O'Scanlan, someone who historically has very much been in that category. But I think it only gets so far, which is to say that, yeah, I think it's important, but not sufficient to kind of trigger a Supreme Court review because, you know, the Supreme Court has long adhered to the principle that simply because a lower court decision is wrong

is not enough of a reason to grant review. And, you know, I could see an argument that the court should take a somewhat different view, and in particular, an argument that the court ought to weigh the importance of cases more heavily. I mean, I think it's very hard to look at the overall Supreme Court docket, say, from this last term, and say, yeah, the Supreme Court decided the 50 most important cases in the country. You know, often the court is deciding circuit conflicts on issues that are practically not all that important. I argued a case when I was in the SG's office that involved a claim for $152. And, you know, that is, you know, that's just, I think, the fallout from

focusing so heavily on the existence of circuit conflicts. Sometimes you have circuit conflicts on issues that just aren't that important. And yet the court, I think, feels obliged to grant review. So shifting gears a little bit and speaking of the circuit courts. So we know already that the Supreme Court has accepted, this one or two cases are the next potential blockbusters? I'm sure as a Supreme Court advocate, you've got – I'm sure you're monitoring this incoming stream. So what's standing out to you? Yeah, boy, you put me on the spot on that one, David. No, that's okay.

I don't really have a great answer to that. I, you know, I wish I could think of something. How about this? Some of the next issues. So we have, you know, a second amendment, they've finally taken a second amendment case, in which I'm kind of of the opinion that this is going to be another pretty, pretty narrow decision. I mean, we'll see about it. Some of the issues that you think that are sort of the low-hanging fruit, we've already brought up qualified immunity. Any chance of any real

movement on Chevron, for example? Or is that something that's just going to be maybe narrowed a tiny bit or left alone? Yeah, I think, David, on Chevron, on the notion of deference to administrative agencies, that the court sort of took its shot at that in the Trump administration years and ultimately ended up kind of narrowing various deference doctrines without doing away with them entirely. And that's particularly true with regard to so-called our deference, the notion that agencies get deference when they're interpreting their own regulations. The court kind of reconceived of that doctrine without getting rid of it. And I kind of think that the moment has come and passed for that. And as a practical matter, what the court is doing in that area is, you know, often the court is now interpreting statutes

and really just not talking about Chevron deference. So kind of consistent with the notion that when there are doctrines the court doesn't like, the court will often sub-silentio just narrow them. So I think that has kind of already happened. You know, I think the case that I think a lot of people are keeping their eye on is the Harvard affirmative action case. And it's going to be very interesting to see both what the Biden administration has to say and what the court will do and whether the court, by asking for the views of the administration, was effectively just punting that case for another year. I think there's a very good chance the court will grant review in that case. But if it does, it will most likely be for the 2022 term rather than for the upcoming term.

I was going to ask you that because Scott and I, obviously, over one of our romantic dinners, sat there and plotted out on a calendar how long the SG's office would need to take to CVSG and then how long conference would need. Ass assuming that no one acts outside their ordinary timeframe, it's pretty tight. I mean, basically the justices would have to provide the additional cushion to bounce it into next term. It would be not impossible, but pretty obvious if the SG's office took long enough

that they're not giving their brief until what January would probably need to be in order to effectively punt it to the next term. They're more likely, even if they take their sort of full time December. So maybe it gets conferenced in late December, early January, then the justices punt for like three or four conferences. And then they're in the home stretch. How are you imagining this when you are doing your romantic dinners with your wife, who's a doctor? Yeah. So Sarah, as you know, I am fortunate in my choice of wife for so many reasons, but perhaps foremost among them for present purposes that she's not a lawyer. And so we

