Advisory Opinions - Living Anachronism

Episode Date: June 18, 2024

Sarah and David discuss how the media’s focus on outcomes ignores the Supreme Court’s complexity and restraint. Plus: tips for the lawyer ready to quit. The Agenda: —Bump stocks and executive overreach —Upcoming SCOTUS cases —Who’s the least powerful justice? —Hidden ideological diversity in SCOTUS —DOJ’s enforcement of the FACE Act —How to quit your law firm: tips on professional risk management Show Notes: —Vidal v. Elster —Empirical SCOTUS’ Power Index —Mifepristone case Learn more about your ad choices. Visit megaphone.fm/adchoices

Meet our summer collection of grillable faves that come on sticks in spirals with bite-size bursts of flavor and more. From pork belly bites full of barbecue flavor to skewer sensations that will keep the grill going for dessert. Make this your best summer yet with PC. Peanut butter and bacon biscuits? Has HomeSense always had all this great pet stuff? Oh, and Dad, look! Made with locally sourced ingredients. We should get these for the dogs!

Peanut butter and bacon biscuits? That sounds like human food, not dog treats! But they're only $10. $10? You know I love to spoil my little fur babies. Put them in the cart. Deal so good, everyone approves. Only at HomeSense.

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger and David French. Welcome back. Thanks so much. I'm so happy to be back. Well, we are going to do, I don't know, let's just go around the world a little bit. We need to get your take first on some of the Supreme Court decisions

that came out last week. So should we start with Cargill, bump stocks? Yeah, let's start with bump stocks. And I don't really have much to add to the discussion, but I do want to say this. And this is something that I've been trying to figure out. How are the ways to communicate the injustice of new administration, new legal interpretation of a rule that includes

criminal penalties and why this is a real problem for our democracy. And I think it goes, the best way to say it is, look, you have two administrations. You have Obama to Trump. Under Obama, one kind of conduct is completely lawful. Under Trump, another kind of that same conduct, that same conduct is unlawful, is unlawful to the point of criminal penalties. And yet the underlying law did not change. So the- Wait, and worse, when it goes then to the next president, they can change it back.

They can change it back. And so you can literally have a law passed by Congress that in one administration is, you can be prosecuted for conduct under that law, and the next administration, you cannot be prosecuted for the same conduct under that law without the law changing at all, only regulations changing at the whim of the president.

And this is not prosecutorial discretion. The difference between prosecutorial discretion and this is under prosecutorial discretion, the underlying law hasn't changed. The same conduct is still unlawful from, say, administration one to administration two, but administration two is maybe changing enforcement priorities. They're not actually declaring that conduct to be lawful. They're maybe lowering the priority of enforcement.

Here in this, this is well beyond prosecutorial discretion because what it's saying is the regulation will change so that under one president, a prosecutor could not prosecute that conduct even if he wanted to because the regulation changed. And in another president, you just change the regulation and then now that conduct is prosecutable. And so again, and I want to emphasize this is without the underlying statute changing at all. And so it's hard for me to think of a better example of regulation as pure lawmaking, as usurping the congressional role. It's hard to think of a better example than the bump

stock case because you have the underlying statute not changing, yet what is criminal and not criminal changing by regulation by executive fiat? And to me, that's a... It's hard to think of a better example of when people say, well, the administrative state is engaged improperly in lawmaking than this. I also find it very frustrating that I keep seeing law professors, real lawyers, saying that Cargill was about the Second Amendment. Right. And then they're like, well, I know it's not about the Second Amendment, but it's animated by the principles of the Second Amendment and various things. No, because then

you have to explain to me why the eviction moratorium, the vaccine mandate case, the student loan debt case, those were animated by the principle of the Second Amendment. They were animated by separation of powers. It's, in that sense, the same case about whether the president has the power to massively expand or change or reread a law passed by Congress. I think this is the strongest form of that, for all the reasons you just said, David, because it's a criminal penalty that you then have the president changing a law to make something a crime that the ATF had explicitly said was not included in the criminal law before this, then is saying, now was not included in the criminal law before this, then is saying now it is included in the criminal law, but they would have the ability to change

their mind at any point and say that it's not a crime, then they could change it back and say it is a crime. That just, I mean, I was going to say it can't be the way the law works. And good news, it's not the way the law works. Right, right. It's not the way. But once again, you know, and again, Sarah, I think we've talked about this forever and ever, how much coverage of the court is dictated. I mean, it's 95% dictated by outcome and that outcome is, and the analysis of that outcome

is heavily dictated by topic. So because this was on the topic of gun control, then the outcome, which was negative towards this particular gun control effort, means that this had to be, because the conservative court doesn't like gun control, as opposed to, well, wait a minute, how about the last quarter century

of administrative legal decisions would lead you to believe that this is exactly the outcome that we would expect in this case if you were looking at the right line of precedent. But you know what, Sarah, if Rahimi comes down here in the next couple of days and is opposed, or it upholds a gun control restriction, nobody's going to rethink whether this court is opposed to gun control. It's always goldfish coverage.

Now, I don't want to paint with too broad a brush. There are smart legal commentators out there who get it, who understand this, absolutely. But if you're talking about- And I think it's worth noting, I think you can disagree with the Cargill opinion. Yes, of course. I don't think Justice Sotomayor's opinion's dissent is bonkers or insane, but it's not

about the Second Amendment either. Right, right, exactly. So the thrust of the coverage was conservative court upholds and permits people to possess this dangerous item. It should have been lawless previous administration, short circuits democratic process, and defeats efforts and ends up ironically enough, defeating the very effort of gun control that it attempted. Because at that time,

I think you could have had some bump stock legislation. I mean, I say that with all humility. But this is actually the, it's not a conspiracy theory exactly, but it is the case that yes, there was pending legislation in the House and the Senate. It would have moved forward to a vote because of the enormous amount of public pressure to do so by activists, by just voters,

unlike some other examples where, because there would have to be compromises or because it wasn't moving fast enough the president gives his side what they want through executive action this is actually the opposite the Republicans didn't want to have to take a vote banning bump stocks because they feared having primaries etc that they weren't sufficiently Second Amendment protective enough and so it's not crazy to argue that the Trump administration was in this way actually undercutting the

legislation intentionally, saving them from a tough vote, saving them from a tough vote, and with some understanding that it might not be held up by the courts. Interesting. And in that sense, you know, if I'm a gun control activist, you know, Diane Feinstein said this in the time, she said, we still need to pass this legislation. But the momentum had died entirely. None of that is okay. But again, you put it in this larger context where

presidents keep doing things. And then the activists, when they get what they want, allow Congress off the hook. So the public is used to seeing a president do something, let Congress off the hook. You know, I actually ran the math this weekend. Well over half of the current members of Congress came into office since Obama's pen and phone year of action. Meaning they've never served in the legislative body without presidents doing the heavy lifting for them.

