321: Don’t Stop Appealin’

Summary

#SistersInLaw Episode 321: Don’t Stop Appealin’

Date: July 15, 2026
Hosts: Joyce Vance (C), Barb McQuade (A), with listener questions
Podcast by: Politicon

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Episode Overview

In this installment of #SistersInLaw, Joyce Vance and Barb McQuade host the recurring "Sisters Sidebar," fielding listener questions on current legal and political issues. The conversation covers cutting-edge lawsuits around record preservation and standing, debates about banning social media for minors, the many paths (and limits) of appealing cases, significant Supreme Court rulings and their wider implications for American democracy, the future of federal agencies after landmark decisions, and the realities of being an introvert or extrovert in the legal profession. The trademark tone is candid, conversational, and deeply informative, peppered with personal experience and real-life legal insight.

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Key Discussion Points & Insights

1. Lawsuits for Record Preservation and "Standing"

Timestamp: 00:39 – 04:26

• Listener Question: Kathy from Albuquerque asks about John Brennan’s lawsuit asking courts to order the government to preserve records for potential future prosecutions. She also inquires about legal standing.
• Joyce's Analysis:
  • John Brennan, not yet indicted, preemptively asked for a records preservation order, citing clear risk (with evidence) of destruction due to Trump admin policies.
  • The lawsuit is novel but grounded: "It's too late if those records are destroyed. And so given the fact that the government has told its employees that they can do that, I think that the director has an outstanding argument..." (C, 03:23)
  • Discusses the legal concept of "capable of repetition, yet evading review" as a possible workaround for standing objections.
  • Sees this as a powerful potential new tool in situations where harm is likely but has not yet occurred, especially in government misconduct cases.

2. Should the US Ban Social Media for Minors?

Timestamp: 04:26 – 06:58

• Listener Question: Tina from Eugene, Oregon, notes Australia's new social media ban for minors and asks if the US should follow.
• Barb's Perspective:
  • Strongly supports the idea, citing research on negative impacts on youth: "It's a really disturbing book because it talks about all of the harms that social media affects all of us, but especially young people..." (A, 04:33)
  • Discusses constitutional considerations—First Amendment is not absolute; compelling government interest (child protection) can justify restrictions if narrowly tailored.
  • Suggests age thresholds based on data and possible mechanisms (with privacy considerations).
  • Concludes delay of social media exposure would be positive public policy.

3. How Many Times Can You Appeal a Case?

Timestamp: 06:58 – 10:45

• Listener Question: Sandy asks about the limits of appeals in the U.S. legal system.
• Joyce's Explanation:
  • Only one direct appeal "as of right" after a trial court judgment in federal court—to a three-judge Court of Appeals panel.
  • After that, further appeals (en banc, Supreme Court) are discretionary.
  • Outlines special “wrinkles": Supreme Court remands (case restarts at lower court), interlocutory (pre-final judgment) appeals, and collateral (habeas) appeals for criminal defendants.
  • Memorable: "I'm gonna try to do a semester of appellate procedure in about a minute here." (C, 06:59)
  • Applies recent Trump cases as examples.
  • Concludes: “Typically, once the Supreme Court says no, it’s over.”

4. Supreme Court, the Unitary Executive, and the Pendulum of Power

Timestamp: 16:48 – 20:33

• Listener Question: Nancy from Bethesda wonders if the Supreme Court realizes that their decisions will empower a future Democratic president to undo Trump-era wrongs.
• Joyce’s Reflections:
  • Agrees decisions carry enduring repercussions.
  • Shares wisdom from a mentor: “Democrats are afraid to use power… But at the same time, Democrats… will have to be willing to seize and use power, particularly the power that the court has given them in this area, in order to right size government and restore democracy.” (C, 18:55)
  • Warns the “unitary executive” theory creates risk of executive overreach—restoring balance will need effort from both the executive and Congress.
  • Underlines the importance of legislative fixes for long-term stability.

5. Can Congress Dissolve and Recreate Agencies?

Timestamp: 20:33 – 23:08

• Listener Question: Teresa from Tucson asks whether Congress could simply dissolve commissions/independent agencies (e.g., EPA) that were created by enabling acts and start over with new ones to avoid Trumpist appointments.
• Barb’s Take:
  • Affirms, “Anything Congress creates, Congress can uncreate.” (A, 21:20)
  • Imagines splitting agencies—keeping enforcement in the executive, but housing rulemaking in the legislative branch, to reduce executive overreach per recent Supreme Court limits.
  • Predicts Congress may need to legislate more details if courts block broad delegation.
  • Praises the “burn it down to build new” idea as a practical way to reset government structures.

