Advisory Opinions - Supreme Court Term Wrap Up with Kannon Shanmugam

Episode Date: July 12, 2022

David and Sarah are joined by Kannon Shanmugam, partner at Paul Weiss, for their now traditional end-of-term Supreme Court case roundup. Was this the most significant Supreme Court term of our lifetimes? Plus: it wouldn’t be a traditional episode with Kannon Shanmugam without another round of barbeque reviews.   Show Notes: -TMD: The End of ‘Pen and Phone’ -Washington Post: A firm’s split with its star gun-case lawyer shows what ails the left Learn more about your ad choices. Visit megaphone.fm/adchoices

Introducing the first ever Mazda CX-70, our largest two-row SUV, available as a mild hybrid inline six turbo or as a plug-in hybrid, crafted to move every part of you. That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, transforming into Jack Daniel's Tennessee Whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect.

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker. And Sarah, not only do we have a guest, we have a repeat guest, Cannon Shanmigan. Do you want to fully introduce your friend Cannon to talk about this Supreme Court term, his own cases before the Supreme Court, and a little bit of barbecue? Absolutely. Cannon was with us last term to do our Supreme Court roundup. And frankly, it was just so good. Had to do it again. Cannon is a partner at Paul Weiss. He argued three cases this term. We'll tick through some of those, but also the term as a whole. And, you know, he's a little bit of a

slouch. Harvard undergrad, Harvard Law School, clerked for Mike Ludig on the Fourth Circuit, who you might have heard of recently with his January 6th testimony and some op-eds and some other stuff going on in the Ludigator world. And then Justice Antonin Scalia. So lots to talk about with Cannon. I say we skip the serious intro and just get right into it. Cannon, tell us about your cases and any surprises when you got the opinions. Great. Well, first of all, David and Sarah, it's great to be back and thank you for inviting me back. I assume that that was just because of our discussion about barbecue, not our discussion about the Supreme Court. But it's great to be back and thank you for inviting me back. I assume that that was just because of our discussion about barbecue, not our discussion about the Supreme Court. But it's great to be with you to talk about this incredibly consequential Supreme Court term. You know, I'm not sure that any

of the cases that I argued would make even the top 10 list this term, such were the significant cases that the court decided. But as you said, I argued three cases before the Supreme Court this year. Interestingly, all of them ended up being either six to three or five to four decisions, though often with somewhat unusual lineups. But I argued three cases. The first was the City of Austin case, also known as the Billboard case, which unfortunately we lost, but was a fascinating First Amendment case. The other two cases were Cummings v. Premier Rehab, which was a case concerning the remedies under spending clause statutes.

And the third was one of the last cases that the court decided, Oklahoma v. Castro-Huerta, a significant case on the scope of state jurisdiction in Indian country. We talked about the McGirt Part 2 case. I think maybe we weren't as sympathetic to your side as you might have been. You know, in part because even in the opinion, they're going out of their way to discuss how McGirt had negative consequences on Oklahoma. But I come back to the same thing I've said before, which is, yep, and Congress could fix it at any time. And the fact that you're citing the negative consequences to me as a reason to come out somewhat differently this time means that you're not really doing law if you're having

to justify it through the consequences. That's more on that Y-axis that I've talked about for institutionalism, if you will. Why not leave the mess with Congress like McGirt tried to do? So, Sarah, your question sounds a lot like one of the questions that Justice Gorsuch asked me during the oral argument, albeit perhaps with a little more passion. So let me first set the table for the audience in terms of the issue that was presented in the Castro-Huerta case. So you refer to the McGirt case. That was the decision from the Supreme Court two years ago that held that the eastern half of Oklahoma is going forward now Indian country because Congress never disestablished the reservations that previously existed in that part of the state. That was a profoundly consequential

decision for the state of Oklahoma, and in the wake of that decision, we were retained by the state to represent it in connection with all of the follow-on litigation. And the Castro-Huerta case presents one of the significant issues that assumed great practical significance in the wake of McGirt, and that is the question of whether or not states, not just Oklahoma but other states, have the jurisdiction to prosecute non-Indians who commit crimes against Indian victims in Indian country. And this was an issue that the Supreme Court had not previously resolved. There was some dicta in earlier Supreme Court opinions suggesting that the states lacked jurisdiction. But again, now that the eastern half of Oklahoma, with its almost two million residents, constitutes Indian country, this was suddenly a very big deal

because by the state's estimate, around 20% of the cases as to which it lost jurisdiction, arguably in the wake of McGirt, were cases involving this fact matter. Yeah, this was a case, as we talked about it, where there are terrible facts in this case. Castro-Juerta's crime was awful. He accepted a plea agreement for a seven-year sentence, looking at the opinion, and putting aside parole possibilities, Castro-Juerta had in effect received, and I'm quoting from the opinion, a 28-year reduction of his sentence as a result of McGirt. You know, Sarah and I had a negative reaction to the reasoning in this case, and we kind of had a bad facts make bad law argument about it. But it seems like your

position might be something completely different, which is these facts illustrate that with their, these facts illustrated the need for better law. And these facts illustrated that there was, there was bad law that, um, these facts illustrated the bad law created by McGirt. Uh, but this was just, the facts here were just terrible involving child neglect, abuse, awfulness. How much do you think the background of the facts played a role in the outcome of this case? Yeah, I don't know the answer to that, David. But I think what I will say is that the issue before the Supreme Court was whether the federal government has exclusive jurisdiction over this category of crimes,

or whether a state such as the state of Oklahoma has concurrent jurisdiction. So first of all, there was no question about tribal jurisdiction, because under a Supreme Court decision called Oliphant, the tribes ordinarily lack jurisdiction unless Congress confers it on them for crimes committed by non-Indians. So our argument to the Supreme Court was that Congress had never ousted the states of jurisdiction over this category of crimes. And because Indian territory is part of the state, at least for certain purposes, that the state retained jurisdiction over these sorts of crimes. And the question before the Supreme Court, in our view, was essentially a question of preemption. That is to say, a question as to whether or not some federal statute ousted the states of jurisdiction. And our submission was no, there was no such federal statute. Council for Mr. Castro Huerta cited two federal statutes to the contrary. But all of this did take place against the backdrop of the facts of what was going on in Oklahoma.

