Auren Hoffman  0:01  

Welcome to World of DaaS, a show for data enthusiasts. I'm your host, Auren Hoffman CEO of SafeGraph. For more conversations, videos, and transcripts, visit safegraph.com/podcasts.

Hello, fellow data nerds. My guest today is Tom Goldstein. Tom has argued in front of the Supreme Court over 40 times. He also teaches Supreme Court litigation at Harvard Law School. And he's the publisher and founder of SCOTUS blog, which is blog dedicated to covering the US Supreme Court comprehensively. Tom, welcome to World of DaaS.

Tom Goldstein  0:38  

Thank you so much for having me, Auren. 

Auren Hoffman  0:40  

Alright, now this is a data podcast. I think a lot of our listeners might find it interesting and a bit weird that you need data to argue a case in front of the Supreme Court. Just like maybe like hedge funds need data for their best trades. Am I on the right track about that? Like, is that something that's important as you're thinking about arguing?

Tom Goldstein  0:59  

I'd say it's a yes or no thing. We do use a lot of data to explain the Supreme Court. So at the end of the term, we have a big data aggregation project that talks about and addresses, you know, who voted with who and what circumstances, how often various courts are affirmed and reversed, and it does help to make something that's pretty complicated and foreign simple and familiar. So data is valuable there. You can also have circumstances where data is valuable in litigation in general. When you're trying to deal with big datasets, obviously. The thing about the Supreme Court is that data can--and I guess this is true everywhere--is that big data can help to clarify things, and it can also mislead. So with the Supreme Court, on some level each case is relatively unique. So it's a sample set of one. Now, as you try and extrapolate outwards from the particular facts and particular legal question in any given case into broader things, you can make bigger datasets, but your extrapolation is going to introduce error. Because each case that you are saying oh this is a similar case to that one is actually going to be dissimilar in some way. So if I say to you, alright, I'm going to do data analysis on the Supreme Court's race decisions or abortion decisions or religion decisions. Well, each one of those is different from another. So if you just look at numbers or you look predominantly at numbers, you can be led down the wrong path. The other thing is that if you know the Supreme Court well enough, like you know any decision maker, ultimately the data is telling you things that are, again, simplifications of things that you ought to be able just to understand as a field subject matter expert. There are times when data can be useful as it relates to the Supreme Court. There are times that it can be misleading.

Auren Hoffman  2:41  

There are handicappers, just like you handicap a football game or something like that, right. You might handicap before the arguments. You might handicap after the arguments, but before the decision. Based on that people may make certain bets or I assume or something like that.

Tom Goldstein  2:55  

Right. So there are times when the Supreme Court is deciding things that have a lot of money at stake. The best example of what you're talking about is gambling on gambling. The Supreme Court decision a few years ago on whether states could authorize sports betting. So there was a huge amount of investment and trading based on predictions about what the Supreme Court would do because that opened up an entire multi-billion dollar industry, you know, tens of billion dollar industry. You also have individual cases where particular parties have a ton at stake. So for example, we're going to talk about Google versus Oracle. Google had north of $10 billion at stake in that case. It's just that Google's market cap is so big that it doesn't really so much move it. But I had a case Qualcomm versus the FTC that moved that stock. There are cases, for example, that are about entire industries. So there was a big fight over whether the federal government had to pay several billion dollars to various insurers under Obamacare. So the markets can really be affected by particular cases and getting subject matter experts in there. Also, timing can matter. You know, the Supreme Court isn't really built to interact with the markets. So it's technology, when it releases things. You can get weird information economies and diseconomies where I've been hired, for example, to give somebody a three or four second edge in understanding what it is that the Supreme Court is doing.

Auren Hoffman  4:15  

So it's not like the Fed that publishes to like everyone at the exact same time. You might get a few second lead on perceived Supreme Court decision or something?

