Advisory Opinions - Nominal Damages

Episode Date: March 8, 2021

Katie Barlow, lawyer and media editor of SCOTUSBlog, sits in for David on today’s episode. Sarah and Katie kick off things by discussing the decision handed down in Uzuegbunam v. Preczewski, in which an 8-1 majority ruled that even seeking “nominal damages” can be enough to give a plaintiff standing. Plus, Katie explains how her time working for Nina Tottenberg at NPR helped her prepare for translating SCOTUS decisions into one-minute TikTok videos. And, of course, she weighs in on the “should you go to law school” debate. Make sure you stick around to the end to hear Sarah and Katie sing the praises of Oprah and react to the Prince Harry and Megan Markle interview on CBS. Show Notes: -Nominal damages decision -SCOTUSBlog article about the decision -Nina Totenberg’s Twitter -Katie Barlow’s Twitter (which has all of her TikToks) -CBS’ Harry and Megan interview Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. welcome to advisory opinions with david french and sarah isger i'm sarah isger and david french is celebrating his 25th wedding anniversary far far away away from all of us. And I decided as he was sending me pictures from his lovely balcony and having toast with his wife that perhaps we could give David the day off. But mostly I said that because I knew that my friend Katie was available to fill in today. Katie Barlow is joining us as my guest co-host. She is a lawyer and journalist. She is the media editor at SCOTUS blog. And today we're going to discuss a little nominal damages, which will take us to maybe a little Taylor Swift, a little, how did you get here, Katie? And what it's like to talk Supreme Court on TikTok, which is Katie's claim to fame right now.

She has taken the TikTok nerd world by storm. And then Katie, you and I both watched the Harry and Meghan interview last night. We're just going to have to, we're going to have to wrap with a little princess talk because listeners probably don't know that I was Meghan's neighbor while in college. We both went to Northwestern at the same time and she lived just a few doors down. I didn't know that I was Megan's neighbor while in college. We both went to Northwestern at the same time.

And she lived just a few doors down. I didn't know her. She didn't know me as far as I know. But nevertheless, proximity to princesshood will now be my claim to fame on this podcast. I did not know that. Yes. Huge, right? I mean, you have so much more respect for me than you did.

So did you see her on campus? And you just saw her around? I wouldn't know who that, like she was. Right. She wasn't Meghan Markle at that point. That's right. She was a princess. Right. I guess, I guess I didn't see the princess quality walking around, which is on me. Totally. So I'm sorry, America. It calls all of my other opinions into question, I'm sure. Nope. So we had opinion hand down today, Katie. And look, frankly, I wanted more opinions. I was hoping for more. But we got one, and it's a big one.

It is definitely worth a conversation. Someone mockingly said on Twitter with an eye roll, oh no, now we get another hour about nominal damages from Sarah. I do not appreciate your mocking. We will spend as long on nominal damages as I think is needed to fully explain why this case was such a big deal. So we have talked about it before on the podcast. This is the case of the Gwinnett college student in Georgia who tries to sort of do some proselytizing religious speech on campus. A campus police officer tells him to stop.

So he goes to the campus administration and is like, I want to do this. And they were like, oh yeah, well, that's against our rules. We have this free speech zone. It actually makes up only, what was it? 0.0015% of campus, which is like when you add in the percent part at the end,

you basically need to add two more zeros in my head. And it just like that's so incredibly small. So he's like, fine. So he reserves the spot on campus in the free speech zone, goes back at the appointed time and hour and goes about his business again. Another university police officer tells him to stop that they have gotten complaints from other students and that under their speech code, any complaint like that is enough to shut down someone in a free speech zone in that 0.00015% of campus at the time and place that he had gotten a permit to speak. At that point, he sues. And the problem for our Gwinnett student is that he didn't sue, like he didn't have any actual damages,

according to him, right? Like he just sued for his constitutional rights. And the school changes their policy and says, our bad, you're right. This was unconstitutional. He has since graduated. And the question for this case is not whether his constitutional rights were violated. Nobody's disputing that they were. The question is whether his lawsuit could continue with something called nominal damages. Katie, tell us what nominal damages are. Katie, tell us what nominal damages are. Well, in this case, nominal damages were, I believe, a dollar, but it's basically no monetary damages. He didn't claim any actual monetary damages. He wasn't harmed and didn't lose money, although there's an argument to be made that perhaps he lost money in the bus fare that he had to take to the free speech zone. But nominal damages is basically nothing. And so it's the question of whether those nominal damages are a symbol of the loss or if they can allow this lawsuit to go forward because there's something more than that. And the majority said that they were.

