COVID-19 Mental Health and Supreme Court Issues Transcript

Pamela Karlan
Welcome to Stanford Legal where we look at the cases questions conflicts and legal stories that affect us all, every day, I’m Pam Karlan along with Joe Bankman. Hi Joe.

Joe Bankman
Hi Pam.

Pamela Karlan
So if there’s any story that’s affecting us all, every day now it’s the coronavirus, the shutdown of the economy, the fact that people are locking themselves in their houses, the economy is cratering in various ways. And of course, this ties in with a lot of the stuff that we’ve been thinking about for a long time, issues for you have mental health, issues for me of how the Supreme Court operates and we thought, in today’s show, we’d talk to our listeners about those issues. How are those issues playing out now. So Joe. Give me a little bit of a sense of, you know, when we say stir crazy that’s not the only kind of mental health issue that’s arising these days.

Joe Bankman
No, that’s right, Pam. I mean, this is something that is going to stress us all out and we know that when we get stressed out our mental health deteriorates, our emotion regulation skills go down. And we need a booster shot, as it were, of those skills, depending on in general how good our skill set is to begin with.

Pamela Karlan
So, everybody is stressed, but people kind of people deal with that stress in different ways. And this just exacerbates that or is there something distinctive about the fact that we’re social animals generally, and now, one of the things that we’ve always kind of depended on seems to have disappeared from our lives.

Joe Bankman
Well, there’s a lot of things that are pretty unique about this, you’ve mentioned one. For some people, this is a threat to their economic stability. They haven’t seen ever really faced layoffs before and some people may be facing it. And then there’s a health scare the word pandemic hasn’t been used before. So there’s a lot of new experiences for us and on the whole, they’re not going to be positive experiences. The question is how can we best cope.

Pamela Karlan
So are there techniques that people should be using to try to cope with this I mean the technique of going to see your therapist is out. I mean, at best, I suppose you could talk to your therapist on the phone. Are you doing are you meeting with your patients by phone now?

Joe Bankman
Absolutely meeting with them by Zoom. Just like we’re talking by Zoom this time. And of course, we’re teaching by Zoom, Google Hangouts, Google Meet is really the same thing. Skype. There’s lots of evidence that therapy works just about as well if it’s by Zoom. So if that’s what’s keeping you from seeing a therapist, I’ve got good news from you for you. Try Zoom, it’s going to work surprisingly well. But we know most people don’t see a therapist. So there are techniques and I thought we’d spend the first 10 minutes or so Pam exploring some, some of those techniques here today.

Pamela Karlan
Great. Well, let’s get started.

Joe Bankman
Okay. Well, to start with Pam. I’ve asked you to give me a problem and I want you to do a little bit of role playing for us and go to that space where you think you need the most help that’s congruent to what we’re saying. And where would that be right now?

Pamela Karlan
So, I think one of the places that I think about a lot is how long is this going to last. Because I feel like I can get myself you know when you know where the finish line is for something you can endure almost anything if they tell you it’s going to be 10 minutes of painful drilling and then your tooth will be better. But here, it feels to me like sometimes we talk about this. As you know, the President said by Easter. Well, maybe Easter next year. Yeah, then it’s maybe by the summer, then it’s we could be doing this for the fall and that just makes me very anxious. When is this going to be over?

Joe Bankman
Yeah, uncertainty makes us anxious and if we fixate on the uncertainty, we can get more and more anxious and often the way anxiety works. It’s almost like there’s an anxiety bully in the back of your head and she might start by saying something reasonable gee I wonder how long this will last. And then she’ll say, we have no idea how long it’ll last and then she’ll start with the parade of horribles if this goes on I’m going to go crazy. Right. And she’s going to be a little bit hazy. And so the question in general is what do you do with the anxiety boiling. If anxieties, where you at, and if you’re depressed, it’s kind of, what do you do with the depression bully. So let’s go over some techniques. Let me start Pam by saying, what do you do to make yourself feel better in general? What’s it go to for you?

