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ABOUT

5-4 is a podcast about how much the Supreme Court sucks. It’s a progressive and occasionally profane take on the ideological battles at the heart of the Court’s most important landmark cases, and an irreverent tour of all the ways in which the law is shaped by politics.

Listen each week as hosts Peter, Michael, and Rhiannon dismantle the Justices’ legal reasoning on hot-button issues like affirmative action, gun rights, and campaign finance, and use dark humor to reveal the high court’s biases.

Presented by Slow Burn co-creator Leon Neyfakh, 5-4 is a production of Prologue Projects in partnership with Westwood One Podcast Network.

TRANSCRIPTS

Connick v. Thompson+

0:00:01.0 S?: We'll hear argument next in case 09571, Connick v. Thompson. Mr. Duncan.

0:00:09.5 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael are discussing Connick v. Thompson. In this case, John Thompson was falsely accused of two separate crimes, a high-profile murder and armed robbery. He was convicted of both after the prosecution systematically withheld evidence that could have proven his innocence.

0:00:31.2 S?: At the age of 22 I hadn't had a conviction, I hadn't had a real serious record. So the system had to make me out a monster.

0:00:38.4 Leon: The prosecution also used a scheduling maneuver to ensure that Thompson would not be able to testify in his own defense.

0:00:45.7 S?: I spent 18 years of my life in prison. Fourteen of them was on death row. While on death row, I received seven execution dates.

0:00:52.3 Leon: With less than 30 days before Thompson's final execution date, a private investigator discovered evidence that cast doubt on the convictions. Thompson was eventually exonerated and released from prison. He then sued the district attorney for damages and he won, and a jury awarded him $14 million. But then the Supreme Court overturned the jury's decision.

0:01:13.6 S?: The prosecutors get away with it, and this is murder, this is attempted murder. If you try to kill a person and you know he is innocent, and you try to think execution dates to murder him, that is attempted murder.

0:01:27.7 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:33.5 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our civil rights weak and emaciated, like a cat on a vegan diet. I am Peter, I'm here with Michael...

0:01:47.8 Michael: Hey, everybody.

0:01:49.6 Peter: And Rhiannon.

0:01:50.9 Rhiannon: Hi. Have I ever told you guys about the boss that I had who was a vegetarian and made sure that her dog ate vegetarian?

0:01:57.4 Michael: Oh, God.

0:01:58.7 Rhiannon: Okay, well, yeah, there's a sad story there.

0:02:01.8 Peter: We're risking losing some listeners with that one.

0:02:04.4 Rhiannon: Go on. What are we here for today?

0:02:06.3 Peter: Well, today's case is Connick v. Thompson, but before we get into the case, I think we need to talk current events...

0:02:13.5 Rhiannon: Yeah, there's some really hot stuff.

0:02:15.8 Peter: There is. Now, we're, look, a little bit, a couple of weeks behind the ball here, but a couple of weeks ago, there was a Georgetown professor, Sandra Sellers, who was terminated for doing racism on a Zoom chat, talked about the relative performance of her black students in a way that some people would think was not the best way to talk about it, you know?

0:02:41.1 Rhiannon: Sure, yeah.

0:02:41.1 Peter: And another Professor, David Batson, was there, just sort of nodding along, and this resulted in the Georgetown administration finding out, firing Professor Sellers, and I think Batson either stepped down or was told to resign shortly thereafter. Now, many of our listeners, if you're tuned in the legal world, might have heard about that. What you might not have heard is that we did it, we're actually the ones who did it. A Georgetown student in our Slack posted the video of the racism happening. He said, yeah, some Georgetown students are discussing this. And we made a coordinated effort to boost it and the next day, heads were rolling. Blood was spilled. So I just want to take this time to, first of all, stand in awe of our collective power and celebrate the enormity of what we've achieved.

0:03:36.0 Peter: If you had told me a year ago when we started this podcast that we were getting professors fired, I would say that's all I ever wanted to do.

0:03:45.9 Rhiannon: Right, right, but it still seemed like a very distant sort of goal. Like yeah, that sounds great, but that's not possible.

0:03:53.2 Peter: And now it feels like we're just beginning, and our goal and our promise to you, our listeners, is that we'll get them all fired.

0:04:02.0 Rhiannon: We will not rest until legal academia has been laid to waste.

0:04:08.8 Peter: Yeah, and if you want to join our effort, join our Patreon at the arch enemy tier, which gives you access to our Slack where we will together conspire to have your professors fired. Patreon.com/fivefourpod.

0:04:25.8 Michael: You too can do this service for your country.

0:04:31.0 Peter: Anyway, today's case like I said, like I said, is Connick v. Thompson. This is a case about prosecutors...

0:04:38.3 Rhiannon: Boo!

0:04:41.4 Michael: If you follow the law at all, you've probably heard stories of prosecutors abusing their position, withholding or ignoring exculpatory evidence, introducing false or questionable evidence, discriminating in prosecution or jury selection, on and on and on and on. And perhaps you've asked yourself or others, what can be done about such shenanigans. Are prosecutors ever held responsible for this sort of misconduct or, alternatively, are they insulated from repercussions because they are not, as they claim, representatives of the people, but rather an indirectly militarized arm of the carceral state. Stay tuned and find out.

0:05:22.6 Michael: Yay. Getting pumped.

0:05:25.4 Peter: In this case, a 22-year-old black man named John Thompson was falsely convicted of armed robbery based on manipulated evidence. But it gets worse, the only reason prosecutors brought that case against him at all was to use it as leverage in another case, a murder that they were hoping to pin on him. They successfully leveraged the false armed robbery conviction to help convict him on the murder charge. He was sentenced to death and served nearly 20 years in prison before all of this finally leads to his convictions being overturned after it is uncovered. And he sues, he sues the prosecutor's office for its misconduct and he wins $14 million, but then the Supreme Court in a 5-4 decision by our good buddy Clarence Thomas reverses the judgment, saying that the prosecutors cannot be held liable for their misconduct in this context. Rhi, let's go.

0:06:22.7 Rhiannon: Do I have a story for you all today. Yeah. This is a story about how the criminal punishment system really works by design, and how the Court does nothing to hold it accountable for the violence that it does. In 1984, John Thompson was 22 years old and living in New Orleans, Louisiana. In late 1984, a man named Raymond Liuzza Jr was shot and killed. One witness saw that shooting and told police that the shooter was a black man, six feet tall with close-cut hair.

0:06:57.4 Peter: Open and shut case, Johnson, we got him.

0:07:00.3 Rhiannon: Now, John Thompson at this time is 5 feet 8 inches tall and has a large afro. Yeah, it's bad. But John Thompson is the one who gets convicted of this murder and sentenced to death.

0:07:18.4 Peter: Well, he is black, though, that's one for three.

0:07:20.0 Michael: That's... There's not much else you need.

0:07:22.4 Rhiannon: Do keep that in mind over the course of the story. So this is not just a story about the criminal punishment system and about the Supreme Court, it's specifically John Thompson's story and a story about how the DA's office in New Orleans engineered first a life sentence and then a death sentence for him. So a quick note, in stories about exculpatory evidence being hidden or withheld by prosecutors, you will often hear that evidence referred to as Brady evidence or Brady material, sometimes even just Brady, like they didn't turn over Brady, for example. That's because there was a Supreme Court case called Brady v. Maryland, and it's a foundational cornerstone decision in the Law of Criminal Procedure that says that any evidence that might exonerate a defendant must be turned over to the defense.

0:08:12.9 Peter: I'm glad we needed a whole Supreme Court case to say this, right. If you find evidence that proves that this guy is innocent, you do have to hand it over.

0:08:21.9 Rhiannon: Right, exactly.

0:08:22.3 Michael: You can still go forward with the prosecution.

0:08:25.6 Rhiannon: That's right, yeah. The Brady decision stands for the idea that it's a violation of your right to due process if you're not afforded the opportunity to see not just the evidence that shows you're guilty, but also evidence that might show that you're innocent, right. You can pick apart evidence that shows you're guilty, but you also have the right to inspect and present and build on exculpatory evidence too. And the reason why prosecutors are required to turn this over is how would, say, a poor defendant in court have this evidence, right, the prosecutor as a representative of the state is the one with the power and control over the investigation of all of these crimes and the collection of all of this evidence.

0:09:01.6 Michael: The crime scenes are sealed, all the evidences in the state's hands, there's no real way to get at it otherwise.

0:09:07.1 Rhiannon: That's right. So turning back to John Thompson's story. So police and prosecutors in Orleans Parish begin investigating this murder in late 1984. They have the description from the witness that the shooter is six feet tall, a black man with close-cut hair. A few weeks after the murder in a separate incident, an armed robbery occurs of three siblings. The perpetrator of the robbery held these kids at gunpoint and during the struggle, the perpetrator's blood stained one of the kids' pant legs. Now, that swatch of fabric with the suspect's blood stain on it was saved and stored by law enforcement in Orleans Parish/

0:09:45.9 Michael: Props, by the way, to those kids to draw some blood, man.

0:09:49.7 Rhiannon: Right. Yeah, they put up a fight, yeah. So police and prosecutors are investigating both of these crimes, the murder and an armed robbery, and this is where shady shit starts happening. So first, after the murder victim's family announces a cash reward for information, a really shady witness comes to the family and tells them that John Thompson and another man, Kevin Freeman, had been involved in the murder. The family and the shady witness go to police afterwards and they give this information, and the shady witness says that he heard about all of this, he heard about Thompson and Freeman's involvement in the murder from Freeman.

0:10:27.3 Rhiannon: Now, important side note here, Kevin Freeman is six feet tall and wore his hair in a close-cut style that made his scalp visible.

0:10:39.4 Michael: Interesting.

0:10:39.7 Rhiannon: Yeah, keep that in mind. John Thompson and Kevin Freeman are subsequently arrested for the murder based on this shady witness' report to the police. Now, you've seen prosecutors would move forward on the murder case against Freeman since he fits the eyewitness description, unlike John Thompson, but something else happens kind of at the same time. When Thompson and Freeman are arrested for the murder, their pictures are published in the newspaper. So the father of the kids who were robbed in that separate incident shows the kids the picture of John Thompson with his afro, and the father reports to police that the kids identified John Thompson in the picture as the guy who robbed them. Later, there is an extremely problematic photo lineup shown to the kids in which that same photo of Thompson from the newspaper was included, and the kids again say that Thompson robbed them.

0:11:31.1 Michael: Here's the photo you identified before. Do you still identify it?

0:11:35.7 Rhiannon: Exactly. If you know anything about photo lineups and police practices...

0:11:40.6 Peter: Or just basic human psychology.

0:11:43.1 Rhiannon: Exactly, you know that confirmation bias is a real problem in photo identification of crime suspects. So Mr. Thompson is already in jail for the murder, you'll remember, along with Kevin Freeman, and now prosecutors are able to pin this robbery on him based on the kids saying John Thompson is the one who robbed us. Now, at this point, Orleans Parish prosecutors make a pretty gross strategic decision, it's gross, but it is common. Even though the robbery happened after the murder, the DA's office decides to try Mr. Thompson for the robbery first, so they can leverage the robbery conviction against him during the murder trial.

0:12:21.6 Rhiannon: So let's talk about what happens at the robbery trial first. Even though Mr. Thompson's lawyers requested access to all Brady material, all potentially exculpatory evidence, which would have included that swatch of fabric with the robber's blood on it, prosecutors blocked their review of that evidence, and in fact, the swatch with the blood evidence on it was signed out of the property room over at the DA's office...

0:12:45.2 Peter: Which is the evidence room, by the way.

0:12:47.6 Rhiannon: Yeah, the evidence room, the evidence storage room, and it wasn't returned until the day before trial. So when Mr. Thompson's lawyers were given access to inspect all of the evidence, there wasn't any blood evidence there, and the prosecutors didn't tell defense that blood evidence existed at all, so the defense lawyers didn't know anything was missing. This is super, super important because prosecutors had ordered testing to be done on that blood evidence, and the analysis came back saying that the blood definitively was from a person with blood type B. The perpetrator of the robbery therefore had blood type B, right. John Thompson's blood type is O.

0:13:27.1 Rhiannon: This is a multi-layered violation of Brady, right. Prosecutors first did not disclose the existence of potentially exculpatory evidence, and then after they didn't disclose the test results, which were also exculpatory, right, so at the trial for robbery, the prosecutors didn't present the blood evidence, of course, they wouldn't, it negates their case. And in fact, after it was checked out of the property room, the swatch has never been found to this day, so this means that at trial, the only evidence against Mr. Thompson that was presented was the testimony of the children who had been robbed. Based solely on those descriptions, Mr. Thompson was convicted of attempted armed robbery and the judge sentenced him to 49 years in prison without the possibility of parole.

0:14:12.2 Rhiannon: So now, armed with the robbery conviction and what is a de facto life sentence against Mr. Thompson, right, 50 years in prison...

0:14:20.3 Michael: For a 22-year-old, yeah.

0:14:22.2 Rhiannon: Even in your early 20s is a life sentence. Prosecutors have a massive advantage in prosecuting him for the murder, so by prosecuting Mr. Thompson for the robbery first, they effectively took away Mr. Thompson's ability to testify in his own defense at the murder trial, because the only way that the jury would have heard that Mr. Thompson was already convicted of another violent crime, of robbery, already had this very scary-looking rap sheet, would be if Mr. Thompson took the stand. Prosecutors would then be allowed to bring up the robbery conviction to undermine Mr. Thompson's credibility, so effectively, again, in kind of this de facto way, they've taken away his right to testify in his own defense, and they added on top of that at least three more Brady violations in order to put the nail in the coffin of Mr. Thompson's murder trial.

0:15:13.9 Rhiannon: So first, prosecutors did not disclose at the murder trial that they had recordings of the conversation of that shady witness when he spoke to the murder victim's family, and in that conversation, the shady witness had implied heavily that he was giving this information, kind of coming up with this information, only in return for the cash reward. The shady witness testified against Mr. Thompson at the murder trial, and he testified on the stand that he gave that information to the police with no knowledge of the reward money. That is false. Mr. Thompson's attorneys, though, did not have those recordings of those conversations, so they couldn't show that the shady witness was lying.

0:15:53.0 Rhiannon: Second, the prosecutors had flipped the co-suspect, that Kevin Freeman guy, so that Freeman was testifying against Mr. Thompson in that murder trial. Prosecutors didn't turn over the police report that said that the shady witness had heard about the murder from Kevin Freeman, so the defense couldn't attack Freeman's credibility on the stand by asking him questions about his prior statements he'd made about his own involvement in the murder.

0:16:21.3 Rhiannon: And third, people are maybe yelling at their headphones or whatever about this, if you remember what I said earlier, there was an eye witness to that murder, right, the eye witness gave a description of the shooter, six feet tall, a black man with close-cut hair. Prosecutors did not turn over information about that eye witness or that description, so Mr. Thompson and his lawyers had no idea that there was an eye witness description and that the description did not match Mr. Thompson at all, who again was 5 foot 8 with an afro. Defense attorneys here were really running blind and it was through no fault of their own, like with no evidence with which to attack the prosecutor's case, Mr. Thompson was found guilty of first degree murder.

0:17:04.4 Michael: Right, right. And usually the district attorneys leave this sort of stuff to their little underlings to do the prosecutions, but in this case, District Attorney Harry Connick wanted to be really involved, he handpicked the team, he was in the day-to-day stuff. You know, if we're gonna violate Brady, we better do it right. So he was like in it.

0:17:29.5 Peter: Yeah, and if that name sounds familiar to you, Harry Connick, that's because the criminal DA Harry Connick is the father of Harry Connick Jr, American celebrity. He's like a singer, he's an actor, he's been on American Idol briefly, he was the fighter pilot friend of Will Smith in Independence Day, if you remember, that guy. He said famously, let's kick the tires and light the fires, Big Daddy, to Will Smith, especially famous to people who have watched Independence Day 75 times.

0:18:07.4 Michael: Didn't quite make the same singer to actor leap that Will did, though.

0:18:12.1 Peter: And maybe more pertinently, for the past decade or so, has been an ADA on Law and Order Special Victims Unit.

0:18:20.6 Michael: No.

0:18:24.2 Rhiannon: Oh, my God.

0:18:25.5 Michael: Yes.

0:18:26.2 Rhiannon: Are the Special Victims victims of the prosecutor's office who are framed for murder?

0:18:33.1 Michael: Law and Order loves doing the... Like ripped from the headlines and they should do this case, they should make Harry Connick Jr play the corrupt district attorney who destroys evidence, wouldn't that be good.

0:18:48.2 Rhiannon: So at the punishment phase of the trial, the DA's office argued that because Mr. Thompson was already serving a decades-long sentence for attempted armed robbery, the only way to punish him for murder was to execute him. They got what they wanted, he was sentenced to death and he was transferred to death row in 1985. So some nine years later, one of the prosecutors after learning that he was terminally ill, confessed to another prosecutor friend that he had suppressed the blood evidence in the robbery case against Mr. Thompson. Now, nothing really happened, though, until five years after that, in 1999, when the State of Louisiana scheduled Mr. Thompson for execution. Mr. Thompson's lawyers hired a private investigator to try and find anything they could that would save Mr. Thompson's life and deep down in the state's forensic archives, lo and behold, the investigator found a microfiche copy of the lab report that identified the robber's blood type.

0:19:48.9 Rhiannon: So at that point, the prosecutor friend who knew that the robbery prosecutor had withheld that evidence, he's...

0:19:55.2 Peter: Yeah, he's like, you know what, I found some information as well in the last five years. His friend did a deathbed confession, basically liked I killed someone. And he was just like...

0:20:05.6 Michael: I guess I gotta sit with that.

0:20:09.4 Peter: That's so nuts, dude.

0:20:11.6 Michael: Thanks for laying that on my shoulders, bud.

0:20:13.7 Rhiannon: Right, yeah. So the prosecutor friend who knew that the robbery prosecutor had withheld that evidence finally came out and signed an affidavit saying his friend had admitted to doing this, and Mr. Thompson's robbery conviction as a result was overturned and the execution was stayed. But important to note that the Orleans Parish District Attorney's Office fought this every step of the way, but eventually the Louisiana court of appeals also reversed Mr. Thompson's murder conviction. Now, what did the district attorney's office do? They didn't say like, oh, yeah, that's right, we fucked up and this guy can go free now. The DA's office in Orleans Parish again tried Mr. Thompson for murder.

0:20:58.0 Rhiannon: This time, the Brady evidence was disclosed to defense attorneys and a jury took 35 minutes to find that Mr. Thompson was not guilty. So after 18 years in prison, 14 of them in solitary on death row, Mr. Thompson is released and he sues the district attorney's office in Orleans Parish, saying that they had violated his civil rights by not properly training prosecutors about the requirements of Brady. Now, for this to work legally, a plaintiff has to show that the failure to train amounts to a pattern of people's rights being violated, and the legal standard is a pattern that leads to deliberate indifference to the rights of persons with whom an untrained employee comes into contact.

0:21:43.4 Rhiannon: Now, Mr. Thompson takes that lawsuit to trial, the jury hears all of the evidence about what the DA's office did to Mr. Thompson and they agree that there was deliberate indifference to the rights of Mr. Thompson and awarded him $14 million. Now, that's what we're talking about here, that's sort of the liability of the District Attorney's Office, and that's what gets appealed first to the Fifth Circuit, which affirmed the jury holding, which is wild in an extremely conservative Fifth Circuit federal appellate court and the DA's office in New Orleans appealed that decision to the Supreme Court.

0:22:23.8 Michael: I'm excited, guys, this could be our first good decision, right? A unanimous court.

0:22:34.7 Peter: So alright, let's talk about the law a little bit.

0:22:37.3 Michael: Before we do, really quick, sorry. If you are sitting there thinking like, why are we talking about training, why are we talking about deliberate indifference, this was intentional and malicious, that's a different case that we will no doubt cover at some point in the future. So get ready for that.

0:22:56.9 Peter: Okay, so let's talk about the law a little bit here. The question the Court is addressing, if you take a step back, is basically how bad does a prosecutor's misconduct have to be before they can be held legally liable. And this is a big question under the law, because prosecutors, similar to police, are afforded certain protections and immunities. And the idea behind that, if I'm being as favorable to it as possible, is that inevitably in the course of prosecution mistakes will be made, and if they become liable for every single one, it makes their job just sort of impossibly difficult. So we need to protect them. And again, like Rhi mentioned, the rule is that there must be a pattern of misconduct.

0:23:42.1 Peter: And so Clarence Thomas, in his decision, his basic argument is simple, he says, look, you know, if one prosecutor does something shady, you can go after them individually, but if you want to go after the entire office, you need to show this system of inadequate training, right, the pattern of misconduct. It can't be just one incident because one incident isn't enough information to conclude that there is inadequate training. And Thomas says that this is just one incident, so the government can't be held responsible here. And the problem with this, which the dissent points out, is this wasn't one incident, it was one conspiracy, I think you could look at it like that. In the literal legal sense, it was one conspiracy, but in the course of the story, a team of prosecutors, including the District Attorney himself, suppressed critical evidence in one case in order to leverage it in another, kept that evidence suppressed, not just during the trial, but for the subsequent nearly 20 years, until someone finally found out right before the state killed John Thompson, or would have killed John Thompson.

0:24:52.3 Peter: They didn't turn the blood report results over to the defense when they were compelled to by motion, they blocked inspection of the blood by the defense, they removed it from the evidence room completely the week before trial, they didn't introduce the blood as evidence at the trial, of course, and in fact, as Rhi mentioned, it has never been found, which almost certainly means it was destroyed. They offered witness testimony they knew was false, they withheld witness testimony about the murderer's description that would have exculpated Thompson. How is that not a pattern of misconduct? In what world is that a single incident? If a single prosecutor did something to cover up one bit of evidence in a case, and that was all he did, I think you can make the argument that it's sort of an isolated occurrence, but this is a coordinated effort by a team of prosecutors that spans multiple cases, and depending on how you look at it, multiple decades.

0:25:45.6 Peter: It requires multiple people to work together in an extensive effort to cover up evidence. You'd have to be an absolute fucking idiot to think that this is a single occurrence of misconduct, and honestly, I don't think that Clarence Thomas does. His opinion, which he admits relies very heavily on precedent, and that's when you know Thomas is being disingenuous 'cause he barely believes in precedent as a concept.

0:26:12.4 Rhiannon: He doesn't even like precedent.

0:26:14.2 Michael: He loves writing these concurrence where he's like, my colleagues have correctly applied precedent, and so I concur in judgment, but if I'm being honest, if I got to make the decisions, we would throw that precedent out. That's like his calling card.

