Advisory Opinions - AO on K Street

Episode Date: July 13, 2023

Kannon Shanmugam rejoins Sarah and David for another SCOTUS opinion wrap-up and barbecue showdown for this live taping in front of a lucky audience of summer associates. The trio discuss the implications of SCOTUS cases versus the notoriety of them and: -Sarah and David’s SCOTUS beefs -Sarah’s impasse for longer arguments and more cases -Attire for oral arguments (don’t forget the lucky suspenders) -A review of Judge Jackson’s first term -Barbecue and burger debates -Summer Associate questions Show Notes: -Matt Levine for Bloomberg Opinion on Twitter/Musk saga Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to a special episode of Advisory Opinions. I'm Sarah Isger, that's David French. We have a new logo for AO and we are on illustrious K Street this week at Paul Weiss with the managing partner of Paul Weiss, Cannon Shanmigan, frequent AO Supreme Court Roundup guest and his summer associate class. We're going to talk about the term writ large,

some of those ethics stories that have come out this week about the Supreme Court. But we have an audience, Cannon. Tell us who we've won. So we have the Paul Weiss DC Summer Associates here in a conference room at 2001 K Street. So we have a highly educated and eager audience for today's podcast. I know two of your summer associates and they are exceptional. So congrats on what I now will assume are a full room of exceptional humans where, you know, it's like a Prairie house companion. They're all above average. I don't know which two,

but I'm sure that they're part of the uniformly above average group here. You argued a case this term. We'll talk about that a little. We'll start with some, you know, term wrap up thoughts and see where we go. We'll just meander for a while. Okay. David, before we start, we talked about that Twitter versus Wachtel case last time. And not surprisingly, but we got a lot of M&A emails. Yeah. And they were really illuminating. I want to put, a couple people sent the same writer's write-up of it, and I want to put that into show notes.

So if you are interested in reading a very smart expert-y take on this that's in the weeds, I definitely want you to read that. But also, we have a corruption question. Yes. So when we talked about the case, we talked about this as happening in Wachtell's M&A practice. It's mergers and acquisitions practice. And we talked about it in that context. Guess what? It was their litigation wing that did this case, which I don't know how much it changes

the bottom line of our analysis, but we wanted to be clear about that. This came through litigation because what happened, as people might remember, Elon Musk makes an offer to buy Twitter and then starts to look like he got some coldish feet. And so because he had made an offer, because the Twitter's argument, this was binding, and the offer was quite nice for Twitter, for Twitter shareholders at the time, especially as Twitter may have been losing a bit of value

and has lost a bit of value since. So they were very keen on closing this deal and they got Wachtell involved from a litigation standpoint to make sure that the deal closed and the deal did close. And my old litigator hat, when I look at a, what was it? A $44 billion deal. Roughly.

And there's a $60 million fee. 90. 90, whatever. Rounding error. Rounding error. In that context, it's funny, my old litigation, old litigation at what I talked about before, you would have class action litigation with multi-billion dollar settlements with the class action plaintiff's attorneys getting a third, sometimes up to 40%. That fee ratio doesn't strike me as really out of bounds, given what we're talking about.

You're just saying that because we're at a major law firm. Currying favor. So from Bloomberg opinion, Matt Levine, that's what we'll put in the show notes. But just to summarize his point, which I thought was well made, basically the fiduciary issue, you should think of two different Twitters. There's the Twitter that had hired Wachtel that had shareholders and what was in their fiduciary interest. And then there's the second second twitter which is after the buy and their fiduciary interest the only fiduciary interest that the board needed to worry about in paying wachtel was to the shareholders in which case they wanted that 54 dollars and 20 cents per share to go through

that was absolutely in their interest no matter what it took basically at that point and so he writes up a nice thing about that fiduciary question in the lawsuit that I think is worth a read if you're into it. But that's not what we're here for today. Okay. Cannon, welcome. You are the Steve Martin of advisory opinions. Well, thank you. It's great to be back with you. I've been sitting here thinking about how I'm going to arrange for a $90 million success fee on my next Supreme Court case. It turns out you don't need to arrange for it. You just at the end say, didn't I do a nice job?

And I think $90 million would cover it. In my experience, that has never worked. We'll see. Hope springs eternal. Yeah. All right. Well, the term technically hasn't ended, but the opinion handouts have ended. Did this term feel different than previous terms do you have like a a theme of this term a summary a line that it will be

remembered by if you're making a t-shirt per term what's on your t-shirt for this term i i think that this term felt like a reversion in many ways to the way that the court ordinarily works which is to say that the court has a general valence, and in broad terms, that general valence is obviously in a more conservative direction with the six Republican appointees. But underneath the surface, there's a lot more nuance than that. And I think that this case, this term in many ways didn't fit the prevailing narrative in that regard. Last term, which of course culminated in the Dobbs decision,

you had a lot of six to three decisions with the six Republican appointees voting together, the three Democratic appointees in dissent. 14, I think. Yes, 14. And this term, by contrast, I think there were only five, and there was a much greater degree of unanimity. I think that the court was unanimous

in almost half of its cases. That's pretty close to the historical norms. And I think what we see is a court still feeling its way with a lot of new members. We have four new members who've joined the court in the last five years. Of course, this term we had the arrival of Justice Jackson, which I think was significant both in terms of the court's opinion writing, but also in terms of the dynamic at oral argument. And I think that one broad trend that I'm sure we'll talk about is that reports of the Chief Justice's demise were greatly premature. The Chief Justice played a really central role this term. He wrote a number of the court's most significant opinions, and I think he really guided the court's general direction in a way that I think many people thought was not going to be possible in light of the court's changes. And so

there was a lot to talk about this term. Do you think that when we look back on the Roberts Court, we will sort of do Roberts Court 1 and Roberts Court 2 with the change of four justices in such a short amount of time? I think so, because I think Roberts Court I was a period in which it was really unclear what the direction of the court was going to be. And really, right up until the 2016 election, it was really unclear which way the court was going to go, whether it was going to go- And arguably, it looks a lot like the Rehnquist Court, frankly, from 2005 to 2016. Yes, that's right. I mean, there were obviously some changes in the court's membership during that time, but not changes that had a major impact on the court's direction. And obviously, the question of who would fill Justice Scalia's seat

and then the replacement of Justice Ginsburg by Justice Barrett answered that question as to the general direction. I think what we don't know yet is what is Roberts Court 2 really going to look like. And I think one of the things that was really striking this term when you look at the voting patterns was that it felt that the Chief Justice and Justice Kavanaugh were really the new center of the court in terms of the court's direction. And when the court swung in a quote unquote more liberal direction, it was typically because of the court's direction. And when the court swung in a quote-unquote more liberal direction, it was typically because of the two of them. And so I think that they are now the new center of the court. Now, is that a different center

from the center of the court when it was Justice Kennedy or Justice O'Connor? Sure. And in any given area of the law, that may mean different things. But I think if you think about how the court is arrayed, that's not a bad way to think about how the court is arrayed, that's not a bad way to think about it. To me, one of the most striking statistics was that even if you

take those two justices out of the equation, the other four justices voted together much less frequently than, say, the three Democratic appointees vote together. And I think that reflects the fact that there's some meaningful methodological differences among the conservative members of the court, as you have talked about on the podcast previously. Justice Gorsuch, for instance, has very different views on issues involving certainly Indian laws, I know from firsthand experience, criminal law, and others from his other Republican appointee colleagues. And so again, that's the nuance that I think tends to get lost in the narrative here is that, you know, while this may seem like a six to three court in some

of the headline cases, and certainly that was true again this term, that's not always true, even in some cases that are independently fairly significant. Let me ask you to put on your analytical hat here a bit on some of these cases, because we had three cases that had real implications on regarding race. So you had the Indian Child Welfare Act case, you had the Alabama redistricting case, and you had Harvard affirmative action. Two of the three, you had the Supreme Court upholding a race-conscious formulation, and one of the three pretty emphatically striking it down. I've got some thoughts on how to harmonize, but I would love to hear your thoughts on those three cases in particular, and sort of how do you approach it as somebody who's argued in front of the court, will argue in front of the court again,

and thinking through its jurisprudence on on racial issues so i think the decision in the affirmative action cases was probably the least surprising ex ante because given the things that the various justices had previously written and certainly given the way that the oral argument went it sure looked like the court was going to do more or less what it did. I think the most interesting aspect of the court's decision is what the court left unsaid, which is exactly how the remaining consideration of race is going to work and the looming question of what happens with race-neutral mechanisms that are adopted for racial purposes, the issue that's in the Thomas Jefferson case.