And not just a majority. This was 8-1 with the chief dissenting. It was a weird lineup. You normally don't see a sole dissent from the chief justice for any number of reasons. But today's the day, man. The cheese stands alone. So this is actually Chief Justice Roberts' first time as a solo dissenter in an argued case. There has been a time where he's been in the dissent and wrote, he's written a solo dissent, but this is the first time he's the solo dissenter in an argued case. So it's a big deal. And it's also a fellow conservative writing the majority, right? So it's Justice Thomas with seven other justices on his side against Roberts. And it's kind of an interesting back and forth between

the two of them. Yeah. So most of both opinions are actually talking to each other, which is a little bit, it's not rare. It happens, but this felt like more so than usual where the, like most of the majority opinion is answering the dissent and most of the dissent is answering the majority. And it's sort of like a private conversation between Thomas and Roberts that we're witnessing. And I felt a little fly on the wall, squeamish about the whole thing, except that it was so intricately, historically nerdy. I mean, there's a whole lot of 18th century stuff going on here. A lot of like, no, I know what Justice Story was thinking and you don't. No, I do and you don't. You're the one who's misinterpreting Justice Story. And it's like, oh, okay. I don't know. That's not

what I was hoping their private conversations were like. Right. It was kind of this battle of originalism and their perspectives. And in fact, Justice Thomas, it's like, how deep of a cut are they going to make? Justice Thomas was referencing and quoting from an individual named Lord Holt, I think in 1703 England, to justify his point that a violation of a constitutional right is a damage, period, that constitutes damage. And every time that it happens, a violation of a right is a damage. And then Justice Roberts opens his opinion quoting Hamilton. Yes, that Hamilton. So it's literally, like I'm trying to think of what the TikTok is going to be, but I'm thinking Lord Holt versus Hamilton might be it because it's a battle of the old men originalists. It was an interesting read, but the historical context, they certainly

go at length. Yeah. You as a lay reader, me as a lay reader, you're not going to read this and be like, well, no, they've just gotten Lord Holt totally wrong. Like I felt relatively, like, unless you already knew a whole lot about Lord Holt, which I knew nothing, um, this, this is maybe not going to be the opinion for you, frankly, but, uh, the battle of the originalist thing is really interesting to me because Justice Thomas is sort of the keeper of the originalist flag. Um, and Justice Roberts is not really necessarily seen as that so much, but that is definitely the ground they're battling on. But I feel like there is something overlaying this as well, which is actually that Justice Thomas, maybe even more so than holding

to originalism, really holds to this idea of being able to vindicate your constitutional rights in court. And especially we talk about distortion on this podcast quite a bit, whether it's the drug war distortion. I think that there's also some distortion when it comes to free exercise distortion. And Justice Thomas feels really strongly about this case in a way that one wonders if it were a different constitutional right, Maybe he'd feel less strongly about it. I don't know. Whereas the chief feels really strongly about the Supreme Court as an institution and that it not turn into an advisory court that gets dragged into every single cultural battle that the country is going through, which he fears clearly through his

opinion, that that's exactly what's going to happen. That now even cases that aren't real cases or controversies, they're mooted out through any number of things. The parties already said are bad. You're right. This doesn't need to continue. We'll now continue just so that one side can be able to say, I told you so I was right. And he doesn't want the court to be in that position. And so set aside Lord Holt and Justice Story and the battle over originalism, which is interesting, but not actually what they're arguing about. They're arguing about the role of the Supreme Court. Right. And so the reason why Justice Roberts leads with Hamilton is because Hamilton in the Federalist Papers wrote that the

court was supposed to be the least dangerous branch of government. And Chief Justice Roberts in the opinion says, based on the majority's, in his dissent, said, based on the majority's opinion today, the court sees no problem with turning judges into advice columnists, which anytime the Chief justice writes separately, it's always worth noting. But when he's in dissent like this, I think it's even sharper, and his pen was certainly sharp today. And you're exactly right. They're talking about the role that the court plays, and the chief views the majority's opinion as opening the door to allowing nominal damages in every single case that comes before every court

in the country. And they will all move forward now. They will all be cases and controversies because of this decision. And he just couldn't pull any votes to his side on none. Zero. But this, so here's what's sort of weird about this case. There's a little bit of a, will this make a real difference? I'm curious about your opinion on this because on the one hand, if you're a, frankly, a good constitutional litigator, you were already coming up with some damages claim. We talked about the bus fare, for instance. They could have claimed that he had $1.50 in bus fare as compensatory damages. And this, by the way, is where nominal damages becomes kind of a confusing term because nominal damages means

you have no damages. The dollar, like literally in this case, a dollar, I think makes it more confusing. When you hear nominal damages, think zero, but we're going to have to talk about why it's a dollar in a second. Compensatory damages can be the exact same amount. They can also be a dollar and keep the case alive. And no one has ever argued that that wouldn't keep the case alive, which is why a little bit you look at this case and you're like, look, the lawyer for this screwed up.