0:26:28.3 Peter: Exactly. His opinion is almost completely devoid of any thoughtful analysis of the actual case, like how it impacts people and how it impacted Mr. Thompson, to a point where a lot of legal commentators found it particularly cold, and when legal commentators find something particularly cold, you fucked up, you've done something egregious.

0:26:48.8 Rhiannon: Right. When those fucking robots have any semblance of an emotion.

0:26:54.2 Peter: You've got a situation where a man was framed and as a result sentenced to death, and the majority opinion finds that the conduct was not pervasive enough to warrant liability. I mean, the only thing that explains this in my mind is the conservatives on the Court truly do not conceptualize criminal defendants in these cases as human beings. I don't think there's anything else that actually explains this case, and I know that sounds dramatic, but I just... I can't think of any... I try to think in terms of the conservative mind and the conservative psychology, how it gets to a conclusion like this, and there are little things here and there that can explain Thomas's reasoning, the focus on rules, things like that. But I really don't think that there's anything that explains it better, than they don't think of this person as a human.

0:27:40.0 Rhiannon: That's right.

0:27:40.6 Michael: I think that's right, and I think you can see it in just the way Thomas's opinion... It's sort of deceptively simple, but he's very clearly like running cover for the prosecutor here, right. You could find clear instances of bad faith, and the one that really jumped out to me was how he says, this is only one incident. This is only one incident. It's not a pattern. Thompson points out that during the 10 years preceding armed robbery trial, Louisiana courts had overturned for other convictions in the same office because of Grady violations. That sounds like a pattern, right? And Thomas says, well, no, because they weren't similar to the Brady violation here, they didn't involve blood evidence and lab reports, which is like... What the fuck are you talking about?

0:28:29.5 Rhiannon: It's horrific.

0:28:30.4 Peter: Just think about this in the most basic sense. If you had a child, like a seven-year-old child, and your child punches his sister and then lies about it, right. And then lies about stealing something. Is that a pattern of lies? You wouldn't be like, well, those are different, those are different types of lies.

0:28:47.1 Rhiannon: Right, exactly, exactly. Yes, it's just the conservative tendency to sort of specify to a point of total abstraction that doesn't even make sense.

0:28:57.8 Peter: Technicality for the sake of technicality.

0:29:00.6 Michael: I don't think Thomas is confused here, right, like the point he's making makes sense in the abstract, which is like, look, if they keep fucking up blood evidence, then clearly they don't understand what is and isn't exculpatory blood evidence and you need to train them about it. But that's not the concern animating this, right, that's not the claim being raised here. The claim being raised here is that this office doesn't take Brady seriously, and the training they need is you have to fucking turn over Brady materials, you're not idiots, you know what's exculpatory, and you have to do it. It's not a suggestion, right. That's the training.

0:29:34.7 Peter: It's not like they thought like, oh, blood evidence, you gotta hand over blood evidence too?

0:29:40.7 Michael: What? So like, and Thomas knows this, gets this, right. This is deliberate. This is the way conservatives launder their opinions. This is a perfect example of them viewing themselves as advocates for the police, right. Prosecutors are cops, and they're advocates for the police, and they're making sure the police can do their jobs as they see it, both the cops and the conservatives, which is maintaining order, maintaining the current social order, and if you have to fucking break a few civil rights eggs in order to do that, if you have to frame a few people for murder and sentence them to death, if that's what it takes to keep the fucking rabble down, that's what it is. The state is fucking bullshit. It's disgusting. That's what this is.

0:30:32.5 Rhiannon: And stepping back a little bit, talking about what prosecutors are sort of bound and required to do when prosecuting, it's not just that Brady v. Maryland created the standard that requires prosecutors to turn over this evidence, prosecutors' ethical duty in the law in their profession is to justice, their duty is not solely to collect convictions or to gain convictions, their ethical duty is to the truth and to justice.

0:30:58.7 Peter: Right. Lawyers can't put people on the stand they know are going to lie, things like that, right.

0:31:03.2 Rhiannon: Yeah, exactly. And so I think what Thomas fails to do is sort of honor and uphold the important mission of what in theory a prosecutor should be doing, right, and just gives carte blanche to continue to do this shit because, oh, it's just kind of like an occupational hazard, sorry.

0:31:21.3 Michael: And so Thomas does talk about this and he sort of uses it in this bad faith way, he says, look, like it's not just trainings in the office that district attorneys rely upon to make sure their subordinates are complying with the law, they take professional ethics in law school, they are apprenticed, they have to take continuing legal education to maintain their Bar membership and so Thomas is saying, look, the district attorney can rely on that in assuming that his assistant district attorneys are not corrupt and know what they're doing, and so they need some reason to think there needs to be a training, right, like you need to demonstrate as a plaintiff that there was some glaring issue. But I think any time there's a Brady violation, any time, even one, there should be a big office-wide training.

0:32:21.2 Michael: I don't think you should wait until there are five or six, I don't think you should need three or four blood evidence Brady violations before like, let's have a blood evidence training. It's a serious issue.

0:32:33.8 Rhiannon: Right, it's a serious miscarriage of justice already.

0:32:36.8 Michael: It's a constitutional violation.

0:32:39.7 Rhiannon: Right, right. You have fundamentally fucked up on the job.

0:32:42.0 Peter: That would be the case at any normal workplace. If there's a really overt case of sexual harassment at a normal workplace, they're not like, alright, guys, you only got two more strikes, then we're doing a training.

0:32:51.3 Rhiannon: Right, exactly.

0:32:52.2 Peter: Everyone gets a fucking training.

0:32:55.5 Michael: And they've been getting convictions overturned for Brady violations, like every 30 months or something, that's like...

0:33:01.3 Rhiannon: Right. This is clearly a problem.

0:33:03.0 Peter: It's the 25 strike rule that they operate by now. Alright, let's take a quick break and then we will move on to Antonin Scalia.

0:33:15.7 Rhiannon: Hey everybody, thank you so much for listening to 5-4. If you are already a Patreon subscriber, thank you so much. Thank you extra. I would love to open mouth kiss each and every one of you. We actually have a special event coming up for Patreon subscribers. Boys, tell them what it's about.

0:33:38.0 Peter: Yeah, it's about legal media and why it's so awful, and all of the various brain disorders that people in legal journalism have, we're gonna explain them, we're gonna run right through the DSM and catalog all of their various conditions.

0:33:51.6 Michael: We're gonna name names.

0:33:54.2 Peter: That's this Friday, April 2nd, 9 PM Eastern.

0:33:58.6 Michael: Yeah, so if you're not a subscriber yet, subscribe to the $10 tier and you can hop on that Zoom with us.

0:34:06.1 Rhiannon: Patreon.com/fivefourpod, all spelled out.

0:34:10.6 Peter: Alright, we're back. I think we should talk maybe for a second about Anton Scalia's concurrence. In the past, we've talked about a style of concurrence pioneered by Brett Kavanaugh, which is the concurrence that doesn't need to exist, but the author is not self-aware enough to realize that.

0:34:30.5 Rhiannon: That's right, yeah, just repeating exactly what the majority just said.

0:34:34.2 Michael: It's like the legal version of that meme of the drunk guy at the bar, like talking into that girl's ear, you know what I'm talking about?

0:34:42.2 Rhiannon: Yes, exactly. And the girl's face is like, God, please kill me, just take me now.

0:34:46.5 Peter: Yeah, but it's about the non-delegation doctrine. So most concurrence are where a Justice is basically like, there's this other point that's unaddressed here. I agree with the conclusion, but I want to address this point. Then you've got the Kavanaugh variation, there's the classic Clarence Thomas, which is like, I agree with the conclusion based on our precedent, but I would overturn everything. And then you have the Scalia concurrence here is, is what I call the I could do this better concurrence. Which is when you're making the same points as the majority, not like Kavanaugh because you don't realize it, but because he read the Thomas majority, he read Ginsburg dissent, which is very strong and really takes the majority to the mats...

0:35:36.6 Michael: Like takes them out to the woodshed.

0:35:40.0 Peter: I mean, you read the Ginsburg dissent and you're like, that's the winning side of this argument, it's just one of those things. And I think Scalia saw that and was like, okay, I could do this better than Thomas. And he just sort of gave it a whirl. I don't think it adds much substantively, I don't know if there's anything you guys want to discuss about it, but I just... I did want to flag a new type of concurrence.

0:35:58.4 Michael: A new concurrence just dropped.

0:36:02.3 Peter: Added to the canon.

0:36:02.3 Rhiannon: Scalia not wanting anybody else to take credit for whatever bullshit they're talking about today.

0:36:07.5 Michael: The one thing I'll say is that he gets a lot of credit for being the big brain, right, and I don't think he is. With that being said, it's like you said, he saw that Ginsburg was really... Out-classed Thomas, because Ginsburg is right and Thomas is basically just running interference for a cover up. And he's like, well, I could do this, but he can't. They're wrong. There's no way about it, like you say, there are no objective answers, but this is about as close as you get to there being a clear answer, and five Justices were on the wrong side of it. There's no getting out of that.

0:36:40.5 Peter: Exactly. So when we discussed qualified immunity with respect to the police last year, we talked a little bit about a discrepancy between how police talk about themselves and how they demand the law treat them, and it's a similar dynamic with prosecutors, who hold themselves out as sort of the vessel through which the people's justice flows, right? They often show up at public interest fairs at law school as if they're in the business of serving the common good, which I found particularly offensive as a sell-out, 'cause I was like, at least I'm admitting it, just if you go for... If you go to a corporate law firm, no one's pretending that they're serving the public interest, right.

0:37:22.8 Peter: The prosecutors are like, oh no, I think this helps everyone. It's offensive to all sell-outs, I think. Yeah, so they're holding themselves out as the carriers of this great social responsibility, and yet there is this vast legal framework specifically designed to insulate them from the consequences of abusing or neglecting that responsibility, right? Is it really a responsibility? And if there are no consequences for fucking up, isn't the fact that there must be consequences for messing up central to the entire concept of responsibility? Like that's how you teach it to children, right? This is a responsibility, Timmy, that means don't fuck it up or you get in trouble.

0:38:02.4 Michael: The whole idea of somebody who's responsible is somebody who gets it right, does what they need to do it even when it's difficult. Oh, they're very responsible, they stayed up late to get their work done or whatever, blah, blah, blah.

0:38:17.2 Peter: Regular people are not given the freedom to make dire mistakes, this is a luxury that the state affords itself. They're like, oh, this is a really tough job we've got here, and sometimes we will, yes, engage in conspiracies to get a man sentenced to death. That's just part of what we do. You wouldn't really understand. In reality, if we wanted to impute the prosecutorial role with the appropriate level of responsibility, there would be extensive oversight and penalties for things like the purposeful obstruction of evidence.

0:38:49.3 Peter: Instead, we have a system built around protecting prosecutors, and it's even more bizarre here than it is in many police cases. Like with police, you have this idea that they're making split second, high-stakes decisions that will naturally lead to some mistakes, and so they need some leeway, right? And obviously, the police have long abused that leeway, but at least it makes some conceptual sense, right. Here we have some fucking slobs who if they weren't prosecutors would be like slip and fall scam artists who just sat at their desks in between sandwich runs plotting out a fraud to get a man sentenced to death for years on end. That's not the heat of the moment, that's close to the opposite of that.

0:39:31.4 Michael: It's not a slip, right, that's not you overslept your alarm. I said this earlier, but it's like prosecutors or cops, I don't know if it's true everywhere else, but here in New York, they can even get little badges if they want.

0:39:45.3 Rhiannon: Oh, yeah. Oh, yeah, they have badges.

0:39:47.6 Peter: And you know they all get them.

0:39:49.1 Michael: Yeah, they do.

0:39:50.0 Rhiannon: They absolutely have badges, yeah.

0:39:51.9 Michael: So I think the Court gets that the same way they need to insulate cops from responsibility, they need to insulate prosecutors as well, it's all part of this same overarching ideology, which is that the state gets to trample the rights of the underclass is really what this is about, it's like maintaining the social order, and the social order is that poor people and black people are under the boot.

0:40:20.2 Peter: Absolutely. I do have one thought before we just let Rhi run wild here, which I'm excited for. It's important to understand just how fundamentally flawed our prosecutorial system is. When someone with like, let's say with the last name Johnson is being prosecuted, the cases are literally titled State v. Johnson, or even worse, The People v. Johnson. The prosecutors supposedly represent the state, but why does the state necessarily want to convict someone? Shouldn't the state be neutral? If the purpose of the proceedings is to determine the actual truth of what happened, doesn't a public defender represent the interests of the state and the people as well? And if you want to really peel back the absurdity of this construction even further, if the prosecution is the state, then what the fuck is the judge?

0:41:08.3 Rhiannon: Right, right. What's he doing?

0:41:09.2 Peter: The state is represented twice. What the fuck? In America, we have what's called an adversarial legal system. One side's lawyers are tasked with arguing that the accused is guilty, and the other side that the accused is not. Neither side is interested in the truth per se, they are obligated by legal ethics rules to argue for their side. Now, obviously, they're not supposed to lie or obscure the truth in the process, but the system creates these dangerous perverse incentives, which this case very clearly lays bare, right, and it also creates this scenario where the state, which should be neutral to the outcome, is invested in sending a person to prison or to their death.

0:41:51.3 Peter: And it's not pie in the sky idealism to think that this shouldn't be our system. There are Western nations with what's called inquisitorial systems, where the judge is assigned without relying in full on advocacy from the parties to make a determination about the truth, like what actually happened here. Naturally, that's not a flawless system, but it does seem to be one that is at least ostensibly geared towards finding the truth, and that would be a big inherent improvement on this sort of farcical system we have today where the government is overtly taking on the role of, we want to send this guy to prison, essentially, regardless of whether or not they're guilty.

0:42:28.2 Peter: Obviously, in an inquisitorial system, there might be judges who are corrupt or biased or whatever, and that's always gonna be a downside, a downside in our system with judges as well, but you will not have the disgusting incentives that led to these people manufacturing a case against this man to send them to his death.

0:42:48.0 Michael: Right, the whole idea with zealous advocacy is you're supposed to push things to the limit, which means the state is literally in the posture of trying to bend or even break the very rules that are in place to ensure a fair trial and ostensibly at least make sure that the truth comes out, right, which is not a position the state should be in. You've really fucked things up if that's where you've landed. Another point I want to make is like that Peter said, the judge represents the state, the prosecutors represent the state, and in I think any reasonable conception, the federal defenders or the public defenders would be representatives of the people as well. But philosophically, at least, the jury is the people, it's the people's foothold in this whole state-run system, and that's why we have a jury is to make sure that the tyrannical state doesn't just take over entirely, that the people always have a say.

0:43:47.8 Michael: And here, the jury was very clear, the jury was like, this is fucked up. The jury was like, this guy deserves a lot of money, a million dollars for every year he was on death row, which there's a very clear sort of logic to that, I think. And you have the Supreme Court saying fuck you, right? Eat shit, people. Eat shit to the people. Like you don't really get a say at the end of the day, your involvement is optional.

0:44:17.9 Peter: I would like to do an episode where I just make the same point about case titles over and over again, because The People v. Whoever just pisses me off so fucking much, like did I miss a vote? Was there a fucking referendum I missed out on over here?

0:44:32.7 Michael: And while we're talking about juries, I want to say, if you find this stuff compelling, you should consider it your moral duty if you're ever called in to jury duty to one, show up, not put it off, and two, say what you need to say to get on the jury, and then three, vote not guilty. That's called jury nullification and you should do it. When I got jury duty, I tried desperately to get on the jury to get some dude off, they were trying to railroad him with some pot conviction 'cause they couldn't stick some credit card fraud on him, and I was like, I'm going to fucking get on this jury and I'm going to make sure this guy gets off, but I didn't get selected.

0:45:13.3 Michael: Don't let that happen to you. Get selected. Fight the power. They can't stop you. What happens in the jury room is sacred, you're the people, you get the final say.

0:45:23.8 Peter: When I got called for jury duty, there's a new thing, certain jurisdictions, but New York, especially, where it used to be understood that if you were a lawyer, they're not going to pick you. Now, the opposite is true, they want a couple of lawyers on the jury to sort of guide people through the process. A lot of them think it's beneficial, and that's become popular. And I'll never forget the look on the face of the guy, the Goldman Sachs attorney who was sitting next to me when he got selected, just blood drained from his face. He had to go back to his senior VP boss and be like, I'm going to be on a trial for two weeks, and you are legally obligated to let me go.

0:46:03.0 Michael: What will our clients do without someone telling them to invest in Tesla for two weeks?

0:46:13.4 Rhiannon: Thinking about this case and prepping for this episode, I was thinking a lot about how the discovery sort of process, just how that plays out kind of day-to-day, in the life of a public defender, of someone defending people in this system. And I just want to say that the state has, like we said up top, true monopoly on evidence that's presented in general, because like we said, they have exclusive control and power over the investigation, over all of the evidence that's collected, and then they have exclusive control and power over what gets turned over.

0:46:51.7 Rhiannon: And this case is, it's so obvious that the district attorney's office really conspired against Mr. Thompson in withholding, hiding, maybe even literally destroying, clearly exculpatory evidence, but in your day-to-day prosecutions for simple drug possession, for simple assaults for petty theft, we are constantly fighting over what gets turned over, right, this is not a just egregious example, I mean, it is an egregious example because of the stakes, right, because Mr. Thompson went to prison for nearly 20 years, he was almost executed, but in terms of the pattern, which is what he established here, the pattern is obvious n any prosecutor's Office in the country.

0:47:40.2 Rhiannon: I don't care if you're a progressive prosecutor's office or not, the idea of the state having full control over what gets turned over automatically means that the defense is already and always at a disadvantage, and it means that the defense is often having to fight about little tiny things constantly. Will you turn over the surveillance video, turn over the analysis of those drugs, turn over the witness' statement. I know that police talk to them, you have to turn that over.

0:48:15.3 Michael: Fight tooth and nail just for the materials you need to present a defense.

0:48:19.1 Rhiannon: Exactly, exactly, that's right. And so just want to highlight what a disadvantage to that is and how this fight is constantly happening day in and day out with every defense attorney, with every prosecutor in the country.

0:48:33.1 Peter: Yeah, Rhi, I want to get your thoughts on this, because we keep having people asking us and asking you specifically for your thoughts on progressive prosecutors. So that our listeners are aware, there's sort of a movement and a trend of the so-called progressive prosecutors, which are prosecutors who are, in their own words, progressive, and will take progressive stances in terms of what they prosecute, in terms of tactics they use in prosecuting their cases, right. They're not gonna be prosecuting a simple drug possession and things like that, they will be advocating for prosecution that endorses certain types of policing that are viewed more favorably by progressives, etcetera, and just generally sort of trying to use the prosecutorial role to shift the prosecution in a more progressive direction. And I know you've mentioned that you have some big picture concerns about that.

0:49:28.4 Rhiannon: That's right. When I am thinking about the progressive prosecutor movement and my opinions about it, for one, I practice currently in a jurisdiction with an elected prosecutor who sort of identifies as a progressive prosecutor. You might have heard of Larry Krasner in Philadelphia, George Gascon just got elected in Los Angeles in California. And I just think like this case, Connick v. Thompson, is a really, really good example of my problem with the progressive prosecutor movement. Now, that's not to say, of course, that Connick in the 1980s in New Orleans was any kind of progressive prosecutor or identified as such, right, but this case really shows the limitations, I think, of the progressive prosecutor movement.

0:50:12.9 Rhiannon: And that's because this case shows the system that progressive prosecutors are entering into, like this is a system of attaining convictions over anything else, and in which your definition of justice, which is what prosecutors have a duty to, your definition of justice is punishment. Prosecutors and the police, and I consider them one and the same, they are the engineers of mass incarceration, the state decides what is criminal activity, and then it decides who gets charged with criminal activity, who gets surveilled for criminal activity, and then the state has its monopoly on resources and power and violence to try the people it chooses, all under the threat of sending those chosen people to prison, right.

0:50:58.3 Rhiannon: And so if you are a progressive prosecutor, this is the system in which you are operating, in which the tools at your disposal are punishment to get to justice. And so if you are sending somebody to be caged, and the way you do that is by being very meticulous and very careful about what exactly gets turned over to the defense, I don't see a progressive sort of system of doing that. So on the one hand, a progressive prosecutor, when they say, there's these maybe category of cases that we're not going to prosecute anymore, we won't prosecute, say, simple drug possession or petty thefts or other crimes of poverty, simple criminal trespass, which sort of disproportionately affects homeless people, for example, I'm not ever gonna critique that, that's fantastic. You've made a sort of instant and short-term and positive impact on a community, on a group of people who would otherwise have been sort of swept up into the system, and that's fantastic.

0:52:00.0 Rhiannon: Another example being progressive prosecutor offices saying that they're not gonna ask for money bail in their cases, they're not going to incarcerate people pre-trial just because they can't pay to get out. That's also fantastic, right. But again, I always return to the idea that if on any level, your definition of justice and the tools that you have for supposedly attaining justice are to cage somebody in a completely imperfect system in which police are biased, prosecutors are biased, judges are biased against people of color and the poor, then none of these convictions are legitimate, and I just think that a truly progressive prosecutor's office, that to me could only occur if a prosecutor takes office and commits 100% to diverting the resources that a prosecutor's office has into actual services for people of color and the poor in their jurisdiction, so not just diversionary courts, right. Not just probation over prison, but actual services that divert people away from the criminal punishment system to begin with.

0:53:11.6 Michael: Right, and I think to that point, you see it just about every time there's a progressive prosecutor elected, you see there are revolts from their ADAS.

0:53:21.5 Rhiannon: Absolutely.

0:53:22.3 Michael: Which are their assistant district attorneys, the ones who like prosecute cases and who will leak to the press, who will defy them, who will talk about resignations, you see push back from judges who will impose money bail even if it's not requested. You see it from all ends, in the papers, you see local papers will vilify them and start talking about crime. We saw this in New York when the second cash bail reform came about, all of a sudden all the local media was talking about up-ticks in crime, and the entire system is going be fighting them in their own office, in their own capacity, they take it from all directions, so there's like real limits to what you can do whatever your intentions are.

0:54:14.0 Peter: There's something that we've talked about in various different contexts on this podcast. A couple of weeks ago, in Toyota v. Williams, we talked about the inadequacy of workplace discrimination laws and that the real solution is the concentration of power in labor. And we've talked about the same thing in the context of, for example, cops, the solution to abuse of power by cops is not nice cops. The solution to abuse of power by employers is not nice employers. The solution to abuse of power by prosecutors is not nice prosecutors, it's removing the power that prosecutors have and shifting it elsewhere. That is how you get something that looks like actual substantial reform. And that is why the sort of progressive prosecutor concept is always going to be like good, but limited, no matter what.