that because McGirt came as something of a surprise to everyone, including, quite frankly, I think some of the tribes, the federal government was simply not equipped to take over as, in some respects, the primary enforcer of the criminal laws in the eastern half of Oklahoma, at least as to certain categories of crimes. And so our submission to the Supreme Court was, look, as a practical matter, ruling in our favor will only be beneficial because law enforcement purposes. And we pointed to the fact that there were whole categories of serious crimes that were essentially going unprosecuted in the wake of McGurk. Okay, I hear you on all of that. All of the practical arguments make sense. I guess my question is, did we just witness the end of two things? One thing is especially the Gorsuch idea of this is Congress's job to fix. Make it a big enough mess until they step up to fix it. Even if that means that in the short term, there's some pain for whatever entity involved.

And that after two years, Gorsuch's idea didn't come to fruition. Congress never stepped up, even though this was sort of an easy, not very political thing that they could have done to fix it. And so the rest of the court was like, shrug, dude, we tried it your way. Congress not coming back. I've compared this to reintroducing wolves to Yellowstone. It takes 20 years for the beavers to come back after you introduce wolves to Yellowstone. There's a whole lot of things that have to happen in order for that beaver population to rebound. It's not like wolves one day, beavers two years later. And in this case, you need elections. You need different people running for Congress,

different people ending up in leadership. And I'm curious if, set aside the specifics of this case, if you think that maybe they're abandoning these, send stuff back to Congress and let them figure it out too soon, compare vis-a-vis to the EPA case, for instance. But number two, and I have to think that there are some listeners thinking this right now, the idea of tribal lands, is this over now? Like, was this ever a particularly legally workable thing that the United States was trying to do? You took someone's land and then you've had this legal fiction, basically, that it's somehow still their land, but only for certain purposes and now not these purposes. And we're not really able to prosecute the federal crimes because we don't have the resources. So shrug

tribal law, not tribal law, mind you, but this tribal land idea is unworkable in a 21st century governmental model. So two things about that, Sarah. The first is that I don't think anyone disputes that Congress could have stepped in in the wake of McGirt to mitigate the consequences of that decision. Congress has been unwilling or unable to do so. But Congress can also step in on the specific question presented by Castro Huerta, and Congress can always displace state authority. Congress can always choose to give more criminal authority to the tribes if it wants to do so. I think that the intersection of McGirt and Castro Huerta is significant because I do think that the question presented in Castro Huerta is only really practically significant

in the state of Oklahoma, because on more traditional reservations elsewhere in the country, there's no reason to believe that there is a law enforcement problem as a result of the federal government having exclusive jurisdiction. It's just that you now have this massive piece of Indian country, by far the largest in the country, as a result of the Supreme Court's decision. Now, I do think that there is a broader issue that comes up in any case involving statutory interpretation, and in some sense, this case was in that category. And that is that in the old days, the Supreme Court would often say that Congress could step in and fix it if Congress disagreed with the court's interpretation. We all know that because of gridlock in Congress, that's a lot less feasible nowadays than it used to be. And I think it's an

interesting question. What impact does that have on the Supreme Court when it's deciding issues of statutory interpretation and issues like this one? And it knows that the likelihood of Congress stepping in is comparatively lower. So my question is for Sarah. What is the wolf-beaver connection? Ah, ah, yes. This is really important. Because I would think more wolves is less beavers. Indeed, but you'd be wrong.

Oh, okay. When Yellowstone reintroduced wolves, the idea was that the moose and elk population was struggling, overpopulating, then starving. And so you ended up with this boom-bust cycle that was really quite miserable for the elks and moose. So they reintroduced wolves. But what they found pretty quickly, I mean, 20 years is really quick in an ecosystem, is that, yes, the wolves then made a healthier elk yes, the wolves then made a healthier elk antelope population. That then made for a much healthier vegetative population. The grasses then were being kept at like a sane level and were able to grow more. And so trees were able to grow more. And then once you had more trees, the beavers were able to come back and dam up some of that water now that the vegetation was actually there preventing erosion. And so 20 years later, you actually have a huge boom in beavers coming back

to Yellowstone, all very traceable to the reintroduction of wolves. The idea being, if you want a healthy ecosystem, you have to reintroduce predators. And the predator in this case is absolutely Congress. But you have to give that time. If you introduced wolves and expected beavers back two years later, you'd be fooling yourself. And I just think that, for instance, can in your example of, well, Congress could fix this too if they didn't like it. Yeah, yeah. But that's not how it's going to work because now there's no chaos. The problem is trying to force Congress's hand through something that is legally required, but not politically feasible. That's what McGirt was. In your win, it's the exact opposite.

It is incredibly politically feasible. No one will notice anything about this anymore. It goes back to status quo. Congress isn't going to do anything about this, even if they wanted to for some reason, and I don't know why they would, because now calm has been returned. There's not much grass. The boom and bust cycle of the elk and moose are back, and there's no wolves, and everyone's fine. The consequences of McGirt, though, are still substantial. And certainly, I think it's the state's position that Congress should step in and address all those other consequences which sweep well beyond the substance of the Castro-Huerta case. I would just add one other thing, Sarah.

