Advisory Opinions - Fixing the Supreme Court

Episode Date: August 22, 2024

David Lat joins Sarah and David to break down recent Supreme Court trends and discuss Lat’s legal fiction novel, Supreme Ambitions. The Agenda: —Is the shadow docket problem solved? —Supreme Court approval rating —Stabilizing the Supreme Court —Lat’s pick for most interesting justice —Who will win the text, history, and tradition fight? —Advice for law students —Lat’s book, Supreme Ambitions —Stranger than legal fiction —Male authors writing female protagonists —Lat’s favorite legal writing —The return of crime procedurals Show Notes: —Shadow docket on Biden Title IX regulations —Advisory Opinions on Presumed Innocent Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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when you spend $60 or more on children's apparel. Only until August 28th, shop smart with one cart and check everything off your back to school list. Conditions apply, see in store or joefresh.com for details. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's the Davids.

We've got both Davids today. It's the return of David Latt. And of course, David French is lurking there in the background somewhere. David, you're wearing your Lipscomb hoodie. It must be getting a little cold there because I haven't seen you in long sleeves. Yeah. So it's the weirdest weather right now, Sarah, in Tennessee. Last night I was actually chilly, woke up in the morning, and the house was in the mid-60s.

Yeah, same thing is happening in DC. It's mid-August. I'm loving it. I guess the end of the world's coming. I don't know. David, how's New Jersey? Good. I actually turned off our air conditioning, which is nice. No heat, no air conditioning. Hopefully we're in that nice period of the year where this can endure.

No, we're not. You can't. No, no, it's over soon. But I was sitting outside with friends Monday night, actually chilly and short sleeves in Tennessee in mid August, which is insane. Well, we've got a fun podcast today. I thought we would just do some, I don't know,

catching up with Lat on law things, trends, et cetera. And then of course, David Lat's here because he's the author of a novel, Supreme Ambitions. And I've got so many questions on that. But David, I thought maybe we could start with just Supreme Court trends, right? Like the shadow docket slash the emergency docket if you're nasty and how people are feeling about this because when Steve vladik

Law professor who was at the University of Texas now at Georgetown really first coined the term shadow docket He was raising awareness and something that a lot of people shadow docket. He was raising awareness in something that a lot of people haven't really been paying attention to. This idea that like, yeah, sure, around June, everyone's like, ooh, this case is coming out and this case is coming out. But increasingly, all of these injunctions, what the status quo is during that litigation is getting decided on this emergency docket. And oftentimes, we don't know how the justices vote. There's not oral argument. The briefing is quick and abbreviated, et cetera.

And so there was discussion of, should there be a shadow docket? How do you limit the shadow docket? Should there be more transparency with the shadow docket so we know why, who is ruling that way? Okay, so fast forward now five plus years, and I feel like the emergency docket has gotten bigger both in attention that it's getting and importance in a lot of ways, but also a lot of the problems, so

to speak, have been solved. You know, I think back to the vaccine mandate case that, yes, husband of the pod argued disclosure. But right, that was an emergency docket case that got set for oral argument and had full briefing. We knew exactly where all the justices voted. And then, of course, this past week, David French and I were talking about this emergency docket case around Title IX regulations promulgated by the Biden administration. Five, four decision coming out of the emergency docket where they kept in place the injunction of those regulations. So the regulations won't go into effect while the litigation is pending. But a few things there. One, we know how everyone voted. We also know why,

because both sides wrote their thoughts. And interestingly, to the point about the transparency, it was really helpful to know this because it turns out they all agreed that the specific provisions needed to be enjoined. It was just a question of how broad the injunction should be, was the five-four part. Okay, good to know. And in terms of, you know, oh, I'm mad that, you know, the Supreme Court has this emergency docket to begin with. If you liked the Biden regulations, you really wanted there to be an emergency docket this time because the lower courts had issued this injunction.

So you were hoping the Supreme Court would take it because that at least gave you one more shot to get those regulations back into place. Didn't work out. But I guess, David, why are we still hearing complaints about the emergency docket? What do they want now? Well, I suspect that a lot of critics of the shadow docket,

I think the term was maybe coined by Will Bode, but really Steve Vladeck popularized it. Oh, sorry, Will. Yeah. Steve Vladeck,ck popularized it and of course had the Times bestselling book of that name. I suspect that the critics will never be perfectly satisfied. And I think if you look at some of the opinions in that very interesting case Labrador v. Poe, where the justice has explored the complexities of emergency relief,

you're never going to have a perfect situation. There are just too many questions. What is the status quo? What is preserving the status quo? What is the benchmark we're going to use for determining whether or not the justices upset the apple cart? There's just too much going on. But I will say, I don't know if I would necessarily go as far as you in saying the problems have been solved, but I would say that A, I agree with you that there's a lot more attention on them and B, there is definitely some reform going on. Justice Kagan had that opinion, I can't remember the case where she said that the shadow docket is unreasoned and unjustifiable. But now, as you pointed out, they're starting to give more reasons in more cases.

And maybe you don't agree with the reasons or the outcomes, but you can't say they're not giving reasons. And David French, you also heard Justice Kagan at the Ninth Circuit Conference a couple weeks ago say that while the merits docket is shrinking, she feels at least as busy, if not busier, than she did when she first joined the court 15 years ago and the merits docket was much bigger. And she points to the emergency docket. This was whatever three weeks ago that she was speaking at the Ninth Circuit.