0:55:07.1 Peter: It's not a systemic reform, every other part of the system rebels like it's a fucking invasive species, just being rejected by the disgusting decrepit, racist host body, and you're never going to see the sort of sweeping system-wide change just by everyone shaking hands and being like we're gonna be nicer, I'm one of the good ones. That's just not how change happens, change happens by reallocating power into the hands of people who did not have it previously.

0:55:38.7 Michael: I would like some credit from you guys. When you said the answer is not nicer cops, like immediately I was like, it's dead cops. But I stopped myself.

0:55:55.1 Rhiannon: That's gross.

0:55:55.2 Michael: I held it back.

0:56:00.0 Peter: Next week, Hoffman Plastics v. National Labor Relations Board, a case about whether an undocumented immigrant can get a remedy under the law for having his rights violated.

0:56:14.8 Michael: I'm excited already.

0:56:16.4 Peter: Oh, God. You spend a lot of energy on being outraged about Connick v. Thompson and then just to introduce a new different kind of outrage into your mind, right afterwards, it's exhausting, I've got to say. Follow us on Twitter @fivefourpod. Hit up our Patreon and support us. Patreon.com/fivefourpod, that's fivefourpod all spelled out.

0:56:38.8 Michael: Remember, you too can get a racist fired if you get in our Slack.

0:56:44.2 Rhiannon: Join us.

0:56:46.2 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

Toyota v. William‪s‬+

0:00:02.1 S?: We'll hear argument now in number 001089, Toyota Motor Manufacturing v. Ella Williams.

0:00:13.5 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael discuss Toyota Motor Manufacturing v. Williams, a 2001 case about the Americans With Disabilities Act. The plaintiff in the case, Ella Williams, was fired by Toyota, which cited poor attendance. Williams sued, claiming the Toyota had failed to accommodate her disability, carpal tunnel, and that it had been exacerbated by her work on the assembly line.

0:00:38.7 S?: The Justices said this Kentucky Toyota plant did not have to find another job for an employee who suffered from carpal tunnel syndrome and could no longer work on the assembly line. The decision found that Ella Williams' partial disability did not substantially limit her major life activities.

0:00:55.5 Leon: In a unanimous opinion, the Court sent the case back down to the lower court, which eventually ruled against Williams.

0:01:01.8 S?: We're in this bizarre twilight zone where we're too disabled apparently to work, but yet we're not disabled enough to be covered under the law.

0:01:12.0 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:23.4 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have ground our liberties to the bone, like the cartilage in a veteran NBA player's knees. I am Peter, I'm here with Michael.

0:01:35.5 Michael: Hey, everybody.

0:01:39.2 Peter: And Rhiannon.

0:01:39.3 Rhiannon: Hello.

0:01:39.5 Peter: How's everyone doing today?

0:01:40.9 Rhiannon: Chillin', bro.

0:01:42.7 Michael: Doing well.

0:01:44.1 Peter: Today's case is Toyota v. Williams. This is a case from 2002 about the Americans With Disabilities Act, which among other things, protects people with disabilities in their workplace, and what this case involves is the question of what exactly it means to be disabled. So if you're a thoughtful person, you might realize that that's not a very easy question to answer, and to avoid bringing anyone else to do this, I will use myself as our initial example. I've got mild scoliosis, it has resulted in some pain, some injuries, and it means I cannot safely do certain heavy lifting, but if you observed my day-to-day life, you would probably never know there was an issue. In fact, I saw a chiropractor, who didn't even mention it, once when I was young.

0:02:34.2 Michael: Shocked, shocked that a chiropractor would miss that.

0:02:38.5 Peter: Might have noticed a misalignment of the spine, but no, he just rolled with it. It was just like, this guy is fine. I'm just just gonna keep yanking...

0:02:46.4 Rhiannon: I'm just gonna crack him up.

0:02:48.2 Peter: I also have what at least one doctor has described as a fairly severe case of ADHD...

0:02:53.7 Rhiannon: No, you're joking.

0:02:57.9 Peter: Obviously, you guys are shocked, but this is a real thing.

0:03:01.0 Michael: You guys don't hear what these recording sessions are like, but it's... If you heard the uncut tape, you would not be shocked.

0:03:07.5 Peter: Alright, everybody settle down. So this has... It impacted my school work growing up, it impacts my focus at work now, so am I disabled? I'm less able to accomplish certain things than your average person might be. Like I said, it affects my work. But I think a lot of people would be hesitant to categorize me as disabled, while they might be very ready to label someone who is paralyzed below the waist as disabled, even if that person was a white collar professional who otherwise had a similar day-to-day experience.

0:03:44.2 Peter: The point being, everyone is beset with a different set of physical and cognitive limitations, and the scope of those limitations is colored by the intersection of medicine and technology and socio-cultural factors, and so today's case poses a simple question: What if instead of having experts and people with lived experience grapple with the question of what constitutes a disability by confronting all of these complexities, we just had some lawyers hash it out?

0:04:13.2 Michael: That's right.

0:04:13.5 Rhiannon: No risk. It'll turn out great.

0:04:18.9 Leon: So Rhiannon, walk us through some background here, let's go.

0:04:24.3 Rhiannon: Sure. So I think it would help to talk about the ADA, the Americans With Disabilities Act, a little bit upfront. So just a couple of things about the ADA. The primary purpose of this legislation was to create more employment opportunities for people with disabilities. Numerous studies throughout basically the '80s and into the late '80s showed that of all minority groups, disabled people in the United States were the most economically disadvantaged. In 1988, for example, two-thirds of working age people with disabilities were not working, and the number of under-employed people with disabilities was even higher.

0:05:05.3 Rhiannon: But studies also showed that there weren't concrete business reasons for why this was happening. The vast majority of individuals with disabilities who were studied said they wanted to work in full-time positions, and that when they did have full-time jobs, they maintained above-average work attendance and productivity. So of course, we want to point out that a person's value and contribution in society shouldn't ever be tied to these vague measures of workplace productivity, but this is the information that Congress was looking at in the late '80s, early '90s, when they drew the conclusion that disabled people were being discriminated against in the workforce. Public and private sector employers couldn't use the excuse that there was a loss in productivity by employing people with disabilities, for instance.

0:05:52.9 Rhiannon: The reality was that this was about discrimination against people with disabilities, and that discrimination was leading to serious economic harm to people with disabilities. The organization today known as the National Council on Disability noted that in 1988, 20% of people with disabilities in the US lived in poverty. Justin Dart, who was a disability rights advocate and co-founder of the American Association of People With Disabilities, he testified in front of Congress when they were passing the ADA. He testified that discrimination against people with disabilities was "driving us inevitably towards an economic and moral disaster of giant paternalistic welfare bureaucracies. We are already paying unaffordable and rapidly escalating billions in public and private funds to maintain ever-increasing millions of potentially productive Americans in unjust unwanted dependency."

0:06:50.5 Rhiannon: And so again, when passing the ADA, Congress looked at hard data and created comprehensive legislation to primarily increase economic opportunities for people with disabilities and to protect them from discrimination that was not only extremely harmful, but commonplace across the workforce. So let's turn to the facts of this case. This is the story of a woman named Ella Williams. Williams got a job at the Toyota Motor Company in the early '90s, and she moved her family, in fact, across the state to take the job as an assembly line worker at Toyota's plant in Georgetown, Kentucky.

0:07:27.1 Rhiannon: You know, at the time, the average annual pay for assembly line workers for Toyota was $62,000. This is decent money for most families at the time, this is a solid opportunity for Williams and her family, but she would end up working for Toyota for just six years because over the course of her time there, she developed carpal tunnel syndrome and tendinitis in her upper body. And if you don't know, carpal tunnel syndrome is characterized by numbness and pain in your wrists and hands as a result of compressed nerve in the wrist, and tendinitis is irritation and inflammation of the tendons, and this condition causes severe pain and tenderness, especially around joints.

0:08:08.5 Rhiannon: But in describing her experience with these medical conditions, Ella Williams said, "I got lumps the size of a hen's egg in my wrists and my hands and fingers got curled up like animal claws." She also said, "I used pneumatic tools at work that really vibrated and I was always having to reach above my head."

0:08:26.7 Peter: I love the Kentucky charm of the hen's egg visual.

0:08:31.8 Rhiannon: As a result, Toyota took her off the assembly line and they gave her a job as a paint inspector, where she worked satisfactorily, according to job reviews, for a little while, but then in 1996, the job duties changed and Williams was required to take on more physical tasks again. And again, these job activities caused her significant pain in her upper body, especially her shoulders, her arms and her hands. This was more than mere discomfort on the job for Williams. As a result of the progressive nature of these conditions, she eventually needed help getting dressed, she stopped being able to drive long distances with her family, she had to limit her participation in recreational activities that she previously had enjoyed, like gardening and dancing, and really importantly, just in terms of her quality of life, she said that the worsening pain and immobility she experienced limited the time that she was able to spend playing with her kids and doing activities with them that required her to do physical movement.

0:09:32.2 Rhiannon: She repeatedly asked for accommodations at work so that she could keep her job with Toyota, but after missing work numerous times, Toyota eventually fired her. So Ella Williams sued under the ADA, arguing that she was discriminated against as a result of her disability and she wasn't given accommodations that she was owed under the law.

0:09:52.2 Michael: That's right. And before we get into it, I want to note that there's like a whole constellation of issues here, and there was a bunch of litigation, there was potential workers compensation claims, there were claims under their Family Medical Leave Act, under Kentucky's state workers comp laws, those things all exist. We're not looking at them today, a lot of them weren't implicated in this litigation at all, in this particular case, what we're interested in here is specifically her request for accommodation because she wanted to keep her job under the ADA and how that shook out and how the Court interpreted it.

0:10:30.2 Peter: Maybe before we get into the law, we should talk about who the lawyer for Toyota was.

0:10:37.7 Michael: Oh, that's right.

0:10:37.7 Rhiannon: I want to give listeners three seconds to guess. Okay, this is the early '90s...

0:10:43.7 Peter: No, it's like 2001, by the time it's actually in the Supreme Court.

0:10:47.7 Rhiannon: That's right, that's right.

0:10:49.5 Michael: It's a pod favorite, folks.

0:10:50.2 Rhiannon: Who would be representing Toyota in front of the Supreme Court...

0:10:57.5 Peter: If you guessed Chief Justice John Roberts...

0:11:01.2 Michael: That's right.

0:11:03.1 Rhiannon: Gold star for you.

0:11:04.8 Peter: John Roberts, crazy coincidence working for the large corporation here.

0:11:10.3 Rhiannon: Against people's workplace protections and accommodations.

0:11:14.6 Peter: Yeah, just a fun little fact to keep in mind. He ran around the room high-fiving all the Justices before his argument. Alright, so like Rhi said, the Americans With Disabilities Act, a law passed that prevents discrimination against disabled people in the workplace, and part of that is a requirement that employers must accommodate employees with disabilities. Now, that doesn't mean that they have to keep you employed if you have a condition that prevents you from doing the job altogether, but it does mean they have to accommodate you by taking reasonable steps to provide you with an environment where you can perform the work, if that's possible.

0:11:51.5 Peter: So for example, if your job is that you paint tiny little photo-realistic paintings with immense precision and then someone chops off your hands, your employer, which is the tiny painting shop, they don't have to keep you employed, because you can no longer do the job at all, but if you just hurt your fingers such that you paint a little more slowly, but at the end of the day, you can still paint the tiny paintings with photo-realistic imagery, then they would have to accommodate you under the Americans With Disabilities Act, they would have to sort of say, okay, let's figure out how we can make this work.

0:12:30.9 Peter: Simple enough. So, Ella Williams has carpal tunnel syndrome, and she claims that Toyota failed to accommodate her and otherwise discriminated against her when they fired her because of her disability. But what Toyota claims in response is that under the Americans With Disabilities Act, she's actually not disabled, so Toyota can't be liable. And the Court, in a unanimous opinion, authored by Sandra Day O'Connor, agrees with Toyota. They say, yeah, she hasn't shown that she's actually disabled here.

0:13:04.0 Peter: So let's dig in a bit. What the law says is that to qualify as a disability, something has to "substantially limit a major life activity." the law gives examples of major life activities, walking, seeing, hearing, learning, working. This lady has carpal tunnel syndrome, quite severe, if you believe her account, right? So she struggles to perform tasks with her hands. The job involved, among other things, applying certain oils to cars on an assembly line that required her to hold her hands and arms up around shoulder height, she claimed, for several hours at a time. So she's got carpal tunnel, she's got a job where they're requiring her to extensively use her arms and hands. It seems simple, right?

0:13:55.6 Rhiannon: Right. Just a clear path here.

0:13:57.8 Michael: This is the defective lawyer brain, and this is how law school breaks your brain.

0:14:02.2 Peter: Like, how do you get this circumstance, nine elite lawyers agreeing with Toyota. So again, the question is, does this substantially limit a major life activity? And Sandra Day O'Connor kicks off the analysis by saying that "substantially" is defined as considerable or to a large degree. Thank you, Sandra. Then she says that "major" is defined as important.

0:14:33.3 Rhiannon: She pulled out the dictionary, folks, she's on it. She took her Adderall that morning and she said, baby, gimme Webster's.

0:14:43.4 Peter: So again, just knocking it out of the park so far, nothing but net. Thank God she defined substantially as considerable.

0:14:52.3 Michael: That is one you really need the dictionary for.

0:14:55.2 Peter: Otherwise I would have no idea what it meant. She first notes that "It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis." Instead, what she's saying is that instead they have to submit evidence of their experience with a disability. So right off the bat, we are sort of rejecting medical expertise here and going straight to what can only be described as sort of a vibes check. Do you feel disabled? Are you feeling disabled?

0:15:37.3 Michael: Get those x-rays out of my face.

0:15:40.9 Peter: I have to say, this feels like an area where perhaps we should have some doctors weighing in, maybe someone with specific expertise in disabilities of some kind. Anyone besides a lawyer would be great.

0:15:55.3 Michael: Yeah, absolutely. And a good example of the idiocy of her particular lawyer brain, although I guess everyone signed off on this opinion, so I shouldn't let them off the hook either. She says, look, when Congress enacted the ADA in 1990, they said that some 43 million Americans have one or more physical or mental disabilities. I was like, that's a lot. She follows that with, if Congress intended everyone with a physical impairment that precluded the performance of some isolated, unimportant or particularly difficult manual task to qualify as disabled, the number of disabled Americans would have surely been much higher, which I... Really? I looked it up, there were 250 million Americans in 1990, which makes that almost 1 out of 5 Americans. That's a lot, that's like most workplaces would have multiple people with disabilities under the ADA.

0:16:53.5 Michael: And she's like shrugging it off like, oh, it's not that much. It's not everybody. It's not the entire workforce.

0:17:01.3 Peter: Yeah, the rest of her argument in this case borders in my view on being incoherent. She says the question isn't whether this woman is unable to do this job, what matters is whether she can do any job, and so even though she cannot do this one because of the carpal tunnel, she might not count as disabled because she can do other jobs. And Sandra just goes on for a couple of paragraphs, essentially downplaying this woman's disability, noting that she can carry out most day-to-day tasks that people do.

0:17:32.4 Michael: Right, right. She says that the lower court that they're reversing ignored important evidence, like the fact that she could tend to her personal hygiene and carry out household chores like bathing and brushing one's teeth. It feels like satire. It's like, oh, you say you can't lift heavy objects or do repetitive manual tasks without pain, yet you can brush your teeth every morning. I got you right.

0:18:02.7 Peter: Right. My friend Dave's been telling me his whole life that he needs that wheelchair, but I see him brushing his teeth every single day. What's going on with this guy?

0:18:10.1 Rhiannon: It doesn't make sense.

0:18:11.3 Michael: It's this insane way of looking at it, like we have to remove all context from your life and decide from this behind a veil of ignorance whether you are "disabled" and then plug you back into your life and go from there.

0:18:27.9 Rhiannon: Right. And I just want to add that John Roberts, the current Chief Justice of the Supreme Court, when he was arguing this in front of the Supreme Court in the early 2000s on behalf of Toyota, Sandra Day O'Connor's language is almost straight lifted from John Roberts' oral argument. He was the one who said on the record that Ella Williams can walk, she can brush her teeth, she can bathe, and so she's not really disabled. And the other thing I want to say is how much this kind of language and this kind of talking about what it means to be disabled or not disabled or to have a disability, how much it's steeped in stigma and stereotype, exactly the kind that the ADA was targeted at eliminating, right, and the Supreme Court here, Sandra Day O'Connor's opinion, is really just reproducing that incredibly stigmatizing language about what it means to be disabled and putting that in the holding.

0:19:23.7 Michael: Right, and the final point I want to make is that she also was like, look, yes, sure, dressing yourself, that's sort of like in those categories, but she only needed help dressing herself sometimes.

0:19:33.5 Rhiannon: Right, which is wild.

0:19:35.7 Michael: So that's not really disabled on the record here.

0:19:35.8 Peter:

0:19:38.3 Leon: Right. I want to point out, there's a degree to which this sort of dichotomy where you're saying these people have to be so severely disabled for the ADA to protect them that they can't even brush their teeth, it really undermines the whole function of the law with respect accommodations at work. Accommodation is meant for people who are not severely disabled, obviously, because the whole point is that you can do most of the job, you can do the basics of the job, so they're creating a situation where someone has to be severely disabled for the ADA to apply, but not so disabled that they can't do the job, and it's not true that that Venn diagram has any overlap, it erases the function of the law.

0:20:21.3 Peter: And that's the whole point of this part of the ADA, that employers must accommodate people whose disability impacts their ability to do their specific job. So when you say that their ability to perform that specific job is irrelevant, you have completely divorced the application of the statute from its meaning. This woman is saying, hey, my disability prevents me from doing this job, so they should accommodate me and maybe not fire me, right. And the Court is saying, well, yeah, but you could do other jobs, and it's like, well, yes, but this law is about workplace accommodations for people with disabilities. What's the point of that if they don't have to accommodate you based on your specific workplace?

0:20:58.0 Rhiannon: Exactly, exactly. It's so stupid.

0:21:01.2 Michael: It's remarkable.

0:21:04.3 Peter: What O'Connor is reading the ADA as doing is dividing people cleanly into two categories, disabled and not disabled. But like I mentioned up top, the reason I got into my scoliosis and ADHD is because the reality of what it means to be disabled is not very clear. There's a wide range of ways in which a person's physical and cognitive function might be limited relative to their peers, and it doesn't do any good to try to draw a bright line between disabled and not disabled. Put another way, O'Connor is asking the question, is she disabled? But that's the wrong question. The question is, does this woman's condition impact her ability to do this job.

0:21:47.5 Michael: That's right.

0:21:49.3 Peter: Before we move on a bit, I think we should note that the Court does not hold that she is not disabled, they just send the issue down to the lower court to re-evaluate whether or not she is based on this sort of new framework, this bright line that they have created. But I think the way that O'Connor has framed this question completely shifts the way that all future courts have to analyze it, using this childish binary, disabled not disabled categorization, where disabled people are people who are so debilitated that they can barely participate in society, in the workplace and take care of themselves and non-disabled people are everyone else, just removing any sort of gray area in the analysis of what being disabled actually means.

0:22:33.0 Michael: Right. And I also want to note, she mentions in sending it back to the lower court, that part of that's the posture that it came up in, and that they weren't in position to do that, but I think it was pretty clear how the Court wants the lower court to find here, right. They want it to say she's not disabled. That comes through loud and clear in this.

0:22:56.8 Peter: Right, and so the dissent here... Oh, my bad. No dissent here. Marking, I believe, is this our first unanimous case? I think it might be.

0:23:09.6 Michael: I think so.

0:23:11.5 Peter: Which is just remarkable. I was telling you guys that I was, I think, mixing this up with another employment discrimination case, and I thought the whole time I was prepping this, I was like, it's a 5-4 decision, and the discovery that not a single Justice... Not a single Justice found this offensive, I can't even fucking tell you how poisoned the minds of lawyers across the world are.

0:23:32.0 Rhiannon: It's beyond ridiculous.

0:23:33.8 Michael: Yeah, and before we continue, let's take a break.

0:23:39.8 Michael: Alright, we're back, and I wanted to talk a little bit about my personal experience with the ADA, because I think I've mentioned this on Twitter before, but if you don't know, I have a bipolar diagnosis and have struggled a few times with some severe bipolar depression. And when I was at a big law firm, I had to take time off under the ADA in a period of acute, acute depression, and I'm not sure that there's a better accommodation than what they offered me, which was literally unpaid leave as long as I wanted it with the promise that my job would be back with no reputational or ill effects when I was able to work again.

0:24:21.9 Michael: And I am blessed to have a comfortable enough life and enough built-up wealth and a wealthy enough family that I could take four months off without making money, and that was okay, and I could afford to go to a therapist two or three times a week and try a bunch of different meds, like off-label uses that insurance doesn't cover to try to take care of that. But most people aren't like that blessed and that accommodation isn't really available to them the way it was to me. And as far as accommodations go, it's not really much of one, right?

0:25:07.3 Rhiannon: Yeah, good point.

0:25:08.9 Michael: Like we'll essentially hire you back at some point. And I've always thought about it because I think it's sort of emblematic of the way our culture views people and their worth. Like this is all an outcropping of the idea that our ability to keep a roof over head or feed ourselves should be tied to our ability to be productive and be socially useful members of the country. And if we can't...

0:25:40.3 Rhiannon: Economically useful.

0:25:42.3 Michael: Right, economically... Yeah, not even socially useful. Economically useful member of society. And so in this case, I wasn't able to do that at all, and so I wasn't gonna make any money. And the ADA, all it's doing is smoothing out the edges on that. Well, that's too heartless in the case of someone who gets a debilitating injury, but otherwise wants to work and can do some work, we should let them work. Where is the inherent dignity that we treat people? And to take this law that's already sort of... I think its very existence highlights like the inadequacy of the way we treat our people in general, let alone people who are struggling with disabilities, and then gut it like this and make it less useful and less helpful, and just make our country that much crueler and colder. I don't know, reading this case, I was just like, I was just disgusted.

0:26:40.0 Michael: The fact that it was 9-0, that it was unanimous too, is just incredibly heartless, it's one of the more heartless decisions we've read, in my opinion.