Pamela Karlan
So one go to for me is to go on a long bicycle ride and listen to a playlist I’ve put together. I have a couple of different ones. And I’ll go to the Bay Lands and look at the water or I’ll go to Arastradero and look at the hills and I you know it’s like Maria says in The Sound of Music, I go to the hills. Well, I go to the hills and I feel better.

Joe Bankman
That’s right. And I love that example, Pam, because at exercise especially exercise connected with going someplace pretty is absolutely been proven to be a great technique, a great coping device for emotion regulation. It combines what you’ve told us combines three things. It combines exercise, it combines some music, and it combines natural beauty, they all work. But when we get very wrought up, what we often do is we give up the things that we know works. For you, it’s exercise. For someone else that might be something else. So the first coping device is to stop and think, what generally works for you. And then instead of cutting back on it, what we often do when we’re too anxious, we’re too wrought up or too depressed, you have to increase it. And that’s maybe the most important piece of advice I have for anybody. Think of what works for you and instead of doing it as much as you used to do it, do it twice as much do it three times as much. Don’t start by looking for a new thing. If you’ve got a winner.

Pamela Karlan
Well that’s, that’s good. Unless your problem is one of those kind of eating things where when you get a little anxious, you just need another piece of chocolate cake because I don’t think you’re really saying those people should eat three pieces of chocolate.

Joe Bankman
No, you know, we generally have categories. What works for me and is good for me. Like, you know, alcohol is something that might work in the short term for other people that we don’t want to overdo. But most people know what we’re talking about when we say what works for you. What’s really good for you. They’ve got to go to. They’re not doing it enough. So my first advice is if you’re biking every other day, bike every day. If you’re biking every day, bike twice a day, and it’s going to have lots of great effects and that’s going to lead to my second go to.

Pamela Karlan
This is Stanford legal and today Joe Bankman my co-host and I are talking about the coronavirus era and what should we do differently. Joe, you’re going to give a second example of something that might work well.

Joe Bankman
Yeah, the first example is to think yourself what works for you and the second example is you do what Pam’s doing Exercise, there is no therapy or pill that is been proven to be in general, more effective than exercise. Exercise works almost right away. So if you’re not doing it, add that to your daily routine.

Pamela Karlan
And are the things that you normally do in a daily routine that you should stop doing because of because of coronavirus? I mean other than touching people and going shopping. But are there things that it’s been kind of clinically proven exacerbate the problems that people have?

Joe Bankman
Sure. And I’m gonna mention one which is perseverating on them and it’s having that series of anxious thoughts and letting those anxious thoughts take you over. And so of course I know what you’re thinking. Pam and all our listeners are thinking like sounds good, but how do I do it. Because your anxiety bullies just filling your mind with unhelpful negative thoughts and most of us can recognize it’s not helping us, but we don’t know how to jump out of it. And one technique I’m going to offer here is called cognitive reframing, and it has two or three main parts to it. Pam. The first is recognize that these anxious thoughts aren’t the truth. That they’re exaggerations. Your anxiety bullying might start by saying, you know, there’s some health problems out there and then she’ll say, a lot of people are going to get sick. Then she’s saying a lot of people are going to die, and then she’s going to say, I think you’re sick. Right. And you can get worked up to a state from these anxious unhelpful thoughts and the first step is to recognize what’s happened. I’m having a lot of these thoughts. Maybe they’re causing physiological reactions. My heart is beating. I’m having a kind of almost a panic attack. That’s the adrenaline that shooting through you and it’s caused by those anxious thoughts for some of us just recognizing that’ll help and I’m going to suggest if you’re in that group and even if you aren’t you might type in after our broadcast the words unhelpful thoughts on the Google, on your computer and you’ll get a great little pictograms that’s going to help you identify some of those unhelpful thoughts because the first step in getting control of them is to recognize them.

Pamela Karlan
And what’s the second step after you’ve recognized that?