And she said she had four emergency docket items that her clerks had all written her memos on. And she made this funny quip about how maybe they didn't all deserve to have memos written about them. But a couple did, she said. This was obviously one of them now that we've seen it. So, eh, what do you think, David? Where's your vibe on the emergency docket? Yeah, you know, it's kind of where it's been for a while, which is it's inevitable that it's going to exist, especially in the political dynamic of the time. But also, I think it's welcomed that the court is starting to articulate when it's gonna wield its power

and when it's not. I kinda like the standard that Kavanaugh has talked about about, well, is this something that would be cert-worthy? If it's something that wouldn't be cert-worthy, why are we intervening? So I think of that as a good sort of shorthand standard for when they should do it. But my goodness, the way things work really ever since the second Obama term really is any kind of executive action is going to be met with an immediate wave of lawsuits brought

by a host of attorneys general, you're going to get conflicting often circuit court rulings. Even if you don't have conflicting circuit court rulings, you're getting very important rulings from circuit courts on very important legal issues, all happening and unfolding sort of simultaneously. And I just don't know how you don't have an active emergency docket in that circumstance. It feels as if you're abdicating your role in a way if you don't have an active emergency docket in this environment.

Because if you do the normal thing, which is sort of let the precedent sort of mature, so to speak, then you've got some real issues as far as just the ability to govern this country and to have, you know, whether presidents can enact their regulations or not. I just don't know how there's a way around it, to be honest. Latt, I mean, one interesting thing is if you had a thought experiment,

because again, as David was saying, there are always going to be these disputes. The question could here's one clean bright line solution. No emergency docket whatsoever. The court doesn't do anything. No matter how much the barn is on fire, they don't do a darn thing until they decide the merits case. Do we want that?

I think that even critics of the emergency docket would say, eh, there has to be at least some kind of safety valve we can dispute whether it's used too liberally or not liberally enough. But just the thought experiment of what if there's no emergency docket at all? I don't think anyone wants that. Well, this is the fun thing about the emergency docket to me is that it has done an excellent job of making

hypocrites out of everyone across the board. And hypocrites, probably too strong a board. And hypocrites probably too strong a word. But for instance, in Labrador v Poe, what the dissenters wanted was a sort of deferral system. Basically what you're saying, David, that like, look, if the district court and the circuit court both agreed, then we, the Supreme Court, should defer to them and not bother with it. But of course, here you have the Title IX regulations put on hold and the dissenters think the injunction's too broad and they would have trimmed the injunction. Well, which is it? Are we deferring or are we not deferring?

And that's just at the Supreme Court level. Of course, I think the critics who bemoan the emergency docket when they don't get their way, all of a sudden are pretty quiet about the emergency docket when the Supreme Court steps in to quote unquote fix an error, whether it's from the Fifth Circuit or the Ninth Circuit. And perhaps that goes to the point. There's no perfect way to do this. You saw the justices, each one basically struggle with it

in Labrador v. Poe. Is it that we shouldn't, maybe we can take fewer of them if we first decided on sort of cert-worthy principles? Yeah, maybe, but like that has its own problems about some crazy bonkers nonsense potentially. Then you've got the likelihood of success and the merits. Everyone hates that the most, but you have Kavanaugh sort of being mean mom, eat your vegetables. That's where you end up, no matter what, on some of these is deciding

who's more likely to win in the end. Because probably that should factor into what the status quo is during the litigation, which can last 18 months, two years, sometimes of course 10 years, but in the normal course, I don't know. I don't feel like we have a good solution except to solve the actual root of the problem,

which is the over-encouragement of litigation at the drop of a hat, which is, of course, the presidency doing too much because Congress is doing too little and the three branches being out of whack and it pulling the Supreme Court into these fights. That's the actual emergency docket problem. You wouldn't be able to go get an injunction against a congressional past statute that has been signed by the president and bicameraly presented going into effect except in the most unusual extreme circumstances that I can't think of a congressional piece of legislation that was enjoined before going into effect. I'm sure there are some examples, but nothing of late because they haven't done anything of late. Okay, so David Latt, what else are you thinking about this summer as you marinate on the

end of last term or thinking about this upcoming term? And I mean, big picture, right? The Supreme Court's approval rating has leveled off. It doesn't appear to be continuing to decline, but it took a big hit in the last four years. Digging into those numbers has been really fascinating for me because what will stand out most quickly to political and Supreme Court watchers is that the drop-off, the cliff, happens before Dobbs. And so you're like, oh, Dobbs had no effect on the Supreme Court's approval rating. It was actually more around the time of Amy Coney Barrett's confirmation that there's that big drop. So that's factually true, though when you dig in, what you actually see is both partisan sides moving

and one side overwhelming the other. So basically, when Amy Coney Barrett joins the court, there's this huge drop because Biden also gets elected. So Republicans start disapproving of the Supreme Court basically. Then Dobbs gets overturned, Republican support for the Supreme Court increases, and Democratic support for the Supreme Court drops.

And it's these dynamics interacting with each other that causes on the surface kind of an unusual looking thing where the drop happens after Barrett's confirmation, but then it levels off around Dobbs. But there's a lot more action happening under the surface. So David Latt, what can the Supreme Court do to stabilize the institution, rebuild the institution or are they not supposed to worry about that? Because their account of majority in institutions

is not supposed to be popular anyway. Well, I think one theme we can see over the Supreme Court over the past couple of years is the court is actually becoming more responsive to public opinion. If you just think back to the pre-social media Rehnquist Court, they just didn't care. They just did their thing, and they didn't care what people were saying on Twitter or what, they just didn't care. They just did their thing, and they didn't care what people were saying on Twitter or what.

They just didn't care. And now the court is responsive. The ethics code, I think we can say, is the result of some shift in public opinion. I think the increase in the shadowed objectivity reflects an increased sensitivity to critiques on that front. So I think that the justices are becoming more sensitive

or maybe they were sensitive all along, but they're just being more open about it. So I guess one thing I'm wondering about is, is this term going to kind of be a chill out term? A lot of us thought that last term was going to be sleepy and then that blew up in our faces. My husband, Zach and I were shopping around an op-ed which was tentatively titled something like,

this Supreme Court term is sleepy. And that's a good thing. Glad Goodread didn't place that, because then we had the Trump disqualification case, and we had the immunity case, and that would not have been our finest hour. So, but anyway, I think, is this term going to be a more relaxed term?