0:26:50.7 Leon: I think I've talked about this on the show before, but there's a degree to which capitalism relies on the conflation of economic outcomes and moral outcomes, like there's this idea in American culture especially, that people do well because they deserve it, and if they don't do well, they deserve that too. And the conclusion that you're meant to draw is that whether someone is deserving of a decent life, of human dignity, is tied to their ability to perform in a workplace, such that even our analysis of people with severe physical limitations is not, how can we make life better for this person, it's sort of how can we fit this broken cog into our money-making machine. That's the framework that the Court is using here, and our baseline assumption remains that people who cannot perform work simply don't deserve to have their needs met. There's no other conclusion you could draw from the society that we've built.

0:27:47.4 Michael: Well, not our perception, to be clear, not our podcast's.

0:27:52.7 Peter: I mean as a capitalist society, alright, I mean, God, you guys aren't letting me wheel free here.

0:27:57.5 Michael: Well, I just want to be clear. I don't want to get cancelled as you were loose with your language.

0:28:04.8 Peter: And if we want to be like a moral society, our rejection of that notion needs to go beyond this lady should be given an accommodation by Toyota, which is of course true, it should go to the very fundamental proposition, right, if someone is even just unskilled or unintelligent through no particular fault of their own, or even through fault of their own, can you really and sincerely make the claim that you deserve a better life than them, that you deserve to be treated with more dignity than them. And capitalist structures want you to say yes, that they deserve less than you do, but I think if you have any semblance of a moral center, you have to say no to that. That is what I think it really sticks out to me about this case. It feels like something that could only be produced in a society as sort of completely hollow as ours.

0:28:55.5 Rhiannon: Yeah, I think that's exactly right, and really well said, Peter, and that brings me back to sort of the judicial principles, the legal principles that are animating this decision. One big thing I'm thinking a lot about is conservative, supposed judicial restraint. We talked about this as a foundational philosophy that supposedly was central to Justice Antonin Scalia's jurisprudence, and I think there's some hypocrisy to draw out in this case too.

0:29:23.8 Rhiannon: So here, what the Court is limiting is congressional action that was aimed at remedying inequity in our society. The Americans With Disabilities Act was intended to establish or really is born out of the foundational idea that people with disabilities are qualified to work, and that stereotypes indicating otherwise are harmful, they're harmful to people who were being forced to live in poverty because job opportunities were so slim, it was harmful to the economy at large, sort of every level of society, and the ADA was about protecting people from bias and stereotype that unjustly limit their economic self-sufficiency. And of course, that in turn limits personal autonomy, freedom, long-term health and wellness outcomes all the way down the line.

0:30:14.7 Rhiannon: And I think it's important to know a little bit more about the background of the ADA and what Congress specifically intended to remedy when they passed the ADA. So the ADA was built off of an earlier, smaller piece of legislation that was passed in the 1970s called the Rehabilitation Act, and that law prohibited discrimination on the basis of disability in federal agencies and programs that got federal funding. In 1990, when the ADA was passed, Congress recognized some limitations of the Rehabilitation Act that it sought to change.

0:30:46.8 Rhiannon: First, the Rehabilitation Act only applied to federally funded agencies and organizations, so the private sector was completely left out; and then secondly, a major problem with the Rehabilitation Act was that it left out definitive interpretation guidelines, which ended up leading to kind of erratic judicial interpretations. That means that reasonable accommodations and discrimination standards, those were never fully developed into agreed-upon legal tests that courts could use when reviewing workers' claims of discrimination on the basis of disability.

0:31:22.5 Rhiannon: So the ADA specifically sought to fix those two issues. The ADA was known as an example of a so-called second generation Civil Rights legislation, and the hubris of the Court here in limiting the ADA like this is really infuriating, like none of the conservatives would say that this case is an example of judicial activism, but it literally is, it's the definition of judicial activism, and conservatives will deride and spit on supposed judicial activism all day, but what they really mean to ridicule is when courts view expansive Civil Rights legislation expensively and when they're protecting people's rights under the law, the way the law is currently written.

0:32:06.8 Rhiannon: And when judicial activism like this is done in service of relegating people to permanent under-class status in our society, when it's done in service of damaging stigma and stereotype, when it's done in service of economic violence, that's totally fine with them, and they won't call it judicial activism.

0:32:27.3 Michael: That's right.

0:32:27.9 Peter: Before we wrap up, there's something I want to talk about, which is the ways in which the inadequacy of the state fosters adversarial relationships between workers and employers. Ella Williams has a condition that makes it difficult for her to do certain manual labor. There are countless others whose ability to engage with the job market is limited by their physical or cognitive capacity. So what are the options being presented to those people? Because you could imagine a robust welfare state that actually provides for people, that gives them the support they need to spend time searching for work they can do, or work part-time, or if you could even imagine it, not work at all, if that's what's best for them.

0:33:09.2 Peter: You can envision a government that provides safety to citizens who find themselves in these precarious and vulnerable positions, and that's why these sort of anti-discrimination laws, while useful, are always going to be inadequate. The reality of working is that the relationship between employer and employee is inherently adversarial, but a government that provides for its citizens more meaningfully, such that they are less reliant on work to exist day-to-day, can lower the stakes of that adversarial relationship, can take some steam out of that relationship.

0:33:42.9 Peter: These sorts of patchwork anti-discrimination laws don't do that. All they do is sort of change the rules of engagement. At the end of the day, you're still being forced to pry concessions from your employer in order to maintain your life and maintain your dignity, and that's why I think the only real broad reaching solution to problems like this is a strong organized labor movement. In Denmark, for example, and I think really across Northern Europe, where the regimes are often viewed as being relatively favorable to workers, there are no minimum wage laws, and yet wages there are far higher than they are here. Why, because union participation in most of those countries is well above 75%. When labor is in an equal bargaining position, workers don't need to be given rights because they will take them for themselves.

0:34:36.4 Peter: I support the Americans With Disabilities Act and I support similar anti-discrimination laws, but always remember that these are Band-Aids on the gunshot wounds inflicted upon American labor by corporate interests. No matter how well-meaning these laws are, under the current framework, you will always be at the mercy of some corporation that can appeal to some dues-paying country club member judges, like the fucking Supreme Court, to determine the scope of your rights. And that's because at the end of the day, that's where the power lies. The only way to change that fundamental dynamic is to change who has the power, and that's why no matter what the laws are, you're going to end up with bullshit like this. The way you change the way that workers interact with their employers is by giving them more power.

0:35:20.6 Michael: As an addendum to that, the more robust sort of social services and benefits you have, the easier it is for workers in a position of power to bargain. Like if you're not bargaining for healthcare because there's a robust government-provided healthcare system that let you focus on things like vacation, paid leave time, maximum hours and wages, right, and it doesn't have to be a trade-off between those things where you're trading off benefits for personal leave. So there's a real entire restructuring of our political economy that needs to be considered or needs to be done, really, if we want to have anything approaching a fair and just society.

0:36:10.0 Rhiannon: Just to vibe a little bit more, I've been thinking since we talked with Alec Karakatsanis about San Antonio v. Rodriguez, when he was talking about sort of imagining the Supreme Court deciding differently and deciding that our society did protect the poor from discrimination. For instance, when I found out when I learned that John Roberts argued this case to the Supreme Court and that now John Roberts, who represented the Toyota Corporation in front of the Supreme Court, now heads the Supreme Court as Chief Justice, I just thought about the possibility of imagining a world in which one of the Supreme Court Justices had spent a career as an assembly line worker at an auto shop, right, and how different these decisions would be, should people with real life experience and real work experience be making those decisions.

0:37:03.6 Michael: See, the limits of my lawyer brain were when you started that sentence, I was going to be like, yeah, what if Ella Williams' lawyer was... You were like, no, what if fucking Ella Williams was on the Supreme Court. Idiot. Like, what if we took these dumb-ass lawyers out of the equation altogether. I think that's a beautiful example of the way the law can be tunnel vision and unable to even think about things from a different perspective.

0:37:33.2 Rhiannon: And it's just because of this bullshit pipeline, right, it's the same people involved in the decision-making and making the decisions on these cases, they self-select into this tiny group of supposed elites, and that's it, they make the decisions for all of us.

0:37:47.6 Michael: Right. And is there anything more emblematic than the fact that the guy arguing this ended up being a Justice, right? It's a small club. It's a chummy, small club.

0:37:55.4 Rhiannon: Right, and now he leads the Supreme Court in deciding questions about the Americans With Disabilities Act, right, so how do you think those are going to come on?

0:38:02.9 Peter: I realize people will say, well, we can't have an assembly line worker on the Supreme Court, which I think I disagree with, but look, we'll start small, podcasters. We will work our way to the assembly line...

0:38:15.3 Michael: I've waited tables, and I have worked in a warehouse. Very briefly, but I did. I worked on a drill press.

0:38:21.4 Peter: A good chunk of my childhood jobs were warehouse jobs, by far the jobs I was the best at, by the way. I've never been better at a job than when it was just like, can you put this shit over there? I'm like, you got it, buddy.

0:38:33.0 Rhiannon: My ADD is raging and all I want to do is put shit over there.

0:38:38.8 Peter: I can do this job, yeah, yeah.

0:38:42.3 Peter: Alright, big thank you to Erin Hawley who helped us prep this episode, she's an accessibility consultant, @GeekyGimp on Twitter. Erin, thanks very much.

0:38:51.8 Michael: Thank you, Erin.

0:38:53.1 Rhiannon: Thanks, Erin.

0:38:55.6 Peter: Next week, we're doing a Patreon-only, subscriber-only episode on the Trump Judges. Gonna do sort of a post-mortem on the damage done by Trump to the judiciary, look at some of the worst of the worst and what we're looking at in terms of just the next 40 to 50 years of all of our lives.

0:39:16.5 Rhiannon: Can't wait.

0:39:16.6 Peter: Follow us on Twitter @fivefourpod, support us at patreon.com/fivefourpod, all spelled out, and we will see you next week.

0:39:25.4 Michael: Bye.

0:39:25.7 Rhiannon: Bye.

0:39:29.4 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward, with editorial support from Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

San Antonio ISD v. Rodriguez ft. Alec Karakatsani‪s‬+

0:00:01.4 S?: Next [0:00:02.0] ____ 71-1332, San Antonio School District v. Rodriguez.

[music]

0:00:11.9 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael are joined by civil rights lawyer Alec Karakatsanis to discuss San Antonio Independent School District v. Rodriguez, an Equal Protection case from 1973. In this case, parents from an under-privileged school district in Texas sued over inequitable school funding.

0:00:35.0 S?: Well, are you saying that you're discriminated against in this school district because you're poor and these children's education, they're suffering because of that?

0:00:42.6 S?: They are. Well, the district is poor.

0:00:46.9 S?: And so what?

0:00:48.1 S?: So we have poor education.

0:00:50.0 Leon: But the Court rejected their claim.

0:00:52.1 S?: Today the Supreme Court in effect conceded the system may be discriminatory, but ruled 5-4 that it is constitutional.

0:00:58.6 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:07.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have dilapidated our liberty, like rising ocean temperatures have bleached the Great Barrier Reef. I'm Peter, I'm here with Rhiannon.

0:01:20.8 Rhiannon: Hey, hi, everyone.

0:01:22.2 Peter: And Michael.

0:01:23.0 Alec Karakatsanis: Hey, everybody.

0:01:24.1 Peter: And our special guest, Alec Karakatsanis. Alec, welcome.

0:01:28.0 Rhiannon: Hi.

0:01:28.3 Michael: Hey, Alec.

0:01:29.2 Alec Karakatsanis: Hi everyone.

0:01:30.2 Peter: Alec is a civil rights lawyer and the founder and Director of Civil Rights Corps, an organization dedicated to systemic litigation, attacking injustice in the criminal legal system, most notably, in the recent challenges to cash bail systems across the country. His most recent published work is a book called Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System. Great to have you on, man. We appreciate you being here.

0:01:53.9 Rhiannon: We're so excited that you're here, Alec. Thank you.

0:01:56.7 Alec Karakatsanis: It's wonderful to be here. Thank you all.

0:01:58.4 Peter: Alec is best known for his work concerning the intersection of poverty and our legal system, and so we thought it would be great to have him on for today's case, which is San Antonio Independent School District v. Rodriguez. This is much requested by our fans. It's a case from 1973, and it is a case that asks a very simple question: Does the Equal Protection Clause of the United States Constitution protect people from being treated differently, based on their wealth? If you understand the premise of this podcast, or if you're otherwise familiar with the concept of America, you know how the Court answers that question.

0:02:38.9 Peter: This case is sort of tragic, not just because the outcome was terrible in and of itself, but because it really symbolized an opportunity for the Court to recognize the systemic, government-endorsed disparities between rich and poor and use the Constitution to do something about it. Instead, the Court turns a blind eye and leaves us with a deeply inequitable public school system that has continued to perpetuate horrific cycles of poverty in the ensuing half century.

0:03:06.2 Alec Karakatsanis: There's so much to say here. This opinion represents a very particular vision of what the US Constitution is, it's very formal and full of technicalities and based on guaranteeing certain sort of lofty legal principles at the expense of material reality. And education is a good thing, but then utterly denies the material resources that are needed to make that a reality. It's the product of a court system that, for centuries, has cared more about legal formalities than about the material sustenance of individual human beings and their bodies. A legal system that has said, for example, it can be a crime to be hungry and take groceries from the store or to be cold and shoplift a coat, and this opinion makes you wonder what could our world and our legal system have been like, if the Court was willing to require our society to meet its lofty commitments in actual material fact?

0:04:06.8 Peter: Right, a couple of weeks ago, we covered McCleskey v. Kemp, a case about systemic discrimination in the administration of the death penalty. I view this case in almost a similar vein, a huge missed opportunity on the part of the Court and part of a pattern of cases in the '70s and '80s, especially, that threw cold water on the idea of the Constitution as a vessel for addressing systemic inequalities. So Rhi, you're gonna walk us through some background here.

0:04:36.0 Rhiannon: Yeah, that's right. And first of all, can we do a study about how many Texas cases we've covered on this podcast, because it feels like a not insignificant portion of the worst Supreme Court cases come out of my absolutely deranged home state. So you're welcome. I don't know. But actually really quick, before I get into the background, I wanna talk really quickly about something else, something I think it'd be cool for listeners to be clued in on before we get into the discussion. And it's two things, actually.

0:05:06.6 Rhiannon: First, we sometimes get feedback from listeners, kind of special requests, listeners who want us just once to cover a positive story, a good case from the Supreme Court. And second, a few episodes ago, this has really stuck with me, Peter talked about the aspiration and the possibility of the 14th Amendment, that there's no reason that we have to be reading the 14th Amendment the way conservatives are, the way it's been read in the past, and that a more expansive, dare I say, curious or imaginative view of the 14th Amendment could alleviate inequality and lead to more just outcomes in the law. And I think this case is actually a good example of these kinds of things. I'm not gonna say that Rodriguez is a good decision, it is not, it definitely is not, but I do think it provides a really interesting peek into small 'l', liberal, legal institutions, conservative ideology, and just like a jumping-off point, a track for legal challenges that imagine something so much better. And that's one reason that I'm really, really glad that we have Alec here to talk about this stuff with us today.

0:06:14.5 Rhiannon: So, let's get to the background. This case comes out of a challenge to the way Texas funds its schools. So in Texas, public elementary and secondary schools are financed through both state and local participation. The state funds all school districts at roughly the same amount, and so that establishes some minimum educational offerings at every school, but schools rely on local property tax revenues for supplemental funding, okay. So this led to a long history of financial inequality across the school districts in Texas. A school district in a poorer area had less funding than a school district where the residents were wealthy because the majority of the district's funding was based off of property values in that district. And so the result of this funding system is stark disparities in per pupil expenditures between wealthy school districts and poor school districts. The wealthy, primarily white areas of town, are able to contribute a much higher amount per child into their schools than poor minority areas.

0:07:21.6 Michael: Yeah, that's right. And there's an aspect of the Texas scheme that kind of flies under the radar because it's not really in issue in this case. I don't think the majority even mentions it, I'm only aware of it because Marshall mentions it in dissent, but it's just something that I found deeply offensive. And so I wanna highlight it really quickly, and it's that in this scheme, if any given school district wanted to raise its property tax rate in order to send more funds to the school, it had to do so by passing a referenda with the majority of all property owners, not voters. The idea of tying voting rights to property ownership is so insanely antiquated. I didn't believe it at first. And I re-read the paragraph that Marshall mentioned it multiple times, trying to make sure that I was not misunderstanding it, but then he says it again several times after that. And it's just such a vivid illustration of who the state is concerned with and who it is not, which is like, as we'll talk about, is very much what it's the heart of this case.

0:08:29.2 Peter: It's the equivalent of having only billionaires vote on a billionaire tax, right?

0:08:34.4 Rhiannon: Right, right, exactly. That's a great illustration. Yeah, so in 1968, parents from the Edgewood School District sued several other school districts in this same area, including a wealthy district called Alamo Heights and another one called Northeast, and they sued the state of Texas as well. And at trial, the parents from Edgewood, the poorer school district, showed just how serious these funding disparities were. Edgewood is a poor district with a low tax base, and they demonstrated at trial how because of that, they couldn't hire qualified personnel to staff their schools and teach their kids. Their schools couldn't provide the facilities, the books, equipment, activities, all kinds of stuff that were afforded by the wealthier districts around them. And in fact, they provided a study that compared Edgewood with one of the other wealthy districts, the Northeast one, and that study found that the inequities permeated kind of every aspect of the quality of education and services that children were receiving in these two places.

0:09:36.4 Rhiannon: Like in the category of classroom space, Northeast, the rich district, had 70 square feet per child while Edgewood had 50 square feet per child. Northeast, that school district, had nine library books per student while Edgewood had less than four on average. Northeast, the richer district, their teacher-to-student ratio was 1:19 while Edgewood's was 1:28. It goes into other things too, like counselor services, right? Northeast, the richer district, had a counselor-to-student ratio of 1 to about 1500 while Edgewood was one to over 5000 students, and it goes all the way up. You could see it in drop-out rates at the high school level. Northeast's drop-out rate was 8%, while Edgewood's was 32%. We're talking one in three students dropping out of high school in the poorer school district, and that inequity, their studies showed, actually was growing, it was trending upwards.

0:10:38.9 Rhiannon: In 1968, when the study was originally done, the disparity between spending per student between Edgewood and Northeast was about $310. Northeast was able to spend about $300 more per pupil. In 1972, just four years later, it was almost $400, up to about $390. So parents in this poorer school district sued in Federal Court and their argument constitutionally is that their kids are being denied equal access to education based on their lack of wealth, and that this is a problem under the 14th Amendment.

0:11:14.0 Peter: Right, right. The lawsuit's brought on behalf of these students in impoverished districts and the Court in a 5-4 decision written by Justice Lewis Powell, back on our podcast for the second time...

0:11:25.3 Rhiannon: Being a dipshit again.

0:11:26.6 Peter: Putting in tons of work, rejects the claim. The basic question, to dig into the opinion a bit, that the Court tackles is whether this public school financing system is violating the Equal Protection Clause, and the students are saying... Are making what is a fairly novel claim, not entirely novel, but one that the Supreme Court has not addressed, that discriminating on the basis of wealth violates the Equal Protection Clause. This is particularly important because what they're really saying is that poverty should be a protected class, the same way that, for example, race or gender is, right?

0:12:00.6 Rhiannon: Right.

0:12:00.9 Peter: The Equal Protection Clause works by saying that if there is discrimination across protected categories such as race or gender, the Court will scrutinize it more aggressively. So they're saying, hey, poverty, just like race and gender, is a category with a long history of oppression and discrimination in this country, you should use the Equal Protection Clause to protect the impoverished from being treated differently under the law just because of their wealth or lack thereof. And the Court essentially dodges this question. I read it through a few times and I thought it was a very convoluted analysis, but what they're basically saying is, look, there's no clear definition of who is poor here, right? Is it the people below the poverty line, is it people who are poor relative to another person or is it anyone in a poorer school district?

0:12:46.7 Peter: And without getting too granular, what they basically say is, look, the relationship of poverty to school districts is too imprecise. The poorest people don't always live in the poorest districts, and so we're not sure if we can do anything here. And then they say, this is not an exaggeration, although it's going to sound like one, they say, look, these people are getting some public education, right? It's not like they're getting no public education. The Court's argument is that the Equal Protection Clause doesn't require everything to be perfectly equal, just that everyone gets some sort of baseline education, right?

0:13:21.4 Peter: And they're sort of dismissing the idea that poorer communities are not getting that baseline education. In fact, what they say is, look, Texas claims that everyone gets an adequate education and we have no reason to believe that that's not true.

0:13:34.4 Rhiannon: Boom, lawyered. Great lawyer brain on that one. [chuckle]

0:13:37.7 Peter: They don't quite reach the issue of whether poorer people are not a protected class. They're just saying, in this circumstance poorer people aren't definable or identifiable enough to be protected, which is I think absolutely bullshit and absolutely a dodge of the reality of the situation. Just because identifying the class in question is difficult or imprecise does not mean the Court should ignore the issue altogether, right?

0:14:02.7 Rhiannon: Right.

0:14:02.7 Peter: Even clearly defining race or gender, to use the same examples, or nationality, is not always simple, but the Court has consistently held that those are protected categories. And what the Court is implying here is that because poorer school districts might contain some people who aren't poor and poor people might live in other areas, it can't really help them because anything it does would be a little too imprecise. This is a rhetorical tactic that reminded me of other conservative rhetorical tactics, if you've ever heard conservatives debate, they sort of hang their hat on technicalities like this to ignore systemic issues with some frequency. So if you've ever seen a discussion about racial privilege, for example, get derailed by a conservative pointing out that there is white poverty too, or something along those lines. It's not necessarily inaccurate in a vacuum, but it's an argument that is proffered in bad faith to deflect from the idea that systemic injustices exist and must be addressed as such. So the Court is relying on this idea that there's no meaningful correlation between impoverished people and impoverished school districts, and I think the bottom line there is, are you fucking kidding me? That can't be the whole thing here.

0:15:08.0 Rhiannon: Right, right, exactly. And I think that the benefit of hindsight has this kind of being like, this is an absurd holding but definitely in line with conservative ideology. And now we look at it as if this holding maybe was predictable, but at this time, in the early '70s, we are just on the tail end of the Warren Court era, and there had been some Supreme Court cases before this that seemed to indicate that poverty could be ruled a protected class at the Supreme Court. There were a couple of cases in criminal law, for instance, in 1956, the Supreme Court held that states have to provide poor defendants with free copies of their trial transcripts so that they could appeal their cases, and they said in that case, "In criminal trials, a state can no more discriminate on account of poverty than on account of religion, race or color."

