Advisory Opinions - The People's Justice

Episode Date: June 16, 2023

Judge Amul Thapar joins Sarah to discuss his book: The People’s Justice: Clarence Thomas and the Stories That Define Him.  While today's SCOTUS decisions won't be discussed (snoozers!), the two have a lot of ground to cover: -Odessa Pink perseverance, legal hardships, and keepsakes -Mary Jane Smoking Hippies -Is Trump The Most Popular Person in the World Ever? -AO in Dehli -Scalia v Thomas -Legal eagles liking each other? -Guac offs Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. And well, that didn't pan out as I thought. So we had two Supreme Court hand down days this week. And yeah, look, we are going to talk about the cases. There were some interesting cases, but we're not going to talk about the cases. There were some interesting cases, but we're not going to talk about them today. It's going to wait for next week. We're going to do a live AO podcast

and we'll jump into the Indian child welfare case, little key TAM action for sure. You know, some others. But look, I was like, we're not doing that today. And so instead I have found an even better podcast topic. So called up judge Amul Thapar from the sixth circuit. And he has a book coming out, the people's justice. It's a,

it's a really good book. And I just read it. And I was like, Hey, can you come save us from the doldrums of the June hand-down days? And here he is. Judge, thanks for being here. Thank you for having me.

Kind of fun, and now I'm not getting ticks, so even better. This is actually your third appearance on the pod. You did your romance across circuit appearance with Judge Oldham from the Fifth Circuit. You had Legal Eagles, strong representation from Gettysburg. And now you have a book. I mean, you're very busy. Yeah, I think you and I should write a book on Sickles, but I'll do this one for now. We can talk about this, but someday we're going to tell the world a book on Sickles, but I'll do this one for now. We can talk about this, but someday we're going to tell the world about Mr. Sickles. Frankly, I think this book has some

sequels coming too, but we'll get to that also. All right. So, The People's Justice. You're referring here to Justice Thomas. Where did the idea come from? So, it's interesting because when I started thinking about writing an originalism book, it originally started as an originalism book. And as I dove deeper and deeper into the cases, maybe it's a trial lawyer in me, maybe it's the district judge, I became very was going on with the litigants and understand what the real people in front of the court, what they were going through. And if you notice in these chapters and other cases that I didn't get to write about, he often has an antidote towards the end of his opinion or somewhere in his opinion directly to the party, which always fascinated me. And so once I really dove in, I saw just this current theme throughout that he not only

cares passionately about what the people's will is, meaning through originalism, but he cares about the real people in front of the court. And so I wanted to capture both things in a book that was accessible to a lay audience. Very. I mean, look, there's a couple of things that struck me about this book right off the bat. One, I thought this was going to be a book about Justice Thomas. And Justice Thomas is the through line of this book, but it's not really a book about Justice Thomas. You walk through 12 interesting recent Supreme Court cases, obviously, since Justice Thomas has been on the court. So roughly 30 years of Supreme Court cases, sort of the hit parades, if you will. Justice Thomas isn't always in the majority or

the dissent or anything else. So he's written something in each of these cases. But if you were just, and I get this email all the time, hey, is there a non-lawyer's book where I can just read interesting things about Supreme Court cases? I mean, this is a fact intensive look. I learned things about all of these cases, every single chapter, because frankly, you sort of get to the law at the end. And I think it is very much the trial judge in you. There's a lot of, here's how the facts led to this case. Here's who the actual people are. And frankly, by the time you're at oral argument at the Supreme Court or the opinions, you're right. The facts kind of get lost. Who cares? This is now a legal question.

And it made this book really fun. It's definitely now going to be my number one, if you're interested in Supreme Court cases, but not a lawyer, and you don't want to become one, try out this. And with Justice Thomas' The Through Line, it does. It provides this thematic overview to the book. But like I said, I don't know. I assume the next book, it could be someone currently on the court. It could I said, I don't know. I assume the next book, it could be someone currently on the court. It could be someone who had previously been on the court. This is a fun way to do con law, if you will. Yeah, no, I loved it. And you know what you keep saying that I want to latch on to is I would say Justice Thomas is the protagonist in these cases, but that the real heroes I learned are the litigants.

Meaning it was fascinating to interview someone like Angel Raich or Kathy McKee and talk to them. And they're just such wonderful women. And it was incredible talking to them about what they lived through. And for me, I mean, think about my career. I was a federal prosecutor, so I dealt with victims, but I didn't really have clients per se. And then a district judge and now a court of appeals judge. So while there were a few years I had clients,

it was few and far between. And so really getting to see what they're living through and what they're going through really helped me with my own jurisprudence. It helped me think more and get back into my district judge slash trial lawyer clothes and really make sure in every case to not lose sight of the actual real people in front of the court. And I think that's a skill Justice Thomas has that's so unique. But you're absolutely right. You could do it. And I hope if the book,

if people give feedback like you and enjoy it, I'd love to do it about historical justice, because I think it would be a ton of fun to dive in. The only downside is I really loved the interviews. So if you take a chapter, for example, and if I can pick a chapter, the second chapter, it's about vouchers, and that's what the lawyers are a chapter the second chapter um it's about vouchers and that's what the lawyers are going to care about but what's really fascinating is all these heroes in that chapter bill batchelder who was the republican leader who champions vouchers teams up with patrick sweeney the leading democrat and then these city council people from cleveland where the schools were just in tragic disrepair at the time.