6. Do Lawyers Have to Be Extroverts?

Timestamp: 23:08 – 25:14

• Listener Question: Tracy from Beverly Hills asks if extroversion is necessary for legal success.
• Barb’s Encouragement:
  • Firmly rejects the notion: “No, you do not need to be extroverted to be a good lawyer. In fact, I know many introverts who are outstanding lawyers.” (A, 23:23)
  • Notes TV portrays bombastic styles, but in real life, subdued, understated lawyers often have more credibility, especially in appellate courts.
  • Stresses authenticity: “What they want to see is authenticity. So extroverts should be extroverts and introverts should be introverts.” (A, 24:53)
  • Core advice: Be yourself and be prepared; focus on facts and law over theatrics.

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Notable Quotes & Memorable Moments

• On Proactive Lawsuits:
  “It’s too late if those records are destroyed. And so given the fact that the government has told its employees that they can do that, I think that the director has an outstanding argument…”
  — Joyce Vance (03:23)

• On Social Media & Kids:
  "It’s a really disturbing book because it talks about all of the harms that social media affects all of us, but especially young people..."
  — Barb McQuade (04:33)

• On the Limits of Appeals:
  "I'm gonna try to do a semester of appellate procedure in about a minute here."
  — Joyce Vance (06:59)

• On Power Dynamics:
  “Democrats are afraid to use power… But at the same time, Democrats… will have to be willing to seize and use power, particularly the power that the court has given them in this area, in order to right size government and restore democracy.”
  — Joyce Vance (18:55)

• On Reimagining Agencies:
  "Anything Congress creates, Congress can uncreate."
  — Barb McQuade (21:20)

• On Introverts in Law:
  "No, you do not need to be extroverted to be a good lawyer. In fact, I know many introverts who are outstanding lawyers…"
  — Barb McQuade (23:23)
  "What they want to see is authenticity. So extroverts should be extroverts and introverts should be introverts."
  — Barb McQuade (24:53)

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Additional Resources & Calls to Action

(Irrelevant advertising and sponsor sections omitted.)

• Listeners are encouraged to submit questions via email or voice memo for future Q&A episodes.
• The show reiterates the importance of authenticity, active citizenship, and legal literacy in turbulent times.

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Timestamps of Important Segments

| Topic | Timestamp | |-----------------------------------------------|-------------| | Record preservation lawsuit & standing | 00:39–04:26 | | Social media ban for minors | 04:26–06:58 | | Paths and limits to appealing court cases | 06:58–10:45 | | Supreme Court & unitary executive debate | 16:48–20:33 | | Congress dissolving/re-creating agencies | 20:33–23:08 | | Extroversion vs. introversion in law | 23:08–25:14 |

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In summary:
This episode of #SistersInLaw delivers practical legal wisdom and sharp analysis of pressing governmental and constitutional questions, offering clarity and encouragement to citizens and aspiring lawyers alike.

Transcript

[A]

Welcome to this episode of Sisters sidebar with Joyce Vance and me, Barb McQuaid. If you have a question for us, please email [e-mail] or tag us on social media using SistersInLaw. But don't just type them. Your voices are so important, which is why we wanna hear them, too. So you can email us using a voice memo, using one of your notes apps, and we might play it on the show. In fact, we've got a couple to play for you, so let's get started. Here's a question for you, Joyce, that comes from Kathy.

[B]

Hey, sisters, this is Kathy in Albuquerque, New Mexico. I am a regular listener to both of your shows. I love them. Love all of you. Today I am reading Joyce's substack post about a lawsuit brought by John Brennan against the Trump administration, asking a judge to order the government to preserve records in the event of a future prosecution. Can you do that? Can you pre preemptively sue like that? And most importantly, I listened to several of your commentaries talking about standing and that someone has to have been harmed in order to have standing in a lawsuit. Please clarify. Thank you.