don't have nearly as scintillating dinner table conversations as you and Scott do. So, you know, just to provide a little bit of background for the listeners. So what the court did in the Harvard case was to call for the views of the Solicitor General, which is something that the court does not infrequently in deciding whether or not to grant a petition for certiorari, a petition for review. And the oddity of this practice is first that it is an invitation to the Solicitor General to file a brief, but it's the sort of invitation you don't turn down. I think the government feels obliged to file whenever the court does this. But the court doesn't set a deadline for these briefs. And so typically they take some months. When I was in ESG's office, we had an otherwise unremarkable ERISA case that I was working

on where the government was just having a hard time agreeing on its position internally. And I think it took us more than a year to file the brief. And so at least in theory, if the government wanted to, it could say, well, we're just going to think about this for a while and put off filing the brief. I think as a practical matter, I think the government will feel some obligation to file the brief in time for the court to hear the case this term if it wants to. And I think what that means is, you know, a filing around the end of 2021, which would conceivably give the court the option of hearing the case in April of 2022 and then deciding the case by June. But it's up to the government to

decide when to file, and then it's up to the court to decide how quickly it's going to act. And I think one of the things that we've seen in the Roberts Court in particular is that sometimes the court will take a fair amount of time. It will sort of reconsider cases serially before deciding whether to grant review, you know, whether for strategic reasons or for other reasons. And if that's true, it's not going to take very much for the case to get bumped to the next term, to the 2022-23 term. And also, correct me if I'm wrong, the Solicitor General's office has a pretty good

track record. If they say take the case, the Supreme Court almost always takes the case. If they say don't take the case, I'm curious in this case in particular, where I think there are reasons for the Biden administration to think twice about telling the Supreme Court to take this case. Harvard won at the appellate court. You have a very conservative court right now. I could see the SG's office saying, no, this case isn't the right vehicle. I mean, coming up with some reasons to punt on this case. Do you think the Supreme Court will actually take that under advisement? Or do you think this is more like, no, no, we want your opinion, but we will be taking the case?

Sarah, when the government says that the court should take the case, it's almost automatic. Because if the government says that something is important enough, it does get a fair amount of deference for that. But the flip side is not necessarily true. If the government says deny, the court still grants review in a pretty healthy percentage of those cases. Now, in part, I think that's just because if the court asks for the views of the government, it's almost by definition because a case is already in the ballpark. And if the court is not persuaded by the government's reasons to deny review, it will often reach a different conclusion. And on issues as to whether or not there is a circuit conflict, I think that the court will be interested in what

the government has to say, but the court is going to reach its own conclusion. And on a case like this, I think the government is not going to get a great deal of deference if the government comes in and just says, you know, the lower court got it right. You know, there's nothing to see here because this is obviously an important case. I mean, I think there's really no doubt that this is a case that, you know, almost from the day it was filed, you know, people thought could end up in the Supreme Court. So, you know, we'll see what happens. I think many people were somewhat surprised that the court called for the views of the government in this case. And my instinct here is to think that, you know, even if the government recommends a

denial of cert, there's a very good chance the court's going to grant review. Super interesting strategic question for them. If you know that the court is, if you say don't take it, it won't have a huge effect on whether they take the case. Do you go ahead and say, take the case, and here are the reasons that we think Harvard's admissions policies should be upheld? Where are you at your most persuasive at the Solicitor General's office when you kind of already know where the court's headed? What would you what would you say if you're just presuming for a minute that you are sitting in the S.G.'s office now and the objective of the Biden administration is to as much as possible preserve existing sort of affirmative action type regimes? What what are you telling? What if you're the S.G.? What are you telling? If you're the SG,

what are you wanting to tell the court on this? David, that seems like a pretty unlikely scenario, but President Biden hasn't nominated an SG yet. So I guess in the words of Dumb and Dumber, I guess I've got a chance. No, in all seriousness, I think that the Solicitor General historically views these briefs as an opportunity to really set out the government's merits position. And it's a little bit odd because if you think about it, there's really no obligation for the government to do that. We're still at the certiorari stage where the court is just deciding whether or not to take the case. But I think SGs have felt, you know, a bit of an obligation with the court asking for the government's views to set out their views on the merits. And so I would not at all be