Joe Bankman
The second step is going to be something that I think is going to come naturally for at least some of our listeners. It’s going to be that you got to argue against them. If you let the bully have her way she’s going fill your mind with more and more extreme thoughts but like any bully if you confront her she’s gonna quiet down and what you need to do is use your kind of lawyerly skills to confront your anxious thoughts. I tell our students, I give them a phrase think like a lawyer. Cross-examine your anxiety bully when she says, we’re all going to die just instead of accepting it say, well, what’s the evidence for and when she gives you one piece of evidence cross-examine that what you’re going to find is this process is going to quiet her down. Your goal is not to think that there’s no danger. Your goal is just to get a realistic sense of what the truth is, as lawyers, we do that in part through the trial, through cross examination, so be your own lawyer against your anxiety bullying.

Pamela Karlan
So once you’ve once you’ve kind of calmed down those thoughts, you should get back on your bicycle, I guess, and go out, go out for an go out for another ride. The other thing that I think is tough on people, is they’re now much more together with each other than they normally are. I mean, normally you have your work life and the people you deal with work, your home life that people you deal with at home, a social life. And those things are separate from each other and each one is in some can be in some ways relief from the other so you know, and now instead of that you’re often locked into a relatively small space for much of the day with a very small number of people. I mean, if you’re lucky if you’re unlucky you’re, you know, I mean, the tragedy of the homeless shelters in San Francisco that have become hotspots. But for most of our listeners, they’re locked up with their family a lot of the day. And it seems to me that can be a source of tremendous stress on relationships and on people themselves. So here on Stanford Legal we’re talking right now about how to deal with the coronavirus and it’s just your co-hosts today because we each have specialties that are impacted. Joe, what do you do about that?

Joe Bankman
The first thing to do. First of all, it is a source of stress and what you didn’t mention but a lot of our listeners are realizing is that in addition to all of this, they’re now in the position of homeschooling. So they now instead of getting a relief frankly some downtime when they’re young children aren’t present when their children aren’t present there now in the house with their kids and responsible for teaching their kids, which again add some relationship stress.

Pamela Karlan
And they’re responsible, on top of that, for dealing with the huge amount of disappointment that their children feel. For example, you know, a senior in high school. No problem. No graduation. No sports. No seeing friends. No sleepovers. No real birthday parties. I  mean how do you deal with all of that?

Joe Bankman
Well, you know, the, the first step is just to talk about it, and just admit look this is this is going to be new for us. And maybe get a family gathering together and saying, let’s think about, like, what’s going to be tough for us relating to each other and just brainstorm about what might work. The good news is that if you do this, you could actually come out ahead because a lot of us never really do that with our partners and our family. This could be an occasion to actually work on issues in a kind of benign way because everyone knows the coronavirus isn’t their fault. So in a way, while the issues are really tough, they’re issues that don’t cut quite so close to the bone. So you can start having a discussion. How do we deal with this issue, knowing that is the virus, knowing that we’re going to be relating to each other and we might annoy each other.

Pamela Karlan
Well that’s great advice. Do you have advice about the how people should deal with the fact that they’re distant from people they see all the time that you know I think for a lot of people our age who have parents who are elderly you worry am I ever going to see my parents again. If you’re an elderly person, you might worry will I ever see my grandchildren again. If your partner is a healthcare worker you may wonder about that. I mean how should people deal with those issues? I read a story I think it was in the New York Times, which was one of the emergency room doctors talking about the conversations people should have now that they normally don’t have.

Joe Bankman
Well, another great question. I think we should start. And again, I want to put an optimistic framing on this if we can, by making sure that we use this opportunity to see the people we can see. And the truth is, for a lot of us that are reasonably adept at using, you don’t have to be very adept, neither you nor I, Pam are. We don’t consider ourselves as adept folks, but we’ve learned to use Zoom or Skype or Google Meets. You can start by organizing Zoom. I’ll use Zoom as an example. Zoom meet-ups with your loved ones around the world, and you’d be surprised with how many people are available, and I would recommend doing that and I think it’s going to give you a sense of connection and in some cases a better sense of connection than you’ve had in the past. And this really I think follows the spirit of that wonderful New York article which I’d recommend to people as well about what you can do while you can to have the conversations you want to have you can meet up with distant members of your family and talk about things and reestablish some closeness.