[C]

Well, Kathy, this is a really interesting question. You know, John Brennan, the former CIA director who is widely believed to be a target of this massive investigation going on in the Southern District of Florida, home to Judge Aileen Cannon, has not been indicted yet. But rather than sit back and waiting for that to happen, his lawyers made a decision to go to court and do something that we have not seen done before, at least in the context of these Trump revenge cases. The lawyers went to court with a very legitimate request. They said, we are concerned that evidence that we will need to establish vindictive prosecution is being destroyed. And the basis for their concern is the fact that the Trump administration has issued policy statements to its folks saying that they don't have to comply with the presidential, with the Records Preservation Act. And so, you know, it's a pretty good argument, right? We are worried that these documents are being destroyed because bosses have said it's okay to do just that. And they then make the argument that those records will be essential for Director Brennan to defend himself if and when he gets charged. This is absolutely a valid lawsuit. And part of your question is about whether he has standing because nothing bad has happened to him yet. I expect that we'll see the Justice Department raise that issue, and it will be unique in this situation. You could certainly make the argument that it's premature for him to argue this because he doesn't have any evidence that the records are actually being destroyed. But I think very, very competent lawyer has positioned this so narrowly that it falls within other legal doctrines that talk about what can you do if a problem is capable of repetition, you know, and that's sometimes used to get around standing to say, well, this can happen over and over in a posture where the plaintiff's rights are prejudiced. I think this is akin to those situations. It's too late if those records are destroyed. And so given the fact that the government has told its employees that they can do that, I think that the director has an outstanding argument, and I think that we'll see this used by more people. For instance, you know, if you have a family member who is harmed by ICE in one of these excessive police cases, and now that we're seeing that the agencies are trying to cover them up, why not go ahead and file a lawsuit and ask for a preservation order? It's really only directing the government agency to do what it's obligated to do to preserve records. But in an era where we know that that's not always happening, it feels like fair game. Barb, there's a question for you from Tina in Eugene, Oregon. She says Australia just passed a social media ban for minors. Do you think it's a good idea for the USA as well?

[A]

Boy, I think it's a terrific idea. I don't know if, Tina, you have read the book the Anxious Generation. It's a really disturbing book because it talks about all of the harms that social media affects all of us, but especially young people, and how it affects their self esteem, their understanding of healthy sexual relationships, and just the interruptions that. The effect it has on attention spans. And so I think it's a great idea. Now, some might argue that this is a violation of First Amendment rights of, you know, young people to be able to read and post their messages online. But remember that every right that we have is limited. No right is absolute. Because what the Supreme Court is interpreting is the whole Constitution, not just any one clause or amendment in a vacuum. And so when there are rules about, you know, protecting the general welfare and providing for the common defense and some of these things that appear in the preamble, it gives courts some leeway to uphold limits on constitutional rights. So this is an infringement of First Amendment rights, but is it unconstitutional? And I think the answer would be no. You would have to show that there's a compelling governmental interest in the limitation. And so what you would say is, yes, we've done some studies and we see that this is very harmful on children. And maybe you set an age is children under 12 or under 15 or 10 or whatever the age is based on real data. And then the rule has to be narrowly tailored to achieve that compelling goal. So if you were to say, you know, 12 year olds and under can't and figure out a way to do that, I don't know whether it is checking id. You know, there's certainly some adverse consequences of requiring people to share ID and birth dates and other kinds of things with social media. But I think you could craft a statute that is narrowly tailored to achieve a compelling governmental interest such that it would be constitutional. And I think in light of all the harms that it inflicts on children, delaying the onset of social media would be a very good thing from a public policy perspective. All right, Joyce, I've got one for you. Here's a written question that has come to us from Sandy, who asks a really good question, which is, how many times can you appeal a case?

[C]