surprised to see a brief that does that fairly extensively, you know, really just as a way of kind of getting the administration on record. And I certainly would expect that the government will side with Harvard here on the merits. And this is really a chance for the government to set out those views. So I want to go back to a case from last term that was pretty disappointing that the Supreme Court didn't take cert. And that was the Arlene Flowers case, Baronelle Stutzman. One of these First Amendment issues, you know, Sarah was talking about that we've had some, you know, that I think overall, directionally, I've, you know, been in general very happy with the outcomes of a lot of these First Amendment cases at the court, as far as who is the prevailing party. In your view, is that going to be the Supreme Court's

last word on the matter on some of these, you know, wedding tape type cases? Or was this just not the right vehicle to decide the issue? There's not that many of them out there. There are not that many of these cases. So it was far from clear to me that this is something that the Supreme Court is just inevitably going to take up. Yeah, it's an interesting question, David. And at the risk of sounding like a judicial nominee, I didn't look closely at the cert papers in that case. And so I don't really have a good handle on whether there were reasons why that case might have been an imperfect vehicle in which to consider the issue. But look, I think ever since the Supreme Court recognized a constitutional right to same-sex marriage,

constitutional right to same-sex marriage, it has known that the clash between First Amendment interests and that newly recognized right was going to end up back at the court. And obviously, the court largely dodged that issue in Masterpiece Cake Shop. The Fulton case had, you know, a little bit of a flavor of that, but it, you know, was, again, a case that I think had a variety of factual wrinkles that meant that it wasn't really an opportunity for the court to opine on some of the more fundamental First Amendment questions. I do tend to think that it's inevitable that one of these cases is going to end up at the court, but I've been thinking that for a while now, and it hasn't happened. And we're what, you know, certainly a few years down the road now from Masterpiece Cake Shop, the court has had multiple opportunities,

and it hasn't granted review. My theory, for what it's worth, which is nothing, but you both are dying to hear it. My theory is that the reason it wasn't taken is that the actual artistic expression at issue, the creation of floral arrangements, wasn't clearly enough separated from sort of the provision of a service like bacon and eggs. Well, you wouldn't have bacon and eggs

at a wedding reception, but- You would at a great wedding reception. Now, Sarah, were there bacon and eggs at your wedding reception? We eloped. Oh, well, have we heard that story? We eloped to Justice Kavanaugh's chambers. Have we heard that story?

I don't think we've heard that. Maybe not. I don't know. Oh, my goodness. We eloped to Justice Kavanaugh's chambers. Is that the right preposition? Do you elope to? Do you elope from?

Around? About? Aboard? Above? I think you elope to. Okay. Yeah. Okay.

Yeah. That's close to elope. I think you elope too. Okay. Yeah. Okay. Yeah. That, that's close. I think you're just, I think you're just a lope. I was thinking of like loping, you know, on a horse and like you would, you know, lope to somewhere. So elope, I don't know. Well, this is a welcome detour for my question, but I want to get back to my, my, my question. So you eloped to, so what's cooler? I've always had thought that on this pod, I have the coolest wedding story, which was getting married in Paris. Not Paris, Tennessee, where my wife is from, but Paris, France. And I always thought that was unquestionably the coolest. But eloping to Justice Kavanaugh's chambers is pretty darn cool.

Cannon, where'd you get married? So I got married in my hometown in Lawrence, Kansas. And, you know, I will say, while we didn't have bacon and eggs at the reception, we did have barbecue at the rehearsal dinner, which I think is a pretty close second. Yeah, that is that is solid. close second. Yeah, that is solid. So anyway, my theory that it wasn't clearly enough of a clear enough separation from sort of the basic provision of services type of food prep or setting up chairs, whatever it is, because if you go back to the Masterpiece Cake Shop oral argument, there was a lot of talk about, wait a minute, when is it expression, you know, when is your creativity expression that's going to fall within this First Amendment argument you're making? That's for what it's worth, which is nothing.

