Advisory Opinions - Taylor Swift and the Magna Carta

Episode Date: February 22, 2024

Judges Jennifer Elrod and Charles Eskridge join Sarah and David to explain the “inns” and outs of a special networking group for attorneys. The Agenda: —SCOTUS declines to hear TJ High School case[should we spell out?] —Harvard, antisemitic cartoons, and free speech —Biden’s authority to shut the border —The Inn of Court explained —Taylor Swift-themed parodies —Sarah sings for a second Show Notes: -Contact [e-mail] for more information on the Houston showing Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome back to Advisory Opinions. I'm Sarah Esger, that's David French, and boy do we have a treat of a podcast for you today. We're going to eat some vegetables first, as always, but dessert is waiting. Before we start, first of all, if you're listening to this podcast and you're in the greater Tuscaloosa area, we are having a live podcast Thursday, February 22nd at the University of Alabama Law School. So come on over.

Second, David, I had meant to do this in the last episode, but forgot. There was a story that came out in Axios that said I was in discussions with Rob Herr to help him with his congressional testimony. And several AO listeners felt that I had misled them and I hadn't disclosed that when we talked about her before. So I want to tell you the whole story. After we taped our episode about the her stuff,

and I think it was even after the next episode from that, Rob Herr called me and asked whether I would consider helping him with his congressional testimony. It was sort of a hypothetical convo at that point. Congress hadn't asked for him to testify. We just sort of can all assume that they were going to. He didn't offer me a job. I didn't accept a job. And that's kind of how things have been left. And then like three hours later, a reporter had the story and it came out. That's amazing. It was very this town, David. That's like a, you know, what DC calls itself in the political stuff. Hasht hashtag this town. It was a very this town moment.

But I felt like, of course, I would have wanted to mention it on AO before the story came out, but we didn't have an episode. I haven't made a decision yet, to be honest. So when I do, I'll let you guys know. And certainly whenever we talk about Rob Hur from this point forward,

I will include the disclaimer that Rob called me and asked me that question. So that you guys know that. Though obviously when we did talk about the Herr report, I mentioned that I worked with him closely at DOJ and continue to be good friends with him. Next up, I didn't actually tell you what our special dessert is. So we are going to be joined in just a few minutes by Fifth Circuit Judge Jennifer Elrod and Southern District of Texas Judge Charles Eskridge to talk about the 2024 Inn of Court Performance of the Year. It's going to be huge. There's going to be singing, dancing, all the things. It's an extravaganza, but also what's an Inn of Court. Before we get

to that, David, though, let's start with the Supreme Court, because at this point we're in Supreme Court watch, right? We are waiting because any day now we could get their decision on the 14th Amendment disqualification case and we could get an order from the court on the immunity question, not the question itself, but what they're going to do about staying the trial, the mandate, if you will, on whether Donald Trump can go to trial while they decide the immunity question, or whether they're going to put the trial on hold, but then decide the immunity question on an expedited basis, or put the trial on hold and decide the case in the order it would normally come, which is more like November. So two big things we're waiting for from SCOTUS.

Neither came today, but we did get some other SCOTUS news. But before we get to that, David, a few law topics to get through. Yes. First of all, we had some really interesting SCOTUS denials this week. Of course, the headline case that got denied was that Thomas Jefferson high school admissions case that you and I have been watching from when they changed the admissions policy before there was even a lawsuit. Yeah. I got a lot of texts and emails from appellate-y SCOTUS lawyers who were equally shocked that that case did not get granted. So to remind people, Thomas Jefferson High School was a magnet school, so a public school. It had a majority Asian student population. Admissions was based basically on GPA and a test score, and that's it. And so they just sort of took the top students from the area,

and you got admissions offers into Thomas Jefferson High School, considered one of the best high schools in the country and certainly one of the best public high schools in the country. There were complaints that it wasn't diverse enough because the school was basically too Asian. And so they changed the admissions policy because of those complaints. They were clear about why they were doing it to increase the racial diversity at the school. There's now basically a quota for every junior high in the school area. And so, you know, roughly speaking, the top three students from each junior high get to go. It dramatically lowered the number of Asian students who then were offered admissions.

lowered the number of Asian students who then were offered admissions. And it did racially diversify the school by increasing the number of white, Black, and Latino students at the school. The lawsuit was then about whether this was discrimination on the basis of race. In the wake, especially of the Harvard case, this was race neutral on its face, right? Because it's just the three kids or whatever from each junior high. It's not that they were choosing based on race, but the purpose was race based. The Fourth Circuit held that because Asian students were still overrepresented versus the population as a whole, there was no evidence of racial discrimination, which is insane. versus the population as a whole, there was no evidence of racial discrimination,

which is insane. So the Supreme Court denied taking the case, meaning Thomas Jefferson High School's admissions policy gets to stand. There was a dissent from that denial from Justices Thomas and Alito. Remember that it only takes four justices to take a case. And so what was really surprising about this to me is like, it seemed really easy to count to four here.

And frankly, you know, sometimes you can't count to four because they're worried there isn't a fifth vote to come out the way that they want. It seemed to me easy to count to four. And it seemed like when push comes to shove, easy to count to five too, if they had to make a choice.