Tom Goldstein  4:23  

You can in one of two ways. One is now Supreme Court has gotten better and better at releasing its paper copies and web copies at the same time. But for a long time, the Supreme Court didn't even have a website. And so it was all about the paper copies. The second is, whoever gets something is still getting a piece of paper, and you have to understand it.

Auren Hoffman  4:40  

You have to interpret it quickly. So how quickly can you interpret it? 

Tom Goldstein  4:44  

This happened not with respect to the markets, but nonetheless with respect to information. When the first Obamacare case came down, Fox News and CNN reported that it had been struck down. There was a whole debacle that morning where some of the major news media reported the decision backwards because they were in such a rush that they only reported what was on the first page.

Auren Hoffman  5:08  

Because it was a nuanced decision, and they didn't even have time to read the whole thing.

Tom Goldstein  5:11  

They didn't take the time. They had the time, but they didn't take it. And it created this whole thing where President Obama in where he was at, they had CNN and Fox on television kind of understandably. Those both got it wrong. So for a while in the White House, they thought they lost when they'd won. It was all...

Auren Hoffman  5:29  

All right now you mentioned Google versus Oracle, which I think is a super interesting case. It’s a case that you argued and the Supreme Court ruled on last year. From what I gather, it's a case of whether Google's use of like certain interfaces from Java, which Oracle acquired as part of like acquisition of Sun. Can you give us like a little background on the case? And then we can dive into why that case is important.

Tom Goldstein  5:50  

Sure. So Google versus Oracle is about them about interoperability between different pieces of software, or software and hardware. So if two pieces of software are going to talk to each other, they're going to talk to each other through an interface or to a piece of hardware. There's got to be some…

Auren Hoffman 6:05 

Like an API or something. 

Tom Goldstein 6:06

Yes, it's an API. An application programming interface is generally what we're talking about. And Java has thousands of API's for when Java programmers, Java engineers, are writing… Java, like a lot of modern programming languages, has shortcuts. So you can just use one word to incorporate, you know, dozens or hundreds--

Auren Hoffman 6:27

Libraries, etc. 

Tom Goldstein 6:30

Exactly right. And so the thing is, is that when Google was making Android, they wanted the Java engineer community to be able to write for Android. Java itself is public domain. Nobody has a copyright. Everybody can use it. They also wanted the Java engineers to be able to use those shortcuts. In order for the Java engineers to be able to use those shortcuts, Google had to bring in the  API's from Java and had to reuse the API's because no other API's would work. If you change any of the API's than the shortcuts that the engineers were using wouldn't work. So there was a big copyright fight. Oracle sued Google principally for patent violations. But when they lost those, they went for copyright. And they said that the API's were copyrightable, copyrighted, and reusing them was not fair use under copyright law.

Auren Hoffman  7:17  

I could see how this could have like implications throughout like the entire software world because everyone is borrowing different API are other types of interfaces from other companies and stuff like that. You can even imagine like the hash tag and the at sign and all these other kinds of things that we use all over the internet nowadays was developed somewhere at some point, but then everyone kind of liberally copied that.

Tom Goldstein  7:41  

Yeah, it's a huge deal for interoperability. Also, it's a huge deal if you want to make new software to replace old software. If you want the user base of the old software to continue to be able to use their built up knowledge about, hey, this is how the program works and these are the codes that I use and everything like that. If you can't reuse the interfaces, then you're kind of stuck. The switching costs for the user base will be so high that it can be very hard to compete. So both with respect to creating new software that interacts with existing packages and also creating new and better stuff. It was regarded by the industry as a humongous deal, especially when Oracle won. Google beat Oracle at trial twice. Oracle beat Google in the Court of Appeals twice. The US government sided with Oracle saying that API's are copyrightable and it wasn't fair use. So it did threaten to upend, rightly or wrongly, a massive body of code and a massive body of practice in the software industry.

Auren Hoffman  8:39  

You represented Google in this particular case.

Tom Goldstein  8:43  

Yeah. We only talked about cases I win. So yes. 