I think some of that is going to turn on something you've talked about with a bunch of your recent guests, namely what happens in the election. Is there going to be some kind of potential outcome determinative litigation that makes its way to the court? So I think that's one big question about what kind of term we have. I think if the justices had their druthers,

they would like this to be a low-key term. We used to have this pattern, which you have talked about before before of big term, small term, big term, small term. And lately, as it's just been big term, big term, big term. And I think they would love to take a breather. Sure, they have a couple of cases teed up, including some cases related to transgender rights, but I'm sure they would love to have a more relaxed terms. So I think one thing they can do is take fewer hot button cases. And then I think the second thing that they can do and will do is they will seize the opportunities to emphasize unanimity or at least something crossing the partisan divide when they can.

Take a look at this tight-on-line case where there is that line in the per curiam, which very pointedly says something like, importantly, all members of this court agree on the bottom line of this case. They're going to try and do that as much as they can, whether or not people are convinced is another story. You know, I, I think a couple of things in response to that. One, we do have the trans child, the trans child gender transition case, but I don't know if you guys have noticed this or not, but it feels like that issue has become a lot less explosive

over the course of the last year to two years. It's not that it isn't contentious, it's not that people don't get up in arms about it, but as far as the intensity of can we even talk about this, I feel as if that intensity has dialed back some. I could be wrong about that as the case builds up, but it seems as if even that case, which right now looks to be the most contentious case of the coming term, doesn't have the same salience, I think, culturally, that it would have had even maybe two to three years ago.

I think there is a sense in the larger culture that we have to be able to talk about this. Like we have to be able to engage on this. But aside from that, you're really starting to have to think hard about the big culture war issues that have remaining super salient Supreme Court questions to be answered. I think of, say, in the gun rights arena, the next frontier is the assault weapons ban, adjudicating those, large capacity magazine bans.

I think that's on the horizon. But honestly, am I missing something that's just hanging out there huge? I don't see Employment Division B Smith being reversed anytime soon. I don't see, say, a travel ban type legislation in the abortion context being upheld. I just don't, I'm trying hard to think of what are the main. The other thing I could think of is trans participation in sports, but I do think some of these really major cultural issues are sliding away from the court perhaps. And we'll take a quick break to hear from our sponsor today. Ethos.

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I am actually most keenly interested in the two newest justices, Justice Barrett and Justice Jackson, because they are demonstrating these streaks of independence from what you might expect or what people thought they were going to be going into the court. And I have to confess, I'm kind of an ACB fanboy. I just kind of really like her thoughtful, nuanced approach to things.

And I have to confess, I wasn't always this way. I think her first two terms, she was kind of boring. She just like, you know, what's she up to? But now she's really just emerged as a super thoughtful person, including on these issues of text, history, and tradition. My next guest on the original jurisdiction podcast is going to be one of your past guests, Judge Newsom.

And we talk quite a bit about Justice Barrett and her approach to THT issues. So I'm fascinated by her. And I think Justice Jackson is really interesting in terms of just her occasional crossing over, her being, as she said at her own confirmation hearings, a self-professed originalist, but one who might sometimes reach more progressive outcomes.

So I think they're really interesting. And I think you could also say that in many ways they do hold a kind of balance of power. You know, in the 333 court, of course, you have the chief and Justice Kavanaugh and Justice Barrett, but Justice Barrett is there. And you can also see in certain cases where maybe Justice Jackson might play an important role.

So I'm really interested in them. French. You know, I'll go back to Barrett, I'm gonna absolutely agree with. And then, you know, look, Kagan is very interesting to me, because in so many ways, I feel like she's one of the more influential justices, even though she's in the minority. I also think she's interesting in that she seems to be one of the most forward facing justices as far as talking to the minority. I also think she's interesting in that she seems to be one of the most forward-facing justices

as far as talking to the public. The Ninth Circuit talk was rich with interesting information. It was not a sort of a normal, what you think of as a Supreme Court justice's talk. There was interesting insight there. There was stuff to chew on there. So I find that interesting. And then, you know, the Justice Barrett dynamic, which is really fascinating to me in the way

in which she's asserting independence, intellectual independence. And then to kind of see the reaction to that as if, wait, whoa, a conservative has intellectual independence? I thought this was the Borg, you know, I thought this was the blob. And sort of seeing people waking up to the reality that the conservative legal world does have different strands of originalism. It does have different strands of sort of consequentialism.

And to see that play out, now of course, if you were a close watcher of the court, you would see this already, but to have seen it play out in very high profile cases, I think has been interesting. And so she's carving out a niche for herself that you can't really categorize as going squishy. I saw some people called her Amy Cami Barrett,

which is just absurd. You can't categorize it as going squishy, but saying I am my own justice, that's interesting to me. Okay, so I've got my prediction that nobody will be able to call me on because the horizon for it is just too long. I think I need like about a decade or so to say that I've won or lost. But in the tension in text history and tradition, so there's this horizontal way that we've looked at the problems with

text history and tradition. What's the level of generality when you're looking back at some of these founding era laws to determine whether they are analogous to the current laws. We know they don't have to be a twin, but like, is, you know, I like freedom enough to say like, oh, they liked freedom and this law also is liking freedom. So therefore, text history and tradition, cha-ching. But there's also this horizontal problem of when do you stop looking?