This is a question that I love because, you know, I'm nerdy about these things that involve appeals. And so here you go. I'm gonna try to do a semester of appellate procedure in about a minute here. In the US Federal court system, you only have one appeal, as of right. That's how the lawyers phrase it, from a final trial court judgment. But that doesn't mean it just gets heard one time, because a single case can theoretically go up through three distinct stages of appellate review if higher courts agree to hear it. So when a federal lawsuit or a criminal case finishes at the trial level, this is the hierarchy that gets filed followed. The litigant who loses has an automatic right to appeal that final judgment from a U.S. federal district court to a U.S. court of appeals. And a panel of three judges reviews the trial court's decision. You don't need anyone's permission to file that appeal. But after that, you do need permission. Let's say you don't like what the court of appeals says. You can file a petition for rehearing en banc to have the entire court hear your case, not just the three judge panel. That's discretionary and it's very rarely granted. And if you lose in the en banc court, or if the en banc court declines to hear your case, then you can also try to take an appeal to the United States Supreme Court. Again, discretionary. If you lose at the court of appeals level, this is your next bite at the apple. But it's far from guaranteed that's the basic outline, those three steps in an appeal. But there are a couple of wrinkles, because while you only get the linear path in each appeal, going through the court of appeals en banc and the Supreme Court, sometimes a case can end up being appealed multiple times under specific legal circumstances. The first one, and I once had a case like this, it gets to the Supreme Court and they remand it for the district court to do something else. You know, instead of just issuing a ruling, they say, okay, district court, here's the law. Now you should apply it. Then you get a new final order at some point down the road, and that final order can go through the appellate process again. Sometimes there are interlocutory appeals. These are rare exceptions to the idea that an appeal doesn't happen until the case is over. But in some circumstances, we've seen Donald Trump do it with immunity. A party can appeal a critical non final ruling before the actual trial is finished. So then you have that appeal and you can have an appeal again at the end of the case. And then finally, in criminal cases only, there is habeas appeal. We call that collateral appeal, where a defendant has exhausted their direct appeals, but they have a limited period of time. They can file this separate suit called a writ of habeas corpus, and it challenges the constitutionality of their imprisonment, frequently arguing that they received inadequate assistance of counsel, which in many circuits you can't even argue on direct appeal, or arguing that they're actually innocent or that there's newly discovered evidence. So if the district court denies this writ of habeas, that can also be appealed on up the chain. Very rarely, you might see the Supreme Court hear a habeas case. Typically, once the Supreme Court says no, it's over. Let's hope that Donald Trump understands that that's now the case in his lawsuit with E. Jean Carroll.

[A]

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[C]

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[A]

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[C]

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[C]

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[A]

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[C]

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[D]

Hi, this is Nancy from Bethesda, Maryland. I love your podcast and I am a regular listener on my Saturday morning runs. I just listened to your July 4th episode and while I agree with your analysis and Especially your dismay. I have to bring up one point that I think you are missing. Doesn't the Supreme Court realize that as they reshape our democracy to a unitary executive model, that unitary executive is not going to be Donald Trump forever. It's not going to be someone who believes in Project 2025, but in a little over two and a half years, it's gonna be a Democrat. I strongly believe that. And at that point, our new president will be able to fire all these MAGA people without recourse and take hold of correcting all the wrongs brought upon us by this administration and by this Supreme Court. I am an optimist by nature and I can't be out on that ledge with you unless I see the pendulum swinging back towards sanity and the rule of law. By the way, I'm not letting Donald trump ruin my July 4th. I'm going down to the mall for the fireworks in D.C. with my AirPods in so I won't have to listen to any speeches before the fireworks dazzle everyone, not just the MAGA crowd. Thanks for all you do.

[C]

Well, Nancy, you raise a fair point. The Supreme Court is deciding cases not just for the length of Donald Trump's presidency. They're deciding them, as they love to frequently remind us, for all time. And that means in just a few years, God willing, there will be a Democrat in the White House, there will be a restoration of the rule of law, and that Democratic president will be faced with the issue of how she or he handles these new rules that the Supreme Court has left us with. Someone who has been a really great mentor to me for the last couple decades of my career says something that I think is very wise. He says that Democrats are afraid to use power and there are good reasons to exercise restraint in the use of power. You don't want to overuse it. I mean, Donald Trump is certainly an abject lesson. But at the same time, Democrats, I think, will have to be willing to seize and use power, particularly the power that the court is has given them in this area, in order to right size government and restore democracy. I think that we have to be very careful about how this happens and about the conversations that we have. And to me, it seems that the central tenet will be that we value democracy above all other things and that we are willing to take the steps that need to be taken and in order to restore balance among the three branches of government. You know, the problem with the unitary executive theory is that it allows, and we're seeing it happen right now for the president for the executive branch to exercise an outsized share of that power. And so it will be important to have an executive branch that respects that. That's a job for Congress. And while, you know, in this theoretical democratic administration to come, the president is playing a role in restoring that. That balance, it will be up to Congress to pass new laws that will pass constitutional scrutiny so that the balance among the three branches can be reset. Well, Barb, there's a question for you from Theresa.