You had referred to this notion of territorial separation and the status of tribal lands. You know, there's been a lot of discussion about that in the wake of the Castro-Huerta decision. And I think one thing that's important to underscore is that Chief Justice Marshall's opinion in a case called Worcester versus Georgia was obviously a very significant decision. But to the extent that that decision suggested that tribal lands are entirely separate, that states have no jurisdiction over tribal lands, the Supreme Court very quickly walked back from that absolutist view. You know, by about the 1880s, the Supreme Court took the position that states do have some authority. In a case called McBratney, the Supreme Court said that when a non-Indian commits a crime against a non-Indian victim, that the states have jurisdiction to prosecute those crimes as an extension of the

principle that states have the police power throughout their territories. And when states are admitted to the union, more typically reservation lands are viewed as part of the surrounding state. They're not carved out from the state. And so I don't think there was anything exceptional about the Supreme Court saying that that principle, the principle from McBratney, essentially extends to cases regardless of the status of the victim. I think that there are areas in which state law has to yield to federal law or to tribal law, and there's an enormous body of case law on that question. But I think here, the argument was a pretty straightforward one. We argued simply that it doesn't matter whether the victim of the crime

is an Indian or a non-Indian. The ordinary principle that the states have criminal jurisdiction over non-Indians supplies, and it extends to cases that arise in Indian territory. David, do you think we'll have tribal lands in 50 years? Yeah, I mean, we'll have tribal lands in 50 years and some of the more, certainly the reservations outside of Oklahoma are more stable. Many of them now have giant industry attached to them in the casinos, where there's an enormous financial interest that is in maintaining that particular status quo. So I think what we saw in Oklahoma was Oklahoma is different. It's Oklahoma exceptionalism in the way that you have American exceptionalism. America is just different amongst nations. Oklahoma is different in its history.

And it's legal history. It's the history of the relationship between Indian tribes and the government. It is a different place. So I do think that what Cannon is saying there is, I agree with what Cannon is saying there regarding Oklahoma just as a special place in a lot of ways. I think the other reservations, the situation is and has been much more stable. But I say all of that, let me just go ahead and issue the malpractice warning that anytime we're talking about Indian law, because this is complicated stuff. It's a highly specialized practice area. And that brings me to a question for you, Cannon. is they're in three widely different areas of law. As a Supreme Court litigator, you're called on to argue for the settlement of highly complex issues in really different practice areas. Whereas a lot of people spend a lot of time, I'm a patent lawyer, I'm an environmental lawyer. You've got to be kind of a jack of all trades and master of

all of them at the Supreme Court. Talk a little bit about, you know, we got a lot of younger lawyer listeners. Talk a little bit about that kind of challenge of getting a case lands on your desk and within months you have to be absolutely conversant in all of the nuances of the legal history of that case and that issue. That's got to be quite a challenge. That's one of the biggest challenges of the job, David. And the Castro-Huerta case is an example, but frankly, you could cite any of the cases that I've argued this year, and they all present that challenge. You know, there are people who have spent their entire careers litigating issues concerning Indian law, for instance.

This was the first time I had argued a case involving Indian law at any level of the court system. And as you say, it's an incredibly complex, nuanced area of the law. And so it was a lot of work working on the briefing and preparing for the oral argument. I'm not going to lie. I had giant stacks of Supreme Court opinions here in my office, and there were a lot of nights and weekends spent just working my way through all that case law, trying to learn it. And I think one of the advantages of having an appellate lawyer or a Supreme Court specialist come into a case is, in some sense, I think that the approach of a generalist Supreme Court lawyer is not unlike that of a generalist Supreme Court justice. You know, the goal is to figure out how to take these

really complex bodies of law to be able to explain them in terms that someone who's not a specialist will be able to understand, and also to make the connections between that body of law and the broader body of law with which the Supreme Court is more familiar. And the Castro-Huerta case is kind of a perfect example of that, because ultimately, the way we were presenting the issue to the Supreme Court, and I think that the way that the Supreme Court ultimately thought about it, was to think about the question in the case as a species of preemption of the relationship between state law and federal law. And so in some sense, being able to draw on that broader body of case law, I think, was perhaps

something of an advantage. But, you know, it is a weird specialty in a lot of ways because it's a specialty in a type of advocacy. It's not a subject matter specialty. And the good news is that usually when I roll into the Supreme Court, I do it together with a team of lawyers who have the subject matter expertise. do it together with a team of lawyers who have the subject matter expertise. And so in the Castro Hereta case, we worked very closely with the lawyers for the state of Oklahoma who, especially in the wake of McGirt, have certainly developed an enormous amount of subject matter knowledge

in the wake of that decision. At Real Canadian Superstore, our colleagues collectively speak over 100 different languages and counting. We pride ourselves on items from different parts of the world. From hard-to-find specialties to tastes that'll remind you of childhood. So welcome everyone. Come shop the world right here in our aisles with more ways to save at the super welcome store, real Canadian superstore. All right. So you won a case that I kind of wanted you to lose, but then you lost the case that I really wanted you to win. So

Canon, you're, you're zero for two right now with me. This term, this is the Reagan advertising case, Reagan National Advertising of Austin. It was a First Amendment case that I had trouble getting David excited about at first, but I think he's coming around. And this was how we define what is a content neutral regulation when it comes to the first amendment? Do you have to look at the sign and, uh, itself, or is it, uh, you know, when you see it, how does it make you feel? And I was with you, Canon. Um, but justice Sotomayor, uh, and five other justices were not, well, we, were you surprised by the outcome and walk us through a little bit how that came out. Well, it was another really interesting case.

And Sarah, I appreciate your support, but we didn't get you onto the Supreme Court in time. It wouldn't have made a difference even if we did. It's also true. We ended up losing the case six to three. But, you know, a really interesting case. Your regular listeners will know about this case because I know that you at least were pretty interested in it, even if David was not.