They may not want to make the choice, but if you're taking the case, they were going to say that obviously a discriminatory purpose is also bad. But they didn't take the case, David. Yeah. And the Alito dissent from denial of cert that Justice Thomas joined in was pretty spicy. I mean, it's not full spicy Alito, but it's pretty spicy. And I think I know why they didn't take it. This is my speculation as to why they didn't take it. It's a tricky case in one sense. So one of the ways in which schools are going to adapt in wake of the Harvard decision is they're going to do things that are race neutral.

decision is they're going to do things that are race neutral. They're going to take admission steps that are race neutral, but have race disproportionate effect. And the paradigm of this is the Texas top 10% rule. So top 10% in a high school in Texas, you can get into a Texas public university. I think it's top 6% for UT Austin, but it's generally called the top 10% rule. And that's a race neutral policy that has a race disproportionate effect because of the intense educational segregation in the state. So you're going to have lots of schools that are almost all Hispanic or almost all black and every one of that top, every member of that top 10% can get into the schools that they want to get into.

And so that's a race neutral policy with a race disproportionate effect. Another example would be class-based affirmative action. In other words, people who are within 200%, say the poverty line, you're going to have an admissions boost. That would be race neutral, but with a race disproportionate effect. And on its face, Sarah, this policy is also race neutral with a race disproportionate effect. It's race neutral in that you're just bringing a certain number of students from each middle school. Now, what would distinguish this from the top 10% rule or the class-based rule is that this appears to have been race neutral, but really aimed specifically at Asians. In other words, you're not trying to just increase diversity more broadly, you're trying to get fewer Asian students. And so if this race neutrality

was really veiled racial targeting, then it's the holding of the Harvard case that, well, it's only the explicit targeting that we're gonna strike down. The targeting that is implied or demonstrable from the record, that we're not going to deal with. I doubt that's where this is going to end up. I doubt this is going to end up where so long as something is racially race neutral, that it's going to be acceptable no matter the record or the circumstances. But as of right now, the way I interpreted this, Sarah, is they're giving schools some pretty big room to run here on the race neutral efforts to increase diversity.

Can I give you my prediction? Yes. That you're exactly right. Yes. They are exactly right. They're going to take one of the top 10% esque school policy. Yeah. For the purpose of upholding it.

Yeah. But in doing so, right, to clarify the difference between a top 10% and a not lawful discriminatory one like the TJ one or similar to the TJ one. one like the TJ one or similar to the TJ one. And that's basically they want a different vehicle where they're upholding an admissions policy versus just taking all these admissions policies and striking them down over and over again. Yeah. And that for whatever reason, that's why they couldn't get to fourth. Yeah. No, I think that's I think that's right.

So listener Aaron Jacobowitz emailed this to me with his eagle ears from the Supreme Court argument from this week. Oh, this is fascinating. Yeah. I'll just read it to you. We'll see if you catch anything interesting here. Justice Jackson. Is that possible? Because we had other doctrines that prevented. So, you know, for example, Chevron existed. And so there were lots of things that already, you know, right? Like, there are reasons why you might not have an uptick. I'm just wondering, in a world in which you could bring these actions, why wouldn't you have this problem?

Anything stand out to you in that sentence? Yeah. So this is a case in which Justice Jackson is questioning an attorney about essentially court dockets and challenges to administrative rules. And what does she say? She says Chevron in the past tense. Chevron existed. Existed. The Chevron decision has not been issued yet. Why would she say past tense?

So, but a little bit later, Justice Kagan takes over the questioning and says, there's obviously another big challenge to the way courts review agency action before this court. Has the Justice Department and the agencies considered whether there is any interaction between these two challenges? And again, you know, if Chevron were reinforced, were affirmed, if Chevron were reversed, how does that affect what we're talking about here? So clean up on aisle loper bright. So clean up on aisle Loperbright. But you know what's so funny, David? I was reading the rest of the transcript right before bed, and this resulted in me having very vivid dreams about Loperbright, the case, and Chevron doctrine. Why? Miserable.

I woke up feeling very unrested because of my tossing and turning. Nerd dreams, Sarah. Nerd dreams. Really nerd dreams. Yeah. And David, staying on SC dreams. Really nerd dreams. Yeah. And David, staying on SCOTUS for a minute,

there was another dissent from denial. Yeah, this is very interesting. This was Justice Alito. He has a statement respecting the denial. And this was a wild case. He said that this is a case that they should not grant cert on,

but he wanted to comment on anyway because he said it's a foretaste of things to come. This is a case that they should not grant cert on, but he wanted to comment on anyway, because he said it's a foretaste of things to come. And so essentially what happened here, it says the court below reasoned that a person who still holds traditional religious views on questions of sexual morality is presumptively unfit to serve on a jury in a case involving a party who is a lesbian. What? What? You're saying that if a person, a court was essentially reasoned that if a person holds a traditional religious view on marriage, they can't serve as a juror in a case involving somebody who's LGBT? Wow. who's LGBT, wow.

So a lot of people read this statement respecting the denial of cert as Alito is simply saying, essentially saying, well, I want to take aim at Obergefell. And Alito says that holding, essentially the holding that a person is presumptively unfit, he said that holding exemplifies the danger

I anticipated in Obergefell, namely that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be labeled as bigots and treated as such by the government. The opinion of the court in that case, he's referring to Obergefell, made it clear that the decision should not be used in that way. But I am afraid that this admonition is not being heeded by our society. A lot of people took that as a swipe at Obergefell in the sense that Alito wants to overrule Obergefell. I took it as a warning that he is not going to permit Obergefell to be used as an engine

for removing religious freedom. That's how I took it, not that the court is on the verge of overruling Obergefell. And the court, if this becomes anything more than this one-off that they couldn't grant cert on because of unique state procedural issues, honestly, Sarah, it is hard for me to imagine that ultimately a rule would exist

that a person who holds traditional religious beliefs on sexual morality can't serve on a jury in a case involving an LGBT American. That's insane. I mean, that would be like saying, yeah, that would be like saying a Muslim can't serve on a jury involving a Christian. What? The fact that people have different beliefs on questions of morality does not mean that they're not qualified to determine whether or not someone committed murder, for example. It's wild. So, A, no one should think that that kind of doctrine is going to live and survive. That is not going to be the rule. And number two, I also don't think that Obergefell is in any mortal danger at all. And number two, I also don't think that Obergefell is in any mortal danger at all.