That's kind of my theory about it. Now, it is an interesting theory. Now, it is an interesting theory. And as you say, David, that was such the focus of the oral argument in Masterpiece Cake Shop, you know, as the court was trying to figure some degree of confidence that there was significant expressive content before taking one of these cases. So, Cannon, let's talk about your four cases. What were your four? Because one of them in particular, I don't think I have seen a needle with such a small eye threaded with such surgeon-like precision? Was your wife, you know, doing medical school, you know, suture training with you at home in advance of that argument? But mostly what I want to know about your four cases is what you went in thinking you needed to accomplish and, you know, how you felt at the end, like how much you felt like, yep,

okay, I've got that one. And you lost one. how much you felt like, yep, OK, I've got that one. And you lost one. And whether you went in knowing like this is a this is a half court shot to begin with. Yeah, sure. So I argued four cases this year. I think the case you were referring to, Sarah, was Borden versus United States, a very interesting criminal case that we did pro bono and that we won five to four with an interesting lineup of justices. I argued BP versus Baltimore, which was a case arising out of the climate change litigation, but that involved a fairly specific question of appellate procedure. I argued Goldman Sachs versus Arkansas teacher retirement system, which was, I think, a fairly significant securities case in which the plaintiffs were seeking somewhere in the neighborhood

of $13 billion in damages. And then I argued a case, Henry Schein versus Archer and White, which was actually somewhat unusually dismissed two months after oral argument. So I guess that counts as a loss in the sense that the lower court decision, which we were seeking to overturn, remained in place, but the court obviously ultimately did not reach the merits of that case. I think what was interesting about all of those cases is that, at least in terms of the three where the court reached a decision, the court was not unanimous. Such a large chunk of the court's

docket is cases that are decided nine to nothing. And often going into those oral arguments, you have a pretty good sense of what's going to happen. I would say that really in all four of the cases that I argued, we went into that argument thinking, boy, this is likely going to be up for grabs and probably not likely to be unanimous. And that was particularly true in the Borden case where, you know, going in, you know, I viewed that case as very much a coin flip. And, you know, certainly even during the oral argument, it felt like the outcome was very much up for grabs.

Remind listeners what the Borden case was about, because you may not know this, because I'm not going to assume that anyone listens to the greatest legal podcast in human history, but we sang your praises when we talked about that case. So remind listeners what that was about. Sure. So it was a case involving really the primary federal law that imposes mandatory minimum sentences on certain federal criminal offenders. It's a law called the Armed Career Criminal Act, which imposes a very draconian mandatory minimum sentence of 15 years on individuals who have committed three prior offenses. And there are complicated definitions

for those offenses. But the question that was before the Supreme Court in this case was whether those prior offenses had to be committed with criminal intent or whether it was sufficient to have committed those offenses with recklessness as the state of mind. committed those offenses with recklessness as the state of mind. And this was a question that the Supreme Court had left open in not one, but two prior decisions. And it was an issue on which the sort of traditional conservative versus liberal alignment was well and truly scrambled. was well and truly scrambled. Indeed, in the most recent precedent in the area, Justice Kagan had written the majority opinion with Justices Thomas and Sotomayor dissenting. And so we went into this case knowing that it was likely to be close. We knew that Justice Kagan, who ended up writing the majority opinion, was going to be a really critical vote because in that prior precedent, she had come out in favor of the

government. And it was one of those cases where going in, you know, I had in my own mind a sense of the five justices who we would probably need to have in order to get to a majority. And then a sense of the justices who would be, you know, sort of the equivalent of, you know, a Republican candidate winning Vermont in the presidential election. You know, it's a lot, I think, cases that are close in the Supreme Court are sort of a lot like presidential elections. You sort of have a sense of who you need to get to get to 270. And then you have a sense of the votes that might be the sixth or seventh vote. And this was definitely one of those cases. And so it was therefore a case in which