I am passionate about billboards in Texas. Well, it's a fascinating case and not that hard to understand. It basically involves a law in the city of Austin, an ordinance that governs digital billboards, which are the signs that everyone is, I think, probably familiar with. These are not the sort of flashing Times Square type signs. These are the signs that kind of rotate through various messages. And the city of Austin, under its ordinance, basically permitted the digitization, which is the conversion to digital signs of so-called on-premises signs, but not off-premises signs. Now, what's an on-premises sign? Well, that is defined as a sign that advertises the business that is located at the site. And so, for instance, in Austin,

if you have a shopping mall and you have a billboard attached to that shopping mall that advertises the stores in the mall, that can be a digital billboard. And in fact, in Austin, there are no limitations on the brightness, on the display, or anything like that. So that display actually could have flashing lights and be a very visually obtrusive sign. But by contrast, if you have an off-premises sign, like a more traditional billboard that advertises things that take place at other locations, that sign could not be digitized. The question was whether that violated the First Amendment, and our argument was that under a Supreme Court decision called

Reed v. Town of Gilbert, whenever you have an ordinance that discriminates between signs based on the message that's contained on the sign, you have a First Amendment problem and you have to apply strict scrutiny. And that was pretty clearly the consequence, I think, of the Supreme Court's decision in Reed. The problem for us was that there was a separate concurring opinion in Reed joined by three justices that basically suggested, well, on-premises, off-premises distinctions might be different for constitutional purposes. And that opinion was joined by Justice Sotomayor, and ultimately Justice Sotomayor wrote the opinion for the Supreme Court in this case, basically saying, well, we're going to treat on-premises, off-premises distinctions

differently. We're going to treat them as facially content neutral because the sign ordinances here don't single out any topic or subject matter for differential treatment. Cannon, really important follow-up here. This case was decided April 21, so a couple months ago now. It was argued November 10th. So the last time you interacted with Reed versus Gilbert really was in the run-up to that November argument. You definitely read the opinion when it came out in April. How much do you forget everything? Is it like a cramming for the bar exam situation, or will you remember this case now for the next few years? Because I mean, David, I don't know what you're like as a lawyer or a writer,

but honestly, there's stuff that I wrote last month that I couldn't tell you even the basic thesis of at this point. I think one of the vital skills of an appellate lawyer is being able to forget everything as quickly as you learn it. And I definitely feel as if as soon as I argue a case, I'm engaging in a brain dump because it's on to the next case. And that's true, not least because you talked about our Supreme Court cases. But obviously, I argue cases in appellate courts around the country. Frankly, that's the vast majority of what any, quote, Supreme Court litigator does. And so it's really important to forget things. memory about what we were arguing. Of course, I remember in broad terms what the case is about, but it's a really important skill to have because I think we all have only so much brain capacity.

Oh, I'm totally, totally the same way. I would have a case with a trial, and trial, you just, you dive so much into the factual minutiae of a case, it's absurd. And then you almost have to do a brain dump just to be a normal human being again after the trial is over to have normal conversations. And I've gone back and I've read pieces that I wrote about cases that I had and thought, wow, that case was wild. I totally forgot about all of that. That is nuts. So I'm totally with you on that. Well, let's move on to the term more broadly. So we had some of the most significant cases, the most significant term, I think all three of us would agree, the most significant term of our lifetimes. I mean, maybe since I'm oldest, you know, 73 was when Roe came out. I was four. So I can say most significant term of my awareness, confidently. Are there any

of the big cases? And we'll sort of say the three or the four big ones, EPA, Bruin, Dobbs, and Coach Kennedy. Those are sort of the four that stand out to me with most legal significance. Any of those four surprise you in any way, the way they came out? I don't know that the outcomes of any of those cases were necessarily surprising. I do think that it's all about the way that the court decided those cases. And plenty of ink has been spilled about Dobbs and the court's decision to overturn Roe and Casey. As I think both of you noted in earlier podcasts on this subject, I think one of the unusual qualities of the Dobbs case was that it didn't really lend itself to an incremental decision. There was not an easy way for the court to decide

that case halfway, for lack of a better way of putting it. And I think that that is what the Chief Justice tried to do in his concurring opinion, but you really had both sides arguing, look, this is kind of an all or nothing proposition. And again, much ink has been spilled about that. I think that the two cases that are the most interesting of that group are Bruin and West Virginia, really for the methodology. I mean, I think what was really interesting about Bruin was the court essentially saying, we're not going to play the game of the traditional levels of constitutional scrutiny. We're instead going to look to history. And I think many people going into that case probably thought, well, if the court is so minded, it might just say the Second Amendment right is like any other right.

We're going to say that it's subject to strict scrutiny. And instead, the court, you know, not only said we're going to take this historical approach, but it really suggested that that might be the right way to look at other constitutional rights like the First Amendment. And if the court is really moving toward that approach, that's a hugely significant methodological shift that I think is going to have broad consequences. The West Virginia case is obviously significant for its express adoption of the major questions doctrine. I think that that concept, the notion that when an agency is tackling something of enormous

consequence, you have to have a clear indication that Congress wanted the agency to have that power. It has been lurking in Supreme Court cases for some time. The FDA versus Brown and Williamson case was decided the year that I was a law clerk at the court. And while the court didn't articulate the doctrine in those terms, it was clearly thinking about it. And the official recognition of a major questions doctrine hits at a time when you have various federal agencies thinking about using their regulatory power in really creative ways. I mean, I think about the FTC and the FTC's head, Lena Kahn, suggesting that she might dust off the FTC Act and use that as a way of

regulating in the antitrust area. You have the SEC with things like the proposed climate disclosures, the regulation of the crypto industry, potentially tackling these very significant subjects. And I think the intersection between West Virginia and those attempts at regulation is going to be really fascinating to watch. So I think those were developments that perhaps one couldn't have necessarily predicted at the start of the term that I think are going to have consequences beyond the specific holdings in those cases. Okay, let's take us outside of the big four. What was the most significant case for the development of the law? And I feel like with 27 arbitration cases this term, that has to be at least one area where we feel like the court made a lot of headway in developing arbitration law that will be really important for corporate America, for instance. It's really interesting, Sarah, because I feel as if we're in a time when the court is not deciding a lot of issues of significance to the business community, who after all are

disproportionately my clients as a lawyer at a big law firm. And we've had a lot of change in the court's membership. and these are not necessarily issues that break down on quote-unquote conservative versus liberal lines and so I think one thing that my clients are watching very closely is where does this court go on issues like preemption and punitive damages and in substantive areas of the law like securities law and antitrust law. I think the one exception this year as as you say, was arbitration. The court had four arbitration cases out of the 60 cases that it decided. Felt like 27.