This woman, Fannie Lewis, who became my hero, if you recall, she's the city council woman from Cleveland who was in the worst neighborhood. And she got to know, she would always criticize city council. Then she ran for it. And if you didn't have the best interests of the kids or the city at heart, she would criticize you even if you're her best friend. And then she did something that's so lost today. She spent the time to get to know every person in her ward. And there's this great quote I found about her that I included in the book, which is, no one would jump her. She was the safest person in Cleveland. No one would jump her because if they did, she knew their mom and would be sure to call. Yeah. How many interviews do you think you did for this? How many hours

were you just working the phone? Did you ever get to meet any people in person? Was this all Zoom? How did this work behind the scenes? A lot of Zoom, a lot on the phone. I did get to meet any people in person? Was this all Zoom? How did this work behind the scenes? A lot of Zoom, a lot on the phone. I did get to go to New London, Connecticut. When I was visiting Yale, I took a side trip. You learn about all these things and you want to go see them. And of course, Cleveland's right around the corner. And so I had a lot of opportunities to do things like that. But a lot of it was phone and Zoom. Zoom's a great new tool that you can use to see people and talk to them. And so I just had a lot of fun. It's embarrassing.

Did you interview Justice Thomas? Did you interview Justice Thomas? No, I didn't. I intentionally stayed away and did not talk to Justice Thomas during the entire tendency of writing the book, researching the book, and I still haven't spoken to him about the book. I know someone told me he knows it's written. I don't know if he's even received a copy. So I guarantee you got a copy before Justice Thomas. I mean, that's the way it should be. Podcast hosts should definitely be able to read

the book before the guy the book is about. Yeah. I mean, I use your podcast to keep up on the cases, but I want you, every so often, my only request is you have a little nugget about a person in front of the court. Don't forget this because I think it's important. I think we all as lawyers really need not to lose focus that there are real people in front of the court who have, I mean, their lives are suspended. Their lives live through this. As lawyers, we have clients. We do our thing.

But for these real people, every day a decision doesn't come out is truly justice delayed because their lives are stopped. That's one thing I learned during the pendency of litigation. And I wish all of us would learn the importance of that. It is something that actually really did strike me through almost every single one of these chapters. You feel not just how long these cases take from when the person has their original moment of wrongness or whatever happens. But the stick-to-itiveness that it takes to get one of these cases to the Supreme Court, you know, decades, and we just had one of those cases, Sackett v. EPA, this term was certainly

one of those stick-to-itiveness cases. And I guess something that I kept thinking in the back of my head is, my God, for every person who is willing to see this through for a decade plus to make it to the Supreme Court, how many people just give up along the way? And how many cases do we not have? Because someone was like, look, I can't do this with my life and dedicate 10 plus years to trying to get my case to the Supreme Court. And it really struck me in the Kelo case more than any other, because at any point she could have given up. She could have just said, whatever, I'll move on with my life. This can't be the purpose of my life, which is what it felt like it had to be.

And I mean, spoiler alert, everyone, because I do want to talk about the facts. But after spending all this time, having all this perseverance and persistence and constantness and harassment, she loses. Yeah. And she is an incredible woman that really... The one thing that struck me, by the way, I'm going to just stop talking about that for a second and say, I didn't realize when I put the book together, I knew I was talking to a lot of women. But the first six chapters, I don't know if you noticed, the other day,

it dawned on me, the first six chapters, the litigants are all women. I mean, we knew in a lot of ways, I'm a mama's boy. I've got an amazing wife. I know how incredible women are, but I mean, the heroes of this book in a lot of ways. And Suzette Kilo is one of those women. And she gets this house. It's run down, but it's got the view she wants. It's got everything she wants. It's in a lower to middle class neighborhood. And a blue collar maybe is the best way of saying it,

but very diverse. And she spends a ton of time. She gets a second job. She trains herself to be a nurse, gets a second job, just so she can rehab this house. And through blood, sweat, and tears, I mean, just does a remarkable job. This house is beautiful. And she paints it Odessa pink, which I thought when I thought about it, I thought, oh my gosh, I can't believe that's going to look good. Then I went and saw because as you know, she lost and they moved the house. But I mean, it's a beautiful color.