0:15:57.5 Rhiannon: A famous case from 1963, Gideon v. Wainwright, that's the case that ruled that the Sixth Amendment requires a state to provide you with an attorney if you couldn't afford to hire one, and it was outside of criminal law, too. A case in 1966, just a few years before this one, Harper v. Virginia Board of Elections, that case struck down the use of a poll tax in state elections, and that case said that a state "Violates the Equal Protection Clause whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth." So this claim in Rodriguez that the families are making from the poorer school district, this ask of the Supreme Court, it's not out of left field, there was solid precedent to point to and say like, look, the Civil Rights Movement opened up the stark inequity this society is built on, and we're continuing to push the law in new ways to remedy those kinds of injustices.

0:16:57.6 Michael: Really quick, listening to you talk, Rhi, just reminded me, the majority relies on this student note in the Yale Law Journal, which basically said that there is actually not freely a connection between poverty and living in a poorer district for the purposes of this litigation. And I looked up the note, I was curious, I wanted to know who wrote it. I wanted to say their name on the podcast and talk about what sort of broken soul they must have that they felt the need to do this when they were in law school. It's unsigned, multiple authors, apparently. But what I thought was interesting was the very first sentences were, to your point, Rhi, and that the note was motivated by a concern that the Supreme Court was gonna do this, and they were talking about all these court cases that were suggesting it was gonna do this and decided to... The district court case, and the fact that it was probably gonna be accepted by the Supreme Court, there was a real fear amongst conservative ideologues that this was gonna come out the way we think it should have come out.

0:18:02.2 Rhiannon: Right, right. Alec, I know you've written and thought a lot about how lawyers and judges are actually a big part of the problem in sort of creating the injustices in the law and then perpetuating them. And I just wonder if you have any thoughts there about lawyers writing to the Supreme Court basically and saying, "Don't decide it this way, we're concerned about it."

0:18:21.9 Alec Karakatsanis: There's a constant dialogue between conservative future law clerks at elite institutions like the Yale Law Journal and the Harvard Law Review and their future employers in a year or two, there's a constant set of institutions and getaways and retreats and other sort of formal and informal mechanisms by which all of these people are constantly talking to each other and warning each other about the things that are gonna be threatening the conservative legal movement. It's something that people on the left just have not created, a whole infrastructure of accountability really is actually what it is. You cannot succeed in the conservative legal world without demonstrating for years your fealty to a certain set of principles, such that when you make it to certain positions, everybody knows that you're gonna toe the party line.

0:19:06.8 Alec Karakatsanis: But I think what's much more profoundly interesting to me about this case, and I liked what you said, Rhi, at the very beginning about how there's something... The opinion highlights how beautiful the law could be. It could have been a force for guaranteeing that children receive meaningful adequate resources for education, and instead, it's just yet another in a long line of cases by the Court that furthers the dominant hierarchies of power and wealth in our society.

0:19:34.1 Peter: Yeah. It reminds me of an aspect of the opinion, which is their discussion of the fundamental right to education. The analysis here can be pretty complex but generally speaking, the Court would look at the Constitution and our history and what society puts value in and decide whether or not that is a fundamental right under the Constitution. And what the court says is like, look, education is important, right? Of course, who could deny it, but nothing in the Constitution implies that a right to education exists, a fundamental right to education. In the Court's view, they can't say something is a fundamental right unless the Constitution sort of implies that it is. And what the plaintiffs had argued was, "Well, look, we've got rights to free speech and rights to vote, doesn't that sort of require implicitly a right to education for them to be meaningful?" Right, surely, an informed citizenry is really the goal here.

0:20:28.9 Rhiannon: Right. And meaningful civic engagement, that's only possible through an educated public.

0:20:34.4 Peter: Right. And the Court just outright rejects that and they literally say, "Well, look, you have the right to speak and vote, but that doesn't mean you have the right to be particularly informed when you do." And I gotta say that sounds wrong, that sounds like maybe it's undermining those rights a little bit.

0:20:50.7 Michael: That'd be right.

0:20:51.5 Rhiannon: Yeah.

0:20:52.4 Peter: I think it's important to say here. A little note about Lewis Powell, Justice Lewis Powell, who's writing this opinion. He used to work in education in Virginia prior to the Supreme Court, and he traveled to the Soviet Union, and upon his return was very terrified of the prospect of centralized education, and spoke to various different organizations about that. And so what he is framing as this sort of strict constitutionalist interpretation of the right to education or of the Equal Protection Clause's protection of indigent people, is in fact actually really colored quite heavily by some red scare alarm-ism that goes unspoken, and I just think it's something that when you're reading the opinion, especially if you're just... For example, in law school, reading the opinion, you would never like [0:21:45.7] ____ but this guy is absolutely being influenced by his perception that if you start to have a centralized system of education, down the road somewhere is communism.

0:22:00.0 Rhiannon: Right.

0:22:00.4 Alec Karakatsanis: Right. And I think there's another really interesting thing going on here with the opinion, which is it does a very typical conservative move, where it says something like, "Well, if we grant that education is a fundamental right, what about the need for decent food and adequate shelter?"

0:22:14.1 Michael: Where does it stop?

0:22:15.0 Alec Karakatsanis: Because you couldn't have a good education if you're starving your child, and so it's... One might think, well, yeah, what about those things? Those things should be fundamental rights too, right?

0:22:24.4 Rhiannon: That sounds important as well, yeah.

0:22:26.5 Alec Karakatsanis: And in the Supreme Court's view, the fact that there might also be other things like shelter and housing and clothing that are fundamental rights becomes a reason to reject education as a fundamental right. And this is what I, in our work, all over the country, all the time, I call the McCleskey problem, so I'm glad you guys covered McCleskey on your other podcast. This problem for me is really the guiding principle of much of the Court's modern jurisprudence, and that principle is, simply stated, that if a case threatens the existing distribution of wealth or power or the functioning of the mass incarceration bureaucracy, if a case threatens that too much, like McCleskey was really threatening the idea that we could even have this massive system of injustice because if we took racial disparities seriously, we'd have to re-think how we do everything.

0:23:14.5 Rhiannon: Exactly, yeah.

0:23:15.0 Alec Karakatsanis: This case is threatening so much about how our society is structured, because if you recognize poverty as a suspect class, that the government actually has to address and do something about in real ways for people's lives, it would totally up-end the distribution of wealth in our society, and of course, the Court's not gonna allow that because the Court sees itself much more as an agent of stability and maintaining certain hierarchies of wealth and power and various norms than it does as an agent of social change.

0:23:42.8 Michael: Yeah, that's right, I think that's right. And Marshall, Justice Marshall wrote a dissent in this case that I thought was fantastic and I was struck reading it.

0:23:50.8 Peter: Before... Yeah, before we get into that, can we just take a quick break?

0:23:54.8 Michael: Alright.

[music]

0:23:58.6 Peter: Hey, folks, thanks for listening to 5-4. If you've already joined us on Patreon, we hope you enjoyed our premium episode about Antonin Scalia and our Zoom events and the various antics going on in our Slack. If you haven't joined us yet, come see what you're missing. Got special premium episodes, generally gonna be bigger picture stuff, more thematic episodes about the Justices, about things like originalism and textualism and the occasional really important case, and maybe just us reacting to the news in real time, sometimes, just I'll read a newspaper out loud, and that'll be a whole episode. Discounts on merch, membership, in our 5-4 Slack with the hosts and access to exclusive events. We've already had a Q and A with our listeners, we've got more planned of all shapes and sizes. You can support us by visiting patreon.com /fivefourpod, that's fivefourpod all spelled out. Thanks for supporting us. And thanks for listening.

0:24:58.2 Rhiannon: Thank you so much.

0:25:00.1 Michael: Yeah, thanks everybody.

[music]

0:25:09.2 Michael: So Marshall's dissent, Justice Marshall wrote this dissent that I think was very comprehensive.

0:25:14.8 Rhiannon: Another dissent for the ages. It's a good one to go read if you haven't read it before.

0:25:18.7 Michael: Yeah, it very patiently and sort of methodically picks apart like every single argument the majority makes, and in the process I think reveals how sort of impoverished the majority's vision of the Constitution is. And so, Alec had mentioned that this is sort of a very formal and technical vision, and I think that's how I learned equal protection, but my professor called it the Equal Protection Architecture, because it's such an intricate analysis, for my exam, I made a flow chart.

0:25:52.3 Peter: Right, right, right, yeah.

0:25:53.4 Michael: It's crazy. And I think this case exemplifies how rigid that is and how much gets left out of that sort of rigid approach, whereas Marshall's dissent is far more nuanced, far more ambitious and is thinking very seriously and engaging very seriously with the individual's interests at stake and the material reality of the plaintiffs and the people in this country. And I think he has a case also that like this isn't how the Court had been treating these cases prior. He goes through and he shows that it hadn't been so rigid, this rigidity is sort of the Court's own invention in this case. Their hands aren't tied, they are tying their own hands.

0:26:38.8 Rhiannon: Yeah, exactly.

0:26:39.4 Michael: And the other thought that kept coming to me is the historical moment that this case came down, Marshall mentions multiple times, Rhiannon, you mentioned earlier about minorities being more likely to live in these poorer districts. Marshall cites to Brown v. Board of Education multiple times and I kept thinking about all the racial stratification that sits beneath this. In 1973, we're 15 years into white flight, the mass exodus of white people from desegregated urban areas in response to the Civil Rights Movement, heading to very homogenous white suburbs and rural areas. We're four years removed from the passage of the Fair Housing Act.

0:27:21.8 Michael: So the effects of red lining are present in full force, which if you're not familiar with, that was a practice of literally drawing red lines around minority neighborhoods on maps and making sure those areas got fewer government benefits, were left out of private sector benefits like mortgages and had the effect of severely depressing real estate values and overall wealth of minority populations. And so of course in a case where you're looking at education being dependent on the gross property wealth of a given district, all this stuff matters, all this stuff is in play and it's all hidden, it's all behind this sort of veil and it's hard not to just see this as one piece in this larger holistic project to recreate the status quo ante before Brown v. Board, before the Civil Rights Movement.

0:28:16.6 Rhiannon: Yeah, absolutely.

0:28:17.8 Michael: And it makes me angry.

0:28:18.3 Rhiannon: Yeah.

0:28:19.2 Peter: Something we haven't talked about in a good 50 episodes or so is affirmative action and it's back center of mind for a lot of people because there is a case pending before the Supreme Court now that many people think will be the end of affirmative action. And the basis for that will be the Equal Protection Clause, and it's just mind-boggling to take a step back and think that there is this framework that requires equal protection under the law and it is currently doing nothing to protect the poor and might end up doing quite a lot to protect wealthy white students from college admissions. The scope of the failure of the Court is just unbelievable on this front. Not only has the prospect of an Equal Protection Clause that could foster a more just world been rejected, it's been turned around and weaponized on behalf of the privileged classes.

0:29:16.6 Rhiannon: Yeah, I heard one time this professor over at Rutgers, Chenjerai Kumanyika. He referred to "the economic design of the Constitution" one time and I think that's so important to talk about. He was saying on the one hand, we know the Constitution is far from this perfect ideal document, we know the founders were slaveholders, right? We know this is fundamentally about racism in a lot of ways. But the thing about sort of just brushing it off as such, about saying, oh, yeah, they were evil and it's all evil, is that there's a sort of jurisprudential buy-in to the idea that as history progresses, things get better naturally and organically. Slavery was outlawed 100 years after the founding. So that mortal sin of how the nation was started, that's remedied, it's gone, but what that does is allow us to not really be critical of the intention of the Constitution, the sort of granular machinations of our legal structures, the fact that this was a fundamentally capitalist document, the Constitution was.

0:30:23.2 Rhiannon: And that takes away class analysis and recognition of the context in which this document, the Constitution is being drafted. This is a context in which the people who wrote that document are people who owned human beings as property and they wanted that protected. This is a context in which it was important to financial elites at the time to create a new federal government that could tax and further entrench creditor and debtor classes. These are people who were educated and wealthy as a direct result of land and property ownership and who saw themselves as better for that very fact, better morally, better genetically, better fundamentally than everybody else and it's an approach of deep skepticism for popular government, for the common person, and that was written into the Constitution.

0:31:14.8 Alec Karakatsanis: And I think that point is absolutely vital to dwell on for just a second. And to that end, I think it's really important to note two facts about the history of the Supreme Court and this opinion in particular. Number one, when I was in law school, I went and I wrote a paper and I went and read all the equal protection cases from the first 70 years after the 14th Amendment was passed and something fascinating shows up when you do that. They struck down 232 state laws under the Equal Protection Clause. Almost all of them were rulings in favor of corporations. I think it was something like 179 of them were in favor of corporations and 55 of them were in favor of the booming railroad industry at the time. Only nine cases did they rule in favor of black people, even though the whole point of the Equal Protection Clause, we were told, was to change the relationship between black people and the people who had owned them. Seven of those nine cases in favor of black people were on the single sort of technical issue about jury selection.

0:32:17.8 Alec Karakatsanis: And there were no cases in favor of women, for example. So if you look at the entire history of the Supreme Court, it has always used formal, legal, whether it's amendments or statutes or laws or rules, to preserve the basic distribution of power. And so this is a fight that we have to have I think outside the walls of the Supreme Court and then I think the thing about this opinion which is just funny in light of that history, is it was written by Lewis Powell who just two years prior to that wrote the famous Powell Memo, which if you haven't seen, I suggest you Google and read. He was a very famous corporate lawyer and right before coming on to the Court, he wrote a strategy document for how large businesses could preserve and ensure the survival of American capitalism. And it was a call to arms for corporations to dominate the political system, to assert their power, to increase inequality and to stamp out any notion of equal rights for people, and it was really a stunning document and then two years later, you have him writing this case for the US Supreme Court.

0:33:21.7 Peter: It's interesting that you mentioned the Equal Protection Clause being used in favor of corporations so many times. I've read more than one piece of academic literature on this that was relaying that basic fact, but framed as we should really be grateful for our history of corporate personhood, because without it, the Equal Protection Clause would have never developed. And you're like, "Well, [chuckle] if we're going to be idealistic, surely, surely we could go another route with this."

[chuckle]

0:33:53.6 Rhiannon: That's so fucked.

0:33:56.8 Michael: That is... That's like back almost a year ago now. There's a basketball player, Rudy Gobert, who famously was like, "Oh, I don't think COVID's a big deal."

0:34:08.5 Rhiannon: Right. You're right.

0:34:09.1 Peter: Yeah, coughed into a mic.

0:34:09.9 Michael: He purposely coughed into a mic, and hit it and stuff. And then it turned out he had COVID and the NBA had to suspend the season, and then a lot of states started taking COVID seriously. And there were people who were like, "Look, we should all be thankful that Rudy did that."

[laughter]

0:34:24.3 Michael: Because look how that made everybody take COVID seriously.

0:34:28.6 Peter: If any of our listeners are wondering how into basketball Michael is, now you know. He hears about the Equal Protection Clause's history, and he's like, I've got a great recent NBA metaphor.

0:34:39.1 Michael: Yes. [chuckle]

0:34:39.5 Alec Karakatsanis: I think the opinion also does something else which is very typical of conservative judges, which is that it doesn't actually answer the question of whether poverty is a suspect class. It dodges that question in the way that Peter was describing earlier. However, Powell and his other conservative comrades, I use that word because Powell would be so offended by it.

[laughter]

0:35:02.8 Rhiannon: Right. Yeah, yeah.

0:35:04.2 Alec Karakatsanis: His conservative comrades on the Supreme Court just a few years later issued another opinion where they cited San Antonio, but said something softer like, "We have never yet held that poverty is a suspect class under the Equal Protection Clause." And then a couple of years after that, they're just citing to those two cases, they say poverty is not a suspect class. And so in this way, they manufacture a holding, which now when you think about it, like in our bail cases around the country, conservative judges in almost every case will cite San Antonio v. Rodriguez and say poverty is not a suspect class, and so there's no problem with keeping a human being in a cage just because she can't make a payment, and they cite that case.

0:35:49.0 Alec Karakatsanis: And as Peter said, they never say that in this opinion, because there's no way to argue that that's consistent with our values. And they couldn't come right out and say it, so what do they do? They just talk around it and then later they say that they said it in the past and it becomes this historical truth, and then when you go back and peel away all the layers they actually never have.

0:36:08.1 Rhiannon: Yeah, exactly.

0:36:09.2 Michael: I was just curious, and I looked at my con law outline and I had a lot of case briefs and some of them were more detailed and some were less, but for this case, it just said, "Education, not a fundamental right. Poverty, not a protected class." [chuckle] That's it. Two little lines, and that was it. That was... I was like, "This is all I need to know about this case."

0:36:25.1 Rhiannon: Yeah, that's how it's taught. In preparation for this episode, I pulled up a couple of Law Review articles, and one of them, I just read it a couple of days ago, one of them literally said, "It is black letter law in the United States that poverty is not a protected class" and black letter law means literally written down, this is the law, right, and that's just not accurate.

0:36:47.4 Peter: Yeah, and I think it speaks quite directly to how legal formalism launders itself.

0:36:53.3 Rhiannon: Yes, yes. It's a fucking scam.

0:36:56.2 Peter: Every Supreme Court case is actually like 10 sentences long, but after every sentence are 10 citations. And if you're a layperson or a law student or a young lawyer, whomever, you might think that there is almost necessarily a lot of authority baked into each sentence because you see the citations that follow it. In reality, if you started digging through them, you would realize how few of them stand for the proposition that they are intended to stand for. But they are meant to give weight and authority to the statements of the Court and give legitimacy to the whole operation. The idea that you can build these precedents on top of one another with some accuracy and reliability, that idea is being laundered through this system of citation and reference. And just the way that it is presented to the reader, I think it's important to know, especially if you're a law student.

0:37:50.6 Alec Karakatsanis: I think that's one of the key ways in which the Court manufactures this thing called the rule of law. It makes people think that there is this rule of law that is historical and supported by the weight of so many smart people that have come before us who've thought about these things. And we're taught this idea that the common law is this great enterprise where the intellectual work of prior generations builds upon itself. And then you realize that actually many of the things that we take as settled law actually were never decided by the Court at all because it would be impossible to do consistent with our values.

0:38:25.8 Alec Karakatsanis: And this myth of the rule of law, when in fact what's going on is the law is being applied for some people against some people, some of the time, in some places, for some reasons. And throughout the history of this country, that is just deeply connected to white supremacy, it's deeply connected to empire, it's deeply connected to the worst aspects of our world, and it's laundered through these formalistic legal citations and these opinions. And that to me is one of the great tragedies of this case. It took what could have been a moment where we meet our rhetoric with actual commitments to the concreteness of what it might take to help human beings flourish. We instead use it as the seminal case now, which establishes that the government has no role to play in equalizing the distribution of wealth in our society.

0:39:13.9 Michael: That's right. And I do think it's also, for all these reasons, a great example of what I think is a real failure of the mainstream legal left in legal academia, and it's this total just lack of ambition. Mainstream conservative legal thinking is constantly arguing for overturning cases they dislike. They're constantly twisting precedent, like we just described in regards to this case, to fit their own ideological needs. We discussed that process as well in our Roe v. Wade series. You see it all the time. I'm not even sure if there is a mainstream liberal or left legal project beyond maybe something like, let's try to hold on to some good decisions from the '60s. But if there is one at all, it's more interested in process-based issues, in preserving institutional legitimacy, than it is with imagining something bolder and more value-centered jurisprudence, that takes on directly cases like this one and all the awful cases we talk about.

0:40:21.5 Alec Karakatsanis: Yeah. Even the people that are on the Court that are called liberal, if you look at the last 50 years, they're mostly white, they're all fairly wealthy. First of all, they're lawyers, so they're coming from a very particular social class, with a very particular perspective. There's not a real left on the Court, or even in legal academia, because it's not really a sort of working class intersectional analysis, it's not coming out of real struggle. And so these are the representatives of the quote unquote left are mostly corporate lawyers and former prosecutors, and that has real consequences in the actual work that they do on the Court. And so we have a conservative movement that is deeply committed to very right-wing values and a quote unquote liberal movement that's mostly happy with the way our society looks, and it's just trying on the margins to preserve some of the ways in which our society is a little bit less cool. And so, we need a real movement that actually creates a real left.

0:41:20.3 Rhiannon: I think this is a good place to turn, Alec, because I am such a follower of your work and the litigation that you're bringing across the country. I think it's a really good way. We keep talking about re-imagining the world where poverty is a protected class, where the Supreme Court chose differently, in this case, in San Antonio v. Rodriguez, or a world where we do have a legal left movement that comes out of struggle, that is pushing for better and more just outcomes. And so I'd love to give you an opportunity, Alec, to just talk about the work you're doing in the cash bail area, challenging cash bail and talking about what the 14th Amendment means in that context and what...

0:42:01.7 Peter: Or could mean in that context.

0:42:03.0 Rhiannon: Right. Or could mean in that context, and how you see the sort of proactive construction of a better 14th Amendment.

0:42:12.0 Alec Karakatsanis: Wow. Yeah, that's tough. It's a hard question to think about what could be a better 14th Amendment when you look at what our judicial system looks like right now. The judicial system is dominated by people who have a very different view of the Constitution and what it could mean, and unless pretty radical change happens, we are gonna have this judicial system led by these people for the next generation or two. It's a painful exercise, thinking about what might our legal system do differently. We're litigating all over the country in many issues, but this one issue that's gotten a lot of attention is the constitutionality of the American money bail system.

0:42:56.4 Alec Karakatsanis: And really, all over the country, when people are arrested after being accused of a crime, they're told they're free to go home to their children and their families, their jobs, their school, their church, their home, if only they had cash. If they have enough cash, they can get out of jail. And not only that, but this country has privatized that system, so it's dominated by a multi-billion dollar, for-profit, commercial money bail industry, which exists only in the United States and the Philippines, a former US colony.

0:43:23.6 Alec Karakatsanis: And the idea has led to extraordinary discrimination on the basis of wealth. So there are right now about 400,000 human beings in Coronavirus-infested jail cells, in horrific conditions, where they're likely to be physically and sexually assaulted and denied adequate exercise, food, medical care, mental health treatment. The conditions inside our cages are absolutely unspeakable. I was tweeting out over the last few weeks about what it is like to be in a jail cell in Texas right now, and the unspeakable pain of being forced to be laying on top of each other, people with feces and mold and mucus and blood everywhere, and the lack of water, and this is what's going on all over the country, in every jail that we go into.