Holland v. Brackeen, I think, is a little bit different. That's the case involving the Indian Child Welfare Act because the court left open with some members of the court signaling a willingness to accept the argument that there may be a constitutional equal protection problem with programs benefiting Indians. That's the major question that the court left unanswered. And so while the court rejected a number of the other challenges, I think that remains to be litigated. And then the third case, Allen, the Voting Rights Act case, I think was probably the most surprising. There were some interesting dynamics there where obviously Alabama was arguing for a very broad rule and the court

was unwilling to accept that. But it's interesting that you had the Chief Justice accepting the status quo with regard to Section 2 of the Voting Rights Act. And it's a very interesting question how he reconciles that with his view on Section 5. I think Allen v. Milligan, the Voting Rights Act case, was the most interesting of the three. And David, it's for the reason that you said. It's because the court went in what one might have thought was an unexpected direction. And I think a lot of people have focused on the Chief Justice in particular, who wrote the opinion. My own view is that he just thought that this case was different from other Voting Rights Act cases. The court had previously effectively dismantled Section 5 of the Voting Rights Act, which

is the provision that required certain covered jurisdictions, mostly in the South, to obtain pre-approval before making changes to their voting practices. That provision had always been the most controversial provision of the Voting Rights Act. By contrast, this case involved Section 2, and perhaps not coincidentally, that was a provision that Congress actually amended while Chief Justice Roberts was working in the Reagan administration. And in his opinion, he talks at great length about the process whereby Congress basically overruled a Supreme Court decision by statute, and that decision had taken a narrower view of Section 2. And I think what he was basically signaling was that in his view, like it or lump it, Congress adopted a pretty broad protection against certain voting practices, including practices that diluted the votes of racial minorities. And he was not willing to narrow that, particularly in the face of a state that was making very aggressive arguments about the scope of Section 2. Did you say like it or lump it? I did. Is that a phrase? Yes. You've never heard that? I like it. Like it or lump it is a, wow. It must not have made its way down to Texas. I guess not. That must be a Midwestern expression. No, I've heard it growing up in the

South. No, never heard that in my life. I don't even know what to lump it would mean, but listeners are going to have a field day with this on a monopiac value to it. That's negative. I think lump it means to go away in this context. So two completely unrelated things about the Alabama case. One, I have to flex once again that I got the alignment right after the oral argument remember no a listener went back and reviewed our discussion of the oral argument oh yeah and I called it I called it to this listener I mean God knows we haven't yeah I didn't go back and check but I'm sure they're correct yeah um and the other thing is so I wrote about the ruling for in the times and one thing that

was kind of interesting was going through the section five jurisdictions it was states of the old confederacy and i believe three of the five boroughs of new york city that's true that's one of my trivia favorite trivia facts about the voting rights act yeah and the reason is there were literacy tests imposed in new york as an anti-immigrant measure, which is fascinating. And as a result of those literacy tests, there was a tail end result of much lower Hispanic voting rates in those boroughs. So that meant it qualified for preclearance under Section 5. And it was puncturing a little bit of that New York superiority. five and it was puncturing a little bit of that new york superiority lord knows we have a lot of problems in the south but just puncturing a little bit of that new york superiority the other two boroughs are presumably still feeling smug though they have all the rights in the world to feel smug uh i have a couple big picture questions for you first you talked about the center of the court now being cavanaugh and roberts and you talked

about how that center still might be different from when kennedy was the center and when o'connor was the center before him actually how do you see that what is the difference between the o'connor as the middle of the oreo versus kennedy versus this new bifurcated cookie well Well, I think perhaps one of the best ways of thinking about that is to compare them to Justices O'Connor and Kennedy. Justice O'Connor was the supreme pragmatist. She was into balancing tests. She was into deciding cases narrowly. That was actually not Justice Kennedy. He had particular areas of the law in which he had strong views, but they didn't necessarily map onto a conservative or liberal spectrum. If anything, he was really the supreme libertarian. I think of both the Chief

Justice and Justice Kavanaugh. I should have said double-stuff Oreo. It's now a double-stuff Oreo center. Yeah, that was my bad. Sorry. Do we need to issue a separate correction on that? Probably, yeah. The Chief Justice and Justice Kavanaugh, I think, are both very pragmatic. They're both very concerned about the practical effects of their decisions. They're very concerned about the perception

of the court. You see that very frequently in Justice Kavanaugh's separate writings about the implications of the court's decisions. Although there's one paragraph

from the Chief Justice in the Harvard case of, don't take this to mean we're disagreeing, that we're disagreeable, and everyone loves each other, and also they're wrong. Yes, and in the student loans case. Oh, that's sorry. That's right. That was actually the paragraph in the student loans case. And I think that that was very interesting, particularly because that came right at the end of the term. But I think that that is really sort of what I would define as the key characteristic of this new center of the court rather than particular views on any particular

issues. Okay. My second big picture question is that you also talked about, quote unquote, some of the biggest cases of the term. And we've talked about that, that when I rattle off stats about, well, only 8% of the cases were decided, 6-3 along ideological grounds, 89% had at least term and we've talked about that that like when i you know rattle off stats about well only eight percent of the cases were decided six three along ideological grounds 89 had at least one liberal justice in the majority the response i get back that is not wrong is um okay but that eight percent involved a lot of the biggest cases or the most important cases and my response back to that is define big, define important, because if you simply define them as divisive, it's a circular argument. How would you define the quote unquote biggest cases of any term? You know, it's funny because I think when we use the phrase big case,

it's almost self-referential because what we really mean is the cases that the press is talking about and that commentators are talking about. Those are not always the cases with the biggest practical implications. You know, the case that I argued, Samia versus United States, is a case that involves the admissibility of confessions in joint trials. And that issue comes up all the time because the practical reality is that in criminal cases a lot of the cases are trials of multiple defendants tried jointly one defendant confesses other defendants don't the government wants to use that confession against the other defendants it's not totally surprising that canon has picked his own case as the biggest case of the term that did not get the coverage or respect that it deserved well we're correcting that right now. I do think that it's just hard.

And I understand why it's hard for the press because if you're a newspaper reporter or a television reporter, what you're really doing is competing for airtime or column inches to the extent that there's still print versions of newspapers. There are for the record. And to the extent that you're trying to get that,

the case has to be not just practically important, it has to be sexy in some way, shape, or form. And probably fit into our political dialogue. Affirmative action is still a political topic in a way that joint defense confessions are not a real, they're not coming up in campaigns a lot. I think that's right. And I've heard it said about affirmative action that this is really not a big issue because it only really affects a small percentage of people who send their kids to colleges. I don't actually agree with that. And I don't agree with it for the simple reason that I think it's an issue that Americans have really strong views about. And so I think it's important for that reason. But I think it's fair to say that the number of people who that decision affects is probably lower than the number of people that say,

you know, what we would ordinarily think of as a fairly workaday criminal case might affect. You know, these cases involving, for instance, the Armed Career Criminal Act, that's a statute that affects, you know, a large number of people in the criminal justice system. I tried to look up how many Americans have patents. And it's probably a lot. Two million. Wow. Really?