And so the activists then got used to that. The American public got used to it. So even though I think the bump stocks executive action is unique in what the motivation was, the, oh, legislative momentum totally died, I think very well fits into the rest of this, like, oh, the president did it, so we're good now. Even though time and time and time again,

it gets struck down by the courts, Obama, Trump, Biden, and yet nobody seems to learn. Well, and we're watching that play out on the border again, because you had border legislation, right? That I think there are a lot of fair critiques of it, but as far as I've never heard anyone credibly argue that it didn't improve the legal situation, especially regarding asylum, that it wasn't a positive reform. I've heard a lot of persuasive arguments that it wasn't enough of a reform, I think very

fair, but I've heard a very few arguments, if any, that the changes weren't quite positive overall, especially regarding asylum. And that was killed for political reasons. And then everyone said, well, Biden, you can just do it. You can just do it. And guess what? He just did it. And we're now facing, we're facing lawsuits aimed straight at this.

We have no idea how long the new Biden program can last. And everyone who was turning around saying, hey, we voted, we killed this legislation because we knew Biden could have done it from the beginning. They're saying, see, look, now Biden could have done this from the beginning. And meanwhile, these lawsuits are pending

and we don't know whether this new Biden policy can last six days, six months, or whether it will be ultimately upheld because I do think it has more statutory support, say, than this bump stock regulation. But we're constantly in this mode now where Congress isn't doing what it should do. Turns to the president, the president does something, one year, 18 months, 24 months later, or a little bit longer, it gets blocked. And we're right back where we started. All right. So now how about some thoughts on the Barrett concurrence in Vidal?

Oh my goodness, Sarah. This Barrett concurrence. And I didn't know I was trying to figure out like what is my favorite part of it. And just to remind everyone, Vidal's the Trump Too Small trademark case under the Lanham Act, where the majority holds that the Lanham Act can bar people from trademarking someone else's name. But that's not why anyone's going to be talking about this case ever again. It's about whether the test is text history and tradition, the text is tiers of scrutiny, what happens over the next few years

in terms of how the Supreme Court's gonna think of this and how lower courts are. So go. Yes, so here comes Amy Coney Barrett, concurring in part, and just coming in with both barrels at sort of the history and tradition side of the text history and tradition test. And coming in really with both barrels at this sort of idea that we're going to dive into the history and tradition and that

that's going to, rather than, and this is the key part of the opinion that I really wanna zone in on, because it's not text, history, and tradition are nothing. It is, hey, this intra-originalist fight between text, history, and tradition, with the emphasis on history and tradition, versus generally applicable principles. So a generally applicable principle would be, for example,

tiers of scrutiny that we've talked about. And so what does Barrett do here? And she comes into the dissent and she says, look, this history and tradition, and I'm going to read the segment here that's fantastic. Relying exclusively on history and tradition may seem like a way of avoiding judgment tests, but a rule rendering tradition dispositive is itself a judgment test.

And I do not see a good reason to resolve this case using that approach rather than by adopting a generally applicable principle. And then she goes on to say, in the course of applying broadly worded text like the Free Speech Clause, courts must inevitably articulate principles to resolve individual cases. I do not think we should avoid doing so here. This goes back to the conversation we've had forever, Sarah, about, wait, how can these sort of general principles for resolving cases square with originalism, square with text. And I think that she articulated it very well, that when you have the broadly worded text,

like the First Amendment, articulating principles is a valuable way of interpreting and applying that text. And so I thought that she stated that very, very well and did a very, very effective job of sort of showing how malleable, quote, tradition can be. Because a lot of this stuff that we're talking about wasn't related to sort of common law influences on the founding or it wasn't related to the way amendments were interpreted in the aftermath of ratification. They were just sort of talking about practice.

By the way, I have a hard time ever saying the word practice by itself without thinking of Allen Iverson. And- You're talking about practice? Practice? You're talking about practice. Not the game. Practice.

Practice. Love that. Oh man, in the age of Twitter, that would have just exploded even more than it did. And here we are remembering it 20 years later. So that I just thought that was a beautiful articulation of wait, tradition in particular is the judge made rule. Broadly worded provisions of the constitution

can have generally applicable principles attached to them. I just thought it was extremely well done, Sarah. And you know, interesting questions about what this means for things like, for cases like Rahimi. What's going on here behind the scenes in the way this is being approached? And so it's, I don't know, I don't know. The tea leaves here seemed like Barrett was,

you know, had some intensity to it. It had some intensity to it for a trademark case. So yeah, I thought that was fascinating. I agree that the tone in particular struck me as unusual. If you had told me that this concurrence largely was gonna exist and there was gonna be this sort of haggling over text history and tradition versus tears of scrutiny led by Justice Barrett,

I would not have guessed that the tone, the tone didn't come off as particularly friendly or congenial. It came off as quite aggressive. Yeah. Which I liked. Yeah, absolutely. If you're going to have a food fight, like throw some mashed potatoes.

I would say appointed dissent. Which is? Concurrence. Maybe, and not quite to the diplomatic level of a frank exchange of ideas. But I would say it was definitely a point, it was appointed descent is the way I'd describe it. Concurrence. Oh yes, concurrence, yes, sorry. Concurrence dissenting from some elements of text history and tradition, yes.