And so I was just amazed at the character of Suzette Kilo, the drive of Suzette Kilo. And she was going to get the lawyer she wanted. I mean, she was going to accomplish everything she wanted. And the only thing is you already gave away the punchline. Thanks for ruining it, Sarah, is she lost at the court. But something good came out of that, too. I hate to say that because Suzette surely doesn't think something good came out of that too. I hate to say that because Suzette surely doesn't think something good came out of it, but she affected significant change through her drive,

through her just tenacity. So we have a piece of the Kilo Odessa pink siding at our house. It's one of our prized possessions. Oh my gosh. Did you get Suzette to sign it? Like, you know, you need it signed by Suzette. I know. Now that like, now, you know, Suzette, maybe we can all make this happen. No, Scott, like it's seriously, it's one of his most prized possessions. It's funny. He has this little Supreme court drawer. So it has Hillary, the movie from Citizens United, the piece of the Kilo house. The only problem that I'll note is that he also has the Confederate license plate that was at issue in that government speech case out of Texas that he argued. And so I don't know how to display a

Confederate license plate in my home that's like, no, no, he was on the other side. That's right. It's like, no, no, he was on the other side. That's right. That's a problem with cool collections. Yeah, some cool collections, you just got to keep in the drawer, I guess. They stay in the drawer. Look, men can be stronger, better, faster,

all sorts of other things. But if you just need perseverance and persistence, that's Suzette Kilo. That's going to be women, right? And I think when I was reading that chapter, and I'd followed that case really closely at the time. And I learned so much from reading this that I did not know at the time about the case. But you can say like, okay, well, it's blood, sweat, and tears, but that's what she's then getting the money for. You know, the government wants her house. But I think what I didn't realize at the time and what I learned from this chapter was, yeah, but that money isn't going to allow her to buy another home with the view that she wants in the location that she wants. The money isn't actually going to replace it.

And that's why she had that, in theory, she wanted the choice of whether to sell it or not. And what she was saying is, no, no amount of money can replace this because this was a find, right? This house doesn't exist anywhere else to have a water view in a house that I can afford and fix up and all this stuff. And instead, the city wants to basically buy it, to turn it over to developers, to make this retail park, if you will, that will create jobs and have bourgeois stores and whatever else. And of course, I told you the punchline of the case, but it's not the punchline of the story. And the story is what's there now. Right. Yeah.

And it's an empty field. And I went to see it. And it's so disappointing, right? Because Pfizer takes over. It's a partnership between Pfizer. I'm sure your listeners have heard of them and the government. And they take over. It's a partnership between Pfizer. I'm sure your listeners have heard of them and the government. And they take over. And then Pfizer leaves eight years later. And none of this stuff that they plan to do gets developed. The other thing that I don't want to be lost about that chapter is it's not only Suzette who moves in and does an amazing job with her house. It's

people like the Draries that have lived there 100 years, right? And they're proud of this blue-collar neighborhood. I mean, people listening might not understand that, but they're just very, very proud such that when their kids got married, they would buy them houses in the neighborhood. And so here's Pfizer Corporation partnering with the government coming in and taking this over to build, as you said, a nice mall and other things alongside their plant. And but the important thing is, I think in this case, Justice Thomas, and I think this is something people didn't know. So I dug through the amicus briefs, as you and I both know, maybe we're two of very few people who read amicus briefs for fun. And I dug through the amicus briefs, and I found one brief that asked for the original meaning, and that was the NAACP.

And the reason is, is there was an older case from DC called Berman where they changed public use to public purpose. So the Fifth Amendment talks about public use, as all your listeners know, and the court changed it to public purpose. And the NAACP was asking that it be changed back to public use. Why? Because what is the eminent domain most often used for? Not for sidewalks and streets. It's for government to take areas, low-income areas, away from the people. And you know the fancy restaurants you go to that everyone likes that have been gentrified? Well, that used to be an area where someone's house was. And we forget about that. And Justice Thomas points this out.

And I didn't see a lot of reporting about his dissent because it wasn't the principal dissent. But he talks about how this impacts minorities. He has these horrific quotes that the NAACP included in their brief. He takes up the offer of the NAACP and points out the consequences. In Burman, 97% of the people that were displaced were black. But Sarah, you know your favorite thing in the chapter was the parenthetical, you may have heard of him.

Come on, you had to chuckle when I said that. Do you remember? Yes, yes. You have to tell the story though. So when Suzette Kilo and her team, meaning the residents that were willing to stay and fight, were looking for a lawyer, they found, they did a bunch of research and they found this lawyer, Scott Bullock and the Institute for Justice, which is based in DC.

And Scott, as his nickname was, they called him Bull or Bullock. And he had a case before that. And they thought, this is our guy. And they wrote him letters. And the reason this was their guy is there was this casino in New Jersey and this casino magnate who wanted to take a grandmother's home and turn it into a parking lot for limousines. And so Scott Bullock represented her and the casino magnate. And I say his name in the book, Donald Trump. And then I put in a parenthetical, you may have heard of him. And I thought that would be fun. You know, now I've given away the punchline, but there's 12 more chapters like that or

11 more. So still get the book. There's a lot of good stuff in it. Do you ever like sit back and think about the about the fact that donald trump is probably not probably i'd be curious if anyone has any ability to disagree with me donald trump is the most famous human to ever live on earth that's weird um yeah because you're separating obviously the non-human people who have lived on earth and But I don't think that Jesus Christ is more famous than Donald Trump. I think Donald Trump's probably more famous. Yeah, because we have social media now. But if you had social media back then,

it would be much different. But what about Jordan? Really? Donald Trump's more famous than Jordan? Do you remember, they took a poll and they went through, I can't remember where, when Reagan was president. And people couldn't, oh, when he was shot. And they couldn't name, some people couldn't name who the president was. Right? But everyone knows who Jordan is. Like you can go to cities around the world. People are wearing Air Jordans.