Yeah. Now, the problem is I couldn't quite tell if they were doing unique patent holders or simply unique patents. So I might have lots of people who have one patent have a lot of patents. So my number could be bad. But it's a lot. And I think it is a real challenge for the press. I don't mean to gratuitously malign the press on this

because I think it's very hard to kind of try to identify and determine the practical significance of these cases in advance. I argued a case about, I think 10 years ago, Maryland versus King, which was the case on collecting and testing DNA from arrestees. And that case got very little press coverage I think 10 years ago, Maryland versus King, which was the case on collecting and testing DNA from arrestees. And that case got very little press coverage until the oral argument. And I think

it became clear to a lot of reporters, frankly, during the oral argument that this was going to be a big deal. Justice Alito said during the oral argument that this was the biggest criminal procedure case in a generation. And I think that caused people to sit up and take notice. But I think it's hard as a reporter because you have nowhere to look to kind of determine how many people does this affect? What are the implications going to be? Do the implications depend on which way the court decides the case? an enormous amount of attention. Alabama got a little attention mainly because it was surprising, but I have trouble parsing which of those two decisions is more consequential in the real world. I think they're both quite consequential. And then 303 Creative, which created an enormous amount of anger and buzz and conversation. Once you looked at the stipulations in the case and understood the stipulations, you realize this was a straightforward application of about 80 years of First Amendment precedent from Barnett forward.

And legally, as a legal matter, it would have been earthquake-y had it come out the other direction. This was just straightforward stuff. I think, to parse out the difference. And it's often very hard to explain to people who really deeply passionately care about something that, oh, actually that thing you really passionately care about doesn't impact nearly as many people as you think, or even your life at all. And this other thing impacts people in numbers in the millions. I mean, criminal procedure cases, when you consider the number of human beings in the United States of America who process through our system,

in many ways are the most concretely consequential cases the court decides, and they rarely make a single headline. Yeah, I think that's true. And I don't know that there's anything to do about it other than the fact that, you know, I think one virtue of the age in which we live is that there is more attention paid to the work of the Supreme Court. And, you know, as a result, there are places to go to find good analysis and coverage of these cases.

But I think it's a source, frankly, of some frustration for those of us who litigate before the court. Sometimes you're working on a case that you think is practically quite significant and it really doesn't get a lot of attention. At the end of the day, it doesn't matter all that much, but certainly I've worked on a number of cases over the years where I've had that view. And one thing, and I'll stop on this because I want to move to student loans, is it is a little frustrating when you kind of understand more of the legal issues, the amount of heat compared to light around this notion that the Supreme Court is completely divided ideologically on every case that matters.

And all the cases where there are the weird or indifferent or surprising alignments, those are the ancillary cases, those are the side cases. No, that is not the case at all. But rather than beating on that too much, I want to move to student loans. 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? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos.

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selling frame. That's aurafA frames.com. Use code advisory at checkout to save. Terms and conditions apply. We know you've got some thoughts on student loans. We were talking about a little bit in the green room beforehand. So I just kind of want to say student loans go. Sure. I think it's the most interesting set of opinions this term because I think in some sense, whenever you have the Chief Justice and Justice Kagan on opposite sides, they're two of the, if not the two best writers on the court. And it's really just interesting to see them engage. And this case actually reminds me a lot of the CFPB case that I worked on, the sale of law case, in that you had the two of them

writing the opinions, really with these sort of radically different views on very fundamental issues and they're really issues that sort of go to the judicial role and certainly justice kagan in her dissent in particular sort of says this is a judicial power grab both because of the court's decision that um the the plaintiff states had standing and because of the court's decision that the executive branch did not have the power to act. And I think it's really sort of fascinating to watch the two of them duel. The majority opinion, as you all have discussed, relied in part on this doctrine, the major questions doctrine, which at least in those terms is a relatively new doctrine, even though it has

a longstanding footing in administrative law more generally. There is that great opinion that Sarah was talking about by Justice Barrett that really tries to provide a conceptual underpinning for the major questions doctrine. I needed that. No, you were absolutely right. I had exactly the same reaction. When I read this opinion, I thought to myself, boy, that may be the most interesting opinion this term, because I think it provides a really interesting and I think thoughtful basis for this doctrine. And so even leaving aside the practical implications, and boy, this was one of the cases where the practical implications matched up to the level of attention. I just

think from a jurisprudential perspective, it was fascinating. I think this was a term, by the way, in which I think the Chief Justice wrote some really well crafted judicial opinions. I think he often gets, I think, underestimated as a writer. And I think his opinions this term were exceptionally well crafted just from a sort of writing standpoint david and i have talked about our three scotus beefs moving forward one is standing doctrine it's really hard at this point to gauge what is standing doctrine of the court in any given situation two is the docket and the size of it. I'm wondering specifically as a guy who's trying to get cert in cases often, I assume you would like to see them take more cases, but how? Like what would be the sort of, you know, take more circuit splits, resolve cases that aren't maybe

as big as the biggest cases, you know, how would you increase the docket what was our third one oh the third one was i just have this weird pop psychology theory that one of the reasons why the court is so controversial is they save for the very end typically the most publicly contentious cases because that's the ones they're taking the longest they're taking a lot they should maybe set themselves a deadline to fix that order problem because my question is honestly and i i don't know and i pose this on twitter which is a way a total waste of time i should have posed it on threads but anyway the question was look if say harvard came out two weeks before the end of the term and alabama comes out at the end of the term on that very last day this very very surprising, very consequential decision, does that disrupt some of the narrative that this is this highly

partisan ideological court? So that was number three. Great. Well, that was like a Justice Breyer question, a three-part question. Now imagine I'm a tiger and you're a baguette. Okay. So I'm not sure I can provide any clarity on the first part of this which is where the court is going with its standing jurisprudence i think particularly in cases where the states are the plaintiffs um it's nuanced to put it gently and i think hopefully we'll get some greater clarity in coming years on that i do have views on the shrinking docket as you might imagine as a member of the union of private practitioners before the Supreme Court. We, I think, unanimously have the view the court

is taking too few cases. But I think the why is a really interesting question, Sarah. The court has, I think, 24 cases on the docket for next term. The court has now seemingly bottomed out, though I hesitate to use that phrase, at about 60 cases a year. This year, I think it was 57. These are levels not seen since the Civil War. And at the rate the court's going for next term, it's going to be a new modern historic low. It's going to be fewer than 57 unless the court greatly speeds up when it comes back from its summer break. The long conference gets real long this year. it comes back from its summer break. The long conference gets real long this year. Yeah. And that's unlikely because if anything, it seems like the court's taking fewer cases coming out of its summer break rather than more. I don't know what to tell you about the why. I've heard a variety of theories. One of them is just the effect of the pandemic. It's interesting that the number of cert petitions that has been filed has dropped from around 6,000 before the pandemic to

around 4,000 last year and it dropped by several hundred just in the last year alone so maybe that has something to do with the slowing pace of litigation in the lower courts maybe part of it is new justices feeling each other out and having a certain degree of risk aversion about granting cert perhaps some justices more defensive cert denial defensive you don't want the court deciding this because you think the court will come out differently than you like you don't want to be in dissent or even if you're uncertain about what the court's going to do i think that that probably affects a subset of cases but i wouldn't rule it out as a factor you know part of it is the lower courts are smarter nowadays about how to attract or how not to attract the Supreme Court's attention.