And we talked about this in the most recent Second Amendment assault weapons ban case. But there's also this horizontal problem of when do you stop looking? And we talked about this in the most recent Second Amendment assault weapons ban case. What if the problem didn't exist then? Or what if Congress at the founding didn't legislate to its maximum power for whatever reason? The problem didn't exist. They didn't think about it. They didn't want to.

But nevertheless, they could have. They just chose not to. So then do you look at post-ratification history? How much, how long can you look? Obviously, Wilkinson, it says that he's applying text history and tradition to laws passed in, you know, 1914, 1923, 1930. Okay, so this is a long way of getting to my prediction,

which is, I think Amy Coney Barrett's gonna win the text history and tradition fight. It's gonna be a long slog. I think there'll be moments where it looks like all is lost for her version of it. But in the end, her take is a pretty narrow and focused one, which is you've got quite a bit of vertical leeway on the analogy, but very little horizontal leeway.

So you're looking at the analogies, the principles, the purpose back in that initial, I don't think she would necessarily use those words, certainly not purpose, back at the founding, but you're not gonna use post-ratification history, really at all. She gives a couple like narrow exceptions. And I think that's probably the only way this can work,

whether you like it or not is beside the point. Text history tradition doesn't work if you can't define at what level of analogy, you just know when you see it and you can't define the timeline. That's not a judicial philosophy. That's living constitutionalism by another name. And I think that she has started to elucidate a way to make originalism work in this third iteration. And so that's what I'll be looking for is her continuing to expound on that because I think she's the one on

the right path. Well, it's interesting, I kind of see the originalist justices as in this sort of, you can almost imagine them sort of fighting over a physical object. They're kind of fighting for the mantle of Scalia. Like, I'm going to be the leading proponent of originalism. No, I am. And so I guess you're putting your money on Justice Barrett for taking the mantle of her former boss. You also have Justice Gorsuch, who actually occupies Scalia's seat. He's kind of in the mix. You have Justice

Kavanaugh, who I think is also interested. And then you and then yeah, and then of course, you have Justices Thomas and Alito. I think the chief is not particularly interested in this project, but no, that's an understatement. Well, Justice Thomas is as interesting because he's not trying to claim the Scalia mantle. He's trying to say it's his mantle. Yeah, exactly. And in fairness to him, he has his own spin on it. Absolutely.

So he's not, I guess I would say maybe it's the three Trump appointees who are most invested in this struggle. Well, you know, and that actually makes sense, David, because there's a generational gap here. So, you know Kavanaugh and Gorsuch and Barrett came up in a very different time. I mean they're contemporaries of mine really and Sarah there's you know

generation gap there with Sarah but we you know we don't need to go into that. And Lad. Lad and I are both much much younger than you. I don't know I into that. And laugh. And laugh. Brad and I are both much, much younger than you. I don't know, I'm pretty close to David. But I grew up in the era where originalism was much more robustly defined and talked about and discussed in the subject of an enormous, you know, just really an enormous body of literature

that was building up over the period of years. But when I first went to law school, you know, there just weren't many originalists out there. You know, there were voices crying in the wilderness. And so it was really sort of my generation and immediately following my generation of these Fed sock alums and everything that began to really build all of this out as a cohesive, coherent legal movement. And a lot of people look back at previous Republican appointees, and they fault them for, fault previous Republicans for not choosing, quote, the right judges, and forget that, A, there was a filibuster. So you couldn't do what you did with Gorsuch and Kavanaugh and Barrett and just push them through with a bare majority.

So that's a big thing. And then the other thing is there wasn't a conservative legal movement to pull from in the same way, in any way, shape or form. It was totally different. And so you didn't have this kind of bench like you have now, like you're a manager and you've got, you can do the sign

to bring in the relief picture and you can choose from a stable of originalists. That just wasn't the reality. And so that's one of the things that has changed substantially. So it makes a lot of sense to me that somebody like Justice Barrett might be consciously thinking maybe about that sort of Scalia legacy. Because a lot of them have been thinking about it. Because it's a real thing, an actual movement. All right.

Last question before we move to the book for both of you. What are we thinking for law school campuses this fall? And David, I'll build into that for all of the newbie little lawyers who just started their first year. What advice you might have for them, understanding the campus culture may or may not be a little toxic this time around, as it's been variations of toxic, I think, really, since the end of the pandemic. There's the Gaza-related protests that have made campus unusable for some schools. But there's also the Fed Soc adjacent stuff where you have to kind of pick your political tribe in order to have even acquaintances at law school and you're shunned

or moved into one of those groups depending on who you talk to in the hallways. So David, what advice are you having for these 1Ls and what's your prediction for how campus culture is going to be this fall? Me David? I guess that's right. It was really unhelpful for me to ask David that question. But yeah, obviously I'm going to lat. I already know what David's going to say. Obviously. I mean, she's bored of talking to me. Or does David want to go first, David, because you recently wrote about this actually.

No, go ahead. I'll piggyback on your comments. Sure. I guess the big question is, is this going to be sort of picking up where we left off with the Gaza stuff? Is it going to be like what happened at UCLA, which you recently talked about? Is it going to be like what happened at UCLA, which you recently

talked about? Is it going to be like the Columbia takeover of Hamilton Hall? Of course, their president recently stepped down. Or are we going to be entering a new stage, which I think is reflected in the ascension of the dean of your alma mater, both of your alma maters, John Manning, to the provost role at Harvard, are we sort of now moving into maybe a more stable type of situation? I guess my advice to students, but again, I'm kind of just being a broken record here, is just try to be open-minded and try to always presume

good faith before you assume otherwise. I just think we need to take the temperature down and listen to each other attentively and respectfully. I'm personally optimistic, I guess, but maybe every time I say that, then something else happens, whether it's the Stanford protest of Judge Duncan or the protest in Dean Chemerinsky's backyard. So I don't know. But I'm cautiously optimistic.

