The National Law Journal Features OnAir with Akin Gump Podcast with Pratik Shah

The National Law Journal has quoted Akin Gump Supreme Court and appellate practice co-head Pratik Shah from a recent OnAir with Akin Gump podcast in which he participated. A former clerk to Justice Stephen Breyer and a former Assistant to the Solicitor General, Shah is scheduled to make his 15th Supreme Court argument next month.

The podcast highlights selected by NLJ include the following:

• Hot-button issues: Shah said he does not think the Court will move immediately to overturn Roe v. Wade, but instead “will take incremental cases in which they may start to cut back on that.” Expect a similar approach, he said, on LGBT rights, “where [retired] Justice Kennedy turned out to be a big champion and the decisive vote in many of those cases.”
• More data on Justice Gorsuch: While Justice Gorsuch “voted identically with Justice Thomas in every case” in his initial few months on the Court, Shah observed a change last term “where he had significant votes that departed not only from Justice Thomas but from the other conservatives.” As an example, Shah cited the immigration case where Gorsuch “voted with the four more-liberal justices in favor of the immigrant and striking down a law that would remove criminal aliens as void for vagueness.”
• Justice Kagan’s more assertive role: “She’s always been a force to be reckoned with,” Shah said. In two big recent cases, however, she wrote separate opinions “emphasizing particular points, both to Justice Kennedy in trying to garner his vote in a future case, but also to litigants because those cases are going to come up again on how they might better shape their case to get a favorable outcome.”
• The changing Court: The retirement of Justice Kennedy is a significant change, said Shah. Justice Kavanaugh is expected “to be to the right of Justice Kennedy. It makes Chief Justice Roberts the new median Justice. I wouldn’t use the word ‘swing justice’ because I don’t view the Chief Justice, unlike a Justice Kennedy or a Justice O’Connor, as really a swing vote. But I do view him as a potentially more moderate vote on certain issues.”
• The specter of retirements: Shah pointed out that there has been a “remarkable amount” of change on the Supreme Court in the last 13 years, with six new justices. In the prior 11 years, there were no new justices. “That leaves three of the original justices from that court: Justice Thomas, who’s only 70; Justice Ginsburg, who is 85 but has made very clear in every address, both public and private, that she doesn’t plan on retiring as long as her health permits. And Justice Breyer, who’s now 80 but also hasn’t indicated any intent of stepping down. So, I don’t think we would expect any retirements barring any significant changes.”

To listen to the podcast in its entirety, please click here.