You have a number of lower court judges who've clerked at the Supreme Court, and if they want to insulate a decision from Supreme Court review, there are any number of ways to do that. But I think that the real question is- Bows out in dissent. Yeah. The real question though, I think, is the court avoiding circuit conflicts? And I think the reality is that there are cases that are sort of close calls on whether or not there is truly a conflict. And it seems like the court

is avoiding more of those cases. We had a couple of petitions just in the spring that I think were in that category. And I've talked to a lot of other practitioners who have exactly the same view, that it feels like the court in those marginal cases is leaning more towards denying cert rather than granting it.

But like qualified immunity, we've been sitting here. People have been screaming. Well, people like on this podcast have been screaming for them to take a qualified immunity. But I tell you, David, I think that's one where I think the court just doesn't have the appetite for whatever reason. And it has less to do with the nuts and bolts

of whether there are conflicts in the methodology and more to do with the nuts and bolts of whether there are conflicts in the methodology and more to do with the fact that I think that's probably an area where I think the Supreme Court is a little bit reluctant to get in and maybe a little bit worried that what they do could have a disproportionate effect one way or the other on what lower courts are currently doing. Pour one out for Judge Willett. Judge Willett and some in the audience can attest to this, obviously feels very strongly about that issue. We have a Willett clerk here.

Yes, but no signs of the Supreme Court being interested in that yet. And I wonder also, one last thought on this, I could talk about the docket forever, but I know we have other things to cover. I wonder whether the longer oral arguments are having an impact because- Oh no, the thing I want is hurting the other thing that I want? It's a big lift to do two oral arguments in a morning when each oral argument is two hours long. How long was your Samia argument? It was almost two hours. I was up there for about 50 minutes and we were the first case and I was hungry by the end of the argument. And so if you had to sit through another argument after that, I mean, I think that day they got done at around one o'clock. And I think that that is actually probably having some back of the mind psychological. They're allowed to bring snacks to the bench. They're in charge.

So how, let me ask you this. So you've done the shorter arguments and you've done the larger, the longer arguments. Which one do you prefer? I'm happy to do whatever the Supreme Court wants. No, look, everyone. It's nuanced. Every practitioner will tell you they like the shorter arguments

and I will tell you that I like the longer arguments because I want y'all up there getting grilled. Like you don't want to be up there getting grilled for two hours. You're hungry. I don't really, I don't really mind it

except that it really is true that towards the end of the Castro-Horta argument, which was a very long argument, my feet were genuinely starting to hurt. It's a long time to be standing. Oh my God,

imagine Elizabeth Freelager. I know, she's had some. She's literally doing it not backwards, but in heels. And she's had some epically long oral arguments.

Yeah, she's had the longest ones. But it's a long time to be up at the podium. I feel nothing for you. Well, particularly if you're an appellate lawyer, you're used to arguing in courts of appeals where the arguments nowadays are 10 minutes, 15 minutes. And so it's actually unusual. And I think in many ways as a lawyer,

look, lawyers all like to hear ourselves talk. And particularly for those of us who are better in paragraphs than in half sentences, there's some luxury to being able to give longer answers. But at the same time, is it better or worse for the decision-making process? I genuinely don't know. And I think in some sense, the court is the best judge of that. Ultimately, oral argument is about what's most helpful to the judges in reaching a decision. And I sort of sensed- Can you name a case in the last few terms, you don't have to limit yourself to this term,

where you think the oral argument was a difference maker? Oh, I think it definitely can be a decision maker, but it's a small percentage of cases. But often the oral argument does help the justices to decide how to write the opinion and how broadly or narrowly to write the opinion. And that's enormously consequential, particularly at the Supreme Court level. I think the real question, the hard question to answer is, you know, how often does that added time make a difference to the outcome? Impossible to say. It's impossible to say.

Because the questions would be different if there were less time. So. And I think there've been some things that lead me to think that maybe the court thinks that this has gone too far because the oral arguments towards the end of the term seemed to be somewhat shorter. The court cut back on the amount of time it was giving the government in advance for amicus arguments from 15 minutes to 10 minutes. So I think there's some effort being made to kind of reign this in because I do think, I don't think it would be a great world if the Supreme Court was hearing oral arguments, I don't think it would be a great world if the Supreme Court was hearing oral arguments in one case three days a week, two weeks out of the month, seven months out of the year. I think that that would be too little. And I do think that an important part of the court's job is simply reaching results. It's not just giving extended reasoning. It's actually resolving circuit conflicts. And I think that there are many more than 60 issues a year that need to be resolved by the Supreme Court. When I was practicing, I liked longer arguments, mainly because the other side was always so wrong

and they needed to hear that from me at length. I mean, we used to have marathon arguments. You would spend all day at the court arguing. That happens very rarely now. So in some ways all day at the court arguing. That happens very rarely now. So in some ways, this is the shorter version. I think what's different though, is that I can't speak to how well prepared justices were in, you know, the martial days of the Supreme Court. But nowadays, in part because the court hears so few cases, you know, the court is exceptionally well prepared. It knows the case. It doesn't need wind up an oral argument. I frankly have moments of thinking that while the advocates are given two minutes now

at the beginning of the oral argument, that's pretty unnecessary because if you've read the brief, there's nothing new that you're going to say, hopefully, that isn't in the brief already. Y'all spend so much time on that two minutes and honing it and perfecting it and practicing it. Well, it's because it's the one time you know what you're going to be able to get out during the oral argument. And of course, we're all type A people, so we're going to prepare if we're given two minutes. But ultimately, the oral argument is really all about, and I say this to the associates and the summer associates in the room all the time, the oral argument is all about answering the court's questions. It's really all about being responsive to whatever's on the court's mind. And so in some sense, I would be

perfectly happy with a world where the court just went until it was done with questions. But when you have a court of nine people, as opposed to a court of three people, that gets very unwieldy very quickly. And so I think that what the court has done is, you know, a fine compromise, but I would hate to see it having an effect on the docket. And I'd also hate to see it impede the court's decision making if the oral arguments are getting so long that they're no longer helpful. Can I ask a really important oral argument question? And this is sartorial. How do you think about what to wear?

So, for instance, you're in a full suit. Your summer associates won. Maybe. Yeah, you're in a full suit your summer associates uh one maybe maybe isn't it yeah you're in a full suit okay he nods like obviously he sleeps in that suit um he would never be caught dead out of his shower without the suit on um uh so did you dress up for us is this what you were wearing today because you had a client zoom and you didn't want to wear basketball shorts on the bottom? Would you wear this suit and tie to oral argument? And I note that there are suspenders.

Okay, that's a multi-part question. That's so comprehensive. First, Sarah, I usually wear a suit to the office. It's just the old school Midwesterner in me. But I often have client meetings or presentations. So it would be, you know, hard to know in advance whether I need a suit. When do I need a suit? It's just easier. It's sort of like Mark Zuckerberg's pullover. Yes, I do have a particular suit that I wear for

Supreme Court arguments. Only one. Only one. Yep. Is it the lucky suit? Is it kind of like a baseball player always coming out to the same music parts are the rest of the outfit because i wear the same tie that i've worn for every single supreme court argument which includes the arguments that i did in the sg's office where i wore it is silver uh and the suit is gray and it's also the same tie that i wore when i got married so i've worn it i guess now 37 times I've worn it, I guess now 37 times. I've worn it other times, but I don't really wear it as much now just for like an ordinary day at the office

because I'm a little bit worried that I'm going to like, you know, pour my coffee on it or something. This is like my Wordle streak. Like I now just live in fear. I don't even enjoy Wordle anymore. I've got to keep up the streak. It's all about the streak.