It always should have been a dollar in compensatory damages for the bus fare. Any case like this could have been kept alive through even the basic creative lawyering. So I wonder how many additional cases will actually be coming to the Supreme Court when, frankly, most of these were already doing what they should have been, which is arguing some sort of damages. were already doing what they should have been, which is arguing some sort of damages. There is also, though, a little out written into this. Justice Kavanaugh wrote a concurring opinion, which the chief in his dissent highlights with a big, like, underline, like, scratching the paper up. And Justice Kavanaugh's point was, I am concurring. I think that nominal damages are fine to get you here for standing. However, if the defendant pays you the dollar, the fake amount of money, then you're done. And now the case is mooted out. And so now you've also got a question of, okay, so are there going

to be cases where you've got a nominal damages claim, basically a zero damages claim, where the other side, in this case, the college fully admitted they violated its constitutional rights. They changed the rules of the school. Is there a world in which that school then wouldn't pay the dollar to end the case? In this case, they surely would have. And I wonder whether if there were a case where the defendant wouldn't pay the dollar, the case would otherwise be moved. They said there was a problem. They changed the rules, but they refused to pay the dollar. Those cases to me are going to be even worse cases, if that makes sense, because then it's going to be two parties,

perhaps with a setup, frankly. You do see a lot of the most major Supreme Court cases where both sides were kind of working together to get a case to the Supreme Court as a setup on an actual rights issue that they just wanted resolved. I kind of think that's where this is going. What do you think? So that may be true for parties that want to take a case like the one you just described all the way up to the Supreme Court. But your first point about how is this going to actually affect anything is an interesting question and actually came up during oral argument in January. This opinion came down quickly, by the way. This was just argued in January. And during oral argument, the newest justice,

Justice Amy Coney Barrett, actually asked the lawyer for DOJ whether there was a recent dispute over a New York City gun law, and the city got rid of the policy, and so the Supreme Court dismissed the case as moot. And Justice Amy Coney Barrett, during oral argument for this case, asked the DOJ lawyer, would that case have come out the other way had the challengers sought nominal damages? And the DOJ lawyer said yes. So I think there are already opportunities in the lower courts for this type of case to bubble up. I think it came up at oral argument, and I do think it'll have real consequences in terms of practice and procedure. But to your point, a good constitutional lawyer should have already or would have already been coming up with what the actual damages were in this case.

And Justice Thomas, to your point, you know, said it could have been the bus fare. What's really, what's the difference? But his point was backing up the idea that a violation of a right period is a damage. And that's where the disagreement is. People were throwing metaphorical bricks out of their windows in anger

that those New York guys didn't plead any... They not only didn't plead any compensatory damages, they didn't even try to plead nominal damages. So of course their case got thrown out. I mean, that was odd, let's just say, that that went down the way it did. Yeah, I agree. I will say the other thing that I'm interested in, it's a bit off path, but you pointed it out in the beginning that the free speech zone in this case is 0.0015% of campus. And not only is that a part of the record, but Justice Thomas didn't have to do that. And I just am always interested in following these cases of free speech zones on college campuses as they bubble up through the courts, because I think that that is still an open question, whether they are, in fact, constitutional. But that's for another day and another time. Did you ever use the free speech zone at your school if you had one? I mean, of course, that was the only place we were allowed to politically campaign for a student body president. So we were limited to those zones

for our political campaigning. Wow. At Northwestern, we had a rock. It's literally a rock on campus and you can paint the rock with whatever message you want, but you have to usually spend the night with the rock in order to guard it from people who would paint over your message overnight. Um, I wonder how that's going right now in our current climate, because I mean, look, sororities would spend the night to paint the rock, but so would people with, you know, much this, I was there during the middle of the, um, you know, right after, well, I was there for nine 11 and the aftermath of nine 11 and the Iraq war. And I mean, so the rock was getting painted with like go KD one day and you know, no blood for oil the next day. Wow. Yeah. So it sounds like college. Yeah,

it was definitely, it was very college. Um, So there's one nominal damages case that we have never talked about on this podcast, but that probably more people listening know than David French. And I am just going to announce that you are the current legal expert on the most famous nominal damages case in the last five years. Could you please tell us about that nominal damages case? So I am not at all the legal expert in the case. In fact, Justice Kagan probably knows more about it than me because she brought it up at oral argument as an explanation of nominal damages and the value that it symbolizes. But Taylor Swift was famously sexually harassed and assaulted.