the format where you're going one by one was, I think, actually very helpful, because during the oral argument, we had the opportunity to address each justice's individual concerns. You know, as I read the opinion, and it's been a while since I looked at it, my recollection is you won the case with most of the court actually against you. Right. Well, you know, ultimately we got five votes, so most of the court was by definition with us, David. Yeah. You know, it was a really interesting case because Justice Thomas had, you know, a unique view. It was literally a unique view in that he wrote an opinion concurring in the judgment,

setting out his view that because of an earlier dissenting opinion, he was in kind of a bind as to sort of which line of analysis to follow. He was in kind of a bind as to sort of which line of analysis to follow. And he ultimately ended up following our line of analysis rather than the position that he set out in an earlier dissenting opinion. But it was really interesting because we thought this was going to be a close case. But we argued this case on election day, literally on the morning of the election. And months just went by and we didn't get the decision. And we were kind of wondering, you know, what's going on?

And there was a point at which it became the longest outstanding decision from the court. And then we finally got the decision in June. And it was sort of one of those cases where, you know, you hit print on the opinion when it gets posted on the court's website, which is how in the age of COVID-19, we find out what the court's up to. And, you know, it just kept printing and printing and printing because Justice Kavanaugh wrote this 40 plus page dissent and you had Justice Thomas's separate concurring opinion. And it was pretty easy to figure out why it took so long. You know, once I had to go out and refill the printer with paper to read all the opinions. So that was a pro bono case you mentioned. Obviously, British Petroleum and Goldman Sachs are most likely paying clients, I would think.

But in this case, you're taking this on. It takes a ton of time to brief a case, to prepare for oral argument. How do you decide which pro bono cases to take on? How much do they need to ideologically align with your own thoughts? How much does it just need to be an interesting legal question that kind of like scratches an itch for you? How does that work at Paul Weiss for Cannon and his team? Um, how does that work at Paul Weiss for Canon and his team? No, it's a, it's a great question, Sarah. And, and look, uh, the reality is that for those of us who are lawyers at big firms, you have only a limited amount of time to devote to pro bono work. And so you want to use that time wisely.

And, you know, criminal defense work has always been a pretty significant part of my practice, both in terms of, of my, uh, paying clients and in terms of pro bono work. When I was in the Solicitor General's office, I really cut my teeth on criminal cases. So it's an area of the law that I feel pretty comfortable with. And, you know, ultimately, I think the fundamental question is, you know, is there an interesting legal issue and is there a substantial argument on behalf of our client? And in criminal cases in particular, most of those clients wouldn't be able to afford our rates. And so they certainly fit the profile of clients that you would represent pro bono. And sometimes that involves taking on unpopular

causes. When I argued Maryland versus King, which was the case on collecting and testing DNA of arrestees to determine whether they had committed other crimes and whether that was consistent with the Fourth Amendment, my client was accused of a really horrible crime, the rape of an elderly woman. It was the sort of case where it wasn't entirely clear that the position that we were advocating was a particularly, quote unquote, conservative position. And I remember some of my fellow conservative friends gave me some grief when we took on the case. The irony of that is that ultimately, you know, it was Justice

Scalia who wrote one of his most memorable dissents in favor of our client in that case. And look, when my client Alonzo King's aunt came to me and asked if we would take on the representation, I looked at the case and I thought, you know, this is an unpopular client, but it's a really important legal question. And he has a really, you know, sort of important position, which is that the police shouldn't be able to conduct a search without individualized suspicion. And we litigated that case to the best of our abilities. We ultimately fell one vote short. But, you know, I think at the end of the day, you can't spend a lot of time obsessing

over how people are going to perceive cases that you take on. Sometimes you just have to take them on if you think that there is an important issue and principle at stake. And I'm very proud of the work that we did on that case. So, Cannon, I have a suggestion for your fellow conservatives, giving you some grief over that. If you could just say to them, as a conservative, which part of the Bill of Rights do you dislike? Could you please explain that to me? And we should like them all. We should like them all.