Yes, yes. Yes. coverage for your business. Contact a licensed TD insurance advisor to learn more. And we'll take a quick break to hear from our sponsor today, Aura Frames. Looking for a really special gift for this Father's Day? Whether it's the group shot from the family reunion, the 20 pound bass he caught last summer, or his favorite photo of mom, an Aura digital frame is the best way to display dad's favorite memories. Obviously, every dad in my life already has one of these frames because I'm obsessed with them, as you guys kind of know. Today's picture in our kitchen is just from three months ago of husband of the pod holding the new baby on the couch. And it's really cute. And I make sure that our frame only switches pictures about once a day, but you can set it to switch every 30 seconds or once a week so that it's more like a real picture frame when you give it

to your dad, your husband, whatever dad in your life needs a frame. Aura frames are beautiful Wi-Fi connected digital frames that allow you to share and display unlimited photos. It's super easy to upload and share photos via the Aura app. And if you're giving an Aura as a gift, you can even personalize the frames with preloaded photos and memories. Your father, your grandpa, your husband, or even your brother,

let them see what a great daddy is with an Aura frame. Right now, Aura has a great deal for Father's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off their best-selling frame. That's A-U-R-A frames.com. This deal ends June 18th. So don't wait. Use code ADVISORY at checkout to say terms and conditions apply. All right. Well, look, we have, depending on how you count this, about 20 opinions left

to go. And I say depending on how you count because don't forget cases like NetChoice actually are two cases. Cases like the Chevron case, Relentless and Loperbright are actually two cases apiece. So I'm counting it as, in the way we'll talk about them, which is as a single case. We've got about 20 cases left. We've got two weeks. Now, the justices are not required to end by the end of June, but they do aside from the most extreme circumstances. They've got plane tickets out of town, they got summer plans, they wanna get out of here too. Right now, the justices have not added

another hand down day for this week as of Monday morning when we're taping this. Also, Juneteenth is Wednesday and that's a federal holiday. They're not gonna hand down anything on a federal holiday. Which means that for your information and also just when you're gonna get AOs, we expect that they will add Friday as a hand down day once again.

We will record episodes from this point forward on the days that they hand down opinions. So if they hand down on Thursday, as we expect, then we'll have a short episode that will tape Thursday and come out to you guys after that. If they hand out opinions Friday, we'll tape something Friday. We'll try to get that out to you Friday afternoon

for the rest of the month of June. So just they're all emergency podcasts from here on out. And for those who are curious what all we have left, I mean so much. Aside from NetChoice and Chevron, which I mentioned, you've got the Idaho abortion, Imtala case, you've got obviously Trump immunity, you've got Rahimi, you've got Rahimi, we have the January 6th obstruction. So basically every AO from this point forward promises to be a blockbuster. At the end of Supreme Court hand downs, all of us in this world start doing our own sort of analysis of the term. I thought it would be fun to revisit something that empirical SCOTUS Adam Feldman did at the end of last term, I thought it would be fun to revisit something that empirical SCOTUS Adam Feldman did at the end of last term, which he did something new that I hadn't seen before called

a power index. So this isn't just the normal statistics that we've talked about of which justice is most likely to be in the majority, which was Justice Kavanaugh for the last several terms, closely followed by Chief Justice Roberts, closely followed by Justice Amy Coney Barrett. The power index actually assigns points, and the points increase as you get closer opinions. If you're the author of a nine-zero majority,

you get two points. But if you're the author of a 5-4, you get six points. And so it goes. If you're in the majority, but not the author, you get two points in that 9-0, you get five points for voting in the majority for a 5-4. If you write a concurrence, one point in the 9-0, four points in the 5-4.

If you're in the descent, you get minus one on all of those, no matter how close. So just under that power index, he finds that Justice Kavanaugh still comes out number one by a hair. He is at 2.48 for average points, followed by Chief Justice Roberts by 2.46, followed by Justice Barrett at 2.26.

Actually, the order stays exactly the same, though the drop between Justice Kavanaugh and Justice Barrett is a little greater than what we would have seen otherwise. The person coming in last, Justice Thomas, second to last, Justice Alito. Again, it even follows on that side as well. But here's where I thought the power index was really fun, David, because that's not the only flex of power who authors how you vote and concurrences and dissents, because

there's also assigning opinions. And remember, the justice who is most senior in the majority gets to assign who writes the opinion. So if the chief justice is in the majority, he gets to assign it. And if he's not, it would be Justice Thomas, then Justice Alito, Justice Sotomayor, Justice Kagan. And that's it. Those are the only people who can assign opinions because after that, of course, you wouldn't have enough justices left to form a majority. So adding points based on who the most senior justice was, therefore who got to assign the opinion, the numbers do switch.

It's now Chief Justice Roberts by a mile. Right. So his average points go up to 3.41, followed by Justice Kavanaugh at 2.46, because of course, Justice Kavanaugh can't ever assign opinions. Justice Barrett stays the same. Interestingly, Justice Thomas still comes in last. It basically changes no one else except the Chief Justice definitely becomes

the leader of the power index. I don't expect any of that to change this term based on what we're seeing so far, except the unanimity issue, David. Having this many unanimous cases could actually affect all of this. It could be that with not nearly as many non-unanimous cases, you could end up with an outlier term when you're dealing with so few data points. We have very few cases total, of course, that we're dealing with, you know, well under 60 at this point. And then a lot of unanimous ones basically get taken out of the calculation. So that's one interesting thing to be looking for. So a couple of things on this and then that I think are fascinating. One is, so you went through the first three, Kavanaugh, Roberts,

Barrett, and Power, and that's Kavanaugh, Roberts, and Barrett under the conventional reading, and then when you add assignment, it's Roberts, Kavanaugh, Barrett. The next two after that are fascinating and counter intuitive in a 6-3 conservative court. The next two are Jackson are fascinating and counterintuitive in a 6-3 conservative court. The next two are Jackson and Sotomayor. And then it goes Gorsuch Kagan with Alito and Thomas at the end. And the Gorsuch Kagan power differential is infinitesimal,

just infinitesimal. And so it really is another one of these data points for this roughly, roughly 3-3-3 court alignment. Because it is fascinating to see after Kavanaugh, Roberts, and Barrett, that you go straight to two of the more liberal justices and the power index, which is, you know, completely counterintuitive to a lot of folks. You know, you see a lot of conversation online that's along the lines of it must be so frustrating to be a powerless justice. And little do we know that that should be that that remark should be directed mostly at Clarence Thomas in the current court, which is wild because you would think that, you know,

if you're just coming if you landed from Mars and you're told the situation who appointed whom, et cetera, et cetera, the last thing you would say would be that Clarence Thomas, the second most senior justice really on the court and a member of the quote unquote conservative majority would be the least powerful justice, no matter how that is measured. That is fascinating information theory. That's absolutely fascinating. Right, least likely to be in the majority,

least powerful by this index, even if you assign those points, which takes into account the complaints of people who say, yeah, but the big cases. Yeah. Okay, we're trying to now take this into account in an empirical fashion. We're not gonna assign sort of subjectively which cases are big, but we're now looking

if it's 5-4, if it's 6-3. Okay, we're assigning those more points. Nope, Justice Thomas is still the least powerful. So what's your point? Can I make one quick point about the MiFi case, the Mipha Prestone case? Yes, Miphis. We call them Miphis, David. Oh, I'm sorry. It's not MiFi case, the Mipha Preston case. Yes, Miphis, we call them Miphis, David. I'm sorry, it's not MiFi.