I think that what Alito was saying quite plainly was that, hey, we were concerned about religious liberty. The actual Obergefell decision said religious liberty should be protected, but there are people not paying attention to that. That's how I took it. Not as we're coming for Obergefell. It was, we're going to continue to protect religious liberty.

That was my interpretation. All right, a few more housekeeping items. One interesting update to the free speech saga on Harvard's campus. A cartoon was circulated by some groups on campus. I'll use Harvard's description of the cartoon if you haven't seen it. Depicted what appeared to be an Arab man and a black man with nooses around their neck.

And the nooses are being held by a hand imprinted with the Star of David and a dollar sign appears in the middle of the star. Okay, so no question that that's an anti-Semitic trope, right? 100%. Yeah. 100%. No question. Here's what I find so interesting, though, about Harvard's response. Statement condemning the posted cartoon and then a letter to the entire Harvard community. Like, I got this letter. Okay. From, you know, I graduated however many,

many, many years ago. Not as many as me, Sarah. So true. So true. Perpetuating vile and hateful anti-Semitic tropes or otherwise engaging in inflammatory rhetoric or sharing images that demean people on the basis of their identity is precisely the opposite of what this moment demands of us. As members of an academic community, we will disagree, but it is grossly irresponsible and profoundly offensive when that disagreement devolves into forms of expression that demonize individuals because of their religion, race, nationality. The members of the corporation join me in unequivocally condemning the posting and sharing of the cartoon in question.

The university will review the situation to better understand who was responsible for the posting and to determine what further steps are warranted. They learned nothing, David. So I think I've been very clear on this podcast. First of all, like I'm Jewish enough for Hitler. Let's put it that way. So this is about me.

I don't like this cartoon. I think it's really offensive. But this is the problem that they have. You're either for free speech principles on campus or you're not, but they can't decide which one they are. And David, you had said that you were concerned that in the wake of this, it would be the exact wrong lesson. Well, here's a really good example of the wrong lesson. There is no question this cartoon doesn't come anywhere close to violating Title VI. It does not create an unsafe learning environment.

It's not severe and pervasive harassment against any individual student. You are allowed to share offensive cartoons on campus. It didn't depict any student on campus, you know, all these things, right? So it fits squarely within free speech principles of speech that is disfavored, that you don't like, and that you find offensive. And instead of Harvard using this as an example to say, aha, this is different than assaulting a student for being Jewish or, you know, screaming at individual students in class that they have to sit in the back of the room if they're Jewish. That is a Title VI violation. This fits well within our free speech principles. And instead, the university will review the situation to better understand who was responsible for the posting and to determine what further steps are warranted, not to mention letters

condemning the speech. They're headed the wrong way. And I think the reason I picked this out is because it's speech that I hate. Oh, it's horrible. I'm willing to defend this speech under free speech principles. They're not. Yeah, it's it's horrible speech. No one should think that either Sarah or I think this is acceptable in any way, shape or form. It's evil

speech. But it is protected. It is protected. The only caveat I would add to that, Sarah, there are ways in which that poster could be part of a Title VI claim. Like if a professor had that on their door, for example. Sure. But instead it was on social media. Instead it was on social media. It wasn't even on Harvard's campus. It wasn't, you know, nothing.

It's vile, vile, vile constitutionally protected speech. But here's the interesting thing, Sarah. This is exactly the, this is, we both saw this coming from a mile away, because right now the answer is very difficult to say. It's very difficult for Harvard to say, no, no, no, no, we're turning over a new leaf. Now it's, now we're for free speech. If it continues to be the case that the Jewish students at the campus get free speech like good and hard and every other group does not. Right. And so the way they had to, I think, come out of this that makes sense for them would have been a policy shift, a very direct policy shift that says that these are our speech protective policies that we're putting in place. Instead, they just have rolled on with existing policies, a Department of Education Title VI investigation hovering over their heads right now, Title VI lawsuits being, Title VI lawsuit has been filed.

And so there is, they're looking at both the DOE, AE and plaintiffs coming after them. And they're doing what you do in that circumstance, which is you engage in prophylactic measures. And that's what they're doing here. They're trying to block. They're trying to keep all of this at arm's length. And they're doing exactly what we are worried they would do is react to this by saying, oh, we're just going to continue to extend our sort of umbrella of censorship around more groups for protective purposes. Yep. And you know where this is going to end. Like the less popular

the speech, the more the university will say they're going to look into whether they can punish students. That leads to more self-censorship. And the only the majority speech or the perceived majority speech is what any student is going to feel comfortable saying in class or outside of class or on social media or in their free time or anything else, which is the opposite of what we wanted. True. Womp womp. All right, David, one last thing. I saw Andy McCarthy post this on Twitter. Andy McCarthy is a well-regarded lawyer pundit at the National Review. And he wrote, always remember, Biden has and has always had as POTUS the authority to shut the border. He let six to eight million entries happen because he chose to, not because he had to. C-8 U.S.C. 1182 section F,

and then he screenshotted that. Suspension of entry or positions of restrictions by president. Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may, by proclamation and for such periods as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants or impose on the entry of aliens any restrictions he may deem to be appropriate. Incredibly broad language. Yeah. But right away,

you should be a little skeptical of what Andy's posted here. And the reason I bring it up is we had that whole podcast and we got a couple of questions from listeners saying like, well, wait, doesn't isn't this the opposite of what you guys said? If that were true, why didn't Trump do that to shut down the whole border? If he had that power, why did three million people come in under Donald Trump? Like, huh? Why was he appealing to Title 42 public health authorities? Why was he? Right. So the answer is a little complicated.