That's a pretty healthy, well, it's a pretty healthy chunk of the court stock regardless of the exact number. And I think that reflects the fact that, number one, a lot of companies and others are opting out of the traditional judicial system and they're opting for arbitration, not just for disputes with consumers, but often in cases involving disputes between corporations. And, you know, this is an area of the law in which the Supreme Court, I think, had historically been viewed as quite pro-arbitration. But it feels as if there may be a little bit of a rebalancing going on. I'd say that of those four cases,

two of them came out, I think, in a pro-arbitration way, and two of them came out the other way. And I think that the court may be receding a little bit from the heavy presumption in favor of arbitration that we saw before some of the recent changes in the court's membership. So it continues to be an active area of the law simply because so many disputes nowadays are being resolved in private arbitration rather than in the traditional judicial system. And that's a really significant trend that I think has gone largely unremarked upon. Except on this podcast. That's true. That's true. We're on top of it. So I want to go back to Bruin for a minute because the longer I've been sitting with the Bruin decision, the less well it sits with me. And I'll explain why.

And it's the text history and tradition element here. Because, okay, on the one hand, that sounds kind of super originalist. On the other hand, the closer you look at it, the more, is this a precise legal term, the more loosey-goosey it gets. Because the history's all over the place. I mean, you know, the Thomas opinion was swept through almost 900 years of various competing different kinds of historical traditions where then you had to say, okay, well, then which history becomes most relevant? It's within these particular windows. But then you had to then look at mainstream because there were outliers even with these windows. You had to then look at mainstream because there were outliers even with these windows.

And I'm sitting there and I'm thinking that's all well and good for some sort of argument about can you bear arms because the text, at least the text there is clear, right to bear. Okay. Well, what does this have to do if I'm sitting there and I'm a practitioner and somebody calls you right now and says, I want you to attack or defend an assault weapons ban or a large capacity magazine ban under a text history tradition test. And it gets a little bit dicey as to how you're going to figure out what to do with AR-15s with 30-round magazines under text history and tradition. Am I wrong in that I'm not quite sure where that guidance leads us? Well, I think what the court would say is that you reason by analogy. And obviously, with a lot of types of regulation, it's not going to have a one-to-one match with something that existed at the time of

the framing, at the time of the 14th Amendment. And I think that's where the devil is really in the details, because depending on your level of generality, there may be disputes about what the correct analogy is. And of course, you're often going to have disputes about how clear the historical practice actually is or was. And this was an issue that came up in the third case that I argued, the Cummings case, which was a case involving the remedies that are available under spending clause statutes. And the Supreme Court's sort of mode of analysis for those sorts of questions is essentially to say what remedies were historically available under contract law, because the spending clause statute is kind of like a contract with the party that receives federal funds. And so both sides were disputing whether the particular type of damages at issue, emotional distress damages, were available at common law. We said the general rule was that they're not available.

The other side said, well, there are these exceptions, for instance, when an innkeeper refuses to permit you to stay at the inn. And you had precisely the same level of generality problem. And I think that the Supreme Court has the capacity to work these things out, and often they won't agree, as was true in the Bruin case. I think that's a lot harder thing to be asking district courts to do, or even to be asking courts of appeals to do, in part because they may not have the resources to be able to do the historical research that's necessary. They're dependent on the parties, and often the parties at the district court level may not have quite as sophisticated counsel as you do once the Supreme Court grants review. And so it'll just be

interesting to see how this plays out at the trial court level. And that'll particularly be true if the Supreme Court extends this methodology beyond the Second Amendment context to areas like the First Amendment, where there's just a lot more litigation. Right. All right. Let's look ahead at next term. We are but a few weeks away from the beginning of OT22.

It'll start at the very beginning of October. We already have so many big, divisive, politically salient cases on the docket. What are you looking forward to? What are you dreading? Or both. I think the cases that people are going to be watching most closely are the affirmative action cases from Harvard and North Carolina. Those cases have been closely watched ever since they were first filed, and now they're finally at the Supreme Court. The court will hear argument in those cases in the fall. There is the case involving the website designer from, I think it's Colorado, involving the question of whether or not under a public accommodations law, a website designer can be required to provide

its services for same-sex weddings. And then there's a case that the court granted review on at the end of the term, the Moore case involving the so-called independent state legislature theory on the question of the extent to which state supreme courts have the power to review and potentially invalidate state laws governing federal elections. And so I think each of those cases is quite high profile and significant. And I think that the one thing that is clear is that the court is not at all afraid to tackle every conceivable big issue. And I think in some sense that's been true for a long time. I think what's new here is the change in the court's membership and the willingness of the

court now to revisit its precedents in many of these areas. Some of these issues are issues on which there's comparatively little precedent. The affirmative action cases are somewhat unusual in that they involve a Supreme Court precedent that had something of an expiration date on it. But I think this is a court that does not lack confidence to tackle the big issues. And after next term, it's kind of hard to tackle the big issues. And after next term, it's kind of hard to see what big issues are left. I think at that point, the court will have weighed in on really sort of all of the hottest button of the hot button areas of the law. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day

and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put

up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting aurafFrames.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Moving on from court precedent to legal intrigue, we had a situation where Paul Clement left Kirkland and Ellis, and that raises some interesting questions about conservatives and big law in general. And, you know, how did you process what happened there at Kirkland? And what are some of your thoughts on the climate for conservatives in the big law arena right now? Well, I heard the news like everybody else when it was reported, I think, on the day of the Supreme Court decision that Paul and his colleague Aaron Murphy were leaving Kirkland and Ellis because

Kirkland had made the decision that it would no longer represent clients challenging gun laws, seemingly including some of the clients that Paul and Aaron were currently representing. And I don't know anything more about what's going on there than has been publicly reported and always seems in these situations as if they're perhaps more complex than first meets the eye. But at least based on what's publicly reported, I have some degree of concern whenever law firms make decisions to drop clients, particularly in situations where there isn't an actual affirmative conflict.