Auren Hoffman  8:45  

What would have been the implications if Oracle had won in the Supreme Court? Do you think they would have been more narrow, or do you think they actually would have been more widespread? 

‍

Tom Goldstein  8:53  

Well we, our view is that the Earth would simply stop turning. Now, assuming that was hyperbole, it had backwards looking and forwards looking implications. It was going to be a huge deal. It wasn't just us talking.

Auren Hoffman 9:05

Because everyone would have been suing everybody essentially. 

Tom Goldstein 09:07

Like this has been going on for decades. Google didn't come up with this idea of reusing interfaces. 

Auren Hoffman  9:13  

Yeah. I mean, every single company I know of does this.

Tom Goldstein  9:17  

Java itself reuses a bunch of interfaces from earlier programming languages. So you know nothing is truly new. Everything builds on what comes before it. So there was a real worry about massive, massive litigation about existing software. Then everybody's like, well, what are we going to do going forward? If everybody can claim--An interface is essentially a lock and key. And if anybody can claim I have a copyright on the lock, nobody else can go through this door. It really did threaten to lock up the existing user basis for legacy software indefinitely.

Auren Hoffman  9:48  

You could make an argument it would really slow innovation going forward.

Tom Goldstein  9:52  

Absolutely. We wanted people to be able to just continue to connect more and more things and build on more and more things. On the other hand, to give Oracle it’s due, copyright exists to encourage innovation. A lot of effort had gone into building the API's originally. So there's a balance there. That's the balance that the Supreme Court was trying to strike.

Auren Hoffman  10:12  

Give us a sense of why you think the court came down on the side, beside for your brilliant arguments. 

Tom Goldstein 10:17

That's all there is. 

Auren Hoffman 10:18 

Okay. Of course, yes, yes.

Tom Goldstein  10:19  

I had relatively little to do with the thing. I always thought--I mean I was hired to get the Supreme Court to take the case, and then to win. We did do both of those things. The Supreme Court have turned the case down one time before. I just had a sense that the justices were not interested in fundamentally upending an apple cart that was working really well. That the software industry, which was so solidly on our side, both big players like Microsoft, lots of small developers, the programming community. We had hundreds of software engineers. They all explained that this was a practice that was really very important to the orderly development of competitive software packages. That was basically the core message. The second message was that this really wasn't the case about Google because nobody's gonna like lose a lot of sleep over getting hit. We were telling a story about the developers, the Java engineers who wanted to use the commands they knew, right. The commands that they know are not copyrighted. But Java required them to use those commands in combination with these API's with the interfaces. In Java, they're called declarations. If Oracle could copyright the declarations, it would really shut down the developers. So we really made the heroes of the story the developer community. They wanted to make amazing computer software, amazing software for smartphones and the like. In the end, the Supreme Court did two things. The first is it looked at the question of whether API's are subject to copyright. Can they be protected under copyright law in the first instance? It refused to decide that question. Then it turned to the question of whether the reuse of the API's here to create Android, to allow Android developers to use Java was fair use and therefore privileged assuming that the API's could be copyrighted in the first instance? And it said yes.

Auren Hoffman  12:15  

We still don't really know whether API's can be copyrightable. I mean, maybe in some cases they can and some cases they can't or something.

‍

Tom Goldstein  12:23  

That's exactly right. So the Court of Appeals ruled that they can. There are copyright holders who created API's who are still relying on that ruling to say we have a valid copyright. That's just an open and undecided question. Now, in a lot of circumstances, the question doesn't matter because the use of the API's will be fair use, but sometimes it will. So it mattered to the Supreme Court in the Google case that the API's were being reused in a way that was on a different platform. Java overwhelmingly was a server and desktop platform whereas Android is obviously a smartphone/smart device platform. They were being reused to create applications for an entirely different operating system environment. So if you instead reused interfaces to create just a straight competing product on the same platform. Let's just say there's an interface. This came up, for example, a long time ago with spreadsheets. The original cases involved spreadsheets where there were API's or interfaces so that you can use various macros for a spreadsheet.