A man who was taking pictures with her after, I think it was after a concert, it might've been after a signing or some event, allegedly or did put his hand under her skirt and touched her inappropriately. And she sued him. She's Taylor Swift. She doesn't need the money. She sued him because she felt that that was how she would vindicate her rights that were violated and to

stand up for herself in a situation that was inappropriate and where she was taken advantage of. So she sued him for $1, uh, and she won. And I couldn't help but think of, I mean, first of all, Justice Kagan brought that up because it is perhaps the most famous nominal damages case, um, that's ever, that's ever been, um, at least in modern times. But in Justice Thomas's majority opinion, as he goes on at length about the idea that a violation of a right is, by definition, a damage, he says that because nominal damages are, in fact, damages paid to the plaintiff, they, quote, affect the behavior of the defendant towards the plaintiff and thus independently provide redress. And I thought that was a nice way of capturing, you know, forcing even the nominal payment of a dollar changes the interaction between the two parties. And that's what Taylor Swift was looking for. And in Uzabi... Wait. Cheekay. We've just started. Uzabi-Ondem. It's Uzabi-Ondem. I listened to Chief Justice's pronunciation several times. Uzabi-Ondem. I listened to Chief Justice's pronunciation several times, Uzabi-Ondem.

Was looking for that here, too. And I thought that was a nice way for Justice Thomas to capture, in real practice, what nominal damages means. in its current, what David and I have called a 3-3-3 court with justices Thomas Alito Gorsuch in a three pod, justices Kavanaugh, Barrett, and the chief in their little middle pod, and then Breyer, Kagan, Sotomayor in their pod. The result of that ends up being that we're not hearing much from the liberal pod because, and we saw this in Bostock, right? It's a conversation of textualists between textualists for textualists. And then that three pod goes just like, that's cool. We'll not weigh in on this one. I would have liked to have heard from Kagan on this case in a concurring opinion, even if it were only a couple paragraphs of presumably her take wasn't originalist. So why did she think that this case should come out the way that it did if you're not an originalist? And I kind of missed that voice.

always enjoy reading Justice Kagan opinions. I believe she and Chief Justice Roberts are perhaps the best writers on the court. I would maybe even, in my very limited opinion, place her as perhaps the best writer on the court. But I also suspect that they are conserving, because they are in a three-person person unit because they were in a there's often more often because there are six conservatives, I think they are conserving their voice and when and how they use it to say something even if it is in agreement. Because when she does put pen to paper, it tends to be powerful. True. If you're a future Cake and Kirk clerk listening to this,

or a current one for that matter, just let her know. We'd like to hear more from her, and we'd like you guys to work harder, frankly. Just more hours, more time. We needed this two-paragraph concurring opinion with a Taylor Swift footnote. More Taylor Swift references. I wanted there to be a footnote and there was not.

There was not. It was so disappointing. What's behind the Dairy Farmers of Canada Blue Cow logo on your favorite dairy products? It's high Canadian standards, which means we meet 42 food safety requirements. We work with a team of animal care experts and work towards a sustainable future. That's what this logo certifies. We're behind the Blue Cow logo.

Dairy Farmers of Canada, that's dairy farming forward. Okay, now you are incredibly generous to come on this podcast today because there was an opinion out. I know that you have to now figure out a way to get this opinion, which is, you know, roughly 50 pages long with the majority and the dissent. You've got to get this into a one minute or less TikTok for the children, as Wu-Tang would say. How do you, how does one go about translating the Supreme Court into the newest social media fad of TikTok? You do a fabulous job for those who are on TikTok, Instagram, or Twitter. She puts the TikToks on those other mediums. If you don't have the TikTok app, that's fine. But if you're even remotely interested in the Supreme Court, I always find

them interesting. You find little nuggets that are great for Supreme Court lovers, real Supreme Court-ophiles. And then also you're targeting 16-year-olds who maybe don't quite know how their government works yet. And it works on so many different levels. It's like, I don't know, it's like Ludacris doing Llama Llama Red Pajama that I play for my son. It works on several levels. So explain how you're going to do this. Walk me through your process today. Yeah. Well, first of all, thank you because I feel like I am certainly one of the older users of that app, so I'm still learning. And we have found our little nerd corner of TikTok, which I deeply adore because a lot of folks interact with us. And it's a very small corner of TikTok, but it is, and people are active and I love it.