First of all, this is the section in large part that Donald Trump used for the travel ban that was upheld 5-4 at the Supreme Court. Basically, the Supreme Court said this is incredibly broad authority granted to the president. But they caveated that by saying, and it doesn't contradict any other part of Congress's laws on immigration, for instance. Unlike if you tried to shut down the southern border and not allow asylum claims, which is a very specific part of congressional law. And in fact, Donald Trump did at various points tries to use this power after the travel ban on the southern border stopped every time by courts immediately.

So that's a gnaw dog on the idea that there's this, you know, one cool trick to solve immigration through the president that you don't have to go through Congress. And the more that Republicans keep fooling themselves about this, the more they then aren't willing to compromise on actually doing legislation. And the more this power still doesn't exist and the more the problem just festers. And this is not a super statute that overrules all immigration law. In 1182 Part F. Right. They buried. It is a statute that is to be read in harmony with immigration law is not a statute, especially since the statute dates decades before many of the later past statutes that provide room for asylum claims and all of these other elements of American immigration law. So this is not read as the super statute. The Ghostb, choose the identity of your destroyer. This is not the stay puffed marshmallow man of immigration statutes. Oh, but what if it were? I mean,

if it were, it can certainly has its uses as was as we talked about and was discussed in the travel ban case. And it was just barely broad enough to cover the travel ban, which is by contrast to the idea that he can decide to shut the border entirely and definitely a very, very, very, very minor immigration enforcement measure by comparison to this proposal. So yeah, why didn't Trump do that?

There are good reasons why. And it's read in harmony with other immigration statutes. It's not the Godzilla of immigration statute that destroys all else. And with that, David, I think it's time for our dessert. It's a big, it's a sundae with all the toppings. Friend, get ready. 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 auraframes.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.

So without further ado, we now have judges Jennifer Elrod and Charles Eskridge joining the podcast? They are friends of the pod. They've been on the pod before, but this time we have a special ask of them, which is they are the famous singing judges of the entire Article 3 bench. They both sit in the Southern District of Texas. And what people I don't think know is, well, the excuse for their singing. I was going to say the reason for their singing, but honestly, you could never prevent Judge Elrod from singing. No excuse needed. She just has this gorgeous meadowlark of a voice.

So Judge Elrod, what is an inn of court? An inn of court is a place that people go to talk about professionalism and to gain friendships within the bench and the bar. The American Inns of Court has lawyers, judges, and other legal professionals from all levels and backgrounds who share a passion for professional excellence. We have regular meetings where we build and strengthen professional relationships, discuss concerns about professionalism, and we also provide CLE education about issues of the day. It's an opportunity for mentoring and supporting ethics and civility. And we're divided up into pupillage groups. and supporting ethics and civility. And we're divided up into pupillage groups.

And I have the great privilege of being in a pupillage group with Judge Eskridge and with a gentleman named Jim Cooper, who was an insurance lawyer, but the most fun insurance lawyer you could ever know. And Judge Chris Bryan. And so we make up the leaders of our pupillage group and we try to put on, well, it's a CLE presentation, but it's really a show every year. And that's a good part due to Judge Eskridge. Judge Eskridge, why don't you walk us through a little of the history here on Inns of Cork? Because I got, I have so many questions. I still don't understand what this is despite Judge Elrod's you know summary introduction well so the you know the ends of court themselves trace back to sort of the concept um in English legal society

going way way back organizing into Gray's Inn and I'm trying to remember that into several inns there in England, one of them being Gray's Inn, which is very famous. Not to me, but like an inn in this case does not mean like a hotel, a bed and breakfast. It's not a hotel. It's not a pub. It is, what is it? I-N-N. And it is, you know, as originally, I mean, it's a gathering place. So it is that. And it's where, as Judge Elrod was saying, lawyers, judges, we also have law students as part of our in group. But it's those who are professionals in the law and take the obligations of the profession seriously. in the law and take the obligations of the profession seriously. And so, you know, we gather for good times, but also to host each other on learning events and things like that.

Chief Justice Berger was an early proponent of the Inns in the 1970s, and the first Inn was founded in Provo and Salt Lake City in 1980. So this is relatively new. Like we're talking about Blackstone, but we're also talking about this really happening in 1940 years ago. Old in England, new in America. Would that be the way you'd think about it? Exactly. There are over 400 American in support in 48 states with 30,000 active members now.

And we're growing. We encourage groups around the country, lawyers and judges and law students who want to come together. There are specialty inns like the Nancy Atlas IP Inn here in Houston, named after Judge Nancy Atlas. And there are bankruptcy ends and all subject matter ends. And then there are general ends like our Garland R. Walker Inn, which is one of the oldest in the country, founded in 1985. And Garland Walker served in the military and took part in the D-Day invasion on Omaha Beach. And then when he came home, he went to law school and became the dean of the South Texas College of Law and served for almost 20 years there. So that's who our inn is named for. And ours is a general inn because we're not a subject matter

like this particular area of the law. There's an appellate inn in Washington, D.C., and I think it's very hard to get into because it's limits its membership and it's a it's a it's a very good end. So that might be one that you've heard of. So this is actually my next question, because if I as a law student understood that there was this place where judges were hanging out and partners at law firms, I might definitely want to go do that thing and hang out with them and force them to be my friend. How do you get membership in specific games? How do you limit this?