I think the reality is that nowadays at big law firms, firms are making decisions for business and prudential reasons more and more often. And again, I don't think we have the complete picture as to whether, for instance, some of Kirkland's other clients may have put pressure on the firm not to continue with these representations, particularly in the wake of some of the recent mass shootings. I don't want to speculate about what might have been going on there. You know, I do think that we are living in a time when law firms are subject to perhaps more public criticism about their representations, particularly from certain quarters of the internet. And, you know, we have not been a stranger to that. Paul Weiss has been criticized for,

among other things, its representation of ExxonMobil in connection with certain climate change litigation. I think that that is just kind of an offshoot of the current political environment. But look, like Paul, I come very much from the proposition that representing unpopular clients is what lawyers do, that when lawyers represent clients, it doesn't necessarily reflect that the lawyers are taking on the client's political or other views or even expressing sympathy for their clients' positions. Our job, in some sense, is to represent people who are accused of wrongdoing, whether that's big corporations or individual clients, and that we ought to, in our legal system, have a very robust view of the fact that that's what lawyers do, and that by taking on a representation, a lawyer or a law firm is not necessarily expressing support. I just fear that

we live in this era where there are many people who view law as just politics by another means and who don't recognize that division. Now, I think you raise another issue, which is, you know, the environment in big law firms. And look, I'm a conservative lawyer. It will come as no surprise to anyone who knows my background and has read my resume. And I'm in a law firm where that's probably the minority view. I'm quite confident that that's not a majority of the lawyers or the partners at Paul Weiss. And I suspect, quite frankly, that nowadays there's probably no big law firm where there are more conservatives than there are liberals or progressives. You know, I read Megan McArdle's piece a few days ago in The Washington Post. And for your listeners who haven't read it, I would really recommend it because she makes the point that it would really be unfortunate if big law firms became places where conservatives didn't feel comfortable. And I would

say really to the credit of my law firm, I've always felt comfortable here, even if I'm outnumbered. And I think that that's really a credit to the firm, which has not, you know, shied away from taking on representations solely because they might be viewed as quote-unquote conservative representations. And again, I think that's what law firms should do. But I think it would really be unfortunate if young conservatives felt that big law was not a comfortable place to be. Because there are a lot of benefits to being a lawyer in big law, not just the fact that these law firms are incredibly successful, but also these law firms have really broad networks. I think the types of cases that we handle are

second to none. They're some of the biggest, highest profile cases around. And I think if conservative lawyers, young conservative lawyers felt that they had to go elsewhere, had to go to a smaller firm in order to feel comfortable, that that would be really unfortunate. And law firms like ours really benefit from diversity on every axis. We argue to conservative judges as well as more liberal judges, and it really helps to have people who have insight into how those judges think. But whereas I think that universities, for instance, are sort of sheltered from the consequences of discriminating against ideological or viewpoint diversity, and that it hurts their liberal students more than it hurts the conservative students, because the liberal students then never learn to debate. They don't know how to speak the language of conservatism at all.

debate. They don't know how to speak the language of conservatism at all. And so then when they confront it in their professional careers after university or law school, they are at a huge disadvantage compared to their conservative colleagues who have learned to speak fluent liberal during their time and therefore are far more adept at arguing against it. Law firms seem to me to be responding to financial incentives. They're responding really rationally. And when that's the case, I am more concerned. I don't know if that's the right word, but more concerned that it's going to continue and increase. So for instance, Kirkland and Ellis, where Paul and Aaron Murphy were, at least according to news reports, this was from some of their biggest clients threatening to move their business, not their litigation business, their sort of transactional side,

fancy pants, billion dollar businesses, elsewhere if they continue doing this work. And so Kirkland made the very financially rational decision, maybe not legally ethical decision, to ditch gun clients and to ditch Paul and Erin in the process. And so while I think you are right that for appellate lawyers, and I've said this before, I think it's baffling why anyone is hiring someone to argue before the Supreme Court that does not speak fluent conservative. And that doesn't mean they are conservative. As I said before, I think the current Solicitor General, Elizabeth Prelogar, speaks fluent conservative. She is a great advocate at the Supreme Court because of that. But, you know, your Supreme Court practice may be filled now with people who won't speak fluent conservative because you can't attract conservative, you know, former SCOTUS clerks, et cetera, and it'll build on itself and those big law practices will suffer. However, as I'm sure

Canon, you can tell us, Supreme Court practices at these big law firms are either lost leaders or certainly not where the money is coming from that pays for everyone else. They're there because it's important to service clients. And so, again, when you're looking at sort of rational incentives, isn't what Kirkland did correct? Well, look, I'm not going to dispute the proposition that big law firms care about the bottom line. We've seen that in the competition between law firms, and we've seen that, I think, in the emergence of an elite group of law firms that, because of their financial success, have been able to attract the top talent and the top clients. And you certainly see in big law firms, law firms making judgments about which clients to take on

based on financial considerations. So I'm not going to deny that. But I would say a couple of things. First, I do think that there is value to attracting people across the ideological spectrum. That's something that in my role as the managing partner of our Washington office, I've really tried to do. And I think we've had a lot of success at, if you look at our group of associates, if you look at our summer associates, and I think there's a lot of value to that for the reasons that I suggested. I also push back a little bit at this notion that appellate practices are somehow lost leaders. I think appellate practices can very much contribute to the bottom line of a law firm.