So I'm going to put Jordan that's interesting I wonder if it matters whether you're showing a picture or simply the name and then you also for my Jesus Christ purpose I think you also have to include the fact that there's a thousand years of dead people now there's not that many dead people um I mean, there's more than maybe are living right now, but you have to include those dead people in the count that know who Jesus Christ is. But you also have to consider the fact that Jordan at his most famous, there were far fewer humans on the earth. So I don't know.

Maybe this could be an interesting study for someone. All right. So Sarah, next time we're together in a city, we're going to spend an hour. We're going to take two pictures around and a mic and a camera. And for advisory opinions, we're going to have a picture of Jordan and a picture of Trump. And we're going to ask people who they are. But isn't the real question like we need to go to like Delhi? Yes. Oh, I'd love to do it in Delhi. I'm all in. Like, can we do an advisory opinions junket in Delhi? Yeah, I think for sure. Talk

to David about that and see how that goes. It's really important for work. 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.

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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. I want to talk about another chapter that is in some ways, I think, the most surprising chapter, which is a conservative justice that we're talking about being profiled, if you will, by a conservative circuit judge. And one of the chapters is on a bunch of Mary Jane smoking hippies, and you're on the side of the pot smokers. Yeah. So I would clarify that Justice Thomas is on the side of the pot smokers yeah so uh i would clarify that justice thomas is on the side of the pot smokers i'm just the author let's uh so but having said that if you talked to angel race

you would be on her side too i mean she is talk about an incredible woman i mean, she is, talk about an incredible woman. I mean, what she lived through and the pain and agony and how nothing worked for her. And then this, you know, this is a the legal concept is a concept that only people listening to this podcast would be interested in, right? The Interstate Commerce Clause.

Like, lay people aren't going to be that interested in the intricacies of Wickard and the Interstate Commerce Clause. But the story is amazing. And tell me the DEA versus police standoff isn't something we could make a movie about. I mean, you've got the local police in California saying medical marijuana is legal. You've got the DEA saying, no, we're going to take your cannabis plants. And you've got these poor women in the middle, caught in the middle.

And then you've got the US attorney having to call the local DA and threaten him basically, just to get these marijuana plants. And then the fight and Randy Barnett, I mean, Randy Barnett comes in and represents them. And it's just talking to Randy about it and Angel about it. I just, I got to say, I talked to Angel a lot for this chapter and she is an amazing woman. And I really came to respect and admire her and her crusade. I don't know. Personally, I may disagree with it, but the Interstate Commerce Clause angle on it is fascinating to me and you and your listeners. But out there, the interesting thing is the medical marijuana, right? You brought that up, and that's what's interesting to everyone else in America. I think those two chapters, the Kelo chapter and the Raish chapter stood out to me because Kelo was a case where I thought I knew all the facts and learned a ton

from this book anyway. Raish, I realized I knew none of the facts going into the chapter. All I'd ever thought of it of was a Commerce Clause case and the sort of Scalia dichotomy between hating the expansion of the commerce clause post-Wickard versus drugs and hating drugs. And like you see sort of two principles conflicting and that's what race is about to law students and to conservatives in particular. And how are you going to think about the commerce clause when it's abutting something else that maybe you don't like either. And then I read this chapter and it really did come home. Your point about these are real people

and maybe for all of these cases, we should spend a little more time just reflecting before we jump in to who's right and who's wrong and the legal principles, which are wildly important, that there was a story behind this. And it's something also that I think as I've gotten older, you know, you learn a ton as you get older. One of the things that I think most people learn is

more empathy, just as you meet more people, as you experience more things in your own life. And chronic pain is something that I just never given a lot of thought to in my 20s and even 30s. And this is gonna sound, I hope it doesn't sound flippant because I don't mean in a flippant way. But honestly, even just being pregnant,

you start to think, okay, this sucks in a lot of ways, and it sucks for quite a long time. I mean, nine months can be a very long time, but I know this is going to end. Can you imagine if you didn't have any end date in sight, and this was the rest of your life to just wake up every day, not feeling your best, not feeling good? Wake up every day not feeling your best, not feeling good. And the way that you wrote that chapter really drove that home that really, maybe this isn't so much about drugs. Maybe this was about chronic pain and how much control the government should have when you're trying your best. Yeah, there's no doubt. um when you're trying your best yeah there's no doubt and what do you think about i i thought at the end justice thomas really captured it when he talked about i mean you could see the empathy coming through he spent most of his decision as you and i both know on the intricacies of the legal issues but at the end he talks about angel and d Diane, and he just talks about their plight.