I hope I'm right. Hey, David Latt, were you a gunner your first semester in law school? Were you raising your hand at every opportunity? Oh, I was total first semester. I was a gunner for three years. Totally. I actually had a policy, an internal policy

that I would raise my hand one out of every three classes to avoid the gunner. So like- So you wanted to be a gunner, but you had a governor on your gunner instincts? I had a governor on my gunner instincts. And so I would walk in and I would be like, today's the day people, like it's happening.

It's happening. But- Well, I think for me, today's the day people. Like it's happening, it's happening. Well, I think for me, it came out of an insecurity. I came to law school kind of feeling that I had something to prove because maybe all these other people were so much smarter. And I also think, and this is why I advise people to do something in between college and law school. I had just come straight through. And so my identity was all in studying and academics.

And I think maybe people who had worked or gotten another degree were a little bit more mature and a little bit less anxious. Whereas for me, I sat in the front row in every class where I could, and I was raising my hand constantly. And I just kind of wanted to show that I belonged and I was a peer of everyone else.

You know, on this point about, are we gonna pick up where we left off at schools? I'm going to offer a take that may age extremely poorly very rapidly. And that take is, I don't think we are gonna pick up where we left off. And I think there's a couple of reasons why. One is found in the two court opinions from the same judge in massachusetts dealing with my tea and harvard.

And what he articulated a clear difference in my tea tried. Harvard was a mess and. And but what also he said is MIT wasn't clairvoyant. They didn't know this was about to happen. Everybody's clairvoyant now, everybody knows. And then you also have this tribe of lawyers who are hovering around these campuses, who are like the quote from Tombstone, you know,

you tell them I'm coming and hell's coming with me. You've got these lawyers who know the score here and the universities know the score here legally as well. They know beyond a shadow of a doubt that they're going to face an absolute tidal wave of litigation if they permit people to be blocked from going to campus or people don't wear a yarmulke because they're afraid to be publicly identified as Jewish. Like they're in a world of hurt legally. And then here's the other thing, and this might be a really bad prediction, but the fizzling of the

protests in Chicago is really interesting to me. Very interesting., I think there's something about the switch from Biden to Kamala that has taken some of the steam out of the protesters because there is something now happening on the left, which is like, what are you doing that wasn't present when it was Biden? For whatever reason, it was not present when it was Biden. And, but for her, you can see it, you can sense it, you can feel it, that the left is scolding the far left and saying, essentially, what are you doing? Now, that won't phase a 19-year-old radical at all. But for there to be a repeat of last year,

there's gotta be scale, there has to be mass. And that's what I doubt. And again, this could age super poorly in like 10 days, but I just doubt there's that critical mass. All right, it's time to move to the book portion of this. And our special guest is, it's David Latt. David, thank you so much for joining us to talk about your book, Supreme Ambitions. I'm teeming with questions because

you are our only fiction book on the agenda for this month. I know nothing about how one writes a fictional book. I just want to start at the beginning. Did you know the whole outline of the story before you started writing? Like what percentage did you discover as you were writing it out that you wanted to actually like, ooh, let's zig here and then a zag there? So I guess I would say I had maybe three quarters

of the plot sketched out, but there were a lot of little intricacies and grace notes that maybe I added along the way. But I did have an outline of what I expected to happen. And I mainly followed the outline. Some writers, some fiction writers will say, oh, well, I just write and the characters kind of take me where they're going to take me.

I was not quite that creative. Maybe I had a lawyerly approach to writing fiction, which doesn't sound like a good thing, but I knew where I wanted to take the story and where things were roughly going to go. So, yeah, I had a sense in mind of the narrative arc, even if there were a lot of more specific things that I added later. And what about the legal accuracy?

Were you going to ever give yourself some grace to have that first year associate taking a deposition? Or it's just too ingrained in who you are and your background that, of course, it was going to always be legally accurate, because the story doesn't work if it's not plausible. Yeah, so I really was trying to be super accurate and that's why one of the key plot points in the book involves jurisdiction. It's definitely a lawyer's kind of novel. It's very wonky.

I did not want to be on the receiving end of criticisms that spectacularly successful legal novelists like John Grisham get, oh my gosh, that would never happen. But it's kind of funny. So Supreme Ambitions actually came out a while ago. And I had been meaning to do a sequel for a long time, following the characters from the Ninth Circuit, where Supreme Ambitions is set to the Supreme Court,

because some of the characters, both clerks and judges, make it to the court. And for a long time, I wasn't really that inspired, partly because of the constraints of realism. I thought to myself, well, how exciting can it be? And then lo and behold, we had the Dobbs term where there was a leak of a full draft opinion and an assassination attempt and all of this other crazy stuff. And then I thought to myself, okay, now I can start plotting the sequel

because now when I write these things, I'm not gonna get scolded. Oh, that would never happen. Don't you know that in the history of the court, there's never been a leak of a full draft opinion. That's so ridiculous and unrealistic. So, you know, it's kind of like truth is stranger than fiction.

And so I actually am trying to sort of work out a sequel. And if you or David or any listeners have suggestions for plot points, you know, I'm all ears. You raise a really interesting thing about truth being stranger than fiction, because we've literally been through a multi year period of time where if you had drafted these things as plot points, that people would have said no, like that's just unrealistic.