Then I've got questions on why you do this with your free time. I mean, both of you have children. Like, huh? I will. So I'll take the lead on that. If there are law students listening, and I know there are, and law clerks, I encourage you to get involved in the ends of court. I did not join until I had been back in Houston and in practice for over 10 years. And I looked up and realized I didn't have any cases on file in Houston. I was litigating elsewhere in Texas or across the nation, and I did not feel connected to my bar. And so I joined in 2008 and didn't know who all was going to be there.

And at my first meeting, it's like, oh, hello, Judge Elrod. Oh, hello, Judge Jones. oh, hello, Judge Jones. And I'm meeting judges that are already members of this end who you get to know them in a very different context than appearing before them in court or listening to them speak on panels of other CLE presentations. And we organize into, like our chapter is big enough that we organize into eight different pupillage groups. And so we have anywhere from 20 to 30 or 40 people, probably less than that in each group. But it distributes judges, students, lawyers of all different ages and experience across

the groups. And you work with and collaborate with each other on whatever educational project you're going to do in one particular month to present to the group as a whole. And so you then work very closely with those in your privilege group. But every month you have, and I think we meet eight months out of the year, but every month there's a a one and a half hour meeting in the evening where dinner is served. And it's very fun. It is fun. That's really, that's a really interesting program because I'm looking back to my years as a young attorney. And I was much, I was pretty shy about networking, to be honest, as especially shy about networking

or getting to know judges. That was something that unless a senior partner was pulling me along into a pre-existing relationship, I felt really uncomfortable about all of that. And it seems to me like the ends of court, if you're participating in an end of court, you are broadcasting as a judge or if you're a senior attorney, hey, I actually want to be a part of the larger community and I want people to get to know me. I want to get to know people.

It seems like an easy entry into learning about your own legal community, whereas I wouldn't have known where to start really unless I kind of had someone holding my hand the whole time. No, I was just going to say, we interview at all of the local law schools every year and we take students. And we every year we take, you know, a good portion of students. And as long as they're willing to commit to attend the meetings and participate, we want people who want to learn about civics. And it's a lot of fun to get to know the students. And, you know, the mentoring is not all just one way. We've done

programs that have dealt with, we did a program called Creepy or Convenient that dealt with, you know, early on about privacy and your phones and things. And we brought our phones and the students helped us learn how to use the privacy functions on our phones. And so it's, you know, cross mentoring. People have different skill sets and we help each other with our skill sets. And, you know, so it's a really it's a good opportunity. You know, so it's it's a really it's a good opportunity. Not all groups sing and dance like and have a parody musical written by Judge Eskridge. But but but most groups have fun and build relationships. I definitely thought creepy or convenient was going to refer to that like sort of early on associate lifestyle of whether you should date in the office.

Is it creepy or is it just really convenient because you're never leaving? So can we give just a little bit of like networking tips then from each of you on? Because like David said, that can be pretty intimidating to walk up to a judge and like maybe, you know, they're a judge, but you don't really know anything about them. I mean, you haven't memorized their wiki page or anything. So like, what is something helpful that someone could come up to you and say, Hi, my name is so and so I am a second year associate at this law firm. What should they say next? What's a good opener? It's hard. What the right opening line is, is difficult. I always think about, especially for young lawyers thinking about networking or meeting judges in particular, is the right mindset. bar function or whatever, the judge is there and more than happy to be approached, would love to be approached and have any conversation that's on your mind. And so you should have the, you know,

the courage to do that because, you know, a particular judge wouldn't be there unless they wanted to be meeting people. And it is true, you know, what they say that judges in our daily life, you can see in the video in the background here what my empty office looks like. And it will look like that for most of the day as I work solitarily. And I look forward to being able to see and be with other professionals. And in particular, you know, with the ends of court, you know, I've got it printed out here, the overall vision and mission statement of the American ends of court, a legal profession and judiciary dedicated to professionalism, ethics, civility, and excellence. So it's not as if I'm at a meeting and I want someone,

a law student to come up and say, you know, judge, tell me what you think excellence in the law means. That's not a good icebreaker. But we're there because we take the law seriously. We want to talk with especially young students, law clerks. We want to talk with them about the rule of law and carrying on the profession in a responsible way. And it's about making connections. You don't have to have a deep dive on, we're going to talk about civility right now. You demonstrate civility as you talk about what's going on in your life, what you enjoyed about the speaker, question that you had when you heard the

speaker. We also do these things called chambers chats where we invite in members into our chambers. And generally, it's that we try to get some of the newer members and the people who have been lawyers the shortest amount of time to get to come to those chambers chat and ask questions about practice and that sort of thing. But also just to get to know judges as people and what's important to the judges and what's important to the new lawyers and law students. We need feedback. You know, what are we doing well? How can we make it easier for people? I value those interactions tremendously. We just recently introduced some new ways to interact with the briefs in the Fifth Circuit, some new easy ways to access things. And those have been well received, but we learned about how that we could benefit the bar by having these things because we talk to lawyers and we find out what's user-friendly, what's not user-friendly. This dialogue is really important.

David, do you have networking tips now that you're older? Because I think they would surprise people. For instance, I'll just speak for myself. I have known Judge Elrod for, we're coming up on our 20th anniversary. I still find her incredibly intimidating. Oh, Sarah, no. You know, it's true. I think that probably she has the largest delta between like how intimidating I think she wants to be versus how intimidating she is.