[E]

Hello, sisters. This is Teresa from Tucson, Arizona. I am no legal or congressional expert at all, but I was thinking about the Slaughter ruling and had this question. If Congress created the independent commissions through an enabling act, could they then dissolve them so they no longer exist? Which would mean that Trump could not appoint his loyalists to commissions that don't exist. Could the Congress then create new independent commissions with different names and slightly different objectives, but still achieving the original goal of having smart, knowledgeable people appointed to the commissions? Would love to hear your thoughts on my burn it down to build new concept. Thanks.

[A]

So, thanks for that question, Teresa. It's an excellent question, and I think the answer is yes. Anything Congress creates, Congress can uncreate. It could pass new legislation that dissolves a prior organization. And I think one thing that they could do if they were to recreate, say, you know, the Environmental Protection Agency, just hypothetically the executive branch gets to execute the laws. But all of these executive agencies have developed over time, not just an executive function, but a rulemaking function. You know, they decide what's the right emissions standards. I think what they could do is sort of cut these agencies in half. And, you know, the enforcement arm of the EPA would, would have to stay in the executive branch, but they could have an EPA rulemaking arm that's in the legislative branch. I mean, one of the things that has evolved over time makes common sense, which is Congress passes laws broadly, they create an epa, but then they delegate to the EPA the job of figuring out the minutia, right? Like how many particles per million should we allow of air pollution under the Clean Air Act? You know, these kinds of things. And under what the court has developed the major questions doctrine, what they have said is Congress does not delegate major questions to these agencies. You have to have legislation, otherwise you have to have a law on it. I think it's going to bog down Congress to actually have to have a law on everything. And so I think what we might see is the creation of independent agencies and that have a rulemaking function that are housed within the legislative branch and I think that could be a very good way of perhaps reining in some of the executive power that has been given to the President in light of the Slaughter case. So, great suggestion, Teresa.

[C]

Barb, the last question today is for you. It's from Tracy in Beverly Hills, and they ask, do you need to be extroverted to be a good lawyer? How would you recommend developing it as a skill?

[A]

This is a great question, Tracy, because my answer is, no, you do not need to be extroverted to be a good lawyer. In fact, I know many introverts who are outstanding lawyers. You know, I think we watch television and the movies where it's all very bombastic, or they start reciting lines from the Declaration of Independence, you know, and get all melodramatic. In fact, I think a very understated tone is very persuasive in court. I would imagine that at the appellate level, being an introvert could even be a benefit because some of the theatrics are designed for the jury and judges just don't want any of it. They just want the facts and the law. And so I think that introverts can actually be quite effective as lawyers. You know, certainly extroverts, perhaps it comes naturally to them to stand up in court and spout their views on things.

[C]

But.

[A]

But I have seen very effective lawyers who are quite understated. I think it brings them a great deal of credibility to simply focus on the facts and the law. Using your voice in a moderating way is actually very effective. If you're always loud, then being loud doesn't really do much. But if you're mostly quiet and every once in a while you're a little bit louder, that can be incredibly powerful. And. And so I wouldn't worry about developing extrovert tendencies as a necessary skill for being a lawyer. I think the best advice I ever heard about being a lawyer is you have to be true to yourself. Jurors can see a phony a mile away. What they want to see is authenticity. So extroverts should be extroverts and introverts should be introverts. What you must be is prepared and to focus on facts and law because that's what wins cases and not a larger than life personality.

[C]

Thank you for listening to Sister sidebar with Barb McQuaid and me, Joyce Vance. Keep sending in more of your great questions for next week's show, and if you send in a voice memo, we'll try to play your question during our next episode. That's been a lot of fun for us to hear you ask the question and then get to answer it. Please follow Sister's sidebar and hashtag Sisters in Law wherever you listen and give us a five star review. It really helps others find the show. Show some love to this week's sponsors, Honey Love and Wild Grain. The link is in the show notes. Your support for them helps to make this podcast possible. And don't forget you can pick up Sisters in Law merch. We do love our merch. We have other [e-mail] we'll see you every week on Wednesdays and Saturdays for new episodes of Sisters in Law and Sisters. Sidebar thank you for listening to Sister Sidebar with Bard Barb Pumpernickel. All new drinks are now at McDonald's with refreshers like the Strawberry Watermelon Refresher and the Mango Pineapple Refresher with Popping Boba to crafted sodas like the Sprite Berry Blast with berry flavors and cold foam. Who knew ice cold drinks could be so fire six? All new drinks are here now at McDonald's.

[A]

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