And it's been really fun to do things like narrow an opinion down to one minute. I got started covering the Supreme Court. It's been eight years ago now when I worked for Nina Totenberg at NPR, who is not a lawyer and is perhaps the best in the Supreme Court press corps of translating these ridiculous, overly complicated, unnecessarily unwieldy opinions, oral arguments, issues that come before the court to NPR listeners, to anyone and everyone who doesn't

know much about the court. And so I got training early on about not using 90% of the words that come up in opinions when you're explaining what's going on in a case. And I deeply value that because that's the point of the job is to open up access. And just, let's do a timeout real quick. So you went to law school. Give us the timeline, the Nina Totenberg Law School big law timeline of Katie. Sure. So Nina takes one law student every semester. And it's kind of a dream job if you like the Supreme Court, because first of all, you work with Nina, but also you wake up every morning and go to the Supreme Court and you get to sit and listen to oral arguments and then help her cover them. You help her write or do her interviews or whatever it is that she needs. After oral

arguments, you come down the front of the steps and as she does in memes now and GIFs, holds the microphone in front of whoever's face and you just make sure it's recording and make sure you're not screwing up. But so I did that when I was a 3L at Georgetown, graduated, then went to Big Law. But while in Big Law, kept up with the court and did some odds and ends in the journalism world. So that training came while I was also still getting trained to be a baby lawyer. But knowing that I was always going to try and be Nina to try and go into the journalism world eventually after practicing for at least a little while. Yeah. And you did, you practiced for quite a while as a real lawyer, not a baby lawyer. you were the real deal flying around the world doing law.

Yeah. I was very lucky that my law firm, we were based in London, so a lot of our work was international. And I got to travel all over the world for the majority of my career, which was amazing for a girl from Georgia who didn't get to do that as a kid growing up. And I loved the practice of law, but my firm was also supportive knowing that I would always leave them for journalism. I was pretty clear about that from the beginning. So they let me do things like host a podcast and do things with Nina

and just do odds and ends right about the DC circuit. That's my other favorite court that is near and dear to my heart. And so I was very lucky that in my practice, my firm was very supportive of my other endeavors, but I love being a lawyer. It was really fun. White collar investigations can certainly be as dramatic, if not more dramatic than eight to one Supreme court opinions. But I never had to combine the work into one minute of video for TikTok. That's a new skill I'm working on. I think this is what journalism is going to be. I really think this, and I think

you're the forefront of making it not hacky. Um, what you put out is good and it's quality, but I have no idea how you're going to do this case. So tell me. Yeah. So like we were talking about earlier, the battle of the originalists, I really might do Lord Holt versus Hamilton. We'll see. But I also always look for real life consequences and that we also discussed here. That's obviously where your brain goes to. So talking about maybe how this would affect something like the gun case or what this would mean for other cases in the future that are percolating or that might come up. Or I ask a question, like if you really zoom out, I mean, obviously this case is about standing

and nominal damages, but also at the heart of the case is what is the value of a violation of your constitutional right? And there's probably a minute's worth of discussion there. Ooh, I kind of like that one, actually. What is the value of a violation? So how long does it take you start to finish? You've got to write your own script to finish product that goes out on TikTok. How many hours is that? Oh, it varies. Sometimes I can do it in like 45 minutes. If I'm really good, I can get it done pretty quickly. TikTok is amazing because it gives you all of the editing features you need right in the app. And there are other Supreme Court journalists that are also using TikTok, including Bloomberg Law. They have a TikTok too that has been covering what the court's doing. And everyone's just kind of playing around with the editing features and

cramming everything into one minute. But no, TikTok makes it pretty easy. I watch you do it and you make it look easy and you look great doing it, but it looks pretty hard. Like you're switching the backgrounds up behind you so that they're in theme with what you're saying. There's text that has to go on top of it. I don't know how you're doing that. Some of it's my training. Some of it's my training.