0:44:14.6 Alec Karakatsanis: And that is a consequence of the Supreme Court's decisions that people can be caged prior to trial and the decisions of courts all over the country that people deserve to be in a cage just because they don't have cash. And so we've been challenging that system under the Equal Protection and Due Process clauses of the 14th Amendment for the last five or six years, and I think the cases will probably work their way up to the Supreme Court in the next six months or a year.

0:44:39.7 Michael: If you need any help on the brief...

[laughter]

0:44:43.2 Michael: I like that laugh. The first time Alec laughs.

0:44:46.4 Rhiannon: He's like, "Oh, yeah, we're good, bro. Yeah, it sounds real good."

0:44:51.1 Alec Karakatsanis: We need all the help we can get. We're not bringing these cases as lawyers, thinking that winning in the US Supreme Court is a panacea. The Supreme Court long ago held that police need probable cause to stop someone, arrest them and search them, and yet that happens millions of times a year, people are arrested and searched without probable cause. The Constitution is not self-executing, and so we're not under any illusions that winning in the Supreme Court would really mean anything.

0:45:16.2 Alec Karakatsanis: I think we see these cases more as a way of changing the narrative in our society, in our culture, about what these institutions do, what they are, undermining people's faith in them by asking a simple question: If Sandra Bland can be left to die in a jail cell because she couldn't afford a few hundred dollars, if Kalief Browder spends years on Rikers Island because he can't pay cash, if this legal system is making the decision about who's in a cage and who's free with their family, on the basis of how much cash is in their pocket, what else is it doing? And how can we trust anything that it's doing?

0:45:49.0 Alec Karakatsanis: I see these cases as undermining some of the faith that the legal establishment bureaucracy needs to survive and to keep inflicting all this harm, and so I think these cases are a very small part of a much broader movement that is really led by the people that are most harmed by these systems, trying to change the way we all think about them, rather than depending on one particular ruling from one particular court.

0:46:12.4 Michael: Yeah.

0:46:12.7 Rhiannon: Yes.

0:46:13.4 Michael: Beautiful.

0:46:14.6 Peter: We've often talked about the... And talked on this episode about the turning point of the Court's jurisprudence that took place, primarily starting in the 1970s. The prior Court, though, the Warren Court, had sort of begun the process of embracing, enfolding more modern understandings of equality, modern understandings of social science into their jurisprudence, and when the conservatives regained control of the Court in the '70s, they started to push back against that. And Justice Powell writes about this in expressly reactionary terms, basically saying, as Alec mentioned, if we change this, how much change is down the road? Just inherently taking the position that change is dangerous.

0:46:52.4 Peter: It can't be overstated how badly the last 50 years of jurisprudence and legal theory poisoned the minds of everyone in our profession. And I think this discussion was valuable, because if you are learning the law in America, how you conceptualize it is colored by the narrow, formalistic framework that is built atop the foundation of reaction that happened in the early 1970s, especially. The conservative view of poverty has always been, in some form or another, that it is inevitable that society will divide into winners and losers and there is nothing you can do about that. But the law doesn't need to accept that. The law doesn't need to accept the status quo. The law could protect the weak, it could force the status quo to justify itself.

0:47:40.6 Peter: Lawyers would tell you that having poverty be a protected class is a pipe dream. And my response to that would be, we live in a world where the Court has, just for example, picking one thing, stretched itself remarkably thin to protect the rights of corporations to engage in arbitration. You shouldn't feel like a dreamer for imagining a world where it gave poor people the right to go to better schools. That world is right there in front of us.

[chuckle]

0:48:06.7 Rhiannon: Right.

0:48:07.3 Peter: It's not far away. And a lot of what Powell does in this opinion is sort of devolve into abstraction. But this isn't a particularly abstract issue. Funding education is quite simple. It drives results up, it increases graduation rates and decreases dropout rates and increases wages for adults who had higher levels of funding. Those aren't abstractions. Those are real, concrete ways to help poorer students across the country. And the idea that this is somehow out of reach, out of bounds for a constitutional analysis is ridiculous.

0:48:42.7 Rhiannon: It's a choice.

0:48:44.9 Peter: It is.

0:48:45.5 Alec Karakatsanis: One final point as we've been talking that just occurred to me, and there's all these debates now about to what extent more spending on education gets results. And I think that one of the things that I've noticed from conversations all over the country with our clients and their children and families is that schools in areas that have trouble meeting basic funding, they are the first to lose things like music and theater and sports and poetry and other kinds of experiences that I think are very central to the cultivation and development of not only a flourishing life and a beautiful life, but also a life that can dream and that can vision out a different world, and a life that resists and understands how to communicate in ways that are maybe different from standardized tests.

0:49:43.5 Alec Karakatsanis: And I think that one of the projects of both liberal and conservative elites in this country has been to starve the education system to a point where all we can think about with the education system is meeting very minimal standards and needs, and instead of thinking about, how do we create incredible people who can dream and who have all of the basic needs met so that they can do what makes all of the things that many very privileged people take for granted about the best aspects of life? Totally beyond my area of expertise and probably very silly, but it strikes me that a lot of these cases and their discussions about this have created a world that is so starved for basic resources that we're not even fighting about the really profound things that we really should be talking about with education, and we're stuck fighting on the most basic things that you would think and hope that a civilization like ours would have confronted a long time ago.

0:50:42.3 Rhiannon: Yeah.

0:50:42.5 Peter: That's right.

0:50:42.9 Rhiannon: Gorgeous.

0:50:44.8 Peter: Yeah, it's a good place to leave it. Alec Karakatsanis, thank you so much for joining us.

0:50:49.0 Michael: Yeah, thank you.

0:50:49.7 Peter: Anytime you feel like coming back, let us know.

0:50:51.9 Alec Karakatsanis: Careful what you wish for.

0:50:53.2 Peter: That's what Josie Duffy Ric‪e said.

[chuckle]

0:50:56.1 Peter: We can stop being on this podcast so much if we can start cycling in more guests.

[laughter]

0:51:00.2 Alec Karakatsanis: It was really fun. Thank you all.

0:51:02.8 Peter: Next week, Toyota v. Williams, a case about disability law. You know where this is going. It's not good.

0:51:11.2 Rhiannon: Yeah.

[chuckle]

0:51:12.6 Peter: Follow us on Twitter @fivefourpod. Subscribe on Patreon, patreon.com/fivefourpod, all spelled out. Tons of benefits, premium episodes. Access to our Slack, where you can chat with us and our friends. Subscriber-only events, we've just had a really, really successful Zoom Happy Hour and Q&A.

0:51:34.3 Michael: It was. It was a lot of fun.

0:51:35.5 Rhiannon: Yeah, that was super fun.

0:51:37.2 Peter: We are bonding with our subscribers just a little more every day.

0:51:41.4 Michael: Yes.

0:51:44.8 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward, with editorial support from Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

Atkins v. Virginia+

0:00:02.0 S?: We'll hear argument now in number 99-5, United States v. Antonio J. Morrison.

[music]

0:00:09.6 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about US v. Morrison, a case about the 1994 Violence Against Women Act. The case is also about the Interstate Commerce Clause and whether the billions of dollars the US economy loses because of gender-based violence should count as commerce. In a 5-4 decision, the Supreme Court said no, making it impossible for victims of gender-based violence to sue for damages in federal court.

0:00:40.4 S?: Congress enacted the Civil Rights remedy of the Violence Against Women Act to remove one of the most persistent barriers to women's full equality and free participation in the economy, discriminatory gender-based violence.

0:00:54.2 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:06.5 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our freedoms to fade away like the colors of a painting in the sunlight. I am Peter, here with Michael.

0:01:20.6 Michael: Hey, everybody.

0:01:20.5 Peter: And Rhiannon.

0:01:20.6 Rhiannon: Hi, hello.

0:01:22.0 Peter: I thought that intro was strangely beautiful.

[laughter]

0:01:26.7 Rhiannon: Interesting that you say it about your own writing, but... Yeah, sure.

0:01:29.8 Michael: Very strong imagery.

0:01:31.6 Peter: That's right. Today's case is US v. Morrison. This is the case about the Commerce Clause, but also violence against women. This is a case about the intersection of commerce and violence against women, and we will clarify momentarily. In 1994, Congress passed the Violence Against Women Act, a bill co-sponsored by Joe Biden that provided funding for the investigation and prosecution of domestic violence and allowed victims of domestic violence to sue for money damages in federal court. There is one thing you have to understand about the Constitution for this case. The federal government can only do things the Constitution specifically says it can do, so every time Congress passes a law, it has to explain in the law, where in the Constitution it says that they have the power to pass that law.

0:02:28.5 Peter: One thing that the Constitution says Congress can do is "Regulate commerce among the several states." This is known as the Interstate Commerce Clause, or just the Commerce Clause. The idea is very simple, if something concerns the economy of one state, that's the state's business and the federal government can't pass laws about it, but if something concerns the economies of multiple states, then that is a federal issue, makes sense? Should be simple enough.

0:02:53.9 Rhiannon: Sure.

0:02:54.9 Peter: The idea is that as soon as economic activity crosses state lines, it's now a federal concern that can be regulated by the federal government, but the contours of this have been a legal battleground for many years, because especially as economies have grown more complex and expanded, it's become less and less clear when economic activity can be said to occur solely within a state as opposed to among multiple states. And conservatives who do not want to see a powerful federal government have long been arguing that we should read this very narrowly so that Congress cannot pass too many sweeping laws.

0:03:32.5 Peter: This case is one of the many times the conservatives on the Court have made up a new and arbitrary rule to try to limit the ability of Congress to legislate, with the goal of hampering progressive legislation. So we're going to talk about the Violence Against Women Act, what Congress is trying to do and how the Court interferes, and we're also going to talk about this much bigger picture concept about the scope of the federal government's power under the Commerce Clause, which is a trip into one of the most heated, pedantic and pseudo-academic debates in the legal world.

0:04:07.6 Michael: I'm excited, guys, this is like my wheel house.

[laughter]

0:04:12.8 Rhiannon: Michael's got something to say.

0:04:14.6 Peter: So one note we should make here up top is that the connection between violence against women and the Commerce Clause, it's obviously not really intuitive if you're not a lawyer, but bear with us. We will get you there. The gist of it is that gendered violence drives down women's participation in the economy and costs the economy billions of dollars a year. Women turn down jobs because of the threat of violence, they miss out as consumers because of partners who control their finances, on and on and on, and the scope of the impact of all this gendered violence crosses state lines. All of this was documented by Congress and used as their justification for passing the law. We will give this a little more color as we go on.

0:05:02.6 Rhiannon: Right. So VAWA, like Peter said, was passed in 1994.

0:05:07.1 Peter: Whoa, whoa, whoa. Whoa, whoa. Can't just bust out an acronym like that...

0:05:10.3 Rhiannon: I thought you said it.

0:05:11.3 Peter: I didn't say VAWA, I'm not in the know like that.

0:05:15.8 Rhiannon: Okay, so VAWA, which is the Violence Against Women Act, like Peter said, was passed in 1994, and it was actually passed after more than four years of congressional deliberation with numerous hearings and fact-finding proceedings leading up to passing the law. And this was congressional deliberation that explored the national problem of violence against women. In passing VAWA, Congress called domestic violence "a national tragedy played out every day in the lives of millions of American women at home, in the workplace and on the street." And so the law contained multiple provisions that were aimed at addressing violence against women in the United States.

0:05:58.2 Rhiannon: For example, between 1994 and the year 2000, the law provided $1.6 billion to fund a range of programs, including improving victim services, creating a National Domestic Violence hotline, and new initiatives to improve law enforcement's response to crimes like domestic violence and sexual assault. It created new federal felonies to address acts of interstate violence, and it had provisions to support immigrant women who were victims of domestic violence, it helped them in obtaining legal status, and then there were also research provisions to advance our national understanding of domestic violence and gender-based violence in the US.

0:06:42.8 Michael: Sounds like a pretty good law.

0:06:44.9 Rhiannon: Yeah, it was complicated, for sure. Complicated and comprehensive.

0:06:49.2 Peter: Yeah, Joe Biden, of course, co-sponsored the bill, and he famously said, "Come on, man. We need a law," you know.

0:06:57.6 Michael: No more of this domestic violence malarkey.

0:07:02.1 Rhiannon: Boys, they're doing malarkey.

0:07:03.8 Peter: Women across the country, I mean, come on.

0:07:07.7 Rhiannon: Again, thank you so much, Joe Biden. So the provision of VAWA that's at issue in this case provided for a civil cause of action for victims of gender-based violence in federal court. What that means in plain English is if you were a victim of gender-based violence, you could sue the perpetrator of that violence for damages, and that was even if no criminal charges had been filed against that person. And just want to note here that Congress carefully drafted and articulated all of these provisions in much the same way that Congress drafts lots of Civil Rights legislation, with an eye towards targeting only specific behavior that is clearly discriminatory, and it did so after hearing tons of testimony about the way violence against women interfere with women's full participation in the economy and public life, and it did so after hearing about the discriminatory manner in which states have treated gender-based claims historically.

0:08:10.2 Rhiannon: So Congress concluded after all of this testimony, after all of the fact-finding, that states weren't doing a good enough job at addressing gender-based violence, and so it created this cause of action. So we have that sort of statutory background that's the status of the law at this time, so turning to the facts of this specific case. What happened was just months after VAWA was passed and enacted in the fall of 1994, a freshman at Virginia Tech named Christy Brzonkala reported that she had been repeatedly sexually assaulted by two fellow students, Antonio Morrison and James Crawford.

0:08:48.5 Rhiannon: Morrison and Crawford were members of Virginia Tech football team, and according to Christy Brzonkala's reports, they gang-raped her in her dorm room some 30 minutes after the three of them met for the very first time.

0:09:01.5 Michael: Jesus.

0:09:02.9 Rhiannon: And so she reported this sexual assault to the school, and Virginia Tech conducted disciplinary hearings. As a result of those school-led hearings, Morrison was suspended and Crawford ended up not being disciplined. Actually, in fact, eventually after an appeal, Morrison's suspension was overturned. Local law enforcement didn't really do anything with Brzonkala's report either, a grand jury did not indict them for criminal charges, so no criminal charges were filed against either Morrison or Crawford, and meanwhile, Brzonkala became increasingly depressed and in fact she attempted to commit suicide. Eventually she withdrew from Virginia Tech, and with no help or support from local law enforcement or the school, Brzonkala eventually filed suit in federal court.

0:09:57.3 Rhiannon: Now, she brings two cases: She sued Virginia Tech, the school, under Title 9, and we won't discuss that here, that's a different case, it's a different law, but she also sued Morrison and Crawford individually under this new provision of VAWA that had just been enacted. So when the Fourth Circuit Court of Appeals ruled on Brzonkala's case, they said that her lawsuit couldn't go forward because this part of VAWA was unconstitutional. And Brzonkala appealed to Supreme Court. You'll notice that the case is called the US v. Morrison, that's because the federal government actually intervened to defend VAWA, so they became a party to the case, and that's how you get US v. Morrison.

0:10:41.5 Peter: So Congress has passed the Violence Against Women Act, VAWA, which allows women to sue in federal court, and they say that they had the power to do this, to pass this law, because the Constitution allows them to regulate interstate commerce, and as their law explains in detail, violence against women has a widespread impact that substantially affects interstate commerce. For example, you have the various ways in which domestic violence impacts women's ability to find employment or to engage in the workforce, and it impacts their productivity. These are all things that we'll talk about in a bit that Congress finds, but the Supreme Court says, no, you can't do that, because violence against women isn't itself really economic activity, it's not really commerce, and so that doesn't count as something you can regulate.

0:11:31.1 Peter: I want to also note, there's an Equal Protection argument, Congress says that they also have the power to pass this under the Equal Protection argument. We'll touch on this later. It's a complex and academic topic, but I don't want the nerds to think that I'm ignoring it, we're going to get to get to it, we'll get to it at the end, right. Relax.

0:11:47.3 Rhiannon: Do not yell at us.

0:11:49.1 Michael: Or we'll yell back.

0:11:50.4 Peter: That's right.

0:11:51.6 Michael: You are like that.

0:11:52.0 Peter: So to make sure we're all on the same page here, the Constitution again has this clause called the Commerce Clause, and basically the rule, the legal rule is that the states can regulate economic activity that happens in their states, but if there's economic activity that happens across multiple states, then the federal government regulates that. But what exactly it means for commerce to be taking place solely in a state as opposed to in multiple states has become less clear as economies have become more complex. Back in the day, it might have been relatively simple. At the time of the Founding, there were two basic types of businesses, agriculture and prostitution, and this is not based on a lot of research, I'm just kind of eye-balling this.

0:12:37.9 Peter: So there would be a guy in your town with a beef steak tomato farm, and he would go to the town center to sell them, and you would buy 14 of them so that each member of your family, which had 14 people in it, could eat a single beef steak tomato for dinner and...

0:12:51.5 Michael: The farmer could sleep with a prostitute.

0:12:54.9 Peter: And the farmer would use that money to go to the brothel or the house of ill repute nearby, and he would have sex with a prostitute. All of that is happening entirely within your state, so the federal government can't regulate that, but if the tomato farmer crosses state lines to sell his tomatoes, then the federal government is allowed to regulate that. Same applies to your basic prosecuting operations.

0:13:21.0 Peter: So think about that tomato transaction now. You go to a grocery store to buy a tomato. That grocery store's headquarters is probably in another state, it probably has operations across multiple states, it probably uses technology that sends data across multiple states. The workers might cross state lines to get to work depending on where you are. The tomato itself has almost certainly crossed a state border. The development of the economy has meant that people and things and information are crossing state lines all the time, and what that means is that as the economy has developed, the federal government's power to regulate the economy has grown.

0:13:57.6 Michael: Right, right. And so in the '30s, the New Deal had resulted in all sorts of new federal laws, the Supreme Court started striking some of them down, claiming that the federal government was exceeding its power to regulate interstate commerce. In 1936, the Court struck down federal regulations on mining, saying that mining was not commerce, even though the commodity being mined was going to be sold across state lines. That seems maybe a little pedantic, but conservatives at the time were really concerned about the size of the federal government during the New Deal and how it was going to explode, and they were looking for anything they could find to rein that in.

0:14:41.9 Michael: And so that's, FDR as a result starts applying political pressure to the Court, he threatens to pack it with more Justices in order to preserve his legislation.

0:14:52.7 Peter: That's right. Get their asses, bro.

0:14:54.7 Michael: Yeah, that's right. Pack the courts.

0:14:57.1 Rhiannon: How's a little political power feel, huh?

0:15:00.5 Michael: Good positive history in our country. And Court bent to that pressure. In a case called NLRB, the National Labor Relations Board v. Jones & Laughlin Steel, the Court held that the federal government could regulate activities that had a substantial effect on interstate commerce, so not necessarily just like that transaction, but like anything that affects interstate commerce. And then for many decades after, basically up until this case, and maybe just a few years before, there were just no decisions limiting the federal government's power under the Commerce Clause, but during much of that time, the conservative legal movement was being built from the ground up, and they were mad as hell about the fact that the federal government could regulate anything that impacts commerce, even if it's sort of indirectly so.

0:15:52.5 Michael: They didn't like seeing the federal government handed the keys to all this power, and especially since this power that's historically been used to pass progressive legislation, right.

0:16:05.6 Peter: So the sort of next part of this story is that in 1990, the federal government passes a law about gun violence, and they argue that their power to pass that law comes from the fact that gun violence impacts commerce between the states and in 1995, for the first time in nearly 60 years, the Supreme Court strikes down a federal law under the Commerce Clause. And that gets the ball rolling here, right, the first blow struck by the nascent conservative legal movement against the power of the federal government under the Commerce Clause. And that brings us here to this case.

0:16:39.1 Rhiannon: Guys, I just feel like I'm really being brought back to 1L con law, this is a blast from the past, all these cases that we're talking about. Did you guys spend half of con law talking about the Commerce Clause?

0:16:54.9 Michael: Yeah, my con law was mainly Commerce Clause and Equal Protection, Fourth Amendment fundamental rights stuff.

0:17:01.8 Peter: I zoned out for most of con law. I'm good at studying. The last two weeks were all I needed, I would really pack it in, so I don't really remember what the discussions were throughout the year, unfortunately.

0:17:13.0 Rhiannon: That's great. Peter went to an Ivy law school... Went to an Ivy law school and does not remember discussions had, which I think is beautiful, and that's why he's the Law Boy.

0:17:26.2 Peter: I remember the vibes, though, I remember the vibes.

0:17:30.6 Michael: There was a Yale law grad on Twitter who was marveling at the fact that the bottle of shampoo he purchased in use for months was dog shampoo, and the only indication of that was the fact that there was a large photo of a dog on the bottle.

0:17:49.8 Rhiannon: Yeah, that's why Ivy grads are stupid. I like that, alright.

0:17:54.0 Michael: Yeah, let's not give Ivy law grads too much credit here.

0:17:58.2 Peter: Yeah, but he probably graduated towards the top of his class. That's the thing is, if you're at a top school and you go to the top of the class, those kids are freaks, alright, those kids are weird as hell. You gotta go down towards the middle, alright, for the cool kids. That's where I was, just hovering with the masses, man of the people.

0:18:19.2 Rhiannon: Keep telling yourself that, buddy. Yup.

0:18:21.3 Peter: Oh, yeah, sorry, sorry, Rhi, I forgot that you went to an everyman law school, that everyone can get into.

0:18:28.5 Rhiannon: Shut up. Shut up.

0:18:31.7 Michael: A friend told me a story once about how there was a kid in her law school class who would bring a Snickers bar into every exam and he would cut it into thirds, I think it was, or quarters, and then every 30 minutes or whatever, he would eat one piece of it.

0:18:48.7 Peter: Jesus Christ.

0:18:51.8 Michael: Yeah, the punchline of the story was that he ended up with Supreme Court clerkship, so...

0:18:52.7 Peter: Yeah. Oh, my God.

0:18:57.4 Michael: That's the elite, the legal elite.

0:19:00.0 Peter: By comparison, my last 1L final, I brought whiskey and I poured it like three quarters of the way through the exam, and I was like, I'll be fine.

0:19:11.9 Peter: Alright, we are now in the year 2000, this case. Congress has passed this law designed to combat violence against women, which gives them the right to sue in federal court. Like I mentioned, when Congress passes a law, it needs to point out what part of the Constitution gives it the authority to pass that law, and they claimed that their constitutional authority derives from the Commerce Clause and their power to regulate interstate commerce. What they say is that violence against women has a significant impact on commerce, and they submit a massive amount of evidence to support that.