And it was really interesting to me. That's the one where it's the first chapter I wrote. I know it's the fourth in the book. And originally, so I'm going to give you this nugget. It stays in the cone of advisory opinions, which may be a very big cone, but I was going to write a book about originalism. And what I was thinking of is kind of divergent originalism just for me to study Scalia versus Thomas, because I used to teach a class on that. But once I saw that and I started studying the cases, I realized two themes of Justice Thomas's jurisprudence

that most people aren't aware of. So there's obviously the originalist theme, and he's the leading originalist that's living today. And I think most people know that. And you can judge him on his record. And in my mind, his record is pretty incredible. But he's also got this empathy theme that runs throughout his opinions where he recognizes the litigants and he talks about them. And I think at the end of the State Farm chapter, again, something maybe only your listeners will be interested in, but no one knows the story of State Farm the way I told it and how much time I spent on it.

But at the end of that chapter, he meets one of the lawyer's sons 20 years later and remembers the details of the case because he remembers the people. He always remembers the people. And then the third thing that I thought was interesting was his very strong black voice that isn't captured anywhere else that I can find, but is captured in his opinions. And they're his own words. And I try to include those when they're relevant. And there's some really interesting chapters. The one, I mean, I know some of the Thomas folks don't love it. I know a lot of people don't like this case, but I loved the last chapter.

It ended up last because everyone thought it should be last except me, which I called three men and a cross. And I'm going to save that. So hopefully people go get the book and read about it. But it is about the Klan burning a cross. fascinated by everything going on, including the lawyer in that case who I had up here in front of me at one point when I was a district judge and is an amazing human being. And so all of that, and now I'm going to, my long-winded, Sarah, I'm coming back to Raish because I'm asking you,

you didn't know about Judge Jenkins. Isn't he fascinating? He played for the Seattle Seahawks. You remember this? The guy who gave away his shoes to a homeless person? I loved that. And I thought about that a lot. Again, you pull out good characters in all of this that nobody's paying attention to.

And it made me think, man, again, I love obituaries. And that's sort of why. Because everyone has some story to their life, and maybe we don't tell it till the end. But that just by itself was just a great vignette into someone's character, what they prioritize, how they view the world. And it was lovely.

But he ruled against him because he took his legal obligation seriously in the way he viewed the law. He had to rule against him because he took his legal obligation seriously in the way he viewed the law. He had to rule against him, even though he's this incredibly empathetic judge, right? And so it really shows you, I think, how great the court system is in that we're all, I know from the outside and you all divide us up. And I know every podcast that talks about law divides us up. But what I can tell you from the inside, which I love, and you saw firsthand when you were with us at Gettysburg,

is we genuinely like each other. And we have these great relationships. I'm doing a podcast Monday with Bernice Donald, who sadly left me and retired to greener pastures. But she's one of my closest friends. Of course, everyone would say that about Bernice, but she is this wonderful woman. We used to disagree a lot,

but we're like brothers and sisters. And I think that happens at the court too. And we like to divide and say five, four, six, three, but the reality is they're nine brothers and sisters working together. And they all are trying to get the law right you know again i'm going to leave chapter 12 because because you want to leave that with a little mystery but that is a case we have talked about on the podcast recently the sort of dueling cross-burning cases um and with that I have read what Justice Thomas wrote in that case quite a few times because it's an older case 25 years old at this point and his writing does seem different than

how I think he would write it today but I'm curious if you disagree with that. I'm curious if you think jurisprudentially whether Justice Thomas has evolved or moved at all, and then writing style, whether you think he's changed at all as someone who's now read a lot of Justice Thomas recently. Yeah, I think it's just different when he gets to write for himself. I don't know if you've focused on that. When he writes for himself, I don't know if you've focused on that. When he writes for himself, I think he writes much more in his own voice. Whereas when he writes for others and things like that, I mean, I don't want to get into another case or we'll be here all day. I would if you want to. But Brumfield, I think one of the fascinating things about Brumfield is when he wants to write about the victim, right? He writes a section on

the victim that no one else joins. And you can really see there his empathy and him thinking about these things. And he does that. It seems to me we all progress as judges. We get hopefully better at our craft. Some would say worse. I guess that's debatable. But we all try to get better at our craft. Some would say worse. I guess that's debatable, but we all try to get better at our craft. Writing is something we all evolve on as well. I've learned that I have all kinds of crazy rules for writing. I found that Justice Thomas has also started to... He maybe embraced them before me, but he says, why would you use a $20 word when a $2 word would do? I say, why would you use nine letters when five would do? So the similar concept of trying to write, so someone without a law degree can pick it up and at least understand the logic behind it.

And I think Justice Thomas has progressed in that way. I haven't gone back and studied what I call the cross case, Virginia V. Black, and his writing in particular. Obviously, I quote him a lot when I'm talking about him because I want the readers to actually see his words. And I think he says things, especially when he's talking about racial issues in a way that you can't capture in describing it. You have to read his words. Just everything in this book, I really, really enjoyed it, even though I don't think I was the intended audience in a sense, right?