Well, the irony of that case is that we got Justice Scalia's vote, but not Justice Thomas's. And so it was kind of sweet in the Borden case to get Justice Thomas's vote as the fifth vote, having not quite been able to pull that off in Maryland versus King. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family?

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to get $30 off plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Well, Cannon, we so appreciate your time today. We know you bill in six-minute increments. We want to get you back to that sweet, sweet billable time. But I do have what I believe will be the most controversial question

to ask you. You mentioned you're from Kansas. You had barbecue at your wedding. For what it's worth, as a Texan, Kansas is the only state whose barbecue I respect. And for those listening, that's right. I don't respect you, North Carolina, Tennessee.

Memphis? Nope. Memphis barbecue? Don't respect it. I'm not saying I won't eat it, by the way. I'll eat it. Don't even respect it. No, it's not don't even. It's like respect is a higher standard. It can be tasty. But anyway, It's like, it can be tasty. But anyway, Cannon, what is your, you know, you go to your favorite barbecue restaurant in Kansas,

you're back home, but you can only order one meat and one side. What are you going with? I think it has to be the burnt ends and probably, boy, sides are tough. I'd say probably beans. And if I had one meal left, I would have it at Gates. And just to be clear, I'm a proud Kansan. I hate many things about Missouri, but I'm perfectly willing to go to Missouri for barbecue. Whoa. but I'm perfectly willing to go to Missouri for barbecue. We don't care about the state line. It's Kansas City barbecue, and that's the most important thing. So that would probably be my choice. But Sarah, I just have to agree completely with David here.

I don't think you can have a discussion about barbecue without including Memphis. Unless you've been to Central, you have not seen the world. I just think that, you know, I think with all fairness to your home state, I think it's Kansas City and Memphis and then everybody else. Oh, my God. Here I pay you this compliment. I have been to Central. Thank you. I acknowledge that Memphis makes barbecue. That's my compliment to Memphis. There's plenty of places that I won't acknowledge even do the art of barbecue. Okay, David, same question to you.

One meat, one side in Memphis. Well, it's Memphis. I'm going with the pork and I'm going to the baked beans. Wow, two beans. That's interesting. Yeah, yeah. I'm going with the baked beans. Absolutely.

And I think the line of the podcast was, and I I'm going to, I'm paraphrasing it, but this was what you just said. Canon as a proud Kansan, there are many things I hate about Missouri. That is fantastic. That is absolutely. How could I not know about this Kansas, Missouri hatred? Dude, this goes back to the 1850s. This is bleeding Kansas stuff right here.

Okay. Okay. If you haven't, Lawrence, Kansas is the epicenter. So, you know, I have a hard and fast rule when I'm on Twitter that I don't say anything negative about anybody, which probably makes me a somewhat unusual Twitter user, but I have a hard and fast exception where Missouri is concerned. You know, it's the border war. They, they betrayed the big 12, though they may not be the only school in that, in that camp before it's all said and done. And of course they, they burned down my hometown.

You know, and so, you know, we've held a little bit of a grudge against Missouri ever since. So again, I was not thinking I wasn't going back to the 1850s. I was thinking about what did the University of Missouri do to you? I was. But yeah, well, you know, look, we don't like them, even though they rarely beat us. I did a panel after the election, after the 2016 election in Lawrence, Kansas, and it was shocking, after the election, after the 2016 election in Lawrence, Kansas. And it was shocking, David, how very much like 1850s was like a couple years ago. Like Lawrence is holding a grudge.

It is no joke. Interesting. By the way, I have like, I think I'm just feeling a little whatever today. I am not going to answer brisket. whatever today, I am not going to answer brisket. I feel I'm very much craving some Texas barbecued turkey, which is just so good. And then on my side, it really depends if pickles count as a side because I have to have pickles and pickled jalapenos. So if those don't count as a side and I can still get cobbler for dessert because that's a dessert and not a side. With the turkey, I really like some great coleslaw.