Auren Hoffman  13:36  

So VisiCalc and then Lotus 1-2-3 and then Excel then Google sheets. 

Tom Goldstein  13:41  

That’s exactly. It involved Lotus. Lotus versus Borland was the big case. With Lotus 1-2-3, if you had these interfaces for the macros and then you use them to create a competing spreadsheet program on the same platform, that kind of case is still around. We do know it's fair use if you're working in an entirely different environment and doing something different. When you are just trying to compete, it's an open question of whether it'll be fair use. Therefore, the copyrightability question is still important and hanging out there.

Auren Hoffman  14:09  

If you use Google Sheets or use Excel, a lot of the same ways of creating formulas in Excel work on Google Sheets. There's a lot of similarities there. If you use one, you'll be very familiar with using the other. It has kind of both forward and backward capability. It some ways that’s good for the user, but that you could say that's bad for Excel because it makes it easier for me to move my Excel to Google Sheets. Or in this case, moving from Lotus to Borland or Lotus to Excel, etc. Right?

Tom Goldstein  14:37  

That's all correct. And so the question is, sometimes you can create a user experience by creating your own interfaces, and sometimes you can't. If there's only one interface that will work, then this copyright issue comes up. Merely duplicating your user experience is rarely a copyright problem because copyright protects what you wrote as the author, as the software creator, not what the user is experiencing. It can get very hazy and it can get tough to decide when you're talking about visual user interfaces, for example.

Auren Hoffman  15:09  

Like a UI, or this is the Mac versus Windows thing, etcetera. 

Tom Goldstein  15:14  

Right. That can arise in two different contexts. One is copyright, and the second is design patents. The visual effect of something can sometimes be patented in limited circumstances. Apple has done that. There have been fights that I've been involved in with Samsung and Apple, for example. 

Auren Hoffman  15:30  

You could have a design patent and not just a copyright on something or okay.

Tom Goldstein  15:35  

Yes. Ornamental features of items generally are handled as a matter of patent law rather than copyright. 

Auren Hoffman  15:42  

What's the argument of patenting like art essentially?

Tom Goldstein  15:47  

Yeah, so there is… Paintings can be copyrighted. Songs, artistic things absolutely can be. 

Auren Hoffman  15:55  

Copyrighted. But you just mentioned ornamental patent? Like to me, that seems like art. Like how do you how do you patent art?

Tom Goldstein  16:02  

You can have physical items, and sometimes logical items, in which they are purely ornamental and you want to protect their visual features. So it's a very complicated overlap between copyright and patent law. Design patents are a tricky subject.

Auren Hoffman  16:18  

For copyrights, they seem like nowadays they can be extended forever, whereas patents do have like maybe a much, much shorter shelf life. But maybe patents you have stronger protections than copyrights. Is this the trade off if you're deciding one versus the other? 

Tom Goldstein  16:33  

Yeah, you got it exactly right. Our view is that this sort of thing by Oracle is probably the subject of patent law to the extent you can get it. It's much harder to get a patent and the protection lasts less long, but it is more protection. Copyright it lasts forever. It's super easy to get a copyright, but there are doctrines like fair use that can pop your copyright bubble more easily.

Auren Hoffman  16:57  

How do you think of these like business process patents? I've gotten many patents in my life. Many of them are just kind of business process patents. Some of them are maybe real invention patents. I've never actually tried to enforce the business process patents, but I imagine I'd have a tough time if I wanted to.

Tom Goldstein  17:13  

Yeah, so the Supreme Court has gotten really tough on those. The doctrines related to business method patents basically say you can't just be saying I have a solution to a problem. Here's how I would solve it using a computer. So the ability to get patents on computer software is very difficult. You have to have a very, very unique solution to a problem that happens to use a computer. Merely porting over a solution onto a computer won't do. That's why most software related business method patents are probably invalid.