Yeah. Well, it's sort of the same thing. And what about the suspenders? Yep, I wear suspenders. This is starting to be very close to that famous Bill Clinton debate where he got asked a question about his sartorial choices.

Thank you, Sarah. Thank you. Too much. Too much. No, the suspenders are sort of my trademark. Okay. Good to know

for those prepping for their first argument. I have just a couple more things. One, Justice Jackson's first term reflections. Yes, it's been a fascinating first term. As I think you know, I clerked with Justice Jackson way back when, and it's been just sort of personally fun to see her on the court. She's obviously been very active at oral argument.

It amazes me that there are people who count the number of words the justices say but i understand that she spoke more words at oral argument and more minutes they did both and more minutes than any justice at least since the transcripts started keeping track of that but i think she's been you know a really um interesting contributor in oral argument she's very different from Justice Breyer, who is, of course, the master of the academic hypothetical. Her comments are usually sort of right there at the core of the case. I think what's been interesting as well is her opinion writing, because, you know, she's not been afraid to strike out on her own. She wrote three solo dissents this term, and that's very unusual for a new justice. In fact, I don't think there

had been a solo dissent by a new justice since Justice Thomas joined the court in 1991. You know, I think what will be interesting is to see how her jurisprudence differs from that of the two other Democratic appointees on the court. They certainly voted together quite frequently, but not invariably this term. And I think Justice Jackson brings some different perspectives, you know, not only as somebody who I think is very interested in the rights of criminal defendants, but also as somebody who had been a district court judge and a district court judge for a long time. And so, you know, there were a couple of cases this term where she joined some of the Republican appointees in the majority. There were also, as you pointed out, Sarah, a number of cases where she joined Justice Gorsuch in a very interesting alliance and separate opinions. And I think we just need more data points to have a sense of what that means in particular substantive areas. But I think it

reflects that she's going to be, I think, a strong voice on the court and not afraid to be independent. We're going to get to your two passions, which are Taylor Swift and barbecue. But before we do, David, there were two more ethics stories hitting the court in the last 24 hours. Right. One about Justice Sotomayor using clerks for her book tour events or book type events where she would speak somewhere and the clerks would reach out to help organize that, suggest the number of books that should be purchased in advance, and that that had resulted in potentially millions of dollars, maybe, for Justice Sotomayor and that that was an ethical problem the second story was once again

about justice thomas in this case not so much specifically about justice thomas but rather his ja which is sort of the equivalent of a uh more than a secretary like i don't judicial assistant um had not set his venmo to private um every single lawyer i can tell you in dc right now this morning was setting their venmo they did not know that you could set it permanently to private they thought you had to do it per transaction and sometimes you forget everyone has fixed that uh in this town and i'm sure in this building at this point by this morning. But basically the JA was getting Venmo payments from people who appear before the Supreme court, which sounds sketchy, but as you know,

on Venmo, you have to put into it some description of why you're paying. And the descriptions are all Thomas Christmas party, CT Christmas party, Xmas PRT Y-T-Y. And the Guardian's write-up is, we don't know what the payments were for. It's a mystery.

It's a mystery. And they go through the various lawyers that have made these payments to Justice Thomas' J.A. on Venmo. And while they sort of get to this towards the end of the story, at the time, you're like, wow, these are, you know, yes, some of them are arguing before the Supreme Court. One of them argued the Harvard affirmative action case. They list him first. Will Concevoy, my dear friend who passed away, is listed. And you only get down to the bottom where it's like

all of these people clerked for Clarence Thomas. I'm sort of giving away what I think about these two stories. Frankly, the Venmo one is hilarious to me because I don't, I hope my clerk family isn't mad, but we do a yearly thing and yep, one person pays for it and we Venmo them because otherwise our poor judge would be on the hook paying for all of our meals or one per, like it doesn't, I don't know how else you'd split a bill with that many people. That's how clerk reunions work. And so paying your own way

at the justice's Christmas party, I don't know how else you would do it if you have cases pending before the court, what, you don't get to go? The justice pays for your dinner? It doesn't really work. And yet the guardian is baffled by what it means to,

and I've been told I go Dutch. Maybe British culture around Venmo is different. But yeah, the Venmo story is just ridiculous. It's ridiculous. And this poor guy who didn't set his Venmo to private. Well, and I haven't set my Venmo to private because I have been sending, trolling all of my friends

that everything they give to me or send to me, everything I say is a Ja Morant jersey reimbursement, which was tremendous until Ja got into waving guns around a lot. And so now, you know, now that's problematic. So I'm just getting ahead of that story. Good. Yes.

That's good um okay but what do you think of the sotomayor story okay i have the exact same feeling about the sotomayor story that i had had about a number of the thomas stories which is i don't see that there is an ethical violation according to the rules of ethics here um i just i just don't love what was happening. I'm not a fan of the practice, but it is not a violation of their ethical rules. And also, I would add that her experience selling books is very different from my experience selling books. Well, the story points out, for instance, that if she were a senator or an executive branch official, that you can't use your staff in the executive branch to help organize a personal event,

to which, to quote you quoting someone else, if my grandmother had wheels, she'd be a bicycle. Like, yep. And that's not where she works. She doesn't work there. Right. Clerks have a very different relationship with their justices than staff assistants on the hill do um they're very different rules everyone knows the different rules people in this audience who are all you know clerks future clerks former clerks etc um understand that just the relationship is so different and it actually does tie into the venmo story? Former staff assistants aren't seeing their boss once a year or more for reunions. And so, yeah, the clerks help write the book. The clerks help write speeches. The clerks, yep, that's the job. It's not unethical. If you want to make it unethical, okay, I would

be against that. But like with so many of these other stories, the top headline should be justice follows all applicable ethics rules. And here's what happens. I'm fine if you want to write that story, but stop writing the story that implies that this is unethical behavior when it is literally ethical. So I don't have the ick feeling about this very much,

except that I'm tired of these stories because they're turning into exactly what you'd think which is each side now i mean literally we're digging into venmo accounts right of people who are not justices um trying to have this tit for tat like well if you attack our justice quote unquote we're going to come after your justice and the overall result is simply undermining the institution canon thoughts feelings so i will say that my first reaction to the justice thomas story was to think aha now i know why it is that when i go on my venmo app i see the babysitting payments of all of these prominent Supreme Court litigators. It's because none of them had their Venmo set to private. So I have sort of two thoughts on this. You know, my first thought is that

I'm generally a fan of transparency. And so I think that, you know, it's fair game to report on, you know, many of the things that have been reported upon. But I think that the fundamental problem here is that there doesn't seem to be any real effort to kind of discern what issues are more concerning and what issues are less concerning. And obviously, Venmo payments for clerk reunions fall on the less concerning side of the line. Ultimately, my view on this issue of an ethics code more generally

is that there is one sort of really important complexity where the Supreme Court is concerned, and that is that you can't just go replacing a Supreme Court justice. And so you have to have rules that are drawn in a truly appropriate way if you're going to have rules to govern recusals, because recusals can be outcome dispositive. And not only can they be outcome dispositive, they can affect the law nationwide. Because when you have a four to four Supreme Court, you have a court that is potentially unable to announce a rule that applies for the entire country. At the lower court level, you can substitute in another judge. And in fact, you typically will do that without the parties

even knowing. The Supreme Court is a different kettle of fish. And that's a reason why the Supreme Court has to have different rules. Now, what exactly those rules are, that's obviously an issue for public debate. All right. How many Taylor Swift concerts have you been to? Just the one last Friday in my hometown of Kansas City at Arrowhead, the most iconic stadium in the country. In what era did you dress? I did not dress in any era. I wore a t-shirt that said, it's me. Hi, I'm the dad. It's me. Oh, God.