No, that's that power thing, like the power Wi-Fi that you used to take with you, like on trains and stuff. The MiFi. Okay, sorry, sorry. Mipha Preston. This is another example, and there are now multiple examples of this, of the current court sort of swatting away reach cases

brought from the right. So we've talked about this phenomenon a number of times. So Voting Rights Act, there was a reach argument made for the Voting Rights Act, swatted aside by the Supreme Court. There was a reach argument, Independent State Legislature theory, swatted aside by the Supreme Court. There was a reach argument. Independent state legislature theory swatted aside by the Supreme Court. This was a reach standing argument to get

to Mefa Preston, swatted away by the Supreme Court. You're beginning to see how many of these reach. Now, on the other side, I think it's very fair to say that the 14th Amendment argument was a reach argument coming from the other side, swatted away by the Supreme Court. And it's becoming very clear that under the current court alignment, this sort of view of the court on the part of some folks on the right, certainly on the left, but nobody thought this was going to be a court that would grant reach wishes from the left.

But on the right, I think there was a real sense once it became 6.3 that there was a lot of sort of reach objectives at reforming, changing, altering constitutional law that may have been in play. And again and again and again, these justices are saying, nope, they're not in play at all. And it reminds me of something we talked about last year, which is, look, in many ways, and if you want to understand the current Supreme Court, you cannot evaluate it with Trump-era

glasses on. You have to evaluate the current Supreme Court with pre-Trump-era glasses on. This is not a collection of MAGA people, it's a collection of conservative classical liberals by and large, which is the pre-Trump right, that's the pre-Trump conservatism. And so I feel like in many ways, the Supreme Court is like in a living, thankfully by the way,

thankfully, a living anachronism, its expression of its conservatism is very much resonant with classical liberalism as opposed to maga will to power. And you see that in a decision after decision after decision. And you also see that when you see some of the frustrations expressed towards the court,

even by Trump himself towards his own justices about some of the frustrations expressed towards the court, even by Trump himself towards his own justices about some of these rulings. And so I just, you know, pulling back from this, you can see how the current court is not actually a great fit with the current right. And these decisions are showing that time and time again. All right, I wanted to point out another empirical SCOTUS chart that we haven't got to talk about before that's based on last, well, ending at last term. And that's the ideological vent

or ideological index of the justices. Because this also, I don't know, I think if you listen to this podcast, it will fit with your understanding of the court. So obviously you're listening to this podcast. But this is looking at how likely a justice is to combine with someone on the other side of the ideological spectrum. And again, especially in close cases. Justice Alito is the only conservative justice to

never join a group of all of the liberal justices in a 5-4 decision. So he has never been in a 5-4 majority with both justices Sotomayor and Kagan since Kagan joined the court in 2010 and has not since Jackson either, obviously. And this is from the story, the closest Alito ever got to do this was with his concurrence in Gundy v. United States, which some call the dissent shrouded as a concurrence. Gundy was decided by a 5-3 vote with Kagan, Ginsburg, Breyer, and Sotomayor in the majority, Alito concurring, Robert Gorsuch, Thomas dissenting, and Kavanaugh recusing. Alito's concurrence read like a dissent because he essentially said he disagreed with the majority, but the dissenting position didn't have sufficient

votes to define the rule of law. This is quoting from him. If a majority of this court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because the majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment. Anyway, based on that index, that ideological index, the justice most likely to cross over and vote with the liberal justices should surprise no one. It's Justice Gorsuch by a lot. So he gets a 3.71 on this index

followed by the chief justice at 2.61. So more than a point behind. Justice Kavanaugh basically tied at 2.6, Justice Barrett 2.33, Justice Thomas coming in next at two, and then Justice Alito with a measly one point in the crossover index. And I think that's a pretty good way to judge sort of the ideological rigidity of a justice

or flexibility of a justice, whether it fits neatly on that X axis, if you will. He's also, Adam Feldman's also looked at the likelihood to overturn or agree with panel decisions based on the political party of the president that appointed the circuit judges. That also was fascinating. Maybe we'll do that another time. It doesn't come out that differently than this,

as you might guess. But Justice Gorsuch being the most ideologically flexible or the most ideologically hard to pin down, feels right to me. Yeah, oh, absolutely. I mean, especially when you're, you know, including all the criminal law cases, when you're including the Indian law cases,

there's, you know, gosh, it's gotten to the point where it's a criminal law, I'm thinking, who's just who's going to join Justice Gorsuch for the defendant? Similarly, with the Indian law cases, he is the most supportive of Native American legal rights of any justice, arguably in American history. I mean, you know, time will tell over the long course of his career. But so far, it's hard for me to think of anyone who's been comparable to him in both his, not just where he votes, but his

ability to bring a majority in support of a number of cases involving Native American legal rights. So yeah, it's really fascinating. This court is actually one of the most, it is a very interesting court, and it's just such a crying shame that is existing at the same time that American politics has gotten more acrimonious

and stupid and stupid. Cause that's, you can't, I mean, when people look back on the history of this moment, there's gonna be a debate amongst historians as to whether malice or idiocy was the defining characteristic. And so you're having this really interesting court that is doing a lot of very intellectually

and ideologically interesting things, and it's just sort of doing in the middle of this stupid screaming match. And it's a cult, and people are trying to filter what the court is doing through the stupid screaming match. And you just can't do that in any way that's fair to the court. All right, I wanted to highlight this press release from the Department of Justice about a plea deal