Like in some ways, the intended audience are people who aren't necessarily familiar with these cases, aren't super into the legal weeds on Wickard v. Filburn and the Commerce Clause. And yet, I just think lawyer or non-lawyer alike, you're going to learn something. You're going to come away with something you didn't know before. And what more can you ask for from a book? But I have to now ask, okay, so for the second book, and I get that you won't maybe be able to interview as many people

and that you are the most people person judge on the court today on any court today maybe um what justice do you think what justices are even in the running who would you look at oh that's an amazing question so of course justice, Justice Scalia, because he, to me, was a role model and someone I viewed as someone, a mentor. He didn't know me well, but just someone I had a lot of respect for. He's one of the reasons I wrote this book, because he said we have an obligation to fly the flag. In other words, if we don't talk about originalism and the benefits to originalism and how it plays out, and now I'm adding this, he didn't say this, in real people's lives, no one's going to talk about it. So I think Scalia, but you know who else is fascinating to

me, and this won't come as a surprise to you, is Whizzer White. And again, he's a somewhat recent justice. I get that. And I could go all the way back to Marshall or Robert Jackson or whoever you want to pick. But I find Whizzer White fascinating because he's got the Heisman Trophy angle. He's got the Detroit Lions angle. His jurisprudence wasn't easily pegged. So I'd love to go study him and study the cases to figure out what the common theme is running throughout and then make it accessible to people. And he's such a, you know, if you read his personal story, it's just, he's an amazing human being in so many ways that I just love to know, how can you be so brilliant, such an amazing athlete? And God didn't bless me with all those things. So I love to study that.

That's really funny because I was just hanging out with a former justice white clerk last night. And this is Judge Charles Eskridge, who I think will be our next judicial guest on the podcast to talk about his class on origins of the Constitution, which is super cool. And he also, sorry, Judge, I hope I didn't ask permission to announce this, but I hope it's okay if I tell everyone that he has this upcoming piece coming out that is incredibly long, I'm told. This is not a pamphlet. And it is the history of the doors at the Supreme Court. The doors. Oh, I thought you meant like Jim Morrison, the doors. I was going to be fascinated with the judge writing about Jim Morrison. But okay, the doors at the Supreme Court. I want to

see how he made that interesting. If he made that interesting, I should just retire. I think it's going to be interesting. I have a warning for you. I think this is going to be right up our alley. We're really nerd nerds. And to read like 100 pages on two doors. Yeah, I think you and I are going to be very into this.

This is when my wife rolls her eyes. When I tell her what I'm reading and she rolls her eyes at me like only you would read that. Now, I'm going to say no. Sarah would read it, too. I promise. Absolutely. So I think I think Byron White would be an amazing choice. You know, Oliver Wendell Holmes would be such an interesting choice if you included his pre-justice years. And of course, I've been thinking about him more recently because he authors the unanimous decision in Debs v. United States, a case that happens to be coming up quite a bit in the last, let's call it, week.

let's call it weak, the Eugene Debs Espionage Act conviction that's upheld unanimously when he gives a speech criticizing the draft. Yikes. Yeah, yikes is right. But let me ask you this. There's some things... Oliver Wendell Holmes is one of the greatest writers of all time, and so it would be a lot of fun to do him. The book might get canceled if I use some of his quotes, and I'm not going to repeat it here, but I'm just thinking about three generations. I mean, would you call that the book? Would you title it that way? I think that's a great... Because you're not writing a hagiography of Holmes. You're going to show someone who's the greatest writer of his time, but who's getting stuff wrong. He's getting some things right. He's getting some things wrong again

by our lens. And I know this is like a theme of mine of having some humility for the time you live in because, uh, down the road, they're going to be looking at us through a different lens too. So, you know, if you think you're so much better than Oliver Wendell Holmes, okay, but you better think long and hard before you're willing to make that bet. And then there's Harlan. Well, Oliver Wendell Holmes, there's a lot of interesting cases that you could pick from that would be a lot of fun to research. John Harlan would be a ton of fun because you know where he's from, right? Yeah, I know that you like Harlan. Yeah, we get it.

Kentucky. He's from Kentucky. You know, he grew up in a family that was very divided on slavery. You know, he's got this streak where he probably has some racial issues of his own. If you think about his Asian jurisprudence um which i would love to write about uh and where i think he probably got some things wrong and then plessy right the great dissenter he's known as and so yeah that's a great idea i love that idea holmes was great that might be better for someone like me to bring the great dissenter to life for ordinary people and see the struggles, like his own personal struggles. I could work those in. It would be so much fun just to see

him through his jurisprudence. I just like that we're turning this podcast into just book ideas. Yeah. Well, hopefully, to go back to the people's justice, hopefully people appreciate like you do. You're my biggest fan. You're on here with me. I appreciate that. But I hope people will give it a flyer and when they see me or will write me and tell me what I did wrong and right so I don't screw it up in the next book. No, I just appreciate that you found the time to do this because speaking of prolific writing, I mean, you're pretty busy in your day job and the Sixth Circuit's been pretty busy recently. So I just assume the clerks are in that hamster wheel just churning hard in the Thapar chambers. So I a sign i was in we had a hearing yesterday in the district court and i saw a sign that said uh prisoners only in this hallway of course we were walking through it because we were in the tunnels of the district court and i thought i joked to my clerks that i want to get that and hang it in the hallway where their offices are. And they love that.