I really, really do. Turkey? It's turkey? Really? Oh, it's so good, David. It like, it melts in your mouth. And because we don't- In the barbecue category,

isn't that about as close as you can be to being like a vegan without- Well, you have to remember, in Texas, we don't slop our barbecue with sauces that cover the meat's flavor. So the turkey has this nice salt and pepper rub, and it's just the smoke infused. And it really brings out, you know, the pecan wood that you're obviously smoking with in Texas and like, oh, so good. It is, it is a pure form of barbecue. That is, that is an interesting answer, Sarah. Um, because I think there are many who would think that, that, you know, Turkey is a, you know, that's, that's a little bit on the fringes, but, but, you know, I, I know a lot of barbecue purists who think that if you answer, you know, pulled pork, that you're a Philistine, David.

You are. You are. I know. Definitely. I mean, brisket is obviously. It's hard to keep all the people happy all of the time when it comes to barbecue. You know, I'm just going to be even more of a heretic and say, I don't actually love barbecue that much. Just going to say it.

Have you had Kansas City Burton's? I've had Kansas City. I've had barbecue everywhere because everyone's proud of their barbecue. Everyone loves their barbecue. And so when you go speak and go places, everyone wants to take you to barbecue. And is it that you don't like the meat sweats? Is it the after effect? It's just if I have a choice of meat, I'd rather get a steak. Interesting. I mean, you know, I'd just rather get a steak. Totally heretical. Yeah. A steak or if I'm eating more casual, I'm going to go for the

burger. Wow. Yeah. I don't know. I'm sorry. I'm sorry, listeners. I'm sorry. I've outed myself as a heretic, but I just feel kind of out on the outside looking in of all of these barbecue conversations. All right. Cannon Shamagam. We are so wildly thankful for this Supreme Court review with, I mean, as I said, the Giannis of the Supreme Court bar right now. You're it, man. Congrats. Well, thank you, Sarah. And hopefully I'll have a season at the Supreme Court next year like Giannis did for the Bucks this year. But it's great to be with you guys. And I look forward to joining your Splinter podcast on barbecue when you get that up and running. Deal. I mean, to have Tennessee, Texas and Kansas represented is, I mean, we'll need someone from North Carolina,

but I think this could work. We could have whole episodes on individual cuts of meat. There would be dozens of listeners. Dozens, I tell you. On the brisket, the point versus the flat, that's a whole podcast right there. Maybe it's a series. And my wife would happily come on for an episode where we debate whether beef or pork burnt ends are better. That's a subject of some contention in the Shamigam household. I've never had pork burnt ends. I didn't know that's a subject of some contention in the sham again household i've never had pork burnt ends i didn't know that was a thing they are so good um you know you can you can order them now i mean all of these barbecue places are on you know gold belly or similar uh similar

shipment services and um pork burnt ends are fabulous fascinating butinating. But I'm a purist. I tend to stick to the beef, but pork is very good. I mean, beef burnt ends in Kansas City are like dessert. I mean, they're so incredible. Even I have to acknowledge that. David has his hand on his head. He is, all right, all right, we're done. You can start your barbecue podcast.

I'll start my competing burger joint ranking podcast. And, you know, I might have five, six dozen listeners. Uh-huh. Uh-huh. I think there would be an audience for a barbecue podcast. I mean, there are millions of people who love barbecue. Lawyers do barbecue. It'd be a niche, but... All right. Thank you, listeners. We will see you again next week. And it's August,

so we're about to do Off Topic. Oh, and you're going to want... You guys are going to want to hear some of our Off Topic. We've got... We're going to have an aliens discussion. We are. We are. We're going to have an aliens discussion. We are, we are,

we're going to have an aliens discussion that not one single person in America is going to want to miss. True. So come back and come back on Monday. Come definitely come back in August. And as always, please rate us on Apple podcast, subscribe and check out the dispatch.com.

We will talk to you next week.