Oh, no. It was very on brand, given that it was a dad joke t-shirt, essentially. Literally, I had a physical cringing reaction. There were many people, however. As a former teenage daughter. There were, I think, many people dressed in the various eras and while I'm a Swifty I'm not sure I'm enough of a Swifty to be able to tell the eras apart but let me tell you it was just an

awesome show just an incredible show and it was just really neat to be there in that stadium where I've spent a lot of time watching a football team to look up and see 70,000 people singing along to every single one of Taylor Swift songs. I thought I was a

Swifty, but my level of knowledge of the lyrics does not compare to that of many of the people who were there. And she's just an incredible performer. What did your kiddo think? So we took all three boys and my wife, V vicky who's of course also a swifty and then we also took a friend who's a swifty the three uh boys it was interesting because the six-year-old made it through the entire concert and that was incredible because taylor swift was on the stage for almost four hours and we left the stadium at like midnight and yet he was up for it all and And he was just like overawed. The two teenage boys at the time had a sort of butter wouldn't melt in our

mouths sort of look on their face. But then the next day they just couldn't stop talking about it. So I think they, I think they enjoyed themselves. Yeah. In true teenage fashion. Too cool. Yeah.

My, my wife and youngest daughter went in Nashville and they had, you know, 70,000 in Nissan stadium. And I, my daughter dressed in Nashville and they had, you know, 70,000 in Nissan stadium. And I, my daughter dressed in reputation era. And I think Nancy did is what I don't, I don't know the eras, you know, I've got like six songs that I really like, but I don't,

so I don't know the era. I feel like this will be a thing that people actually look back on this, this Taylor Swift tour of like, did you go? Cause it's been so culturally huge. I did not go. I happened to a Miley Cyrus concert though. That was kind of weird. Well, here's an interesting question. Which giant tour, like most memorable giant tour, have you been to? So you have to understand that I don't like large crowds or people or traffic afterward. So none. Well, but I made an exception. So husband of the pod got us way back,

like our first post baby thing, which were tickets to the weekend in July of 2020. That concert did not happen. Right. So a few months ago, it did happen. It's like our kids, two and a half or whatever. And we're finally going to our post baby, like present to ourselves.

So I did go to that. It was an awesome concert, but we sat in like 50, five, zero minutes of traffic to get out of the parking lot. Right. And that's just such a deal breaker. This is why I don't like parking garages or elevators. I'm not in control. Get out of my way. You would not like Arrowhead

Stadium, which is the home of the world champion Chiefs. It also has legendarily the worst parking in America. It took us, we drove from my mom's house in Lawrence. It took us an hour to get from Lawrence to Arrowhead, which is 40 miles and an hour to get into the parking lot. And then on the way out of the parking lot, it was an apocalypse. We got back to my mom's house at like 1.30 in the morning. For me, it's four words. 1987. Okay, Marty, is 1987 one word? Sure. Okay. U2, Joshua Tree. Wow. That is impressive. I think that's what the Taylor Swift tour this year is going to be,

is Joshua Tree. Yeah, that was awesome. The other tour that I heard a lot of people talk about that we just couldn't afford to go to when I was growing up was the Jackson's Victory Tour in 1984. Yes. Which was, I think, the first tour

after Michael Jackson released Thriller, if I remember correctly. And that was a huge stadium tour. But, you know, this is really, this is clearly like. And that was a huge stadium tour. But this is really, this is clearly like sort of a once in a decade thing. I mean, of course, having said that, Taylor Swift is so prolific that she'll probably release five more albums this decade and do five more tours and make another $5 billion in revenue. I've been to a lot of Dave Matthews concerts. That's my era. Okay.

You have a new, last time you were here, we, every time you're here, we talk barbecue, but last time you were here, you had a winning barbecue place, but are you telling me that you have a new King? So I have a new barbecue place to recommend to the folks who are listening.

If they're still listening, they're all hanging on everyone. And I will say that whenever I appear on your pod, I get a few emails about the things I say about the Supreme Court and many, many emails about what I say about barbecue. Yeah. So I have a new recommendation.

It's a place called Slaps and it's in Kansas City. And it's Slaps and it's in Kansas City, Kansas. So it's across the river from Kansas City, Missouri. And this place had been recommended to me for a while. Well, you know, there's some people who don't even know that there are... People are like, but where is it compared to Kansas City, Missouri? There are some people...

Oh, it's across the river. Now I know. There's some people who don't know that there are two Kansas cities and there's a part of Kansas City... There's just two states. It's the same city. Fair enough. Those of us from the Kansas side are a little more particular about that and part of it is separated by the river and part of it is separated by state line road so it's on the north side and this restaurant had been recommended to me for years and we'd never gone and they have a sandwich called the mike johnson and this sandwich has brisket jalapeno cheddar sausage

chopped lettuce and it has white sauce, sweet sauce, and hot sauce, all on a pretzel bun. And to hear it described, it sounds just weird. It is delicious. Sarah's giving me the Texas barbecue look. Shredded lettuce is an abomination. It works though. No.

It just works. I see it on tacos and I throw the taco at your wall. Like, no. It works. It's really delicious. And Kansas City obviously has a lot of great barbecue places. I've been really partial to a place called Q39, which is relatively newer. It wasn't there when I was growing up, but which is also- That's the one I've been to.

Yes. That's the place I think we may have talked about previously. The burnt ends are like dessert meat. Yes, that's right. It's the place with the amazing burnt ends. But Slaps is definitely in my new top two or three back home. And the kickback will be coming in the mail shortly or Venmo from Slaps. I've got to say, if we're going to make this a regular thing. Shredded iceberg lettuce needs.

It's water on your sandwich. If we're going to make this a regular thing, we've got to get sponsorship. It seems to me that this episode should be sponsored by a barbecue joint. I like that idea. I like that. That's an excellent idea. And I'll put in my pitch for hamburger always better than a barbecue sandwich.

Always. And you're out. Yeah, I know. It's my most, people hate on me for that even more than the Aquaman take. Wow. I know. I know. No, I'm wowing at the take, not the,

that's a terrible take. So, you know, I just got back from a Ninth Circuit argument yesterday in Pasadena and we have an odd Pasadena-specific pre-argument tradition. Can you guess what that is?

Pasadena-specific. Not breathing the air. In-N-Out. Exactly. And so we went to In-N-Out Burger. Two of the Summer Associates who came with me are here. You took Summer Associates to a Ninth Circuit argument. I did. And we went to in and out burger two of the summer associates who came

with me are here you took summer associates to a ninth circuit argument i did and we went to in and out burger for dinner the night before so high roller did you pay for them i did and we made up for you know the cost of the flight by having you know a eight dollar dinner um but it was great and it is really fantastic i i would you know give my right hand to have an In-N-Out burger in the D.C. area. But I gather that that's still sometime in the future, I think.

You know, Five Guys is Valentine's Place for me and Husband of the Pod. Why is that? I love that burger. Oh, it's phenomenal. It's a good burger, but I would put it

a notch below In-N-Out. Oh. Disagree? Man, that's some fake news. Hard disagree. I think people just say that because of the notch below In-N-Out. Oh. Disagree? Man, that's some fake news. Hard disagree. I think people just say that because of the scarcity of In-N-Out on this coast. Yeah. But like if they were actually both here and we did them side by side.