I think you have to be disciplined in the way that you run your practice and not simply turn it into a pro bono practice where all that you're doing is representing not just traditional pro bono clients, but even businesses for free. And there certainly are some firms that do that at the Supreme Court level. That's become, just a footnote, that's become so prevalent at the Supreme Court level. I would love to see a percentage of the 66 cases on the merits docket this term that were argued for free. Interesting. And I think that's because there are a handful of Supreme Court litigators with fingers left over who can charge for their services at the Supreme Court level because of the level of competition for that work. And again, I think you have to be disciplined about that. And that's one of the reasons why we don't try to just maximize the number of Supreme Court cases we do. We really focus on representing our

traditional clients when they have problems at the appellate level, whether it's at the Supreme Court or in the courts of appeals. But I do think that Supreme Court and appellate practices can really be valuable to law firms. And I think one of the things that we've seen over the last few years is a lot of those elite law firms that I mentioned, including my own, launching practices like this precisely because they are additive. So look, I think that these challenges with conflicts are an issue not just in the area of Supreme Court and appellate litigation. These are challenges for law firms just more generally, because when you have, you know, client A already and you have client B saying, we don't like you're representing client A, law firms have to deal with that.

And this is, I'm going to segue from that into a lamentation. Because it's becoming pretty clear that we're living in a world where increasingly right and left are separating out. They're pulling apart different institutions, different neighborhoods, you know, the whole, the big sort, which has been accelerating. And, you know, when you have elite spaces that pull apart in that way, you're just, you're contributing not just to polarization, you know, a word that we use a lot that I use a ton, but actually just a remarkable amount of ignorance. Just today, one of these studies, or yesterday, one of these studies came out talking about what do Republicans believe about Democrats and what do Democrats believe about Republicans. And it's just amazing stuff.

Democrats believe 44% of Republicans make more than $250,000 a year. The actual number is 2%. They believe that greater than 40% are senior citizens of Republicans. It's less than 20%. And then conversely, Republicans believe fully 38% of Democrats are LGBT. 38% of Democrats are LGBT. No, the real number is about 6%. They believe 44% of Democrats are black. The real number is about 24%. And then here's the thing that really gets me about it, is the more political media you consume, the more wrong you are.

So it's those individuals who are learning about their political opponents from a distance from the media that are wrong about them. And it's those people who learn about their political opponents through these antiquated things called relationships or friendships who are more right about them. And I don't really have a question. It's just a lamentation canon that if in law firms are a tiny, tiny, tiny rounding error on that piece of the pie, but I just hate to see that happen. Two things about that, David. The first is that the vast majority of what we do in big law firms is really apolitical. You know, you would really struggle to find a political valence to the

breach of contract case that I've got on my screen right now, or to, you know, some of the criminal defense work that we do. I just think a lot of our work really sort of defies that sort of characterization. And that's one of the many reasons why I think it's great to have talented lawyers from across the political spectrum. I frankly have never understood why a law firm would want to limit itself to 51% or 49% of the pool of available talent by saying we only hire conservatives or we only hire liberals. But I think beyond that, I just think that it is healthy to be in an environment where conservatives and liberals talk to each other. In my role as the head of our Washington office, I really try to encourage that. And look, personally, I think it helps me to kind of develop my own worldview to get into fun debates with my

partners with whom I don't agree. One of my favorite partners here at the firm is Bob Schumer, a really distinguished corporate lawyer up in New York. His at the firm is Bob Schumer, a really distinguished corporate lawyer up in New York. His brother happens to be Chuck Schumer. And we talk politics all the time. And I'm not sure that we have a lot of political common ground, but I always really enjoy hearing what Bob has to say. And I think for conservatives nowadays, chances are that at least conservatives spend a pretty healthy chunk of their professional lives in more liberal institutions. You know, I spent seven years at Harvard and really ever since then, you know, most of the places where I've worked have probably been places where there are more people of a

liberal persuasion than a conservative persuasion. I find that it helps me to kind of sharpen my own worldview to debate with people who I disagree with. And I think we've lost that. My lamentation is that I think we've sort of lost that culture in a lot of top institutions and that there has been a lot of sorting. And I think that that's unhealthy. Well, we can't end on a lamentation because you told us in the green room you have some barbecue thoughts. Yeah. And just before we let Cannon go off on his barbecue thoughts, I just want to be really clear about Cannon's biases and not my own. So I am from Texas, which is the status quo.

I represent the majority. Cannon is from Kansas, and so all of his barbecue thoughts are going to be inextricably bound to his nature as a Kansan. Is that what you call yourselves? Yeah, that's right. And what do we call people from Texas? I think they're Texasites or something like that. Oh, my God.

All right. All right. Let's talk barbecue. And it's funny because one of the examples that was used at the oral argument for your Austin billboard case was about barbecue as well. So you even got some Supreme Court questions. Well, it's so funny that that came into play in the oral argument because there was this discussion about whether it would be essentially discriminatory to permit on-premises but not off-premises billboards. And the hypothetical that came up was, well, Franklin's could put a billboard on the side

of its premises advertising its barbecue. And I pointed out that you wouldn't be able to put a sign on the other side of the street advertising Salt Lick because it's located outside the city limits in Austin. And boy, I got a lot of emails from friends about that, but probably not as many emails as I did about our last podcast together where you may remember we talked about such vitally important questions as what the best barbecue side is. And so I've got to tell you, so after we recorded that podcast, a couple of days later,

my wife comes into our living room and she says, you know, I just have to tell you, I so disagree with what you said on the podcast. I was thinking to myself, does, you know, Vicki have strong views about the dormant commerce clause or something? And no, her disagreement was that I had said that, I think I had said that like baked beans

were my favorite side. And she pointed out that the correct answer was in fact, cheesy corn. And that's because we got one of Kansas City's great barbecue restaurants, Jack Stack, one of Kansas City's great barbecue restaurants, Jack's Stack, to cater our rehearsal dinner. And their side specialty is cheesy corn. And let me tell you, it is objectively just off the chart. So I just want to correct the record. Cheesy corn is, without question, the best side. So Vicki, if you're listening again, I just want you to know that, as always, you're absolutely correct. So this feels less like a barbecue point than a marriage point, David. Yes. No, even if you gave me the truth serum, I would have to admit that she's right about that.