Auren Hoffman  17:43  

But yet the patent office does seem to be--They continue to grant it. You would think it'd be hard to get a patent in the first place. Why the green button if it's not something that can be enforced?

Tom Goldstein  17:53  

Because there's a little disalignment between the Supreme Court and the patent office. The Supreme Court has decided two or three of these cases, but not 10. So it's a little bit unclear. The patent office, I think, tends to be a little over generous because it doesn't want to be in the boat of like denying a patent that later is deemed to be valid. Also, the Supreme Court is pushing back against this practice by the patent office. The patent office just tends to be very pro patent. 

Auren Hoffman 18:19

I guess it makes sense. That's how they make their money. 

Tin Goldstein 18:21

That's true.  But I just think they have in general the sense of like they really want to protect. They have they have the perspective of the patent laws are valuable. They really do encourage innovation. They want to see these inventions. The Supreme Court really thinks that patents can get in the way of innovation. They're very, very, very concerned about patent hold up. That there's a lot of patent extortion going on with very low value patents. Litigating patent cases is so expensive that it's very easy to force settlements and that sort of thing. Whether the Supreme Court will pivot on that a little bit is a little unclear because Justice Kennedy was the most kind of anti-patent Justice. Justice Briar as well, and he's probably going to retire this year. So I don't know if we'll see some movement where conservatives on the Supreme Court are generally pro property rights might tilt back in the direction of being more pro patent.

Auren Hoffman  19:10  

Interesting. Speaking of like Justice Kennedy and the Supreme Court, the court has changed a lot over the last 25 years. I don't know that much about the court, but it does seem like in the past it was like we're just gonna argue to Justice Kennedy, and wherever he goes going to decide the fate of my case. Whereas today, it does seem like there are many more combinations, many more strange bedfellows being formed than in the past. Is that just someone like me seeing patterns that don't exist? Or is that actually a trend that is happening? 

Tom Goldstein  19:45  

Well frequently you talk about conventional wisdom that is not as sound. It's really a situation of what--It depends. So if you had a case that was deeply ideological. If you had a race, abortion, gay rights, religion, free speech case, then yes, Justice Kennedy overwhelmingly was in the center of the court. Not always. On race, for example, he was pretty anti-affirmative action, but he was in general, the courts ideological center. Now a bunch of what the Supreme Court does isn't ideological. You know, Google versus Oracle, you wouldn't call ideological and it's a big deal. You would say about a third of the court’s docket. That's why you only really see about 20% to 25% of the court’s cases usually being decided five to four and about 50% or 60% of those being decided on, when Justice Kennedy was on the court, five-four grounds. Now, the reason we're going to have fewer five-four ideological cases now is that we don't have a five-four ideological breakdown anymore. We have a six-three one. So you may get a bunch of six-three cases, and it doesn't trigger the mind in the same way as the notion of it being five to four does, but it's no less ideologically divisive. It's just that by dint of politics, we now have a broader conservative majority than we've had in a century of the Supreme Court. In terms of whether we're getting more diverse lineups. It's a little early to tell. The court has just changed a lot. We have Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh. So we've had a series of recent appointments to the court, and it usually takes a few years for people to settle into their jobs and kind of get their perspective. We've had a number of surprising decisions from some of those justices and also the chief justice. It's shaking out. But on a big abortion case, you're not going to expect one of the conservatives to pivot and suddenly be in favor of Roe versus Wade, a big religion case in favor of separation of church and state, a big affirmative action case in favor of race based preferences and that sort of thing. But there will be questions of degree. 

Auren Hoffman  21:42  

Or I saw one recently where Thomas and Sotomayor are were lined up. Maybe it was like Briar and maybe Thomas on the other side. There does seem like these strange bedfellows that are happening, or you think that's not happening that often?