So I think listeners are probably cutting themselves right now. Summer Associates, do you have questions, feelings, thoughts? Okay. So the question was in the same way that we uh or people try to define divisive cases or biggest cases as perhaps politically salient divisive cases the complaint about the major questions doctrine is that it is only invoked in those divisive or political type cases and the rest of the time there seems to be no major questions doctrine do we think that justice barrett's opinion concurrence will do anything to clear that up or clear up the controversy at least

um i think that's a really good question because we can love the opinion all we want but if it doesn't uh actually illuminate much moving forward then it was just a really good law review article so tyler i think the major question, when does a major question become major? Right. And I think that the Justice Barrett approach has the virtue of perhaps suggesting that really, it's a sliding scale, that your degree of skepticism toward the agency's assertion of power should depend on just how important that question is. And I think that may be a more attractive way to think about it than as a sort of binary on-off switch. I think

the real challenge here is going to be the lower courts inevitably are going to take different views on this. And we have, perhaps not coincidentally, now that we're coming toward the end of a presidential term, a number of really major regulations that are going to be challenged on major questions grounds. And so it's going to be really interesting to see what, if anything, lower courts actually say about this, whether they say more to put meat on the bones of the definition of major questions. I'm clearly still thinking about barbecue since I just used the phrase meat on the bones. I have a follow-up on that um which is something i i read was that part of the problem and this was maybe more chef ron deferencey than major questions doctrine but they can meld together

at the ends if you will um is that we actually do want deference to agency regulations because it gives uh notice to businesses to the market etc of how their how the agency is going to determine what congress meant and how they're going to move forward and if we get rid of that judicial deference again whether it's major questions doctrine or chevron deference or otherwise you're actually getting rid of something that's quite valuable and i literally mean monetarily valuable um that regularity if you will i think it's a fair point that the result of doing away with chevron could potentially be less predictability um i just think that the problem is you know the argument that you can make in reverse is that you know you don't have a lot of predictability when you have

new administrations coming and and changing the interpretation. And so to me, that ultimately turns out to be something of a wash. Can I take a stab at the major questions question? So I think of it as a shout out to Justice Breyer. Let's talk about thinking of it in a multi-factor analysis. So here's one factor one factor is is the language of the of the enabling statute kind of broad and vague like way they were modified waiver modified to use the language in the in the um in the uh student loan case that's kind of broad language i wouldn't have thought so, but for,

like, I think if I had read, if I were working on drafting legislation, I would have thought waver modify was actually pretty specific language. I would have, I would have not thought of that as super specific. So, but let me get through my other factors.

So you have kind of broad language. Then here comes another one where you're trying to, there's the shoehorn factor. So you're essentially taking advantage of broad language to bring into the regulatory structure an authority or a power that was not really contemplated when the statute was drafted. So let's take another one, the OSHA vaccine case, right? So the OSHA vaccine case, if you're talking about workplace health and safety, really it was never, OSHA was never really thought of as this is the way that we make sure that everyone who works in a workplace

is generally healthy. It is, this is how the workplace is healthy or not, or safe or not, based on the factors existing in the workplace. Like, is a steel mill going to kill you or not, for example, is a classic sort of OSHA formulation. So, you have the vagueness, you have the shoehorn factor, and then you have the consequence, sort of the bigness of it. That's the kind of much more subjective thing. So, with the student loans, you have the consequence, sort of the bigness of it. That's the kind of much more subjective thing. So with the student loans, you have $400 billion at stake. If that's not major, I don't know what major is.

With those- See, that's my beef on that factor, because that was sort of the Gorsuch explanation. But everything's big to someone, like we've talked about with the big cases, right? Well, it'll affect this many people coming into the country, or it'll affect this many businesses. into the country or it'll affect this many businesses like you can come up with a big number in a lot of ways but it's still a major questions

doctrine it's not the questions doctrine it's there's but everything's a major question when the federal government's doing it at some point maybe the best way to determine whether something is a major question is whether people will think that it's a big case when it gets to the Supreme Court. But think about OSHA vaccine mandate. That's by any measure major. You're talking about people's ability to work in the... I agree. There's easy cases. The question is, where's the marginal case and how are you supposed to judge that and simply saying it's big? Well, that's why we have two other factors here, Sarah. So I like my three-part balancing test. I think your three-part balancing test is totally useless. Next question. So the question is, if we think about the cases that are being granted at the court as circuit split cases

and error correcting cases, I've complained that both have shrunk, but in particular, they could take more just error correcting cases. And in fact, they do still take error correcting cases. And you listed quite a few the crime fraud cases, I think are interesting and good examples of that. So a, how are they doing error? Like, how are they picking error correcting cases if they're relatively as you described them interstitial? And two, how do advocates think of that? Mr. Shamigan. Sure. So I think it's important to keep in mind that all of these factors kind of often blur together. So sometimes you can have a case where you have a relatively thin circuit conflict, but a very strong argument that the lower court got it wrong. And sometimes you can have a very big circuit conflict, but an issue

that isn't enormously important. One of the first Supreme Court cases I argued in the Supreme Court involved literally $150. But I think in some sense, the Supreme Court doesn't mind that. In other words, I think that the court likes to have cases from each of these categories. And you often hear Supreme Court advocates talk about cases as docket filler. That is a term of praise rather than a term of criticism, because often you want to have a case that while it may not seem terribly contentious, is a case that the court thinks this is in our wheelhouse. This is one of those interstitial questions of statutory interpretation. There is a conflict here. While

the stakes may not be all that high, it's our role to provide clarity to the law courts. And sometimes with regard to error correction, you have these cases where the court might think, you know, we're not going to do this through summary reversal. We're going to put this on the argument calendar, but we have a pretty strong sense of which way this is going to go. And this is an area where for one reason or another, it's very important to provide guidance to the lower courts in the way that you can when you perhaps slap down a lower court that has stepped out of line. And I think it's probably mathematically true that there are fewer pure error correction cases on the court's docket. But I think there's still a significant number of cases where the court

thinks, you know, this is an issue that's important enough to warrant one of those 60 slots. Now, I think it's a fair criticism that the court doesn't weigh importance all that significantly in deciding what cases to hear. And by that, I mean importance in the big case sense that we were talking about earlier. You know, is this going to affect a lot of people? Does it involve a lot of money? Does it involve a lot of criminal defendants? But I think that that's a very hard thing to weigh when you're considering 4,000 cert petitions a year. The parties will tell you why they think a case is important. And no surprise, the petitioner will always say it's really important. And the respondent will say, this is utterly insignificant. But I just think

that it's hard. The court isn't equipped with the data to make that determination definitively, particularly when it's acting very quickly at the cert stage. You know, this is not related to your question, but something just came to me. Is it about cheeseburgers? No, no, no, no, this is about the court.

At the beginning of this term, we talked about this might be the tech term you know we did not talk about at all tech yeah you know the youtube and the google and the twitter cases turned into really pretty giant nothing burgers with the kagan quote that i still like which was we're not exactly the nine biggest experts on the internet that's true it was i would actually say that the twitter case was reasonably significant because it we're not exactly the nine biggest experts on the internet. That's true. I would actually say that the Twitter case was reasonably significant because it involved a provision of the Anti-Terrorism Act that's being invoked frequently, but that really had nothing specific to do with the tech industry. And I think one thing that you'll hear

people like me who sit on K Street often say is that the court doesn't take enough cases of importance to the business community. And that has, I think, been a fair criticism over the last few years when the business docket seems to have really shrunk. But again, I think if someone on the other side of that issue were sitting here, they might say that's also a very hard thing for the court to assess. You can get amicus briefs from the Chamber of Commerce and other groups that speak to that, but the court still, I think, has a hard time figuring that out. Justice Scalia always used to say that's particularly true with patent cases because you don't have a circuit conflict because of the way the patent jurisdiction works.