You know, Judge Jones, let's be real. She doesn't mind being intimidating and she is. But I don't think you're trying. It's just, let's be real. She doesn't mind being intimidating. And she is. But I don't think you're trying. It's just, it can be hard. And so for me, at least, I think people think that like, I'm not nervous or intimidated. And like, I am. You just like, and then you get over it. And then you like, it's like the definition of bravery isn't not being scared.

It's overcoming. You're absolutely right about that. Can I tell you that right before we came on this podcast, I sent Judge Eskridge an email like, why are we doing this? I'm nervous. This is out of my wheelhouse. I may give a lot of speeches, but I don't go on podcasts, and I'm nervous. And I think Judge Eskridge wouldn't mind me saying, he said, nervous. And I think Judge Estridge wouldn't mind me saying he said, I'm nervous, too, but we're prepared and it'll be OK. You do the thing you're you do it anyway. That's what life is. You you you take a deep breath and you do it. And some things work better than others. Some things work better the second or third time than they do the first time.

Some things don't work at all. And you realize that even after two or three times, it's not your thing. And that's okay, too. But that's life. I think that's such a good point. Because walking into a room full of people I don't know is sort of my nightmare. But I also one of my tricks is that I always think about the worst case scenario. And especially when it comes to social anxiety stuff, like the worst case scenario just isn't that bad. It's not fun. You embarrass yourself. Like there's no life and death here.

There's no catastrophic, even career. Like no one will remember. You'll be the one who remembers. And then you just slink off and beat yourself up later that night and for the days to come. Like that's the worst case scenario. What it's gonna say helped me is

I was very shy and intimidated about approaching a judge or a very senior attorney and just socially. But that was intimidating to me. But when a judge or an attorney I admired was doing something then calling for volunteers, so like a bar committee or a bar group on something, then I would volunteer because I wouldn't, and that would allow me to feel like I belonged there

because I'm a part of this project. And also it got me over that sort of social shyness because it was intimidating to just go, hi, judges, wanna be friends? Versus hello, judges, what can I do as part of this? And then the relationship just forms organically when you're in a shared enterprise. So I would say, if you're having trouble figuring out how to get to know people in your legal community, volunteer in your legal community. The local bar, you know, if there's ends of court,

people are looking for people to do things. And it's a tremendous way to meet people quite organically and to form real relationships when you're doing, you know, a shared enterprise. So that's my, that's how I did it. I completely agree. And it brings me back around to what I said my thought was when I joined in 2008. And now we're here 16 years later. And I have made very close and sustained friendships and creative collaborations with a lot of the people that I've met in the end. It really has become one of the groups, professional groups, for sure, that I most value having been a member of. Right. And when you're building a set and, you know, you have on your casual clothes and you're building, you're hammering or you're not good at hammering. And so they're letting you just carry stuff and clean up.

You know, you are, which may be me, because I'm not really good with my hands and those types of things, but I'm there, you know, and we do these things. It really builds a camaraderie. And it's what you said, David, it's the shared enterprise, that you have a goal,

that's something beyond yourself. And it can be putting on a show. It can be doing pro bono work as part of a group in the bar. It can be a lot of things where you have a shared vision of something you care about. And you build friendships normally and naturally in that shared vision. All right, now we have to move on to the main event here.

I have eight of your past in of court scripts. We have Magna Carta at 800 years old. Shakespeare and Law. Although really, I feel like you'll miss an opportunity to call it Shakespeare in Love.

Oh, very clever. I don't know, Sarah. I don't know that they missed that. Star laws, pirates old and new, the 14th Amendment at 150, the Mayflower Compact at 400, which I think was one of the cooler ones, I have to say.

Roaring 1920s and 2020s. And this year, the jury trial on trial. Why don't we take this year's the jury trial on trial. Why don't we take this year's Judge Eskridge and explain to us the plot of the show, how long the show is, how many people actually need to be on stage, and if all of you are on stage, who's watching? All right.

So one minor correction. The jury trial on trial was our phenomenal show last year. This year, this year, the one that we sent you is New York Times versus Sullivan at 60. Swift justice in any era. And it is so it is the 60th anniversary of New York Times versus Sullivan. So it is the 60th anniversary of New York Times versus Sullivan. I've heard you all talk about it several times on the pod. And that there's been some discussion about where it sits in the law right now. Are there any corrections, et cetera?

We won't get into any of that. But to consider where it came from and where it is, Taylor Swift, it seems, finds herself in conflict because an article has appeared in the New York Times that has been written by several of her ex-boyfriends, including Harry Styles, Jake Gyllenhaal, Joe Jonas, and John Mayer. And from there, we often have plot devices that go unexplained, but that you suspend disbelief and you just go with it. And so this is along the lines of a Christmas carol, and Taylor Swift is taken by ghosts of defamation past, present, and future to understand what the law is and whether or not it would make sense for her to try to bring suit against her ex-boyfriends for defamation, and whether they have any grounds for a suit against her because of lyrics that she's dropped in her songs. And so the past takes up the Alien and Sedition Act in 1798. The less distant past is a boiled down transcript of the argument, the oral argument that was actually before the justices in New York Times versus Sullivan. We boiled down the two days of argument into about eight pages. Then for the state of the current law, there is a game show called It Depends, where Taylor Swift