I mean, I majored in broadcast journalism. I grew up learning in the broadcast sphere to put together packages. Like you see on the local news, right? You see two and a half minute packages. And that was my bread and butter for a while. So it's kind of using, dusting off those skills and putting them back to work, which is a lot of fun to get to do over the Supreme Court. For sure. So big picture question before we turn to Harry and Megan. We have sort of a running debate on this podcast and we like to ask guests who are attorneys whether, you know, when you talk to a college student and they're

like, I, you know, I want to be you when I grow up or I don't know what I want to do when I grow up or whatever, whatever those questions are that you're getting from college students, do you recommend they go to law school or do you not recommend they go to law school? Do you recommend they go to law school or do you not recommend they go to law school? I knew this question was coming because I listen. And actually, our editor-in-chief at SCOTUSblog, James Ramoser, and I vehemently disagree with each other on this one. So one day, if we have him on. Yeah, exactly.

Um, I wholly endorse going to law school if it is a financially feasible situation in whatever that looks like for you. It changed the way that I think. And for three years, I was surrounded by really smart people talking about nerdy, interesting things to me and with me. And I just deeply enjoyed it. And by really smart people, I mean, largely the professors, all the law students, we were still coming up and learning at the same time. But I mean, I would go back and do 1L again right now. I enjoyed it so much. But it was something that I always knew that I wanted to do. I was one of those nerd children who said, I want to go to law school. and then I want to go be a legal journalist and translate the law for folks because I think the law is unnecessarily complicated. But I deeply loved law school. I think part of it was where I went. I think Georgetown does a wonderful job of incorporating the city and the folks that work in the city and in the government into its curriculum, particularly through the night program. So I wholly endorse law school on this one. All right, listeners, you now can be assured that I invite people on this podcast who disagree with

me about some of my most fundamentally held beliefs. Okay. Last up, last night, Oprah aired, what was it, an hour and a half interview? Two hours. Two hours. Okay. Two-hour interview with Harry and Meghan. I watched it on the app, so I still got commercials, but it was hard to know exactly how long it was. Oh, brilliant. Yeah. CBS really made sure they got their paycheck last night. Like, really. So you watched it? I did. Let's start with Oprah better than ever. Bestest to ever be which one always, always the bestest to ever be. Um,

for folks that are literally saying, Oh my God, Oprah is a good interviewer right now in 2021 in the year of our Lord, that is wild to me. Like, of course she is, but I grew up watching the Oprah show every day at 4 PM. Um, and by the way, I think this is the most dramatic interview that she has ever done. And the Oprah show used to have some wild episodes. I just thought it actually highlighted her biggest strengths as an interviewer, making someone feel comfortable while talking about something they're deeply uncomfortable talking about. And almost like a, like driving stick on a car where you're like tapping the clutch and you've got to kind of feel your way through. She would lighten up the moment and then come back to her question. You know, just when you think she's not going to follow up and you're like,

oh man, come on. You know, she'd give a couple more questions and she'd go, now you didn't answer my other question. And go back three questions and follow up where they were clearly getting a little defensive and pulling back a little. Yeah, it was brilliant. Part counselor, part investigator, part detective, and part healer as well. It's amazing. I feel like you leave that interview not feeling like you were taken advantage of, even though there is

something inherently, I say this lovingly, parasitic about journalism, right? You need people to tell you things that they don't want to say in order to make it, in order for it to be newsworthy, in order for all of us to learn something. And Oprah never feels that way. It feels like they're getting something out of the interview as well. I just thought the big winner from that interview was Oprah Winfrey. And like, we need more Oprah. Yeah. It was a master class that I suspect journalism professors will actually show in class about listening and following up. She also did the entire interview with no notes. And to your point, she would ask a question like, what's Archie's favorite word right now? Followed by, but wait, do you really hate your brother though? You know, like it was masterful, uh, in her balance of empathy and pointed questions and follow-ups, but also in her, the best interviewers and the best journalists. Um, Jonathan Swan does this. We see this with

his Axios interviews, uh, listen well. Yes. So let's talk about what she was listening to. The first large chunk was just Meghan. For those who are not following the royal situation, which I was not particularly actually, you've probably stopped listening to this podcast already, but here's the quick version. She marries Harry in 2018, 2017, 2018. By 2019, they've announced that they're moving to Canada and kind of leaving senior royal status. And then in February of 2020, they announced that they've basically been kicked out of the royal family and they're moving to LA, in fact, and they're going to start this Netflix thing and they're making a total break from the royal family.