that they reached, which normally we don't do on this podcast. But there's been so much talk about this two-tiered system of justice, about the politicization of the Department of Justice. And part of the reason is that each side only talks about the times that fulfill their narrative. So I just wanted to mention this case because it made a lot of news at the time. So between May and July in 2022, there were a series of targeted attacks

on crisis pregnancy centers, these pro-life groups in Florida, in the dark of the night while wearing masks and dark clothing to obscure their identities. The perpetrators spray painted the facilities with threatening messages, including, quote, If abortions aren't safe, then neither are you. Your time is up. We're coming for you. We are everywhere. The Department of Justice indicted three Florida residents who have now all pled guilty to conspiring to injure,

oppress, threaten, or intimidate employees of pregnancy resource centers in the free exercise of the right to provide and seek to provide reproductive health services, according to the press release. They face a maximum penalty of 10 years in prison apiece. This came out of the FBI Tampa field office and the Middle District of Florida. And special shout out, by the way,

to my wonderful friend, Stacey Harris, who turned out to be the AUSA on this case. I only knew that when I read the press release, which is so funny because I talk to Stacey all the time, tells you how AUSAs do their jobs, right? She didn't even think of this as being a politically salient case because that's not the job of the Department of Justice. There's a crime, you bring the charges. And that's what they try to do every

day. There's hundreds and hundreds of federal prosecutors and thousands of FBI agents across the country doing this work. So the next time someone says that, you know, the Department of Justice is only prosecuting people who violate the FACE Act from the right, meaning people who protest at abortion-providing clinics, please make sure to point out that they also prosecuted these three people for violating the FACE Act when it came to crisis pregnancy centers as well. Well, and yes, absolutely. And also, you know, what I fear is that the narrative will have already hardened in.

Because I remember when this vandalism was happening and these attacks were happening, it was all over the right, look, they're arresting the face act protesters on their face act. And yet, where are they arrests around this vandalism? Without any thought that maybe it's easier to catch people who are openly they arrest around this vandalism. Without any thought that maybe it's easier to catch people who are openly blocking a clinic entrance

than it is to catch people who are doing things in the dead of night trying not to get caught and that it might take some time to investigate this. But the talking point has just completely hardened that look, the Justice Department prosecutes people who violate the FACE Act Department prosecutes people who violate the FACE Act, but not people who vandalize crisis pregnancy centers. I'm very glad to see this prosecution.

I'm glad to see that these people were caught. Obviously they're dangerous. Very glad that they were caught. And Sarah, you raise a great point. And you know, look, all of the Banana Republic, and I'll say it a million billion times, I have my issues with the legal aspects of the Trump Manhattan prosecution. But all this talk about America as a hopeless Banana Republic after that conviction, which is then followed up by another conviction of the president's own son, which is not typically what banana republics do, convict the family members of the ruler.

So we need to chill out on this. Our justice system is completely weaponized and corrupt language in the same way that a lot of folks on the left need to absolutely chill out on this Supreme Court is illegitimate language. It's just ripping our system to shred, ripping confidence in our system to shreds without the underlying evidentiary support

for ripping it to shreds. This episode is brought to you by Secret. Secret deodorant gives you 72 hours of clinically proven odor protection, free of aluminum, parabens, dyes, talc, and baking soda. It's made with pH-balancing minerals and crafted with skin conditioning oils. So whether you're going for a run or just running late, do what life throws your way

and smell like you didn't. Find Secret at your nearest Walmart or Shopper's Drug Mart today. Shh. If they hear you, they want you. Run! A Quiet Place, day one, June 28th. Get tickets now. Okay, I promised listeners last time that we were going to get to David Latz asked and answered from original jurisdiction. So let me give what the question was. I'm a junior associate in Big Law.

I haven't been here long, but I'm already pretty sure that I want to leave. Not just my firm, which is fine as far as firms go, but the practice of law. I realize that being a junior associate at a firm often involves a lot of drudgery. But when I look ahead to what mid-level or senior associates are doing, or even what partners are up to, their work doesn't appeal to me either.

And there's no other job within the law that cries out to me either. I'm not one of those people who went to law school with a plan like, quote, work in big law for two or three years, pay off loans and become a prosecutor, public defender, public interest lawyer, law professor. To be honest, I went to law school without a clear sense of what I wanted to do with my JD degree. And maybe that explains my current predicament. I feel a bit lost. And yes, I

do have outstanding student loans. Please help. Yours truly, Bewildered in Big Law. So David, first of all, I would just like to say how totally justified I feel with my overall advice about going to law school because this is so many people. They go to law school for option-expanding JDs. They take on student loans to do it. They show up at a law firm and six weeks in, they're looking around going, not only do I hate my job, I hate all of your jobs. What have I done?

I will absolutely acknowledge that people do that. No question about it. I would also encourage many people who find themselves in that position six months in to take a deep breath and chill out a little bit. That would be sort of my advice because I had those impulses too sometimes, especially because I would say,

especially when you joined Big Law, the first year or so or two years of that might be the least or most miserable years of your entire career, just professionally. It's a dues paying period. It is a period where your ambition to do things and your ability to do things is at its largest mismatch because you don't have the skills that you've developed yet. You don't have, you can't just march into a court and do all the things that you've dreamed of doing.

And then often some of the things you're asked to do feel really pretty menial. I remember Sarah being up at two in the morning, literally double checking to make sure that the paralegals got some FedEx packages out. And I was thinking, I went to law school for this to just sort of stay here to make sure paralegals got some FedEx packages done before they went home.

I mean, it felt really weird and bad and strange, but, and also I wanted, I just was just married and I didn't want to be at my law firm at two in the morning. And so, yeah, I acknowledge absolutely that is a thing that happens. People get out six months out and sort of have this shocked response. I would also urge people to take a deep breath

and wait because it does get better the more experience that you get. It really does. Okay, I wanna walk through David Latt's four pieces of advice and get your reaction. Okay. One, get yourself in good financial shape. When law students or lawyers tell me

that they're interested in an alternative career and ask me for one piece of advice, I often quip, Mary Rich. At one other point he says, "'When you're working long hours in a stressful big law job, it's only natural to want to treat yourself when not toiling away with gourmet meals at high-end restaurants, lavish vacations, and designer clothes. If you're seriously thinking about leaving the law though, do your best to avoid these temptations and try to put yourself in a situation where you can get by with a modest income or maybe even no income for an extended period of time.