So I wonder if like the new unrealism is like a very normal drama-free. Here's my novel, a court term where nobody's really mad at the court. No, totally unrealistic, totally. But that is an interesting question as to how do you generate interesting original plot points in a time period where the real life is more dramatic than fiction. I don't know the solution to that. But the other question, the question I had was

when you're sitting down to draft a legal novel, you wanted to ground it in reality. Also has to be fiction. How much of it is fictionalized reality in the sense of I'm thinking of concrete people, I'm thinking of events that have actually happened in the past, I'm thinking of, I'm crafting characters based on actual real life individuals versus, composites making it all up sort of completely,

world building, so to speak. So for this novel, which is not unusual for a first novel, there's a lot of drawing from reality. The protagonist is a Filipino-American Yale Law School graduate who clerks for the Ninth Circuit and whose dearest wish is to be a Supreme Court clerk. And her boss is a prominent judge who, you know, would like to sit on the Supreme Court. And they're both right of center but not crazily so. And so there is a lot in this novel that is drawn from reality.

I didn't keep a diary during my clerkship year with Judo Scanlon, but I definitely remember a lot of things. It was such a great year. It was really the highlight of my fairly brief legal career. So I just remember a lot from that year. There are certain periods that just stick with you. And I don't know, in some ways, writing the novel was a chance to relive that. Now, of course, it's very different in the sense that

the boss in this novel, Judge Stinson, who is, I don't know, kind of a villain, although kind of my favorite character is very, very different from my judge, Judge O'Scannan, but there's definitely a lot drawn from here. As you mentioned, David, though, there are composites, there are judges who are sort of mashups of different other judges.

But I did wanna make the novel as realistic as I could. And so in that respect, I drew a lot from my own lived experience. Wait, did you call Judge O'Scanlan before it published and be like, just judge, this was not about you? Yeah, he was aware, I think, that I was working on this. And there are a couple of, you know, the novel, I think some people have called it a Romana clay where, you know, that disclaimer about how any resemblance to real people is entirely coincidental. Well, probably, maybe

not. There are definitely a couple of names of judges that are very similar. There's a in the novel, there's a very minor character who's a who a judge who sits in Portland, who's a judge, oh, Sullivan. So, you know, so there's, there's definitely a lot of that in there. So, do you enjoy the book writing process? Like is it something that it, because I don't know, I'm starting to think about and after the election I'm starting to think about a next book and I have to be honest, I don't love it. I don't love writing a book. I like when it's done,

when it has the quality of being done. That's a phenomenal feeling. But it feels to me that maybe writing a novel might be more enjoyable. So it's tough and this is kind of why I really have not made much headway on the sequel. I think part of my problem is I just need to get started, like really started. I have a couple of a couple dozen pages. But I think once I get a head of steam going, I'll be able to really push forward. But right now I'm a little bit stuck. But I will say that one thing I do like about fiction writing compared to nonfiction

is it's fiction, it's made up. So if I write something about a judge or a ruling, I might hear from somebody who disagrees with that take, or if I'm critical of the judge or the lawyer, then the person is going to complain. And this is a novel and these people are not real. And so nobody's going to complain and say I was unfair. And so to the extent that you care a lot about being fair and accurate and not getting criticized for errors and things like that, you're not really going to have problems like that in fiction.

Sure, I mean, will people find certain things? Sure, like I think my cousin said, oh, well, Judge Stinson, a woman of her age wouldn't wear that perfume or something like that. Now, I tried to address these things. I had, you know, I had women who read it because the protagonist is the two lead characters are both women, actually, and I'm not a woman. Nowadays, you know, this book, again, was from several years ago. I don't know if now is that a problem? Like, you know, there's there are all these controversies nowadays about writers who are writing about experiences

other than their own. And do you, are you, are you qualified to do that? Are you, you know, is your privilege interfering with your perspective? And so is my male privilege preventing me from writing, you know, credible female characters? I don't think so, but I think that's, you know. I find male authors who write female characters,

it provides me such a window into what men think the experience of women is like. And that's not to say that they're all stupid and men can't write women. No, quite the opposite. Like I find Tom Wolf's I Am Charlotte Simmons to be really fascinating. This is an old dude writing a whole novel about you know what she's 18 at the start and maybe ends at like 24 or so like I mean,

whoa dude. And well, I mean, I didn't even really and maybe this is a problem, I didn't really get lost in the character of Charlotte Simmons, because the whole time I'm like, this is what Tom Wolf thinks a 20-year-old girl thinks about. And at moments, it's really insightful and correct. And at other moments, I was like, is that right? I don't know.

So, I'm all for it. And I think instead of constantly having your hackles up of how dare they write a woman character having never known what that's like, instead, it should be interesting to you. This is what they think your experience is like. Some of that's going to be accurate. Some of it maybe resonates less so with you, but maybe with some other women or whatever group we're talking about. And my goodness, isn't that sort of the experience of life

in a lot of ways is trying to imagine what it's like to be someone else on the planet? I mean, that's part of what I think is fun about fiction. And one of the reasons I wanted to write a novel with women protagonists was I just kind of thought it's an interesting opportunity to just inhabit another person's perspective. You know, I did that a little bit in my early blogging career underneath their

robes where I pretended to be a woman, but that was kind of a bit, you know, ridiculous and over the top. And here I was going for something that was more realistic and nuanced. And maybe the way I did it was I actually did not change the perspective that much from, I think, my own perspective. There might've been a few nods to, oh, well, today I'm going, you know, whatever. Like there might be nods to what Audrey, the protagonist was wearing or something. But, you know, I, in terms of just the fundamentals, I don't think I changed that much.

So maybe that itself is a comment. Maybe I didn't capture enough divide in thinking between men and women, but I didn't really spend a lot of effort trying to think, oh, you know, would a woman think differently about this or something? So David E. Kelly, we talked about his most recent show, Presumed Innocent.

We've talked about, oh gosh, what was the Hugh Grant show with Nicole Kidman, The Undoing? Yep, yep. The Undoing. We have not talked about Lincoln Lawyer, which is also a David E. Kelly show, but he has this pattern and it drives me crazy, but I watch every one of his shows.