And then we hadn't really heard from them since, although she did do the voiceover for an elephant documentary that I watched that was quite good. So this is like the first time we're getting any of this explained not through the daily mail or tabloids here's my issue Meghan Markle is an actress she's incredibly compelling to watch she certainly had a narrative she wanted to get out there she seemed well rehearsed to me and I

don't mean that in a negative actually I would never give an interview like that about my life without running through it in my head just over and over and over again. It'd be malpractice if you didn't. Unfortunately, and I have said this on our other podcast, but let me repeat it here for advisory opinion listeners. When we talk about Hillary Clinton or Kamala Harris or Meghan Markle, and we say that, boy, if they were just more authentic, they'd be more likable. They're just not likable because they seem like they're always hiding something. That actually is authenticity to me. Because if you are so comfortable with a camera on you talking about your most personal life and why you're not likable, you're a sociopath. And so the people who seem really authentic aren't being authentic.

Authentic people are uncomfortable with a whole bunch of bright lights on them. And so I've always really chafed at that about Hillary Clinton, about Kamala Harris, about even Sarah Palin. Just general sense of someone, oh, we're not getting them. That's why I don't like them. They're just unlikable. That being said, I see very much why there has sort of been this cultural divide of an American who's not translating well into British Royal Society, perhaps. I think that actually came through in the interview. I'm not sure she did come across as like, quote unquote, likable. The problem for me though, is the reasons that she weren't likable were things I very much see in myself. So it was like not liking myself in an interview and being

like, ah, yes. Oh, interesting. That's why I think people may not like me sometimes. It's a certain strength mixed with wanting to get your point across and wanting to be understood so badly that I think undermines some of her point at times. What did you think of it? Oh, so I disagree. I think that she actually made her point consistently throughout. Although I do believe that, to your point, anyone who is judging anyone in this situation, whether it be Meghan and Harry or the royal family, it's usually a self-reflection in that judgment. Yes. But that's true in life. But I think that she, it's also interesting your point you raise about authenticity on camera and Hillary and Kamala and Megan,

because Hillary and Kamala as politicians, part of their job is to be authentic, but also to appear so on camera so that people believe that is them as a politician asking for their vote. Megan, as an actress, is trained to do the absolute opposite. Her training is to be a character on camera. And I would imagine, I'm not an actor or an actress, but it would be perhaps the most uncomfortable to be on camera and have no character to play and to have to be entirely authentically yourself. It's quite literally the opposite of an actor's training. But what I think was most outstanding about that interview was, and this part I think rang purely authentic to me, was talking about her struggles with mental health. And this is deep for a conversation about the Supreme Court on nominal damages. But talking about not wanting to be alive anymore and just saying those words out loud and how Harry handled it and Harry even saying that he was ashamed to tell the royal family,

I think that was an authentic moment, no doubt. And I think that it will very likely save lives. Well, that would be a wonderful outcome of this interview. So then Harry joins, and obviously there's just all these echoes of his mother and him trying to do the things that nobody did for Diana.

And I thought that was, frankly, heartbreaking to watch. And I'm sad that they have to explain themselves, feel that they have to explain themselves, feel that they have to explain themselves to all of us. When at the end of the day, everyone's clearly trying to do their best. Harry's trying to do the best for his family. Megan's trying to do the best for her family. The rest of the royal family, no doubt, is trying to do what they think is best for their family. I think trying not to judge people as villains or

heroes. She said that at one point, like that the tabloids want to make it, you know, this hero versus villain thing. I think that's true though. Also of her not, you know, Kate not being the villain and Charles or William not being the villain. Like they're not waking up every day, wondering how they can, you know, be a bad guy. Everyone thinks they're the good guy in their own story. And I thought, you know, for someone who lost his mother in such a public way and a violent way and a way where there were a lot of people to blame, frankly, for what happened to her, I don't think this should have come as a huge surprise to anyone. I think that's right. I think they said it shouldn't have come

as a huge surprise, right? That they had been having these conversations with the royal family for years. I will disagree with you. I'm not entirely convinced that the royal family is concerned with doing what's best for the family because it depends on how you define family.

And I think the royal family may have been defining the family in a way that was not inclusive of Meghan and Archie. I did think it was interesting when they're talking, for instance, the most bombshell moment where Oprah's jaw literally drops, as did the rest of our country, at least, where they were talking about

what Archie's skin color would be with concern. Right. She, when pressed, she wasn't there for that conversation. That was a conversation that Harry was having with his family multiple times, it was said, without Megan there. I was talking to Scott and was like, what? I find it sort of strange that you would be having a conversation with your parents about our kid without me there. Like, why is that really

happening multiple times? Um, that like you're, I'm the wife now I'm part of the family for better or worse. Uh, you have to have those conversations with me and in front of me now there's no like, well, she's actually just a wife. So she's not technically part of the family. No, no, no. So I take your point on that, actually. Like, why wasn't she being included in some of those conversations, except if she wasn't being considered part of the family? Right. And I think Oprah basically asked her, why do you think that is? Do you think it's because of your race? And she said, I think because you make that assumption, that's probably a fair assumption to make. when they have not had the opportunity to defend themselves. And certainly not ascribing it to everyone else in the family.