asks her exes various questions on the current state of defamation law under particular facts. And the answer is always, well, it depends. And then the final scene is a trial overseen by Judge Judy of her exes, of her exes represented by Elle Woods defending Taylor Swift represented by Saul Goodman with some good defensive tactics being brought to bear by Travis Kelsey. And we end up then finally back in her lawyer's conference room with lessons learned. This is 43 pages, y'all. Like I'm having in front of me. The song lyrics are incredible. And look, David, you and I talked about defamation just on the last episode where you gave the example that calling someone a thief would be sort of per se defamatory. Taylor Swift called Jake Gyllenhaal a thief. She said

that he took her scarf and kept it. I don't know what that is except calling someone a thief. There's an 11 minute song about how he took her scarf. An 11 minute song like the what's the longest rock song ever? Enneagoda DeVita, like the the Enneagoda DeVita of like the Enneagoda DeVita of Judicial Musicals is an 11-minute song. Yeah, I mean, November Rain might be 11 minutes too, but All Too Well is 11 minutes all about him taking her scarf. I mean, it's about some other stuff, but the point is he stole her scarf. Oh, you're saying the Taylor's version of All Too Well. Yeah, okay. I thought they had an 11-minute song. Our audience does not have the patience for 11 minute songs from us.

But it's a lot of fun. And Judge Eskridge and the script team do a terrific job with. And we've had such I mean, we've had so much fun through the years. Our, you know, our Magna Carta script, you know, that Judge Eskridge you've seen, you've talked to him about Bronze Doors, he has great knowledge about history. And our Magna Carta program that he wrote with our script team, we were very, very honored because we won the first place in the United States for that program in the American Institute of Courts. And we got to put it on in Washington at a Magna Carta celebration. And so, you know, it has good music. You know, who would, you know, who would think about Magna Carta to the tune of American Pie, you know, the day the law came alive. It's a lot of fun.

Yeah. Shop with Rakuten and you'll get it. What's alive. It's a lot of fun. Shop with Rakuten and you'll get it. What's it? It's the best deal, the highest cash back, the most savings on your shopping. So join Rakuten and start getting cash back at Old Navy, Best Buy, Expedia, and other stores you love. You can even stack sales on top of cash back. Just start your shopping with Rakuten to save money at over 750 stores. Join for free at Rakuten.ca or get the Rakuten app. That's R-A-K-U-T-E-N. Okay, so Judge Elrod, there's fearless, there's mean, there's so many good parody songs in here. Are you going to sing us just a few bars of one of them i'm not going to sing what you made me do no i'm not listening you're singing fearless no i'm not

going to sing that today for you but um but i'm you know kind of going to go old school i'm thinking about one of um one of judge estridge's uh some lyrics that he's written, May the Force in our Star Laws show, you know. Oh, that was a good one. That was a good one. Magna Carta Bill of Rights. Are these confined within Earth's orbit? You know, that sort of thing. Oh, that's so great.

And Judge Eskridge was Obi-Wan, and he would say, can you do the force will be with you always to raise your gaze through all your days? Towards the end. Tomorrow we'll discover how the rule of law can be secured. Beam me up. make it so, may the force. So this is some, you know, this is some brilliant writing, some parody lyrics by Judge Eskridge. And with a whole group of people from different, you know, I think David likes Star Wars. I like Star Wars.

I also like Star Trek. It was a mashup. And we filmed part of it at NASA in mission control because it was, you know, with space laws and the anniversary of the Outer Space Treaty was the occasion for this. And people don't know a lot about space law. Treaty was the occasion for this. And people don't know a lot about space law. So it was a very educational program, even if it did have white neighbors and a female Darth Vader. And so we were innovative. Anyway, go ahead. I was just, I'm going to back up. So that's Star Laws. That was 2017. And we did a show trying to explain, you know, treaty law and the law of outer space. And, you know, so the plot there, we had a mashup where convenient and unexplained plot devices

brought together the best members of the original StarCast crew, Star Trek Next Generation, and Star Wars because Darth Vader and others have built a, well, it's like the Death Star except that it's on the moon. And so we're considering what you can and can't do with satellites. And there's swashbuckling and lightsaber fights. And Spock gets into action, you know, with his Vulcan pinch. And but then the May the Force was the song at the end. And it was it's May the Force, but it's set to it's a parody of One Day More from Liz. And and Judge Elrod's giving me a lot of credit for writing these things. I am, if anything, a great editor of what we pull together. But there are many, many, many people who are contributing or were assigning different pieces of things for people to write. and like we said, everybody's really enthusiastic about it.

We get some brilliant and hilarious ideas that we then pull together and somehow it always seems to work once we get up on stage. It's always in doubt and then somehow we pull it off when we do our performance. Judge, who are you playing, Judge Eskridge,

who are you playing in the Taylor Swift parody? Because again, I see John Adams here. There you go. All right, so good. Now, I don't necessarily write the roles that I want to play, but for this one, I do get to play John Adams. Did I guess this right?

Oh my gosh, you guys, I did not know that. You got that one right. I guessed it. And it's because John Adams sings Fearless. And I thought, I think Judge Eskridge cast himself singing to Taylor Swift. I don't know how it gets any better than this. So I'm not prepared to sing that one yet.

But it is, I will play John Adams there. But then also, there's so many parts in this one. For the Supreme Court argument, I am also going to play Justice White for his parts of the questions and the argument for whom I clerked. Yes, for whom I clerked. And so to be able to ask a couple of the questions that he asked from the New York Times v. Sullivan argument is going to be a lot of fun. So what song are you going to sing for us? Oh, boy. I'll do a little bit of Magna Carta Pie. I love this. From American Pie. I don't know if I'm going to sing, but I'll at least kind of sing it. I will say on coming up with these parody lyrics, it's you have to get

the right song, but then someone has to have the right idea for the hook to make it work. And I remember this meeting when we were talking about how are we, you know, what song are we going to do? And I said, I think we ought to do something from like American Pie and we can do parts of it throughout the show.