Tom Goldstein  21:55  

It’s very rare. It’s not much more rare than it was before. Again, small datasets can produce unfair extrapolations. So that case could have arisen this term or five terms ago, it's still this case. It's very hard to suggest that the justices themselves. A justice like Justice Thomas is not going anywhere ideologically, and neither is Sonia Sotomayor. So when you see them line up, you don't really tend to think oh it's because the court is changing. The big changes relate to changes in composition. So the new justices, the loss of Justice Ginsburg, and the like. Justices being on the court longer, being coming more comfortable with who they are and their own views. It's a big change from going from the Court of Appeals to the Supreme Court because it’s a fundamentally different job. In the Court of Appeals, you're trying to apply Supreme Court precedent. In the Supreme Court, you're basically making law in the name of precedent. It's very rare that justice will show up fully formed and their views on those things.

Auren Hoffman  22:51  

Speaking of how courts change. During COVID, the court sessions were on video. 

Tom Goldstein 22:57 

Well, audio not video. 

Auren Hoffman 22:57

Sorry, on audio, even more different. There was a lot of the process about how the questions were asked, where is difference, etc. There was both like good things and maybe things that weren't so good about it. What did you learn from the audio piece of the Supreme Court arguments during COVID? And how do you think that may affect Supreme Court in the future?

Tom Goldstein  23:19  

Well, for the justices, I think it was worse because it was very hard for them to have a coherent line of questioning.

Auren Hoffman  23:26  

Because they had to ask them in order or something. Right. 

Tom Goldstein  23:31  

Exactly right. It went in order of seniority, and they were cut off after two and a half minutes. Then they just had to stop and then their next colleague would want to talk about something else. So in Google versus Oracle, where we had both the copyrightability question and the Fair Use question and then we had nine justices asking questions, it was just a wet mess. For me, it was interesting because I'm so used to you stand up in front of them. When I argued cases telephonically in front of the Supreme Court, I could have a 10 member team and three different chats going at the same time and real time transcripts. I did a lot with the technology.

Auren Hoffman  24:01  

You obviously can't do any of that when you're doing it live. 

Tom Goldstein  24:05  

When you're in person, right, when you're right there. They are now in person, again. They're still streaming the oral arguments, which is a big development. It used to be that you had to wait until the end of the week to hear the audio. You can only get a transcript same day, but now there's nearly real time audio. I think they probably hated it. Interestingly, now that they're back in the courtroom, they have preserved a touch of the doings telephonically. That is at the end of the half hour of oral argument, they will go in order of seniority again.

Auren Hoffman  24:33  

Oh, oh, so that's a new development. That's kind of interesting. 

Tom Goldstein  24:37  

Yeah. They're experimenting with that to make sure that everybody gets in anything else they want to ask about. So oral arguments now last a little bit longer than they did in the past, which was also true during the telephonic period.

Auren Hoffman  24:47  

How do you see like the science versus the art of Supreme Court advocacy?

Tom Goldstein  24:52  

You know, Supreme Court advocacy, like a lot of specialized fields that are not sciences, is about wisdom probably. There's a lot that goes into it. Like if I'm in the courtroom, a fair amount of what I'm doing accounts for the body language, the questions that are asked, that aren't asked, the tone of voice, the level of interest, that sort of thing. Now, on the other hand, Supreme Court oral advocacy is only a tiny piece of the puzzle. Most of the case is fully baked by the time you get to oral argument because there are all these briefs that we've written. That too, though, is wisdom. It's non formulaic. It's persuasive writing. It's trying to break down and figure out where your five votes are. That sort of thing. It is, I think, more on the art side of things. We think of it more on the science things side, because it is intellectual. But it is ultimately a persuasive act, which is more an artistic thing. 

Auren Hoffman  25:42  

You've argued 40 cases in front of the Supreme Court. That seems like a lot. How many people have argued more than 20 cases that are still active today?