Pamela Karlan
Well that’s great advice for people to try and do that at a time like this. Any last minute words of advice about this before we take our break?

Joe Bankman
We’ve talked about the fact that therapists are available, and I do want to say that if things are really going downhill and you think that you’re not safe, the right answer, at that point is simply to call 911. So for most people that’s a world away from they are, but I want to kind of put that out there as a kind of last resort. And if needed they’re there for you.

Pamela Karlan
Great. So we’ll be back with more talking about coronavirus and how we deal with it next on Stanford legal here on Sirius XM.

Welcome back to Stanford Legal where we look at the crisis questions conflicts and legal stories that affect us all everyday, I’m Pam Karlan along with Joe Bankman. Joe.

Joe Bankman
Hi Pam. Pam earlier in this show, I was the expert talking at the coronavirus and mental health. But now, I’d like to interview you as the expert to tell us what’s the Supreme Court going to do in the age of coronavirus, I take it they’re not opening their chambers and having normal trials, oral arguments, excuse me.

Pamela Karlan
So the Supreme Court Building is a figuratively open for business, but not literally. So the public can’t go into the building now. Most of the court staff is working from home. The justices are generally working from home as well. And right now, is what’s normally the crunch time at the court during an average term that is they would be hearing their last oral arguments the week after next and then they’d be hunkering down to get all of the opinions out in the cases that they’ve heard before they break for the summer at the end of June. Instead of that, I think what we’re seeing is the court postponed the March argument session, which had about a dozen cases in it and postponed the April argument session, which had another dozen cases or so in it. And last week well, actually earlier this week, the Court announced that it would hear oral argument by telephone conference in some of the cases that had scheduled for argument March or April, but not all of them, some of the cases that were scheduled for this year will be put over and argued presumably in the fall when the court can come back and hear arguments in its normal way but some of the cases they announced, they’re going to hear by telephone conference in the first two weeks of May.

Joe Bankman
How does that I haven’t jumped in here, Pam because telephone conference, I’m thinking that’s nothing like a normal argument. And of course, arguing before the Supreme Court is kind of a fine and high art. There’s a certain way it’s done. And I know you’ve done it many times are, how is this going to change things if you’re just on the phone with somebody?

Pamela Karlan
So, it’s interesting. There are a number of courts that have done argument by teleconference before. The Federal Court of Appeals for the Sixth Circuit, which is a court that sits on appeals cases in Ohio and Michigan, Kentucky places like that, they have done an oral arguments, where the judges are in their chambers and there’s an audio visual conference system, kind of like a Zoom or a Google Meets or the like. And so the judges are in different places than the advocates, but everybody can see each other. What makes it I think potentially tricky for the US Supreme Court to do this as a couple of things. One is, there are nine justices, eight of whom are quite active questioners. As opposed to a court of appeals, where there are three judges, sometimes not all of them particularly active questions. So if you’re thinking about this from the perspective of the litigants, the people who are going to be arguing the idea of arguing to nine tiny little thumbnail pictures of people is hard to imagine. And the idea of arguing to nine justices just over the telephone without being able to see their reactions is especially terrifying, I think, to an experienced advocate before the court because you’re so used to seeing the body language of the justices, seeing how a justice reacts to your answer to a question. And frankly, knowing which justice is asking the question, because there were a lot of questions that how you would answer that question will depend quite powerfully on whether the justice who’s asking it is someone you think is generally generally friendly to your argument or somebody that you think is skeptical of your argument. So if you can’t see them when you’re doing the argument, I can’t imagine what that would what that would be like, I mean I would find that absolutely terrifying. So what we’re talking about on Stanford Legal today is how to deal with the coronavirus and in this segment at Joe and I are talking about the coronavirus and the operation of the Supreme Court, Joe.