And I literally said, but we will just need to come up with something from the day the music died to make it appropriate. And without missing a beat, Judge Elrod said, the day the law came alive. And I was like, that's perfect. And then I, you know, I worked on lyrics going from there. So all right, I'll do from the intro, from the very beginning, and we all know Don McLean's version of the song, but a long, long time ago, I can still remember when the sovereign once had all control. The king would promise to do good, but then it seemed he never would until the people's freedoms he had stole. he never would until the people's freedoms he had stole. The days were grim in 1215, ceaseless wars and in between, slight food for the family, jail time without a jury.

I can't recall if King John cried when from his grip power was pride. But something touched us deep inside. The day ain't a lie. And then it's... I am by Magna Carta, did climb. Did climb. From the fields everybody made to the highest of highs. Yield, back, and serves. We're drinking mead in our wine. Seeming

on this day the law came alive. It's amazing. On this day the law came alive. Brilliant,

Charles. Oh, that, it's so fantastic. You got runny mead in there. Oh, absolutely.

You gotta get runny mead in there. Well, I'm just gonna tell you i'm inspired because one of my dreams in life is to be the first journalist on mars and which i don't think that'll ever happen but if it does i'm gonna bring a magna carta flag and plant it outside of the earth's orbit to answer the question in star lawss, does it extend beyond the earth? Yes. Yes. These things are important and they must be remembered. So, yes.

Okay. So this show, the Taylor Swift era show is happening in April. If you are in the Houston area, how would you get to see this performance? Wow. I'm almost tempted to say, well, email me and I'll get you on the list. Instead, here's my law clerk's email address. Yes. Can we, how about if we just leave a place marker here in the pod to say that there will be something in the show notes about who they can contact if they would like to RSVP to attend. Absolutely. And roughly how long is this performance? 43 page script, you know. It's an hour and a half. I'm on a tight ship, Sarah. We have to catch him. I don't. Yes, I don't. We have limits. The people are restless. They have to have dinner and have a show and it needs to be over timely and they need to get their CLE credit. So I I am the director and and we we get it done.

And so we may end up cutting a few of the brilliant 43 pages to make that happen. But we hope not. But we, you know, we get it. It's not, it's not a three hour slog or something, you know, it's not one of those. Y'all, the lyrics to Look What You Made Me Do. So I'll get smarter, research harder in the nick of time. I mean, it's so good. Is that, let me, let me go forward to where, you know, because we have we do have just what we do have. You know, Justice Thomas has been you know, he's had some opinions and thoughts about the current state of the law in New York Times versus Sullivan. And so he is, you know, Justice Thomas will be on stage, you know, singing his part. Justice Thomas will be on stage, you know, singing his part. Now, not obviously the real Justice Thomas, but someone will be delivering lines as Justice Thomas, questioning, you know, whether New York Times should stay what Judge Elrod's part in the show is going to be. She is going to be lead Swifty. So she'll be one of the background singers behind our Taylor Swift. And who is playing Taylor Swift? Who's your lead? at South Texas College of Law, Haley Jankowski. She clerked for Judge Bybee. She is a brilliant

young scholar, and she's also a fabulous singer and dancer. So we have our tailor, and we're really excited. But I did want to say something, Sarah, before we go. You know, Judge Jones is who got me into the inn. And Judge Jones has a super fun streak in her. Because as you may not know this, Judge Jones was the one who said that perhaps Judge Eskridge and I could do some little song thing for an in-of-court meeting during COVID to brighten the mood. And that is where the We'll Be Back song came about. It was Judge Jones's spurring us on to do something like that. So your judge brought me into the inn and also has encouraged our creativity. Do you know that was the only question she asked me in my interview

for clerking? She had heard that I sang and wondered, she was like, I sing. Do you really sing? We talked about singing. She really does. She has a beautiful voice. She loves to sing. And she actually is fun, but she doesn't like people to know about it. Well, I'm not commenting on that. doesn't like people to know about it. Well, I'm not commenting on that. Well, Sarah, that, you know, so I'm throwing down the challenge that you've got our song in front of you.

So now it's your turn to sing. So I will just say that the ending song for Antihero is going to be so perfect. I'm really excited to hear that as the, you know, it's me, hi. I mean, that's going to be so great to end with Sullivan more than 60 years on. It is so exhausting suing exes as public figures.

I just want to say we've given our listeners two gifts today. One is singing. We've gotten a sample of the singing talents of two judges and a little bit of Sarah. That's one gift. And the other one is none for me, which would ruin this whole podcast if I open my mouth. So two gifts, two gifts. mouth. So two gifts, two gifts. Well, you know, if either of you come to Houston in April, you could sing in our show. And, and David, you don't have to be a good singer. We've had many people do a kind of Rex Harrison speak through the song. That's old school. But so we could,

we could put you in a singing part and you never know what you what you could do. So if you if you are in Houston, we'll we can make you have a give a cameo to you. So absolutely. And with that, check out the show notes on the Dispatch website. If you are going to be in the Houston area in April and might want to check out this show. And like they said, you know, 48 state have inns of court. I think they sound pretty cool. And especially if there's a Judge Eskridge and Judge Elrod-esque people in your neck of the woods, because I know so many lawyers and law students who have benefited from your mentorship and your example and how much you guys care about the legal community and the professionalism of the legal community. So

thank you for your service. Thanks for having me. Thank you very much.