My clerks are amazing. I love them. They are incredible. They're family to me. And it's amazing to work with them. Sadly, one's leaving today and tonight we're having... My wife, who's amazing, has a cook's dinner for them. But as I told you before we went live, the clerks were talking at lunch about guacamole. So we're having a guac off where everyone has, they're bringing guacamole and we're going to compare. I'm going to be the ultimate judge. This is where I'm really a judge is food, Sarah. And so- Do we know though, do we know their themes? What are the different recipes? Because guac is very important in my household. One of my son's earliest words was guac-y.

We didn't think he could do all of guacamole, so we just did guac-y. And most recently when we were teaching him about options and different and words like that to distinguish things from one another, we came up with guoptions, which is do you want your avocado, you know, sort of sliced like a rainbow or do you want it in more guacamole form?

And so we talked to him about his guaptions. So, I mean, guac is like the most important thing in our house, but I take this very seriously. I've worked very hard on my guacamole recipe. And in some sense, you're getting it down to its purest form, unlike other recipes where you're adding in flavors. So I'm curious what your law clerks are bringing to the table tonight. And I'm going to need a commitment from you that you will let me know about the winner and the tasting notes so we can follow up with listeners about how the guac off goes. That sounds great.

I will definitely do that. And they're allowed to make the guac any way they want because they were claiming their guac was the best. But there are going to be some spice. There's going to be one that's spicy and one that's not based on their own personal preferences. Now, it won't surprise you. I lean towards spicy, but we'll see.

We'll see. I want to try them and be as neutral as I can. You know, I've dined with your clerks, three of the four. And I'm curious because one set has good Texas roots. And then some of the others don't. Who is being pitted against each other here? So one is from Utah and one's from the Northeast. These are the two guac competitors.

So it's not even the Texas one. Oh no. No, she's making, she's making chocolate chip cookies or bringing chocolate chip cookies because she's like every right. Everyone's got their thing. Like our,

my old court reporter, who's this amazing woman makes me key lime pie every year on my birthday because she makes the best key lime pie in America. I would put her key lime pie up against anyone's in America. Everyone's got their thing they make. I make chicken wings. If you come to my house, the thing to have is the wings. I make them on the Traeger. I smoke them for a few hours. Then I finish them on the grill so they're not fried. And I make my own rub. And my kids call it the OG rub.

Wow. I wonder just how much they're emphasizing the O in OG for their dad, just knowing my own teenage 20-something self. Yeah. So Scott, husband of the pod and I take this stuff really seriously. We took a vacation to Key West. And the only point of the trip was to try as many key lime pies per day as possible to rank and discover our key lime pie preferences. And I've spent, I think I probably spent five years doing A-B testing on every ingredient in my chocolate chip cookies. So browning the butter versus the regular butter, that took a few weeks.

It took months on every chocolate chip that was on the market and doing A-B testing along the way for the chocolate chips. That I will share with people, which is that the Ghirardelli chocolate chips beat out far more expensive, far fancier competitors. But importantly, I wouldn't go below Ghirardelli in my quality profile either. Yeah, my wife makes them with Ghirardelli and she says the same exact thing. She doesn't let me make cookies because I've tried and burnt them every time because I get distracted by law.

So it's a very sad trait. Whereas the wings, you can smoke forever pretty much. And so I can't screw them up. Notice how this works with me. But I have to come back to one thing, which is if you tried all these key lime pies, have to come back to one thing, which is if you tried all these key lime pies, I think you and David, you had a great podcast at the University of Kentucky. I was not invited. Listeners should know, and that better make it into the podcast, that Sarah did not invite me to come because she wanted to have fun. But you should come here. I'm near Cincinnati in Northern Kentucky. You should do a podcast from here. We can set it up

and then Lisa will make her key lime pie and it will be better than anything you've ever had and we have the best bourbon in the world, right? So you all can do a bourbon. The clerks are doing a bourbon tasting at my house tonight. Oh, we got everything.

They got to take Ubers. Don't worry, listeners. But we're and the pregnant one's not allowed to participate. I was going to say, wait, y'all have a designated driver built in. Yes. We've actually got two because we got a 20-year-old intern. I think that's why the clerks picked him. So they got a designated driver. But he amazing they're all amazing but it's it's a lot of fun and uh yeah so we're gonna you can do bourbon tasting here we can do key lime pie we can even do a guac tasting i mean how much fun can you have we'll do it all during the podcast with you and david this actually would make a lot of sense for our August lulls. Although last summer wasn't very lully for legal stuff.