And so, I just think it's, when you're doing it as an advocate to answer your original question, you're really just trying to figure out what tools do I have at my disposal in this particular case. And it can really vary. You know, you'll pull whatever lever it takes. As I say, if you don't have the facts, argue the law. And if you don't have the law, argue the facts. And the same is true with regard to circuit. What happened to pound the table?

You don't have either the law or the facts, you pound the table. I guess that's what you do if you don't have a circuit conflict or an important issue. And if the lower court probably got it right, that's when you start pounding the table. We are going to talk about the biggest business case of the term. We've saved it, actually. This is the Mallory case on personal jurisdiction for corporations. We're saving it to talk with an actual expert next week on that case so that'll be a really fun one who happens to be my former moot court partner yep yep uh professor amanda tyler has

agreed to come on the pod she will be a lot smarter about mallory than i could ever be or anything else for that matter you know you have created a true nerd community when there are people i know listening right now going, finally, they're talking about personal jurisdiction. Judging from my Twitter feed, that is a large chunk of the universe. So can I tell my summer associate joke before we wrap up? Tell your summer associate joke, and then we need to ask the summer associates what their favorite event of the year has been.

Okay. So here's my summer associate joke. Okay, so here's my summer associate joke. A guy is considering whether or not to follow Jesus or just live however he wants to live. And he's about to commit to following Jesus and Satan comes to him and he says, this is absurd. You are trying to decide between heaven or hell for all eternity and you have not seen the real estate.

So can I take you down to hell and show you hell? So he goes down to hell and it's unbelievable. There's a giant party. There's five course meals. It's incredible. And the guy says, where do I sign? This is the best. And so he signs his soul to Satan, lives however he wants to live, dies, descends into hell. The first thing that happens, he's impaled on a pitchfork. Screaming in agony, he says, wait a minute, I saw hell and it was a party. And the response from Satan was, oh, you were here during our summer associate program. That's good. That is solid humor right there. Because it's good. That is solid humor right there. Because it's true.

Just for the record, we don't appeal any of our associates. Oh, okay. Okay. Just, I had, this is our first live podcast in front of actual summer associates. I had, now none of them are going to come back to the firm. It's all going to be your fault. I'm so sorry. All right. What has been the, because in some ways y'all are the first post COVID real summer associate class back in the office. It's not really a summer associate summer.

If there's not associates then coming by to use you as their meal ticket, associates generally don't get their meals paid for, but in the summer, the rule goes that if you have a summer associate with you, you basically can do whatever you want. So the summer associate becomes a bit of an accessory, like a purse.

The nicer associates will let you pick where you're going, but the ones who just want the free meal, frankly, are going to pick themselves and tell you that you're coming along. And then it's like a bunch of associates and some control ratios. It can't be five associates to one summer,

that type thing. Some firms have laxer rules on that. The managing partner would not work kindly on that. So for those listeners understanding this sort of incentives built into a summer associate program, and boy, are there stories. I think between our times canon there's the

the young woman who jumps in the hudson river off the the booze cruise at it was walk teller cravath i don't think i ever heard this story oh my how not um she got an offer that was back in the pre-2008 heyday of like don't matter you get an offer warm bodies throw them at it um okay so given that what's been the best part of your summer associate experience who jumped in the potomac they okay so the firm has um popped for the acela to take all the summer associates up to new york for an event at the mom. Have you interacted with the other offices, Summer Associates yet? Okay. So you sort of know who you're beelining for, who's on the crush list. You get a little Facebook. You get a Facebook with everyone's pictures. Good, good. Summer

Associate life hasn't changed much. My... Cannon is not speaking anymore. Certainly not into the microphone. There's curse words under his breath. Yes. Quit sucking up to the managing partner. That guy just volunteered that Cannon threw an amazing barbecue at his house.

And it was so clear that that was a prompted answer. And just to bring it full circle, the barbecue was from Mookie's, which was the place that we talked about I think the first time oh okay out in Great Falls where we live and it was delicious as always it was so long that it almost exceeded the length of the party but we did have the Taylor Swift at Arrowhead playlist oh yeah they're definitely just sucking up to the managing partner by saying this was the event of the summer. Lion King at the Kennedy Center.

Not bad. A little family friendly for summer associate life, in my opinion. What else? Ed Sheeran at FedEx Field. If you'd said Ed Sheeran at Paul Weiss, I think I would have more impressed.

Some order of magnitude, Sarah. I don't think we can afford to have Ed Sheeran here. This is, we're back into summer associate days. This is good to hear. Yeah, this is good. The summer associate program have Ed Sheeran here. This is, we're back into Summer Associate days. This is good to hear. Yeah, this is good. Summer Associate program is back.

Nature is healing. Nature is healing. Blink 182 concert for the Summer Associates. This is now better than any of my Summer Associate experiences. A lot of concerts. Yeah, more than usual. And there's been some substantive content as well. As I said, some Summer summer associates have come to arguments.

They've been known to work on briefs and memos. Between concerts, they've been able to fit in some memos. There is some actual work. And, but it's been, it's been great actually having everyone back in person. Because I think not just the summer associates,

but we attorneys really miss that. We really enjoy this part of the year. Now Cannon's sucking up to you guys. I wish we could have these. I wish we could have miss that. We really enjoy this part of the year for obvious reasons. Now Cannon's sucking up to you guys. I wish we could have these folks here year round and not just because it would mean more free meals because it's really lovely to have this infusion of energy and enthusiasm.

Cannon, stop. It's true. They're summer associates. It's true. When I was a summer associate, our managing partner took us to state Supreme Court oral arguments, watched them all day.

And after it was over, he turned to us and he said, in all seriousness, if any of you are as bad as all of those people, you're fired. And it's a little intimidating, quite frankly,

because I thought some of them were actually okay. They actually did a kind of a good job. But it's a little intimidating, quite frankly, because I thought some of them were actually okay. They actually did a kind of a good job. But it's the same managing partner who later in the summer sent all summer associates to Chicago with Wrigley tickets behind home plate and a weekend in Chicago.

And that was the capstone of our summer. Wow. Okay. All right, we're gone. We've gone far afield now. Yeah. Well, congrats Summer Associates to quote Elena Kagan on my first day of law school. You've already won. You're at Paul Weiss for the summer. Like you're done. Just enjoy the stakes and the concert. Rest on your laurels. That's always good advice in a career. Yeah. I think we're back in an economy where, you know, the offers just come in.

You know, they're fine. They don't really need to do memos anymore. I'm giving good advice. I would like them to finish their memos though. And there is substantive work, Sarah. I don't want to leave anyone with, who might be listening to this, who's thinking about coming to the firm next summer with the impression that we're not doing plenty of substantive work,

but we are having fun too. And it really is great to have the summer associates here. who's thinking about coming to the firm next summer with the impression that we're not doing plenty of substantive work, but we are having fun too. And it really is great to have the summer associates here. I really feel sad when they leave. It feels kind of empty around here. That's because Cannon likes concerts and nice meals. And an excuse to play the four-hour Taylor Swift Aero Stadium set list at his home. His kids poo-poo that when y'all aren't there.

Thank you guys for joining us. Thank you for giving up that billable time that, as I said, doesn't really matter right now anyway to any of you. Nevertheless, we appreciate the sacrifice. Thank you to Paul Weiss for having us. Thank you to Canon for inviting us. It's always a pleasure.

Really happy to do it and look forward to further conversations about barbecue in the years to come.