And so I'm wondering if like, this is sort of the way it, so David E. Kelly has a legal background. He went to law school. And so a lot of his shows I'm watching, and first act, the law's spot on. Second act, the law's like, okay, yeah, it's within tolerable limits of spot on. Third act, it's what are we doing here? Like, how is this possible? And, but it

keeps, he's extremely, extremely successful in this approach. And even though I recognize the unrealism in real time and I'm annoyed by it, I keep watching. And so I do wonder if there is an element of actually the realism can set the stage for entertaining unrealism in a way that everybody but your core legal audience would find wildly interesting. So it's interesting with this novel, I was trying to do something realistic,

but for the sequel, before the Dobbs term at least, I kind of thought, you know what, maybe I'm just going to write this novel, I was trying to do something realistic, but for the sequel, before the Dobbs term at least, I kind of thought, you know what? Maybe I'm just going to write this ridiculous, over the top, completely unrealistic novel. And then I kind of thought, oh, now I can write this ridiculous, over the top novel that is actually realistic based on that term.

But it is interesting. I think also there are issues of the medium, because with television and film, you don't have the kind of singular creator that you have with a novelist. You have a lot of people who are giving quote unquote notes. You have studio execs and agents and producers and all of these other people.

And so one thing that is interesting is take the partner track, Helen Wong's novel, which is an excellent novel and quite realistic, actually. I reviewed it at the time for the Wall Street Journal and commented favorably on how this is actually a very accurate portrayal of Big Law. By the time it became a Netflix show, and again, there was a good amount of time that passed

between when her novel came out and when the Netflix show came out, the Netflix show is rather unrealistic. And I think anyone who has spent a month in Big Law would say, well, this is ridiculous. And if you read Helen's novel, the Netflix show, you know, is rather unrealistic. And I think anyone who has spent a month in Big Love would say, Well, this is ridiculous. And if you read Helen's novel, you'd say, actually, this is actually pretty realistic. So sometimes just in order to get the larger audience, you need to do these these things. And so I think it's a real challenge in some ways, if you can have a novel that, or a TV show that is both a ratings juggernaut and realistic, the partner track on Netflix

did well in the ratings, but it was also very different from the novel and quite unrealistic, I think. Okay, so what are your favorite slash inspirations of legal writing? So I think, again, I have to confess, I haven't watched the show yet, but I've been meaning to. So I did not listen because of the spoilers to much of your discussion of Presumed Innocent.

But I'm a big admirer of Scott Turow. You know, I think he's great. I also enjoy Grisham. You know, they're different experiences, but I think he also is just great at keeping people turning the pages. And that's what I was trying to do with this novel. I did want people to kind of be invested in the narrative, even if the stakes were a little

different. I think one thing I noticed when I was trying to think, well, if I wanted to write a more quote unquote commercial novel, because I've read actually a fair amount of so-called thrillers, I mean, really, there literally has to be life and death. Like, somebody has to like, someone's going to die. So even in this sort of sequel, I think I'm going to have, there's going to be probably an assassination plot line because if someone's going to die, that raises the stakes. And that is something that's immediately

accessible to anyone. You don't need to be a lawyer or a law clerk or a judge to understand the stakes of life and death. And so I think the sequel I'm envisioning, I think I want to take the characters from Supreme Ambitions, but I want to make it a standalone novel where you can read it without having read the prior novel. And I think, again, just to heighten the stakes.

And partly, the stakes are naturally going to be higher because it's the Supreme Court rather than a circuit court. And one thing I did in Supreme Ambitions was the characters have their own goals, their own whatever you want to call them, holy Grails or McGuffins or whatever you want to call them. Audrey wants a Supreme Court clerkship, Judge Stinson wants to be a justice. And of course, there's also a case that runs through their ambitions, namely

a gay marriage case. In the sequel, again, I think I'm going to make it a, I think I'll make the central case there, a case about the overruling of Roe v. Wade. I think for the sequel, I will need to figure out, well, what are the goals, the personal goals of the protagonists? Because when you have a quest for a job, that's a very obvious goal. Because again, fiction writing 101, people are saying, well, what does your character desire? Are they looking for a relationship? Are they looking to kill a villain

in a very straightforward kind of adventure story? Are they looking to save the world? So what is your character's goal? Maybe the goal of either overruling Roe or keeping it on the books is enough, but I would like to come up with some kind of personal goal for the characters too. So of the like OG legal thrillers,

I gotta say my like coming of age one was the Pelican Brief. The book is by John Grisham and it was, you know that age where like, as I don't know why maybe this is just me, I would read the book and watch the movie. So like everything by Michael Crichton, I read the book and watch the movie, etc. So the body count in that book, to your point, David, like, I don't even think we really like when you're reading it or watching it, it sort of feels like, oh, yeah, obviously, like six people are dead in that book immediately.

Two Supreme Court justices, her law professor, the law partner at the firm. Obviously they try to kill her over and over again. And it's all about turning this case at the Supreme Court. But yeah, Julia Roberts and Denzel Washington, John Grisham thriller. And I just looked up the movie poster because I always find 90s movie posters so amazing.

It's literally two people looking at a computer screen. And you know what? That feels about as accurate as a legal thriller could possibly be. That is so true. That is so true. But it's kind of funny because there is a body count in there.

They could have done something a little more dramatic, but looking at the computer screen is a big part of what lawyers and judges do. That's right. Well, you know, I was hooked on the firm, you know, right before the Pelican Brief. Yeah. I had no idea the mafia was so powerful

in Memphis, Tennessee. I mean, my goodness. But it is an interesting, it is interesting. Grisham isn't subtle, but it's just utterly captivating, especially that early Grisham. And you're inspiring me.