0:19:44.1 Michael: Right. So just to cut in, Rhiannon said that Congress spent four years developing this and holding hearings, and just to go over some of their findings, sort of substantiating this link between gendered violence and interstate commerce, they found that it's like billions of dollars a year in lost productivity and wages, for a variety of reasons. 50% of rape victims end up losing their jobs, the ones who keep their jobs have decreased productivity, victims of domestic violence likewise have lots of absenteeism and sick time because either they can't leave their homes or they don't want to go into work because the bruises and the cuts from the domestic violence are visible and they want to hide it.

0:20:37.2 Michael: On top of that, even women who were not themselves victims of gendered violence nonetheless have it shape their participation in the economy because they'll turn down better paying night jobs or jobs in the areas of heightened risk, which Congress found were justified fears, that later hours or working downtown or whatever, you're more likely to be the victim of gendered violence. So it's just massive, the impact gendered violence has on the economy was just demonstrably massive.

0:21:11.0 Rhiannon: Yeah, it's hard to even come up with words for how sort of everyday and pernicious gender-based violence is, and I think it's important to highlight that whether or not you think VAWA and all of its provisions were very good at addressing gender-based violence, I have my own views about, say, sending a bunch of funding to local law enforcement and saying that police should handle domestic violence cases in specific ways, but it was Congress looking at this issue for a long time and realizing how bad, how massive the impact is on the nation's economy and trying to address that with a sort of comprehensive legislative scheme that would allow women in different ways to combat the reality of living in a rape culture and a culture sort of built on the oppression of non-men.

0:22:09.0 Peter: I think, to agree, this is sort of common sense. Of course, being the victim of discrete acts of violence or continued acts of violence is going to impact the degree to which you are engaging with the workforce or the broader economy, right, that does feel to me like common sense, and it's backed up by hard data. So basically, Congress saying that even though they are not regulating commerce directly through VAWA, they're regulating it indirectly. And the Supreme Court rejects this in a 5-4 opinion written by Chief Justice William Rehnquist.

0:22:43.0 Peter: The legal rule created by earlier Supreme Court decisions is that if something "substantially affects" interstate commerce, then Congress can regulate, even if it's not commerce itself. And the Court can't say that violence against women doesn't substantially affect interstate commerce, because Congress has a huge amount of evidence that it does. So what they say is, look, violence against women is not economic activity, and so it's not covered by the Commerce Clause. Specifically, Rehnquist says, "Gender-motivated crimes of violence are not in any sense of the phrase economic activity."

0:23:27.6 Michael: It's a shame that Congress tried to pass this law under the Economic Activity Clause.

0:23:35.9 Peter: The first thing to note here is that that's not the rule. The rule is supposed to be that Congress can regulate things that substantially affect interstate commerce. The Rehnquist Court has made up the economic activity versus non-economic activity distinction. But more importantly, and more essential to the issue here, the idea that gender-motivated crimes are not "in any sense of the phrase economic activity" is something that just about any fucking honest economist will tell you is incorrect. Everything you do has an implied cost and a nominal impact on the economy. Whether or not someone is directly engaged in the exchange of money for goods and services, they are essentially always, or at least often engaged in the economy in some material way.

0:24:23.2 Peter: I'm not saying Congress should be able to regulate everything, the rule is that there must be a substantial impact on interstate commerce, but at the very least, there is no clear distinction between what you might call economic activity and non-economic activity. If someone obstructs a highway, which prevents people from getting to work or conducting business, can Congress step in and regulate that? Yes, because the highway is what the law calls a channel of interstate commerce, which everyone agrees they can regulate, and yet when domestic violence prevents people from working or conducting business, that is somehow according to the conservatives on the Court non-economic activity. Yeah, the distinction is meaningless, and the Court's made up rule is just pure sophistry, it is the output of a conservative legal movement that has been desperate to create some sort of rule that would limit the federal government's power, and after failing to come up with something good settled for this contrived bullshit that sounds like the most obviously incorrect multiple choice answer on a bar exam.

0:25:33.3 Michael: Right. And I think the facts of this case are a great example of how bullshit it is, because going to college is absolutely economic activity, it totally determines how and whether you can participate in the economy. And this woman dropped out of college as a result of this. Whether or not you're depressed impacts whether and how you can participate in the economy, and she became seriously depressed, right, suicidal. That is incapacitating. This is a person who has been effectively taken out of the workforce for some indeterminate amount of time, and when she re-enters is going to be in a substantially different economic position because of where her education stopped.

0:26:22.4 Michael: That is economic. There's just no way around it. And like this is such bullshit on their part too, 'cause it's like, it's just not their job. The Supreme Court does not do fact-finding, it's like the last thing they're supposed to do, and it's so dishonest, they quote themselves saying, look, simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so. But that case, first of all that's bullshit, but that case they were talking about when Congress had no findings at all.

0:26:58.6 Peter: And I want to give a little bit of color here, because in the prior case that, the Lopez case from 1995 about gun violence, Congress hadn't submitted any evidence that linked commerce to gun regulation. They just said, well, it impacts it, right, and that's why in this case, they submitted a huge amount. And Rehnquist is like, no, I don't think so, though.

0:27:18.9 Michael: Yeah, that quote makes sense in the context of that case because that was a law where Congress hadn't submitted extensive findings, and so it's like, yeah, if Congress just says this impacts commerce and doesn't back it up at all, sure, the Court might disagree, but that's not the case here. The case here is that Congress had substantial, like overwhelming evidence that this greatly impact interstate commerce, and the Court was just like, nah. And this is like... We've seen this in other cases we've discussed, in Shelby County v. Holder with the Voting Rights Act, where Congress submitted months of finding from hearings and studies and all this, thousands of pages about why their formula was correct, and the Supreme Court was like, no, I just disagree.

0:28:08.2 Michael: And it's just the height of judicial activism, it's the height of judicial law-making, of usurping Congress's role in legislating. And we talk about the importance of recognizing that courts do that, but it's just so important to call out when the conservatives who supposedly hate that stuff are engaging in it so egregiously, which they are here.

0:28:34.6 Rhiannon: Right, exactly, and I think this case also shows how the Rehnquist Court viewed violence against women like this exclusively domestic, private issue rather than a society-wide problem that warrants public government involvement, which is what Congress showed. Like Michael, you talked about the facts of Christy Brzonkala's case showing that absolutely she was participating in economic activity, and how gender-based violence took her out of that economic activity.

0:29:07.8 Rhiannon: What Congress did in passing the law and holding all of these hearings was showing how widespread exactly Christy Brzonkala's case was, that it was happening across the country and having a significant impact on the economy. And so the perspective from the Rehnquist Court that violence against women is just like this private matter that happens at home, that's significant because it influences how federal and state powers work together on an issue. Like if something is a purely domestic issue, if it's purely a private problem or at most a problem that is already addressed by state criminal law or local law enforcement, then that's not an issue that the federal government has the power to regulate or influence, that's outside the scope of the federal government's power and Congress's law-making ability, sure.

0:30:00.5 Rhiannon: But it's important to highlight, but this is a misogynistic viewpoint to deny how widespread and toxic and deeply pernicious violence against women is, and that's what's predicating this argument about federal versus state power. In minimizing how damaging and dangerous the reality of domestic violence is, the Supreme Court sort of gets to shoe horn in this conservative viewpoint on federalism.

0:30:26.1 Michael: Yeah, no, I think that's exactly right, Rhi. And I think it's very endemic to the conservative world view, where they sort of reject systemic explanations and systemic approaches to things and try to make everything this atomized, individual inquiry, like racism is a question of what's in your heart. And it's something you see consistently across sort of domains in conservative legal thinking, and so you see it here where like domestic violence, the idea that that's some big nationwide issue, like a larger cultural institutional issue that requires big legislation to ameliorate and to fix is just something that they flatly reject.

0:31:18.4 Peter: It's a core tenet of conservative politics that you reject the structural problem and re-frame it as an individualized problem. It's like unemployment, right, when unemployment spikes, is that a structural problem that needs to be addressed with broad sweeping legislation? No, no, no. It's lazy people.

0:31:38.7 Michael: Right. And the environment is like, turn off your lights and recycle, not like we need to regulate companies and make sure that they're using...

0:31:49.5 Peter: Exactly. And racism, is it something that needs to be addressed with something big, like maybe reparations or something that looks like that? No, no, it's just get your vibes right, bro. Just sort of reframe your vibes and you'll be good. So again, we have the conservative Court here saying that Congress can't regulate domestic violence in this way by making up this sort of fictional distinction between economic and non-economic activity, and they're saying, well, domestic violence, that's non-economic activity.

0:32:21.0 Peter: And the fact that the conservatives essentially made up a new and arbitrary rule to limit the power of the federal government to pass laws, very telling. The Constitution says that the feds can regulate commerce between the states; like I mentioned back in the day, that might have meant only a few things, but in the modern economy, it means a huge amount, people, goods, data, all crossing state lines constantly. And that means that the federal government's power has grown, and conservatives don't like this, because historically, the feds have used that power to pass progressive legislation.

0:32:56.0 Peter: But that's not an actual constitutional reason to strike laws down. They're just frustrated with the reality here, the reality of the implications of the Commerce Clause. And so they're engaging in what they claim to hate, traditional policy-making. And this opinion is rife with it. Rehnquist is basically saying, well, look, if the federal government can regulate everything that substantially impacts commerce, they're going to have too much power. And it's like, well, that's not really your job to decide, that's not the Court's role.

0:33:27.9 Peter: How many times have we heard the conservatives basically say, well, whether or not this is good policy is irrelevant. Our job is just to correctly interpret the Constitution. And yet here they are, oddly rejecting that train of thought when the outcome is something that benefits the left. They're actively doing living constitutionalism, the very thing that originalists claim to hate. Living constitutionalism is the idea that our understanding of what the Constitution means should evolve over time. That's what they're doing here. The bottom line is they're saying, look, the social context has changed enough that we shouldn't read the Constitution so literally, which I don't find to be in and of itself particularly offensive, but I'd like to see them admit what they're doing.

0:34:11.6 Rhiannon: Right, just be real about it.

0:34:13.2 Michael: Absolutely.

0:34:14.5 Peter: I also want to point out some of the historical context for their opposition to federal power under the Commerce Clause. 'Cause I think you can think about like, well, interstate commerce, it all seems maybe a little bit abstruse, maybe a little bit like I don't know how much this matters. In 1964, there was a case called Heart of Atlanta Motel v. United States. That was a case where hotel owners in the South who wanted to discriminate against black people in their business sued the federal government saying that they did not have the power under the Constitution, under the Commerce Clause to pass the Civil Rights Act. Part of the Civil Rights Act of 1964 was a law saying that places of public accommodation such as hotels could not discriminate on the basis of race. And Congress said their power to do that was found in the Commerce Clause. Hotels, they accept people that have been traveling between states and therefore they could be regulated under the congressional power to regulate interstate commerce.

0:35:09.0 Peter: And the Supreme Court agreed, upholding that pivotal civil rights legislation. And conservatives quietly bristled, maybe not so quietly at the time, but they're a little quieter about it these days. They didn't want the federal government using its commerce power to pass what they view as sort of socially progressive legislation. And the same thing is happening here, the conservatives are upset that the government is passing socially liberal legislation, and they're trying to throw as many wrenches at it as possible.

0:35:40.5 Rhiannon: Yes. And I think it's important to talk about the impact of US v. Morrison on women and what remedies were left for victims of gender-based violence if this provision of the law was deemed unconstitutional. I think a lot of people have rightly pointed out that the case has a much bigger impact really on Congress's ability to pass laws under the Commerce Clause, rather than just taking away all of the remedies available to these victims. And that's because states have their own statutory schemes addressing gender-based violence. Depending on what state you're in, you can sue in state court. And certainly, there are state criminal laws that have been beefed up to address domestic violence more seriously.

0:36:24.5 Rhiannon: But I do think there's discussion to be had about what it means to women to treat gender-based violence as a violation of your civil rights. And that's what this provision of VAWA was passed as. This is very similar and mirrors Civil Rights legislation, like Peter was just talking about. One of the ways that we show as a society that we are taking a problem seriously is by enacting legal accountability. It's symbolically and culturally important to have laws that address problems because it shows that sort of government and stakeholders and everybody are taking the problems that citizens face seriously. It's saying gender-based violence is incredibly degrading and dangerous, and because that is so, you have this legal accountability mechanism. You can go to federal court and get damages for the harm that you have experienced. And I think that impact is significant, that we don't have that because it shows the Court is not taking this problem seriously.

0:37:34.5 Rhiannon: The legislative history for VAWA as a Civil Rights remedy shows that Congress was responding to the effect of discriminatory, gender-based violence on women's full participation in commerce. For example, documented in this legislative history was that gender-based violence deters women's movement. It keeps them from walking at night, even in their own neighborhoods. It restricts their use of public transportation, which limits where and when they'll travel. There was documentation that gender-based violence reduces consumer spending, showing that women, for example, don't go to movies alone after dark.

0:38:15.2 Rhiannon: And just like the impact of race discrimination on racial minorities in their choice of jobs, Congress also documented in passing VAWA that gender-based violence deters women from taking jobs in certain areas or at certain hours, like Michael said earlier. And so overall, this is like this broad conclusion that gender-based crimes and fear of those crimes restricts movement, reduces employment opportunities and reduces consumer spending. And so, as a woman, you think, okay, what is my remedy for that happening to me? If my movement has been restricted, if my employment opportunities have been restricted, if my consumer spending and participation in the economy like I please, if that has been limited because of gender-based violence, because of this discriminatory violence against me, where is my remedy? What law allows me to sue for that, right?

0:39:09.5 Rhiannon: And so, I think it's important to just highlight that, yes, while there are other remedies available, like criminal law or state statutory schemes for being made whole after suffering gender-based violence, I think the impact in this provision of VAWA being found unconstitutional is really in what it demonstrates about our government and the society not taking this seriously.

0:39:35.8 Michael: Right. And it's worth mentioning that part of the motivation and part of the congressional findings behind this law was that those alternative remedies often are no remedy at all.

0:39:47.0 Rhiannon: Yes, exactly.

0:39:48.6 Michael: That the same biases that create gendered violence in the first place are also endemic among police officers, among prosecutors, among judges and juries and court employees and everyone, and so those remedies don't become available. There was a Senate report in 1991 that said study after study commissioned by the highest courts of the states, over 20 states from Florida to New York, California to New Jersey, Nevada to Minnesota, has concluded that crimes disproportionately affecting women are treated less seriously than comparable crimes against men. And further, that collectively, these reports provide overwhelming evidence that gender bias permeates the courts system and that women are most often its victims. And so I think it's fair to say that this Supreme Court case, rather than engaging with those facts, is like an example of that bias.

0:40:51.5 Rhiannon: Yes, yes.

0:40:51.5 Michael: This is that same permeating discrimination that sort of downplays the harms and impacts of gendered violence.

0:41:00.7 Rhiannon: Right, right. And that's exactly what Congress was trying to point out. But yet again, in this case, you have the Court stepping in and sort of claiming expertise where they don't have any and denying this really extensive fact-finding.

0:41:13.1 Michael: Yeah, that's right.

0:41:15.5 Peter: Although to be fair, William Rehnquist might have a kind of expertise in domestic violence...

[laughter]

0:41:24.1 Michael: Yes. Yeah.

0:41:24.2 Rhiannon: It doesn't matter 'cause that motherfucker is dead.

0:41:26.0 Peter: That's right. To the lawyers of his estate, I said "might."

[laughter.

0:41:33.8 Peter: There's also a much bigger picture issue here. The impact of this case is not limited to domestic violence issues. Like we said, Congress has historically used its commerce power to pass progressive legislation, from the labor rights laws of the New Deal to the Civil Rights Act, and then in the '90s, to guns and domestic violence regulations. What the conservatives are doing in this case is arming themselves. They're giving themselves a weapon to wield against progressive legislation in the future. And we've already seen it used, our sixth episode was about NFIB v. Sebelius, a case about Obamacare, and there we explained how the Court claimed that the federal government did not have the power to regulate aspects of the insurance market.

0:42:18.3 Peter: The stakes here are huge. If and when Congress ever steps up and passes Green New Deal legislation, for example, there's almost no question that aspects of it will be challenged under the Commerce Clause. The conservatives have taken their control of the Court over the last several decades and turned it into a bulwark against progressive legislation, really usurping Congress's ability to pass laws and placing it in the hands of five and now six conservative Justices.

0:42:47.0 Michael: Right. When we were preparing for this episode, we talked about this case as sort of like one of the first instances of the conservative Court really starting to flex its muscle. And I think that's a good way to understand it, is them sort of being like, "You know what? We can fuck with them. We have some power now and we can use it."

0:43:07.8 Peter: Yeah. Now, before you wrap up, I want to mention one thing. I mentioned earlier that there's a second justification that Congress had for the Violence Against Women Act, and that's the Equal Protection Clause. Congress says, hey, the Fourteenth Amendment has a clause that says that everyone must be treated equally under the law, and so we're passing this law to further the equal treatment of women. And the Court rejects this, and what it says is that the Equal Protection Clause prevents states from treating citizens unequally, but that's it. It does not allow the federal government to pass laws to further the cause of equality.

0:43:40.5 Peter: This is itself a very academic discussion that we don't need to get into and we don't have the time to get into, but I just want to point out that it's another area where conservatives have tried to arbitrarily limit progressive legislation, this time by limiting the scope of the Equal Protection Clause and what its implications are. The view being espoused by the conservatives here is very commonly accepted among lawyers, but it's actually very shaky and ahistorical. And again, I don't want to get into too many details, but Kermit Roosevelt, a professor at Penn Law who clerked for Souter, who wrote the dissent in this case, in US v. Morrison, when this case came down, published a compelling article titled Bait and Switch: Why United States v. Morrison is Wrong about Section 5.

0:44:23.3 Peter: The article is worth the read, especially if you're a law student or a lawyer, only if you're a law student or a lawyer, I'll say, I can't subject everyone else to this, because it's a good example of how conservatives have kneecapped the possibility presented by the Equal Protection Clause, which we've harped on on this podcast. The Equal Protection Clause is a part of the Constitution that says that the law must treat everyone equally and if you are on the left, you have to look at that and think that if we want a constitutional basis for a better world, a better country, there it is staring us right in the face, everything that we believe in is laid out right there, and conservatives saw that before anyone.

0:45:04.8 Peter: And for 150 years, they've been working to arbitrarily narrow it to the best of their ability, and if we want, as leftists, as people on the left, who want to use the law as a weapon for equality and for justice, if you want to have a legal argument that you can lay out in defense of what we believe, it has to center around the Equal Protection Clause. And that's why, although I think it's probably too technical and academic of a discussion to get into here, but I couldn't ignore it entirely in this episode, 'cause I think it's important to point out the various ways in which the conservatives have hampered the cause. Worth noting that this is a project that spans the entire Constitution, and every clause that might give Congress power to pass progressive legislation, conservatives will push back against and argue that it's limited for whatever arbitrary reasons they can come up with.

0:46:01.1 Michael: And so I want to hit a point that Souter makes in his dissent. We've talked a lot about the record that Congress amassed here, and the point he makes is that it's actually bigger and more comprehensive than the historical record supporting the Civil Rights Act, which just goes to show how thorough this was. I mentioned earlier that there were 20 states doing gender task force reports as a part of this. It was just such a massive, massive project, and this law was the output of that project, and the Court is looking at that and saying, "No, no, just, no."

0:46:47.9 Michael: And I think it's just worth emphasizing that that's really what this is, this isn't objective, and this isn't the Court being constrained by the view of the Founders or the text of the Constitution. This is their biases and their own attitudes about women dictating the outcome of this case.

0:47:08.7 Peter: This is one of those cases where... What explains it better? What explains the conservative view of the Violence Against Women Act better? What explains the conservative view of the Commerce Clause better? Is it truly that they have some extremely specific view about the intersection of commerce and violence against women, or is it perhaps that they see a bigger picture here? That they can see the ways in which the federal government is able to step in and create progressive legislation and view that as a threat to the conservative political project, and recognize that they have the power to put a stop to it.

0:47:51.0 Peter: The simplest explanation is the correct one here, and it's really frankly the only thing that explains their extremely awkward and completely arbitrary creation of new rules every time a new law pops up that they don't like.

0:48:08.4 Rhiannon: Yes, yes. We've said this once, and we will say it over and over again, but if you think that conservative judges are writing their decisions based on a specific limited legal principle, you're wrong, and let this case be an example of policy preferences and views about what problems are important in society and what harm against what kind of groups of people is important to address, that's what they're actually making this decision on.

0:48:42.4 Michael: That's right.

0:48:42.9 Peter: Absolutely.

[music]

0:48:47.0 Peter: Next week is Atkins v. Virginia, a case about the execution of the mentally disabled. I'm not even sure if I'm ready for this one, guys.

0:49:00.9 Michael: No jokes, there's no...

0:49:01.0 Peter: There's no jokes here.

0:49:02.2 Michael: The sound of a balloon deflating.

[laughter]

0:49:04.6 Rhiannon: Right, yeah.

0:49:05.9 Peter: Oh, that's good. Taking the air out of our liberties like a balloon deflating. Alright, coming at you next week with a new metaphor, baby.

0:49:10.4 Michael: Right, exactly...

[laughter]

0:49:15.2 Peter: This is the earliest I've ever had one ready. Follow us on Twitter @fivefourpod. Go to our website, buy our merch, tell your friends and family.

0:49:24.5 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our Artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

US v. Morrison+

0:00:02.0 S?: We'll hear argument now in number 99-5, United States v. Antonio J. Morrison.

[music]

0:00:09.6 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about US v. Morrison, a case about the 1994 Violence Against Women Act. The case is also about the Interstate Commerce Clause and whether the billions of dollars the US economy loses because of gender-based violence should count as commerce. In a 5-4 decision, the Supreme Court said no, making it impossible for victims of gender-based violence to sue for damages in federal court.

0:00:40.4 S?: Congress enacted the Civil Rights remedy of the Violence Against Women Act to remove one of the most persistent barriers to women's full equality and free participation in the economy, discriminatory gender-based violence.

0:00:54.2 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:06.5 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our freedoms to fade away like the colors of a painting in the sunlight. I am Peter, here with Michael.

0:01:20.6 Michael: Hey, everybody.

0:01:20.5 Peter: And Rhiannon.

0:01:20.6 Rhiannon: Hi, hello.

0:01:22.0 Peter: I thought that intro was strangely beautiful.

[laughter]

0:01:26.7 Rhiannon: Interesting that you say it about your own writing, but... Yeah, sure.

0:01:29.8 Michael: Very strong imagery.