This is the golden handcuffs. I think this is the key advice. So I will get off my high horse about how this person should have gotten better advice over whether they should go to law school in the first place and someone should have told them what the practice of law was like so that they could make an informed decision

before they took on this debt. That's all done now, okay? Now, he's gone through law school, he didn't know what he wanted to do, still doesn't, he's at a firm, because that's where the conveyor belt takes you, and he's got student loans. The first thing you need to do is get in a position

where you can work for under $100,000 a year, no problem. One billion percent agree with that, Sarah. One billion percent. So, and I'll even go a little deeper to it. I think the golden handcuffs also, not only they limit your options, of course, and they increase your despair because they limit your options, the golden handcuffs do.

Because once you dive in to big law, and often people will do things like sign leases on apartments that they need a Big Law salary to afford and this is even before they enter Big Law. So they're super excited to be you know heading to Chicago, New York, Boston, wherever and they're super excited about the job. They've been sold on the job. Maybe they had a really good summer that included lots of invitations to live AO podcast recordings. And they just had the best time

and they look at that salary and they look at the real estate market and they go for the bigger apartment. And then next thing you know, they're actually in the job. It's in the most miserable phase of your legal career. And it's just, you want out and you realize, well, to get out, I need $250,000. Who's gonna hire a 20 something year old

for that amount of money and then not ask me to work 80 hours a week? Like who's doing that? And the answer is exactly nobody. And so not making wise choices on the entry point increases your options if once you dive in, it is not to your liking. Yeah, and I feel like,

so obviously I went to law school not quite knowing what I wanted to do, but I also knew that I wasn't going to be at a law firm. I think that it will seem shocking to a bunch of law students and young lawyers, some of the decisions that I made financially after law school. I didn't take a bar trip. I went to work before graduation and then came back. I didn't even have the equivalent of senior week between when classes end and graduation. Nope, I wasn't around for like, you know, the, it's like the equivalent of senior week between when classes end and graduation.

Nope, I wasn't around for that. I went to go work. I came back just for graduation, went back to work. No bar trip, no fancy trips to backpacking through Europe or Asia. I took the bar exam and went back to work the next day. I lived with my parents during my clerkship to pay off some loans. And then when I started working in campaigns directly after my clerkship, I was making less than a third of my friends in law school. So yeah, I ate a lot of pita with hummus and

sliced cucumbers. But when you toast it, it's really delicious. And I lived in a small little apartment. And I did that for years. I didn't make six figures until close to ten years out of law school. Wow. Which, yeah. Sarah, you're bringing down the class average. Did Harvard write you? For sure. And I didn't even, you're bringing down the class average. Did Harvard write you? For sure. For sure.

And I didn't even get the public interest right off because of campaigns and whatnot. So I just think the financial shape thing is the biggest deal, but I'm not sure that people graduating out of law school, especially elite law schools who are looking around at their friends, even understand what it means to get yourself in good financial shape. Yeah, I almost feel like there should be a seminar. Eating pita and hummus. Yeah. Yeah, it's like the NBA and the NFL

and some of these leagues have really tried with their young players to help them with money management so that they don't end up like so many athletes making millions in bankrupt. I feel like you need to have a money management seminar between your 2L and your 3L year before you sign the lease, before you buy the car, right? Oh yeah, I drove an old Nissan.

Yeah. Again, like until close to 10 years out of law school. Okay, number two from David Latt's piece, figure out what you wanna do next. This is easier said than done, but out what you want to do next. This is easier said than done, but there are multiple things you can try. For example, you can certainly take a career aptitude test, which can be easily found online. I didn't do this myself, but I've met others who found it helpful.

You might have to transition to a less time consuming legal job, one that allows you to explore outside interests as a way station in route to leaving the law entirely. That's one reason I went to the U.S. Attorney's Office in New Jersey. It offered better work-life balance than SDNY or EDNY, Southern District of New York, Eastern District of New York, and I could focus on appellate work, which gave me ample control over my schedule. So David, I actually think this is the hardest one. What do you want to do?

Yeah. Really, really hard. Because I was having this conversation even earlier today. It's very easy, I think, to look at someone else's career and be like, aha, that looks way more fulfilling. Let me promise you, everyone's career is about 90% BS and the people who are the luckiest people in the whole world are the ones where 10% of their job is really fulfilling.

But it's still only 10%. Don't be confused about those percentages. There's still going to be the boss who sucks, the coworker who's a B, the hours that aren't the ones you want, the pulls on your schedule that seem unworkable and unmanageable, like, all of that's gonna just exist in any job, and frankly, the more fulfilling the job is, the more some of those things come with it,

sort of by definition, especially the time constraints. Well, and yes, I agree with all of that. It is extremely difficult to judge how fulfilling a job is from a distance. I remember in the height of my law firm days when I was, I knew I didn't want to keep being a law firm lawyer. And I was talking to some of my friends who were in public interest law and First Amendment and doing that kind of work. And I remember talking to one who was working for a religious liberty public interest law firm,

not any of the ones I worked at, ADF or ACLJ, but was working at a religious liberty public interest law firm. And I asked him how his job was expecting to hear, wow, you know, I'm so glad I'm not in big law anymore. And the answer was one word, hell. And I was like, wait, wait a minute, why? And he said, my boss is the worst human being

I've ever known. And so you can have this tremendous job description and then you can have, and you can go into it and you can find out that maybe this nonprofit or whatever was built by a pre-Madonna nonprofit or whatever was built by a prima donna. Maybe it was built by a raging tyrant. Maybe you walk into the door and you see maybe the quality of the illegal work

isn't what you're used to. Maybe they're playing fast and loose in certain ways. Maybe you don't like the, there's all kinds of different ways in which what looks ideal from a distance isn't great up close. And what may not look great from a distance, the closer you get to it is really pretty good. It's really interesting, Sarah.

When I look back at my law school, my post law school career, I would say of the periods where I've really was most enjoying it, one of those periods was when I was in a big firm, and it wasn't because I was doing cases that were necessarily really just making me get up in the morning.