I don't, I have no particular reason to know anything about that. But the fact that she feels that way should tell them something. Right. And that they certainly stopped or defended or rebuffed other stories that were in the press about other members of the royal family, again, defining the royal family differently and not protecting her and not defending or counteracting the negative or straight up false stories about her, if you take her at her word about the disagreement with Kate. There were plenty of opportunities to do that, and the royal family did not. Yeah, that was pretty damning, actually. I wonder, so she certainly says, like, you know, she said, I think you can assume that

presumption is accurate about race. But there was also this undercurrent of, like, look, the royal family clearly feels insecure about their ability to survive into the 21st century and that they're concerned that they will be abolished or whatever one does to get rid of the royal family. I don't really know how that works under their quasi-constitution, since the constitution is with the monarchy itself. That's a whole other legal podcast. I have no idea. It's a good question. If there's this self-preservation aspect to it, then everything is about the self-preservation. And she or Harry, you know, and Harry are not in that line of succession.

They therefore are not part of preserving the monarchy. And I wonder how much of this is just a total paralyzing fear and whether, I mean, God, because otherwise she has this point. Her joining the royal family should have been the best thing to ever happen to the royal family. She modernizes it. She has all these good things she can bring to the table. They rebuff her entirely, which makes no sense. It's against their interest. And then now are they finally being put in a position where they need to, like this, the firm, they call it, which was terrifying as they talked about it. I'm not a royal follower. This was like all, I was like, holy. I would start a TV show called The Firm about The Firm like next week. I would pitch that to CBS. felt that I wonder how the royal family will actually respond to this and whether there'll

be sort of a counter interview from someone and maybe they can start seeing that there's some value. Like the Donald Trump model of full disclosure, good and bad, it's actually all good press, truly. That is certainly the new model of celebrity, whether it's a politician or an actor or anything else. The royal family has very much taken the opposite approach to their own detriment, it seems like, most of the time, that by giving so little, they end up generating bad press. I wonder whether they've lost one of their main opportunities, their biggest opportunity through Meghan to move things forward and actually preserve themselves. And they've cost themselves the very thing they thought they were holding onto so tightly. Oh, they lost a once in a generation opportunity to move the royal family into the 21st century without question. And they repeated the same mistakes that they did with Diana, who also, I mean, they talked about it with the Australia trip last night, who also was a bright light that people took to quickly and easily. And they were not interested

in her being a part of that. And your point about they weren't a part of the immediate royal succession, and so the family was perhaps less interested in them contributing to or preserving the monarchy. I'm not sure I buy either either because there are also other members who are not in direct line of succession, like Prince Andrew, who do get afforded the protection of the royal family, particularly in the media, but also maybe even legally. Do you watch The Crown? Yes. So The Crown just got, I'm sure, greenlit for several more seasons to get us I think so a tweet I saw last night was like did the crown think when they started creating episodes that they would end the royal family and the monarchy as we know it and there's going to be kind of this

weird meta because Oprah mentions the crown so now the crown is going to have to do the Oprah interview mentioning the crown and congrats to the producers and writers of the crown. You are the biggest winner, perhaps even more so than Oprah from last night's interview. By the way, that was another brilliant Oprah interview moment because she was alive and well in 1983 and aware of the Australia trip and lived through it. And the fact that she couched that question in, oh, I watched The Crown. Do you watch The Crown? It was just a way of her asking if they watched The Crown. For sure. And a coy answer. They were like, we've seen some of it, maybe. Some. Okay. Okay. Yeah. The Crown, what, it left off last season in roughly 1990 or so.

So we've got the whole 90s to get through. Exciting. Good time. Well, Katie, thank you so much again, folks. Katie is the media editor at SCOTUSblog. You've got to check out these TikToks. I really think they're actually where things are headed. And Katie is just doing the best job out there.

Highly recommend it. Katie, thank you for coming to talk nominal damages and the royal family today. Thank you so much for having me. This is fun. And happy anniversary, David and Nancy. We hope you are having cocktails on the balcony, enjoying a fine, fine Monday afternoon our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories

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