So I actually was back in Texas this past week and was getting through some of Texas Monthly's new Top 50 barbecue. And something has gone horribly wrong at Texas Monthly. I feel like the barbecue list is straying from its original features, which was about great smoked meat. And now we're getting into some weird hybrids of like, oh, well, this is like a cross with this other type of food or their sides are really amazing. And frankly, as much as you and I did talk about sides, that's not why I'm going to Texas monthly for the top 50. I'm going for the best smoked meat in Texas. So, so far I have to say that the top 50, this top 50 list, I think I'm going to toss it out. I'm going to go back to that 2017 list and 2013 or 2014 list, which are sort of OG barbecue.

A lot of them have closed because the margins on barbecue are so tight. But yeah, that's my contribution to the barbecue conversation. And Scott and I walked through an HEB yesterday. We didn't walk through. I want to be clear. We bought another suitcase so that we could pack up. We could go to HEB, pack up a suitcase filled with tortillas and check the bag back to DC. What's HEB? Oh, that's what I was just going to tell you about. It's the best grocery store in America. And I felt, David, like I had been living in communist Eastern Bloc Russia. And I finally walked into an American grocery store for the first time walking into this HEB. The meat section alone, David, it's going to blow your mind. It was, I think, $4.69 a pound for brisket.

And they had the whole big, you know, 20, 25 pound briskets, like huge briskets. We're, we're, as y'all know, smoking eight to 12 pound briskets here. These were, and just refrigerator containers filled with those sides of beef. Um, it was incredible. So our suitcase was fully packed. We brought home like just 100 tortillas, probably, five different hot sauces that we couldn't get up here. And maybe more concerningly, we brought back meat. We were like, well, we can't get this in Texas. Are you serious? Yeah, we absolutely did. We brought back meat to DC. And in fact, I had the carne cosado last night. Highly, highly recommend. You'll have to tell listeners

how you pack your meat. Because I'm sure it's not in the carry-on. With a hope and a prayer. Yeah. Well, I just want to agree completely with Sarah that, you know, sort of like the watering down of originalism, I think there's been a watering down

of the definition of barbecue. And there was a similar listing in Kansas City Magazine. And I'd say like probably only like two of the top 10 were bona fide barbecue restaurants. But I do have to give a shout out for one barbecue joint, actually for two, if I'm allowed to do that. And I promise you I'm not being sponsored for this. But you'd like to be. Salt Lake never delivered after I name checked them in the Supreme Court. I'm kind of disappointed about that.

So first of all, I was back in Kansas City in my hometown a few weeks ago. And we actually have a summer associate who grew up outside Kansas City, Gabby Doman from Chicago. And when I was interviewing her, I asked her what her favorite barbecue place in Kansas City was. And she said, it's a place called Q39. And I had never been there. I had heard about this place. And so I made a pilgrimage there with my mom and my brother. And let me tell you, it was great.

Like, I would definitely say it's one of the two or three best barbecue restaurants in Kansas City for sure. So highly recommended. Their brisket is to die for. Unfortunately, I don't think they have cheesy corn, but otherwise it's perfect. And then second, I do want to give a shout out to our local barbecue place out where we live. As I think some folks may know, I live out in Great Falls, Virginia, which is about maybe 15 miles outside the district. It's just outside the Beltway. And we have a local barbecue restaurant called Mookie's. And it is terrific. I think it may be the best barbecue restaurant in the D.C. area. We had our D had our DC office barbecue at our house this weekend and they catered it. And they're really spectacular. And they actually do very good Kansas City style burnt ends. So if any of your listeners are in the DC area, I know that although Sarah may be

from Texas and therefore not know a lot about barbecue, she knows the virtues of burnt ends. So I have been to Q39. It was the first time I'd ever had burnt ends in my life. We have something we call burnt ends in Texas, but it's just not what y'all call burnt ends. So I will use your nomenclature here. Kansas City burnt ends. I had it for the first time at that Q39 place. My jaw dropped. I'd never tasted anything like it in my life. It's dessert beef. It's like candied beef. And it's incredible. And it is so good. And it's a really hard thing to find at barbecue restaurants outside Kansas City for some reason. But if any of your listeners are in DC, it's about a 25 or 30 minute drive from downtown to get out to us. And I highly recommend it. It reminds me of

candied bananas. You know how you do like bananas foster? It's like bananas foster with beef. Yeah. And I have no idea. I think we talked a little bit about burnt ends last time I was on. And somebody asked me, like, what is the genesis of the burnt end? And I had to admit, I have no idea. I assume it's the same genesis as Texas, which is the end of the point of the brisket. So there's the fatty and the point. Yeah, no, I think that that's, I think that's right. But then y'all take it and again, candy it somehow. Yeah, it's just an interesting question, like who sort of thought of this, but whoever it is ought to be in the Barbecue Hall of Fame because it is so delicious. Well, that's ending the podcast

in a much more upbeat note. That's fantastic. So this has been the Advisory Opinions Podcast brought to you by Mookie's. I'm going to, I mean, Canon doesn't realize like I'm going to be at Canon's house with some barbecue here in short order tonight. Excellent. Well, you're welcome anytime. And I think we still have leftovers from the Paul Weiss D.C. barbecue this weekend. So, you know, if you want like a tray of brisket, I think we can provide that to you. Done and done. Well, thank you, Cannon. This has been a treat. Really appreciate you coming. And I hope we can make this a tradition. Supreme Court Review with Cannon Chan-Megham. And I know the listeners love it. We love it. Thank you very much. It's my pleasure. And that'll just give me further incentive to go to some more barbecue

restaurants over the next year. Absolutely. All right. Well, thank you, listeners, as always. Please go rate us where you get your podcasts and subscribe. Please check us out at thedispatch.com. and we'll be pay for 30. Those leftover five seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it. Try the other side.

Get started at fizz.ca. If you need some time to think it over, here's five seconds. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at phys.ca.