Joe Bankman
Well, you know, Pam you saying how hard it would be to really to respond to someone without seeing them. And for those of us who are slighter, body language is so important. As a teacher, as a therapist, certainly as an advocate, I imagine, for the justices, it’ll be different, too, because when we do this apart and we’re doing this, we should acknowledge our listeners by Zoom, it’s not quite the same as being in the same place as each other and we have a little difficulty I just did an interrupted you a while ago. I think if we were in the same place, I wouldn’t have done that, but it was a body language thing that I didn’t communicate very well or didn’t pick up yours.

Pamela Karlan
Well, and I think for the justices as well the idea of how they ask the questions, when one justice stops and another one starts is something that’s really quite dependent on them being in the room. I mean, there’s a famous example of this, which is when Warren Burger was Chief Justice. He took the bench, behind which the nine justices sit, which used to be a long flat. table and he had it cut into three parts and have the two parts at the end, kind of canted inward. So that all of the justices can actually see each other while they’re talking. So one of the interesting things is you know that they say they’re going to hear the arguments by telephone conference in the court’s news release and then they say that the audio feed will be provided to the press. And this raises this really interesting point, which is the Supreme Court has famously resisted televising its oral arguments or even having simulcasts of its oral arguments, the closest they’ve come to that is in a couple of really high profile cases after the oral argument is over, they released the audio tape. I mean, normally they don’t release the audio tapes till Friday of the week they heard argument on Monday through Wednesday. And so I wonder whether the court will have a system setup where they can see each other but the only thing they’ll release in public is the audio tapes. And frankly, whether this will be an opening wedge in providing more immediate access to the public for Supreme Court arguments by allowing the public to listen to the arguments, while they’re actually occurring.

Joe Bankman
Where you know I can’t help but thinking of Kate McKinnon doing Ginsburg on Saturday Night Live.

Pamela Karlan
Oh, the workout?

Joe Bankman
Yeah, the workout, which is the most recent one, but thinking of just the parody of the Supreme Court trying for the first time collectively to all use Zoom together.

Pamela Karlan
Yeah, it’s hard to, it’s hard to imagine you know you know what system the justices are going to use. But I think it’s you know it’s important for them to keep doing business as usual. And I’ll just say about some of the cases that they’re that they’ve decided to hear in this way, it’s really important to decide those cases now. There are two cases that involve, for example, the so called faithless electors problem, which is the question of whether after the presidential election, you know, the members of electoral college meet each state and cast their ballots. Well, suppose that the Democratic candidate wins in a particular state or the Republican candidate wins in a particular state. And then the elector says, look, you know, I’ve thought about and I’m just not really going to vote for the person I said I was going to vote for. Is there anything that can be done about that? Well, we do need to know the answer to that before the 2020 election or there are three cases that involve a subpoenas that were issued either by the House of Representatives, or by the state of New York. to get Donald Trump’s tax returns. Well, that’s something that has a shelf life to it. And so, you know, I think it’s important for the Court to try and come up with a way of doing its business and getting that business decided before it goes out for the summer.

Joe Bankman
And we’re expecting, I say we, the Stanford Law School clinic has a couple of cases, including one that you argued one, a title seven. Are there are the decisions going to be released is, is this going to affect that?

Pamela Karlan
I think it’s pretty clear that the Court is going to release decisions in all of the argued cases, the same way it would have if it were sitting normally I think the only difference will be, they are not going to have the public announcement days where they all get on the bench and the author of the opinion makes an oral announcement. I think they’ll just release the opinions in the written form, but we will know by that sometime in June or perhaps the court will end up sitting until July, because they’re hearing oral arguments so much later, but will know by sometime in the mid-summer what the result is. In all the cases have been argued that have been argued so far. So thank you for joining us on Stanford Legal here on Sirius XM.