But why don't we see more Grisham now? Right? Like they're not remaking the Pelican brief. Hint, hint, they should. That type of, I don't know what to call it, legal pulp fiction, I feel like has gone out of style as people get more specialized, know more about the law. Like the law is no longer a setting, it's actually a plot device now, and that changes it.

You can't just kill everyone. Interesting. I feel like crime procedurals are taking off. Taking off, true crime, taking off. The British crime drama, taking off. All of this is taking off, but- The Grisham-esque stuff isn't happening, really. The big time legal thriller novel.

Haven't had one in a while, unless I'm just missing it because I'm doing the classic dad slash granddad thing, which is, which World War II book are you reading now, David? Well, I think that there are, they are still publishing these novels, whether it's, you know, Michael Connolly or James Patterson or what have you. But I think the thing about Grisham was,

there was sort of a crossover. There were a lot of people who were not necessarily legal thriller people who would read Grisham. My mom doesn't read a lot of fiction, but she read the firm. So I think maybe there hasn't been a kind of legal thriller in the zeitgeist to the extent that the Grisham books were.

Although, you know, it's interesting. I mean, I wonder, a lot of times when something becomes a popular show or movie, the book then starts to sell. I wonder if Presumed Innocent is now going to pick up just as, you know, the partner track started to sell after the Netflix show, you know, people go back, you know, so it would be, it would be interesting to see. But I guess you're right that legal thrillers don't

necessarily have the kind of cultural currency that maybe they once did. And there have been a lot of great ones over the years. I mean, besides Tarot and Connelly and Patterson, I mean, Brad Meltzer, he had one that was actually also about a law clerk. I kind of call it clerk-lit, kind of like what people would call chick lit. I was like, it's clerk lit. Like there was, you know, the 10th justice.

So which was where the protagonist was, was a law clerk. So yeah, it's interesting. I mean, you know, I guess, yeah, I guess we're sort of waiting for, for that, that next big one. I don't know if this is cyclical or whether, I don't know whether the public is in this interest. I don't know, but I love looking at the most popular books of an era and sort of thinking about what it means

for our zeitgeist, like when you had Twilight. And really it's more for that, it's the tween books that catch on with adults basically that I'm like Hunger Games, Harry Potter is the number one zeitgeist touching upon book you want to talk about like feminism and where women's minds are at look no further than moving from princess stuff to the Hunger Games where the men are irrelevant to something worse than irrelevant, actually a net drag.

You've got to do this yourself. There's no... You're not trying to get married in the end. In fact, that's like barely a subplot. The ending would be really unsatisfying if that's what you were looking for. And instead, it's survival, leadership, cleverness. And at the same time, you have women taking over higher education in terms of graduating

with college degrees, PhDs, taking over large swaths of various industries that have been male dominated. I mean, remember there was a time where there were more CEOs named John than there were taking over large swaths of various industries that had been male dominated. I mean, remember there was a time where there were more CEOs named John than there were female CEOs in the Fortune 500. So I think Hunger Games we will look back on as seeing this like it was both reflecting and reflective of what was coming for women in the United States. So I find that stuff really interesting. So when it comes to the law, I think we're just leaving our true crime era. I think we've passed the peak of true crime.

And, yeah, I don't know. I thought the presumed innocent and undoing stuff was interesting from the sense of like, it was fictionalized true crime. Thank God, because I am sick of true, true crime. And Scott Turow is not like John Grisham, right? Presumed innocent is the, there's not a body count, like in the firm and Pelican brief.

There's one, there's one body. Yeah, in the book and movie, the way it all works, shakes out. It makes so much more sense than the David E. Kelly show, but I'm not gonna say anything more because David has not seen it. I will say nothing, but it is funny. I will say this.

I've now spoken about that show like in law school friend groups, text groups and whatnot, and it is polarizing, man. It is very polarizing as to what people think about that show. I think that's a good sign. I think when people have strong takes, that is a good thing. And to have the previous, like, certainly the last 20 years has been a story of protagonists being more complicated.

There used to be a stereotype that the good guy was never going to pull the trigger, even if the bad guy has killed his entire family and 50 other people to boot. Somehow the bad guy is gonna slip and fall backward off the tall building, and so the good guy never has to actually kill someone. I think we're done with that.

The good guys now are more complicated, often much, much darker. They're not just pushing people off the building. They're really premeditating it at this point while cheating on their wife and maybe not being the best dad. And yet they're still the good guy. And so like exploring the nuances of good versus bad is of course intellectually interesting, but probably not a great sign for American culture as it feels like we are in our nihilist era of, lol, nothing matters, and look no further than our presidential campaign, which has no policy in it whatsoever. But I don't know.

I wonder whether having more nuanced characters on both the good and bad side is maybe a good sign that we're recognizing the complexity of human existence. I mean, it's funny. I think sometimes there used to be this hierarchy of, well, novels and short stories and fiction were sort of like the higher art and television and movies were sort of like the more degraded forms. But I think a lot of the added complexity you can trace or attribute to things like the Sopranos or Breaking Bad,

where you have these characters who are protagonists. And so I think there's a natural human instinct to identify with the protagonist, whether the stories and first person or close third person, you just kind of naturally identify with the person whose eyes you're seeing the story through. And, you know, these, you know, Tony Soprano is, you know, reprehensible on so many levels, but at the same time, the show also captured his humanity. And so, you know, maybe it's a sign that we're, I don't know, in some ways maybe our art and our culture are better than our politics,

where we have more nuanced characters in our books and our shows than we do on the national stage. I think that's a very accurate take. Almost anything is more nuanced than our politics. And with that, David Latt, author of Supreme Ambitions and our wonderful friend over from Original Jurisdiction, thank you always for joining us, but especially today on this fun little cool August day. Thank you, David.

Thanks for having me. Always a pleasure.