There were a lot of major commercial contract disputes. But I was working with awesome people. You know, the folks I worked with were fantastic. And I've been hearing from some of them lately, people have been writing me messages just kind of coming out of the woodwork after 20 years. And they're just incredible people. And so I would be very careful about leaving a situation where you really like and value all the people around you for something for a job description,

when you don't know, when you don't necessarily know the culture that you're getting into. But there was another thing that David said that you didn't read in that number two that I want to highlight. He says, my path out of the law was fairly common. I had a hobby or side hustle that gained traction.

That has been my path my whole career. Every change in my career was triggered by the side hustle or the hobby. Whether it was I was a commercial litigator who took on pro bono First Amendment cases, then I had to make a choice. Am I going to be a pro bono? Am I going to make a choice. Am I gonna be a pro bono, am I gonna be a First Amendment litigator or stay commercial litigator? Then when I moved into pro bono world, you know, public interest law, I started writing about my cases.

And then after a while, I got to the point where I had to decide, am I gonna continue to be a First Amendment litigator or am I gonna pursue this thing that's become a giant part of my life? And so I think that's actually a good strategy. There will be things that arise in your career that you find interesting. I think you can start to invest in them before you make the hard break, if that makes sense.

Okay, I have a personality test for you. Okay. When you're getting into a pool and the water is way too cold, do you go slowly down the steps adjusting each step or do you cannonball into the deep end and get it all over with? If it's super cold, I cannonball. Like if I know, if I know it's super cold, it's cannonball, no question about it.

If I don't know, then it'll be more gradual just to see. But if I know, we did a cruise years ago and we're off a Portuguese island and doing one of these excursions and they said, this is known as one of the coldest swimming holes around. Who's going in? And at that point, you just gotta cannonball it. There's just no alternative.

So here's what I find that's interesting. Because what you're describing for your career is going in step by step. And here's what's funny. I do not cannonball into cold water. Cold water takes my breath away. I will actually hyperventilate if I am put into cold water too quickly.

So I go step by step into cold water. But in my career choices, it's all been cannonballs. That's great. High risk. Some of them have failed spectacularly, cannonballs. Although I just want to emphasize the thing you said about the people you work with actually being the place that you get way more of your fulfillment from than you realize compared to the job.

So the worst job I ever had, I still look back on with so much fondness because every day at lunch, first of us, all of us who worked there hated our boss. So that, you know, has a certain camaraderie. We would take these long lunches and we would, there was this website that would have each of the Jeopardy boards forever, going back to the beginning of Jeopardy. And we would play Jeopardy and we had all these rules for how you do it. And I just look back on it as being one of the most fun jobs ever, because we would get our work done,

whatever, it was fine. But the people I was working with were wonderful. It's been now well over a decade, we're closing in on two decades since this job. And yeah, like I just went and had dinner with one of those guys, one of my Jeopardy guys recently. So that I think is like an interesting just life lesson that your fulfillment comes from a bond with others. And I think a sense of duty and responsibility toward others. It's a sense of purpose that like, and I know this sounds dumb, but like,

oh, if I don't go to work today, we can't play Jeopardy because it takes a certain number of people to make it work. As dumb as that sense of duty is to one today, we can't play Jeopardy because it takes a certain number of people to make it work. As dumb as that sense of duty is to one another, it's real. And it does give you a sense of purpose and why you're going to work that day, even for a job that's otherwise menial and awful. Yeah, I mean, it's here's a good question. When you walk in the door and you see the people, do you kind of light up? Yeah. Or,

or is it? And if you walk in the door and you see the people that you work with and your heart lights up, that's a job that you should think long and hard before you say no to it. That you should think long and hard before you see the grass greener somewhere else. Yeah, because on the flip side, I feel like people see me on TV and think like,

well, that looks amazing and fulfilling. Right. It's an amazing opportunity, but let's be clear. So it's about two hours. I spend just over an hour in a hair and makeup chair, which I know sounds very glamorous, but it's not really because I end up mostly just taking off the makeup when I get home.

So it's a whole lot of time, especially if you're a woman. You know, it's a dress that I normally would never wear in my real life, but it's my TV dress. And then you sit in the green room for a few minutes chit chatting with the people you're gonna be on TV with. And then you're on TV for like a long Sunday show round table would be 12 minutes. And you're sharing that with five people, the host and the four roundtablers.

So that's minimum. If you're doing it the speediest way you can, that's two hours for 12 minutes. And that's the thing that everyone's looking at is being like, wow, that's the coolest, most glamorous thing. Every job comes with BS, right? Like... Yeah, oh, for sure. And it's just which BS floats your boat.

Okay, number three, get some help. In my recent podcast interview with Brian Garner, the world's leading legal lexicographer, his response to my closing question about advice was to remember these words. I need your help, and don't be afraid to use them. There are online resources specifically aimed at lawyers who are thinking of moving on from the law.

For example, check out the website Leave Law Behind and ex judicata, that's a great name, both of which offer coaching if you're interested. So this is all about maybe go find a career coach. David, have you ever talked to a career coach? I have not and I'm the worst at, and I'm the worst at this. I'm the worst at this. The ask for help element,

that is very good advice that I need to take. That I'm just terrible at asking for favors for counsel. I feel like it's an imposition and this, I just need to get over it. I'm 55 years old. Why am I still laboring under this? But see, I think you're actually now too old. I mean, you're not really like, of course, you should ask for help when you need help.

But right. Everyone wants to help young people. They see themselves in you. And so when you say I need help to someone who you've worked with, to someone who you have some relationship with, that's actually how you form the bond. Everyone's like, oh, I want a mentor. Believe it or not, you generally form mentors by asking for help. And then that person investing in you. Now, I will say it becomes difficult if your, you know, person you're trying to have mentor you gives

you advice, and then you ignore that advice. I think you can. I think, you know, if you're deciding between two jobs and you ask a bunch of people and it's about 50-50 and you decide to go one way, but you really still want the advice of the person who advised you to go the other way, don't just ditch that relationship because you didn't take their advice and you think they're mad at you. They're not. I've given lots of young people advice and they take the other job. I'm not mad about that at all. Now, if over and over again, they keep not taking my advice and then coming back to say that they've made the wrong decision, at some point that will get frustrating for me. But overall, I find a lot of joy in investing in young

people who want and need help. So it's not only that you're not inconveniencing them, it's actually a way you form human bonds. Just think of every friendship you've ever formed. The friendship doesn't mean a whole lot until one person experiences some sort of crisis or needs something. Yeah, absolutely. And how dare you say I don't need advice? Like at some point I'm going to have to ask advice like which nursing home, like things like that, Sarah. So I'm still young, I still need advice. All right, number four, don't burn bridges as you leave the law. You don't even need the as you leave the law part,

but to continue, during my time at Above the Law, I enjoyed reading and writing about bridge burning departure memos. But while they might be fun to read and fun to write in the moment, they could turn out to be professionally problematic if you try to return to the law. And yes, it might very well happen.