But I feel like this August could be a good lull. And we do these then fun episodes because we are just waiting for a long conference at that point. In fact, we should call every episode in August waiting for the long conference. Right. And we could do it even better. You could do the key lime pie.

Maybe we do that for breakfast. But during the episode, we should do it from Grater's ice cream or from my friend's bourbon distillery, Boone County Distillery. Out of the distillery, you know who's Boone County is partnering. You may have heard of this guy, just like you may have heard of the former president.

You may have heard of this person. Steph Curry is making his own bourbon with my friend's distillery. So you'll love this. And I don't want to keep you much longer because I know you've got a real job. You have a lot of things to do. You have important podcasts. This is literally my real job. This is what I do. I know, but I mean the Supreme Court cases. You have a real job. You have a lot of things to do. You have important podcasts. This is literally my real job. This is what I do. I know, but I mean the Supreme Court cases. You have a real job. There

were... Yeah. Okay. You said that, not me. For me, they're important for your listeners. I follow them. I care about what my bosses say. But the Boone County Distillery, my friend and I, he was a police officer and then a Joint Terrorism Task Force officer, and I was in AUSA. We became friends. In anyone's mind in Kentucky that knows success, he is now successful. He's retired and became a master distiller, and became a master distiller, meaning he decides what tastes good. I have moved on from being a federal prosecutor and stayed in government. So he got out, I stayed in. But in Kentucky, no one cares if you're a judge, right? No one cares. But everyone cares if you run a bourbon distillery. Yeah, I mean, this reminds me of the story when I tried to make reservations when I was a clerk for my judge in New Orleans and she had the place she wanted to dine at.

And so I called and they said, you know, they were booked, no vacancy, no room. And I said, does it matter that she's the chief judge? And they put me on hold and the hostess came back to the phone and she said, state or federal? And I paused for a second too. And I was like, federal? And she paused and was like, no, I'm sorry. We don't have any room. Oh, that's beautiful. That is so great. oh that's beautiful that is so great oh new orleans you're the best never change um so you know normally i would throw some side eye at steph curry branded bourbon but honestly the george clooney casamigos tequila is delicious so yeah but and george clooney's from kentucky and what's he doing with tequila?

That's what I want to know. Will you ask him, have him on the pod and say, I ask, why isn't he doing bourbon? It's a fair question. I am sure that I will ask him the next time I see him. And it sounds like we're going to have a podcast. We're going to have our first in chambers podcast coming up soon with guaptions and key lime pie and bourbon. I don't think I can think of any better way to spend an afternoon with those three food groups. Right.

I mean, there's nothing better, right? Don't forget. Did you forget the ice cream? We're going to do greater ice cream, too. Y'all judge the par is so into ice cream. You don't even know. I I'm concerned about his ice cream too. Y'all judge. The par is so into ice cream. You don't even know. I I'm concerned about his ice cream consumption per day. Um,

all right, judge. I can't thank you enough. I can't thank you enough for doing this podcast, but also I can't thank you enough for this book. It was, um, it was,

this is a weird thing to say about it. It was kind of a page turner. I read it in a day. Um, because awesome. You can't stop midway through a chapter it's too compelling and then once you finish the chapter you're like i want that feeling again of getting to know these characters and getting to feel the story play out and even though i know how some of the stories end and it's hard to read the ones where you know it's going to end badly for them.

That is tough. But then it even makes you want to find out more how you told the story knowing that it was going to end badly. Okay, so I got to ask you one question before I let you go. Had you heard of Doe versus United States before? I know this is your thing. No. No.

Good. So Doe, I hadn't heard of at all. That was the only one I think where I was totally new to the case. Oh no, State Farm v. Campbell, I knew the holding or something, but I couldn't have told you the case name or anything like that. So that also was a good introduction. And then mckee v cosby obviously knew of the topic but not the players kathy mckee was a lot of fun to talk to by the way yes she was a riot she is the most and you're right there are so many women in this book my god God. Yeah, I was surprised. But Kathy McKee is amazing. I mean, Doe was fascinating, right? And the punchline in both Doe and McKee and Justice Thomas, having the punchline in both chapters, really interesting. Guys, the book is called The People's Justice.

It's by Judge Thapar. He's kind of a weirdo nerd, but I think y'all are going to be super into it because this is a podcast for weirdo nerds. That's right. Thank you very much for having me, Sarah. Sorry to take up so much of your time. Maybe your producers can cut all the nonsense I said. You know what?

We would have cut 90% of this, but lucky for you, the Supreme Court decisions that came down today were pretty snoozers, and it was unexpected snoozing, because I thought with two hand-down days this week, we were in for something. There was something the Chief Justice had planned for us,

and no, he planned to ruin my podcast plans. And so you have saved this podcast. We need to elevate you from friend of the pod to something else. You've done more than your fair share today in saving the pod from key TAM cases. And to boot, we got to talk about Key Lime Pie and guaptions. So, big. That's right. Well, thanks a lot again

for having me and hopefully your listeners will go out and get the book, The People's Justice, available everywhere. Amazing. Bye.