Tom Goldstein  25:49  

It depends on if you include lawyers for the government because the government's involved in three quarters of the cases. If you just say private lawyers, in 45 I've done the most of anybody who's just argued private practice. I never worked for the government. It is very important to account for the governmental advocates because that's where we have a real gender and race and ethnicity diversity problem in the practice of law. Most of the diverse practitioners come out of the government because the government does a much better job hiring. If you go to a law firm and hire somebody, you're going to get in almost inevitably hire the most senior person which is generally going to be a white guy. The governmental, state, and federal governments, they're advocates and where those advocates go after they work for the government are very, very important. It is a pretty tiny group of repeat players. I guess I started doing this in ‘98. So 23 years. So arguing twice a year for 23 years or so. It's a handful of people. But the interesting thing is nobody retires. It's the world's easiest job. The people who were doing it when I started in ‘98, are still doing it. Maybe two of them have retired. So there's a bit of a bottleneck.

Auren Hoffman  26:50  

That does seem like there's a bottleneck. Now a couple of personal questions. You started SCOTUS blog with your wife, Amy. You're both lawyers. You've both advocated in front of the Supreme Court multiple times. I've actually been to your house for dinner. It doesn't seem like you guys, at least in person, disagree that much. How do these two high powered lawyers cohabitated in the same household?

Tom Goldstein  27:11  

I basically do what she says that's always been the way. 

Auren Hoffman 27:17

I don't believe that. That's not true. 

Tom Goldstein 27:15

I mean, we've been together-- I remember we were freshmen together at UNC Chapel Hill in 1988. 

Auren Hoffman 27:23

Oh my gosh, that's amazing. 

Tom Goldstein 27:25

Graduated in ’92. She got a full ride to graduate school at Georgetown's Foreign Service school, then went to law school. I went to law school and just started my own law firm. Then we just started working together. So we did teach at Stanford and Harvard. We started the blog. Amy has had the good sense to get out of the law game as such. She became the editor of the blog and is now the reporter for the blog. So I think is even closer to the court than me. Was down there today. Is down there every active day. So really has her finger on the pulse of it. Does a lot more media related to court these days than I do. In terms of disagreeing, the thing about both of us, I think, is that we take the court as it comes to us. A lot of people think about the Supreme Court as being good or bad in fairly ideological terms. I think we respect the people and recognize that there's no necessarily--We're both on the more liberal side of things. But it's not that we view that as like some norm that's enshrined in the Constitution or otherwise in the law, and therefore we regard the more conservative justices as acting in bad faith. We don't. We’re just like they have a different take on things. It turns out the Constitution makes their view important and not ours. That's actually relatively important if you want to be a good reporter or a good lawyer is you have to take the institution as you come to it, and have to work on the understanding that you can try and either explain them or persuade them in logical terms.

Auren Hoffman  28:43  

Right. You're also a big, big fan of poker. How has that helped you be a better lawyer? Or how is being a great lawyer helped you be a better poker player?

Tom Goldstein  28:52  

I wish that I was a better lawyer and a better poker player. Poker is less a part of my life now. For a while was a big part of it. I would say that poker is a good example of something where you just are never stopping learning. Like you can know the rules of something. Like you know a set of legal rules, but then number of iterations that you have to go through in order to get better and better at it is very high. Poker is something where data has taken on much greater significance than it has in the law. The law is catching up certainly with poker because there are solvers for poker and the way that there aren't solvers. You can't really so much AI the law. You can AI poker. Texas Hold'em is a solved game on some level. A very sophisticated the solved game, but a solved game.

Auren Hoffman  29:35  

Do you think like computers would beat people generally in poker? 

Tom Goldstein  29:38  

Overwhelmingly. There are players that are better than the machines because they're able to adapt to the machines. Poker is ultimately a leveling game where you're trying to stay one step ahead in your thinking. There are a very small subset of one 1/100th of 1% of all poker players who are capable of out leveling the machines. It can get very complicated if you were playing seven handed poker. But in heads up Texas Hold'em almost any player in the world would be a very smooth, say a significant dog. They would have almost no chance of beating the state of the art in software. But there's also a human reading component that obviously doesn't intersect so much with computing in live poker. So that has been relevant to just understanding people, understanding body language and the like. A poker hand is a problem. You have to break the problem down. You have to understand what your strengths are, what the other side strengths are, and figure out where you're at. Beyond that it also divergence enormously too.