Careers are long. If you're disillusioned about practicing law right now and eager to leave, you might find the idea of returning to be impossible to imagine. But you might leave the law and discover that the grass on the other side is not, in fact, greener. You might change as a person, or your personal circumstances might evolve in ways that could make returning the right decision. Almost two decades removed from practice, I had no plans to return

to the law, and I don't know that anyone would have me if I did. But I've met lawyers who have returned to practicing after leaving for careers in journalism, finance, and the entertainment industry, among other fields. And when they did, their good relationships and reputations in the legal community were enormously helpful. I mean, this is like the understatement of the century. All communities are small. Law is also a small community. Why people ever burn bridges on their way out the door

is baffling to me. And I will say that in my career in DC, in like politics DC, campaign DC, it has been especially insulting when someone has burned a bridge with me, because what you're telling that person isn't just of course that like you don't respect them, you don't like them, whatever.

It's actually that you don't think they're gonna be a repeat player, right? You're's actually that you don't think they're gonna be a repeat player, right? You're saying like, I don't think you're gonna be here in five or 10 years. And that's why I'm willing to set this relationship on fire. And I'm like, how dare you? I will be here. You just wait and see.

So, and I mean this more like, you know, when I was like really early on in my twenties and like, I don't know, someone would blow me off, you know, for a coffee meeting. I asked the person whose job I was taking, as in like they were moving on and I was coming in to take their job, I was like, hey, can I take you to coffee and just like get your advice, ask you some questions, you know, anything you can pass on about like how to succeed in this job. And he said, no, I don't have time for you or this.

And I was like, what? I was like, how? Again, it's not that you don't have the time. It's that like you don't think that I will ever matter to your career at all. I will note that that person and I interact all the time now in our current careers. So Sarah, I can't remember if I've told this story, but I am the living example of don't do this. I Jerry Maguire my way out of a law firm and then I wrote a departure memo. This is 1999. So 1999, I'm working at one of the bigger firms in Kentucky.

And I went to go teach at Cornell Law School. And this firm was going through a lot of internal conflict over things like billable hour amounts and all of this. And I thought, and all my fellow associates, you're leaving, you have nothing to lose. Why don't you articulate? Do it, do it. Do it, yes.

And it's like, you can be, you can nail the 95 theses on the door and then just pop smoke and leave. And I was like, yeah, so immature. And so I did it. I wrote the memo articulating sort of collective associate concerns and I sail off into the sunset to Ithaca, New York where I really, really, really loved teaching and it was really not the best place

for our family to be so isolated and so many miles away from all of our extended family. And so we came back and I needed a job, Sarah. And so I called that same firm and I was like, hey guys, you know, how are you feeling about me these days? And the literal quote from the managing partner of the main office was in Louisville and I was in the Lexington office and one of my former colleagues has been a guest on the pod, Judge Bush.

Aww. Yeah, Judge Bush. And so the managing partner said to the managing partner of the Lexington office, this is the quote, if you can stomach him, you can have him. A ringing endorsement. A ringing endorsement. So I went back, ate my humble pie, went back and yeah, that's the place I was talking about where I have so many wonderful, I had so many great relationships and it's why I wanted to come back. I'd eaten the humble pie and I'd realized, you know, every time I walked through the door of that place, I'm happy to see the people there. So yeah,

don't do what I did, guys. Yeah. The law, like again, I think many, many other types of careers, there's just going to be quite a bit of bouncing around potentially, especially if you aren't happy, right? There's people who stay at their law firm their whole lives, become partners, die at that law firm, but they tend to be happy where they're planted type people. I actually think this is more of a personality test

than anything. There's people who are restless. There's people who see the negative around them, see other people doing things and always think the grass is greener. It's usually not about the job. It's about your personality. So I would add a fifth piece of advice, which is try to know yourself a little. And if you're just a person who is restless and unhappy, you're not going to be

happy anywhere else. So you might as well make a lot of money and try to change that about yourself. It is changeable. It is possible to just force yourself to find positive things, focus on those positive things. When your brain moves to something less positive, have the willpower and that muscle to say, no, we're not going to think about that. We're going to think about this other positive thing and really start working out those muscles. And that's really what it is. It's just an exercise in willpower. Happy people aren't always happy.

Mad people aren't always mad. It's a choice you're making. Yeah, no, I thought David's column was great. I thought it was great. And if you just follow one piece of advice, it'd be avoid the golden handcuffs. Avoid the golden handcuffs. Avoid the golden handcuffs. Do not buy the fancy car and the amazing house

where you're under that mortgage with your student loans. Then you, there's no job where you're gonna go, as David said, from starting salary of 250 a year. And someone else is gonna offer you that without the time. They're paying for your time. They're not paying because you're smart. They're not paying because you're experienced. You're none of those things. They're paying for your time. They're paying for all your waking hours and some of your sleeping hours too.

They're paying for your shower time, your gym time, your girlfriend time. That's what they're paying you for. Else nobody would do it. So anyone, any other job that you're looking to take, not only are they not going to pay you as much, because they're not going to take all of that time, but you're also going to start back at the bottom most likely, which means you're going to have to take a huge pay cut sort of regardless, and maybe doubly so because not only is it not as lucrative a profession potentially, but you're also starting back at the bottom. And unless you're willing to cannonball into that

as I was over and over again, taking pay cuts along the way oftentimes, then don't complain about the job you don't like. Yeah, no, that's very, very well said. And with that, David, I think all of our next episodes for the next two weeks are gonna be opinion episodes. Yeah. So I hope you enjoyed the break.

When you were going to add that list, I thought, there's some of these opinions that we're gonna have to hit and then come back to. Hit it and quit it and come back to it. Yeah. Like David and his law firm. That's it. Yeah.

Exactly. Perfect. So with that, we'll talk to you next time when we get a big one.