Auren Hoffman  30:35  

Do you teach your kids? You play with your kids?

Tom Goldstein  30:39  

I think in general, you'll either gravitate to poker or you won't. And in my books just like starting kids out with things related to gambling is not good.

Auren Hoffman  30:47  

Okay, well, I've been playing poker with my kids. So maybe I should stop. They've been taking a lot of candy off me. 

Tom Goldstein 30:53

Auren, get them out earning. That’s your perspective, and I can't argue that. 

Auren Hoffman 30:59

All right. Last question we ask all of our guests, what is the conventional wisdom or advice that you think is generally bad advice? 

Tom Goldstein  31:06  

Yeah. So we did touch on this question of like don't assume the Supreme Court's an ideological place and every case is going to turn on the politics because the great majority of cases don't do that. If you ask, I'd step a little bit away from the Supreme Court and think about law, politics, institutions, and the like. There's a conventional wisdom that our legal structures are really, really solid so that things can't truly go south. It would be impossible, for example, for the United States to turn autocratic, but that conventional wisdom is surprisingly wrong. All of these institutions are sat by individuals. We’re very lucky when it comes to the Supreme Court to have genuinely, no BS, a set of people who are very principled and are concerned about the country and institutions and like. They're not power hungry. But you can get in at the federal, state, and local level, we've seen over and over again people that betray the principles of the offices they hold in the Constitution they're supposed to uphold. You can lose democracy in the United States. You absolutely can do it.

Auren Hoffman  32:08  

People think like the ends justify the means. They're trying to do something good in the world, and by doing something maybe somewhat unconstitutional, it creates some sort of good. They're willing to take the shortcut to do it or something, 

Tom Goldstein  32:18  

That's a charitable take on it. Some people may be megalomaniacs. 

Auren Hoffman 32:22

Got it. They're just trying to get power. Yeah. 

Tom Goldstein 32:25 

Yeah. Either one is fair enough. The systemic and institutional constraints that we have, like checks and balances is what we learned in schools, aren't themselves sufficient to maintain a democracy. The people matter a ton. That's just a broader lesson about things. That is everything ultimately is about people. The people you're around, who you hang out with, who you listen to, who you trust, who's in your family, who are your friends or your enemies?

Auren Hoffman  32:47  

Right. It's not like blockchain AI is making all these decisions. It’s an individual person even may make very different decisions with the same information on different days based on how they're feeling or something. 

Tom Goldstein  32:59  

Absolutely right. That means that in the end, even though computing and machines and the blockchain and like are so much more important every day than they were the day before, our future is still very much in the hands of people.

Auren Hoffman  33:13  

Cool. Well, this has been awesome. Tom, where can people find you beside for SCOTUS blog on the interwebs? 

Tom Goldstein  33:19  

Yeah, I mean, the SCOTUS blog is kind of the place that we hang out. That's true. The blog has now TikTok presence and significant Twitter presence and that sort of thing. 

Auren Hoffman 33:27 

Are you doing any dance videos or anything? 

Tom Goldstein 33:30 

Oh you have no idea what's coming and what the justices are going to be into. That's really what we're mapping out.

Auren Hoffman  33:38  

Oh, awesome. Well, thanks again. This has been great. 

Tom Goldstein  33:40  

All right. Thanks so much Auren. I really appreciate you having me. Congratulations on the podcast.

Auren Hoffman  33:44  

Thanks for listening. If you enjoyed the show, consider rating this podcast and leaving a review. For more World of DaaS, and DaaS is D-A-A-S you can subscribe on Spotify or Apple podcasts or anywhere you get your podcasts and also check out YouTube for videos. You can find me at Twitter @auren. That’s A-U-R-E-N, Auren, and we'd love to hear from you. 

World of DaaS is brought to you by SafeGraph.