0:01:31.6 Peter: That's right. Today's case is US v. Morrison. This is the case about the Commerce Clause, but also violence against women. This is a case about the intersection of commerce and violence against women, and we will clarify momentarily. In 1994, Congress passed the Violence Against Women Act, a bill co-sponsored by Joe Biden that provided funding for the investigation and prosecution of domestic violence and allowed victims of domestic violence to sue for money damages in federal court. There is one thing you have to understand about the Constitution for this case. The federal government can only do things the Constitution specifically says it can do, so every time Congress passes a law, it has to explain in the law, where in the Constitution it says that they have the power to pass that law.

0:02:28.5 Peter: One thing that the Constitution says Congress can do is "Regulate commerce among the several states." This is known as the Interstate Commerce Clause, or just the Commerce Clause. The idea is very simple, if something concerns the economy of one state, that's the state's business and the federal government can't pass laws about it, but if something concerns the economies of multiple states, then that is a federal issue, makes sense? Should be simple enough.

0:02:53.9 Rhiannon: Sure.

0:02:54.9 Peter: The idea is that as soon as economic activity crosses state lines, it's now a federal concern that can be regulated by the federal government, but the contours of this have been a legal battleground for many years, because especially as economies have grown more complex and expanded, it's become less and less clear when economic activity can be said to occur solely within a state as opposed to among multiple states. And conservatives who do not want to see a powerful federal government have long been arguing that we should read this very narrowly so that Congress cannot pass too many sweeping laws.

0:03:32.5 Peter: This case is one of the many times the conservatives on the Court have made up a new and arbitrary rule to try to limit the ability of Congress to legislate, with the goal of hampering progressive legislation. So we're going to talk about the Violence Against Women Act, what Congress is trying to do and how the Court interferes, and we're also going to talk about this much bigger picture concept about the scope of the federal government's power under the Commerce Clause, which is a trip into one of the most heated, pedantic and pseudo-academic debates in the legal world.

0:04:07.6 Michael: I'm excited, guys, this is like my wheel house.

[laughter]

0:04:12.8 Rhiannon: Michael's got something to say.

0:04:14.6 Peter: So one note we should make here up top is that the connection between violence against women and the Commerce Clause, it's obviously not really intuitive if you're not a lawyer, but bear with us. We will get you there. The gist of it is that gendered violence drives down women's participation in the economy and costs the economy billions of dollars a year. Women turn down jobs because of the threat of violence, they miss out as consumers because of partners who control their finances, on and on and on, and the scope of the impact of all this gendered violence crosses state lines. All of this was documented by Congress and used as their justification for passing the law. We will give this a little more color as we go on.

0:05:02.6 Rhiannon: Right. So VAWA, like Peter said, was passed in 1994.

0:05:07.1 Peter: Whoa, whoa, whoa. Whoa, whoa. Can't just bust out an acronym like that...

0:05:10.3 Rhiannon: I thought you said it.

0:05:11.3 Peter: I didn't say VAWA, I'm not in the know like that.

0:05:15.8 Rhiannon: Okay, so VAWA, which is the Violence Against Women Act, like Peter said, was passed in 1994, and it was actually passed after more than four years of congressional deliberation with numerous hearings and fact-finding proceedings leading up to passing the law. And this was congressional deliberation that explored the national problem of violence against women. In passing VAWA, Congress called domestic violence "a national tragedy played out every day in the lives of millions of American women at home, in the workplace and on the street." And so the law contained multiple provisions that were aimed at addressing violence against women in the United States.

0:05:58.2 Rhiannon: For example, between 1994 and the year 2000, the law provided $1.6 billion to fund a range of programs, including improving victim services, creating a National Domestic Violence hotline, and new initiatives to improve law enforcement's response to crimes like domestic violence and sexual assault. It created new federal felonies to address acts of interstate violence, and it had provisions to support immigrant women who were victims of domestic violence, it helped them in obtaining legal status, and then there were also research provisions to advance our national understanding of domestic violence and gender-based violence in the US.

0:06:42.8 Michael: Sounds like a pretty good law.

0:06:44.9 Rhiannon: Yeah, it was complicated, for sure. Complicated and comprehensive.

0:06:49.2 Peter: Yeah, Joe Biden, of course, co-sponsored the bill, and he famously said, "Come on, man. We need a law," you know.

0:06:57.6 Michael: No more of this domestic violence malarkey.

0:07:02.1 Rhiannon: Boys, they're doing malarkey.

0:07:03.8 Peter: Women across the country, I mean, come on.

0:07:07.7 Rhiannon: Again, thank you so much, Joe Biden. So the provision of VAWA that's at issue in this case provided for a civil cause of action for victims of gender-based violence in federal court. What that means in plain English is if you were a victim of gender-based violence, you could sue the perpetrator of that violence for damages, and that was even if no criminal charges had been filed against that person. And just want to note here that Congress carefully drafted and articulated all of these provisions in much the same way that Congress drafts lots of Civil Rights legislation, with an eye towards targeting only specific behavior that is clearly discriminatory, and it did so after hearing tons of testimony about the way violence against women interfere with women's full participation in the economy and public life, and it did so after hearing about the discriminatory manner in which states have treated gender-based claims historically.

0:08:10.2 Rhiannon: So Congress concluded after all of this testimony, after all of the fact-finding, that states weren't doing a good enough job at addressing gender-based violence, and so it created this cause of action. So we have that sort of statutory background that's the status of the law at this time, so turning to the facts of this specific case. What happened was just months after VAWA was passed and enacted in the fall of 1994, a freshman at Virginia Tech named Christy Brzonkala reported that she had been repeatedly sexually assaulted by two fellow students, Antonio Morrison and James Crawford.

0:08:48.5 Rhiannon: Morrison and Crawford were members of Virginia Tech football team, and according to Christy Brzonkala's reports, they gang-raped her in her dorm room some 30 minutes after the three of them met for the very first time.

0:09:01.5 Michael: Jesus.

0:09:02.9 Rhiannon: And so she reported this sexual assault to the school, and Virginia Tech conducted disciplinary hearings. As a result of those school-led hearings, Morrison was suspended and Crawford ended up not being disciplined. Actually, in fact, eventually after an appeal, Morrison's suspension was overturned. Local law enforcement didn't really do anything with Brzonkala's report either, a grand jury did not indict them for criminal charges, so no criminal charges were filed against either Morrison or Crawford, and meanwhile, Brzonkala became increasingly depressed and in fact she attempted to commit suicide. Eventually she withdrew from Virginia Tech, and with no help or support from local law enforcement or the school, Brzonkala eventually filed suit in federal court.

0:09:57.3 Rhiannon: Now, she brings two cases: She sued Virginia Tech, the school, under Title 9, and we won't discuss that here, that's a different case, it's a different law, but she also sued Morrison and Crawford individually under this new provision of VAWA that had just been enacted. So when the Fourth Circuit Court of Appeals ruled on Brzonkala's case, they said that her lawsuit couldn't go forward because this part of VAWA was unconstitutional. And Brzonkala appealed to Supreme Court. You'll notice that the case is called the US v. Morrison, that's because the federal government actually intervened to defend VAWA, so they became a party to the case, and that's how you get US v. Morrison.

0:10:41.5 Peter: So Congress has passed the Violence Against Women Act, VAWA, which allows women to sue in federal court, and they say that they had the power to do this, to pass this law, because the Constitution allows them to regulate interstate commerce, and as their law explains in detail, violence against women has a widespread impact that substantially affects interstate commerce. For example, you have the various ways in which domestic violence impacts women's ability to find employment or to engage in the workforce, and it impacts their productivity. These are all things that we'll talk about in a bit that Congress finds, but the Supreme Court says, no, you can't do that, because violence against women isn't itself really economic activity, it's not really commerce, and so that doesn't count as something you can regulate.

0:11:31.1 Peter: I want to also note, there's an Equal Protection argument, Congress says that they also have the power to pass this under the Equal Protection argument. We'll touch on this later. It's a complex and academic topic, but I don't want the nerds to think that I'm ignoring it, we're going to get to get to it, we'll get to it at the end, right. Relax.

0:11:47.3 Rhiannon: Do not yell at us.

0:11:49.1 Michael: Or we'll yell back.

0:11:50.4 Peter: That's right.

0:11:51.6 Michael: You are like that.

0:11:52.0 Peter: So to make sure we're all on the same page here, the Constitution again has this clause called the Commerce Clause, and basically the rule, the legal rule is that the states can regulate economic activity that happens in their states, but if there's economic activity that happens across multiple states, then the federal government regulates that. But what exactly it means for commerce to be taking place solely in a state as opposed to in multiple states has become less clear as economies have become more complex. Back in the day, it might have been relatively simple. At the time of the Founding, there were two basic types of businesses, agriculture and prostitution, and this is not based on a lot of research, I'm just kind of eye-balling this.

0:12:37.9 Peter: So there would be a guy in your town with a beef steak tomato farm, and he would go to the town center to sell them, and you would buy 14 of them so that each member of your family, which had 14 people in it, could eat a single beef steak tomato for dinner and...

0:12:51.5 Michael: The farmer could sleep with a prostitute.

0:12:54.9 Peter: And the farmer would use that money to go to the brothel or the house of ill repute nearby, and he would have sex with a prostitute. All of that is happening entirely within your state, so the federal government can't regulate that, but if the tomato farmer crosses state lines to sell his tomatoes, then the federal government is allowed to regulate that. Same applies to your basic prosecuting operations.

0:13:21.0 Peter: So think about that tomato transaction now. You go to a grocery store to buy a tomato. That grocery store's headquarters is probably in another state, it probably has operations across multiple states, it probably uses technology that sends data across multiple states. The workers might cross state lines to get to work depending on where you are. The tomato itself has almost certainly crossed a state border. The development of the economy has meant that people and things and information are crossing state lines all the time, and what that means is that as the economy has developed, the federal government's power to regulate the economy has grown.

0:13:57.6 Michael: Right, right. And so in the '30s, the New Deal had resulted in all sorts of new federal laws, the Supreme Court started striking some of them down, claiming that the federal government was exceeding its power to regulate interstate commerce. In 1936, the Court struck down federal regulations on mining, saying that mining was not commerce, even though the commodity being mined was going to be sold across state lines. That seems maybe a little pedantic, but conservatives at the time were really concerned about the size of the federal government during the New Deal and how it was going to explode, and they were looking for anything they could find to rein that in.

0:14:41.9 Michael: And so that's, FDR as a result starts applying political pressure to the Court, he threatens to pack it with more Justices in order to preserve his legislation.

0:14:52.7 Peter: That's right. Get their asses, bro.

0:14:54.7 Michael: Yeah, that's right. Pack the courts.

0:14:57.1 Rhiannon: How's a little political power feel, huh?

0:15:00.5 Michael: Good positive history in our country. And Court bent to that pressure. In a case called NLRB, the National Labor Relations Board v. Jones & Laughlin Steel, the Court held that the federal government could regulate activities that had a substantial effect on interstate commerce, so not necessarily just like that transaction, but like anything that affects interstate commerce. And then for many decades after, basically up until this case, and maybe just a few years before, there were just no decisions limiting the federal government's power under the Commerce Clause, but during much of that time, the conservative legal movement was being built from the ground up, and they were mad as hell about the fact that the federal government could regulate anything that impacts commerce, even if it's sort of indirectly so.

0:15:52.5 Michael: They didn't like seeing the federal government handed the keys to all this power, and especially since this power that's historically been used to pass progressive legislation, right.

0:16:05.6 Peter: So the sort of next part of this story is that in 1990, the federal government passes a law about gun violence, and they argue that their power to pass that law comes from the fact that gun violence impacts commerce between the states and in 1995, for the first time in nearly 60 years, the Supreme Court strikes down a federal law under the Commerce Clause. And that gets the ball rolling here, right, the first blow struck by the nascent conservative legal movement against the power of the federal government under the Commerce Clause. And that brings us here to this case.

0:16:39.1 Rhiannon: Guys, I just feel like I'm really being brought back to 1L con law, this is a blast from the past, all these cases that we're talking about. Did you guys spend half of con law talking about the Commerce Clause?

0:16:54.9 Michael: Yeah, my con law was mainly Commerce Clause and Equal Protection, Fourth Amendment fundamental rights stuff.

0:17:01.8 Peter: I zoned out for most of con law. I'm good at studying. The last two weeks were all I needed, I would really pack it in, so I don't really remember what the discussions were throughout the year, unfortunately.

0:17:13.0 Rhiannon: That's great. Peter went to an Ivy law school... Went to an Ivy law school and does not remember discussions had, which I think is beautiful, and that's why he's the Law Boy.

0:17:26.2 Peter: I remember the vibes, though, I remember the vibes.

0:17:30.6 Michael: There was a Yale law grad on Twitter who was marveling at the fact that the bottle of shampoo he purchased in use for months was dog shampoo, and the only indication of that was the fact that there was a large photo of a dog on the bottle.

0:17:49.8 Rhiannon: Yeah, that's why Ivy grads are stupid. I like that, alright.

0:17:54.0 Michael: Yeah, let's not give Ivy law grads too much credit here.

0:17:58.2 Peter: Yeah, but he probably graduated towards the top of his class. That's the thing is, if you're at a top school and you go to the top of the class, those kids are freaks, alright, those kids are weird as hell. You gotta go down towards the middle, alright, for the cool kids. That's where I was, just hovering with the masses, man of the people.

0:18:19.2 Rhiannon: Keep telling yourself that, buddy. Yup.

0:18:21.3 Peter: Oh, yeah, sorry, sorry, Rhi, I forgot that you went to an everyman law school, that everyone can get into.

0:18:28.5 Rhiannon: Shut up. Shut up.

0:18:31.7 Michael: A friend told me a story once about how there was a kid in her law school class who would bring a Snickers bar into every exam and he would cut it into thirds, I think it was, or quarters, and then every 30 minutes or whatever, he would eat one piece of it.

0:18:48.7 Peter: Jesus Christ.

0:18:51.8 Michael: Yeah, the punchline of the story was that he ended up with Supreme Court clerkship, so...

0:18:52.7 Peter: Yeah. Oh, my God.

0:18:57.4 Michael: That's the elite, the legal elite.

0:19:00.0 Peter: By comparison, my last 1L final, I brought whiskey and I poured it like three quarters of the way through the exam, and I was like, I'll be fine.

0:19:11.9 Peter: Alright, we are now in the year 2000, this case. Congress has passed this law designed to combat violence against women, which gives them the right to sue in federal court. Like I mentioned, when Congress passes a law, it needs to point out what part of the Constitution gives it the authority to pass that law, and they claimed that their constitutional authority derives from the Commerce Clause and their power to regulate interstate commerce. What they say is that violence against women has a significant impact on commerce, and they submit a massive amount of evidence to support that.

0:19:44.1 Michael: Right. So just to cut in, Rhiannon said that Congress spent four years developing this and holding hearings, and just to go over some of their findings, sort of substantiating this link between gendered violence and interstate commerce, they found that it's like billions of dollars a year in lost productivity and wages, for a variety of reasons. 50% of rape victims end up losing their jobs, the ones who keep their jobs have decreased productivity, victims of domestic violence likewise have lots of absenteeism and sick time because either they can't leave their homes or they don't want to go into work because the bruises and the cuts from the domestic violence are visible and they want to hide it.

0:20:37.2 Michael: On top of that, even women who were not themselves victims of gendered violence nonetheless have it shape their participation in the economy because they'll turn down better paying night jobs or jobs in the areas of heightened risk, which Congress found were justified fears, that later hours or working downtown or whatever, you're more likely to be the victim of gendered violence. So it's just massive, the impact gendered violence has on the economy was just demonstrably massive.

0:21:11.0 Rhiannon: Yeah, it's hard to even come up with words for how sort of everyday and pernicious gender-based violence is, and I think it's important to highlight that whether or not you think VAWA and all of its provisions were very good at addressing gender-based violence, I have my own views about, say, sending a bunch of funding to local law enforcement and saying that police should handle domestic violence cases in specific ways, but it was Congress looking at this issue for a long time and realizing how bad, how massive the impact is on the nation's economy and trying to address that with a sort of comprehensive legislative scheme that would allow women in different ways to combat the reality of living in a rape culture and a culture sort of built on the oppression of non-men.

0:22:09.0 Peter: I think, to agree, this is sort of common sense. Of course, being the victim of discrete acts of violence or continued acts of violence is going to impact the degree to which you are engaging with the workforce or the broader economy, right, that does feel to me like common sense, and it's backed up by hard data. So basically, Congress saying that even though they are not regulating commerce directly through VAWA, they're regulating it indirectly. And the Supreme Court rejects this in a 5-4 opinion written by Chief Justice William Rehnquist.

0:22:43.0 Peter: The legal rule created by earlier Supreme Court decisions is that if something "substantially affects" interstate commerce, then Congress can regulate, even if it's not commerce itself. And the Court can't say that violence against women doesn't substantially affect interstate commerce, because Congress has a huge amount of evidence that it does. So what they say is, look, violence against women is not economic activity, and so it's not covered by the Commerce Clause. Specifically, Rehnquist says, "Gender-motivated crimes of violence are not in any sense of the phrase economic activity."

0:23:27.6 Michael: It's a shame that Congress tried to pass this law under the Economic Activity Clause.

0:23:35.9 Peter: The first thing to note here is that that's not the rule. The rule is supposed to be that Congress can regulate things that substantially affect interstate commerce. The Rehnquist Court has made up the economic activity versus non-economic activity distinction. But more importantly, and more essential to the issue here, the idea that gender-motivated crimes are not "in any sense of the phrase economic activity" is something that just about any fucking honest economist will tell you is incorrect. Everything you do has an implied cost and a nominal impact on the economy. Whether or not someone is directly engaged in the exchange of money for goods and services, they are essentially always, or at least often engaged in the economy in some material way.

0:24:23.2 Peter: I'm not saying Congress should be able to regulate everything, the rule is that there must be a substantial impact on interstate commerce, but at the very least, there is no clear distinction between what you might call economic activity and non-economic activity. If someone obstructs a highway, which prevents people from getting to work or conducting business, can Congress step in and regulate that? Yes, because the highway is what the law calls a channel of interstate commerce, which everyone agrees they can regulate, and yet when domestic violence prevents people from working or conducting business, that is somehow according to the conservatives on the Court non-economic activity. Yeah, the distinction is meaningless, and the Court's made up rule is just pure sophistry, it is the output of a conservative legal movement that has been desperate to create some sort of rule that would limit the federal government's power, and after failing to come up with something good settled for this contrived bullshit that sounds like the most obviously incorrect multiple choice answer on a bar exam.

0:25:33.3 Michael: Right. And I think the facts of this case are a great example of how bullshit it is, because going to college is absolutely economic activity, it totally determines how and whether you can participate in the economy. And this woman dropped out of college as a result of this. Whether or not you're depressed impacts whether and how you can participate in the economy, and she became seriously depressed, right, suicidal. That is incapacitating. This is a person who has been effectively taken out of the workforce for some indeterminate amount of time, and when she re-enters is going to be in a substantially different economic position because of where her education stopped.

0:26:22.4 Michael: That is economic. There's just no way around it. And like this is such bullshit on their part too, 'cause it's like, it's just not their job. The Supreme Court does not do fact-finding, it's like the last thing they're supposed to do, and it's so dishonest, they quote themselves saying, look, simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so. But that case, first of all that's bullshit, but that case they were talking about when Congress had no findings at all.

0:26:58.6 Peter: And I want to give a little bit of color here, because in the prior case that, the Lopez case from 1995 about gun violence, Congress hadn't submitted any evidence that linked commerce to gun regulation. They just said, well, it impacts it, right, and that's why in this case, they submitted a huge amount. And Rehnquist is like, no, I don't think so, though.

0:27:18.9 Michael: Yeah, that quote makes sense in the context of that case because that was a law where Congress hadn't submitted extensive findings, and so it's like, yeah, if Congress just says this impacts commerce and doesn't back it up at all, sure, the Court might disagree, but that's not the case here. The case here is that Congress had substantial, like overwhelming evidence that this greatly impact interstate commerce, and the Court was just like, nah. And this is like... We've seen this in other cases we've discussed, in Shelby County v. Holder with the Voting Rights Act, where Congress submitted months of finding from hearings and studies and all this, thousands of pages about why their formula was correct, and the Supreme Court was like, no, I just disagree.

0:28:08.2 Michael: And it's just the height of judicial activism, it's the height of judicial law-making, of usurping Congress's role in legislating. And we talk about the importance of recognizing that courts do that, but it's just so important to call out when the conservatives who supposedly hate that stuff are engaging in it so egregiously, which they are here.

0:28:34.6 Rhiannon: Right, exactly, and I think this case also shows how the Rehnquist Court viewed violence against women like this exclusively domestic, private issue rather than a society-wide problem that warrants public government involvement, which is what Congress showed. Like Michael, you talked about the facts of Christy Brzonkala's case showing that absolutely she was participating in economic activity, and how gender-based violence took her out of that economic activity.

0:29:07.8 Rhiannon: What Congress did in passing the law and holding all of these hearings was showing how widespread exactly Christy Brzonkala's case was, that it was happening across the country and having a significant impact on the economy. And so the perspective from the Rehnquist Court that violence against women is just like this private matter that happens at home, that's significant because it influences how federal and state powers work together on an issue. Like if something is a purely domestic issue, if it's purely a private problem or at most a problem that is already addressed by state criminal law or local law enforcement, then that's not an issue that the federal government has the power to regulate or influence, that's outside the scope of the federal government's power and Congress's law-making ability, sure.

0:30:00.5 Rhiannon: But it's important to highlight, but this is a misogynistic viewpoint to deny how widespread and toxic and deeply pernicious violence against women is, and that's what's predicating this argument about federal versus state power. In minimizing how damaging and dangerous the reality of domestic violence is, the Supreme Court sort of gets to shoe horn in this conservative viewpoint on federalism.

0:30:26.1 Michael: Yeah, no, I think that's exactly right, Rhi. And I think it's very endemic to the conservative world view, where they sort of reject systemic explanations and systemic approaches to things and try to make everything this atomized, individual inquiry, like racism is a question of what's in your heart. And it's something you see consistently across sort of domains in conservative legal thinking, and so you see it here where like domestic violence, the idea that that's some big nationwide issue, like a larger cultural institutional issue that requires big legislation to ameliorate and to fix is just something that they flatly reject.

0:31:18.4 Peter: It's a core tenet of conservative politics that you reject the structural problem and re-frame it as an individualized problem. It's like unemployment, right, when unemployment spikes, is that a structural problem that needs to be addressed with broad sweeping legislation? No, no, no. It's lazy people.

0:31:38.7 Michael: Right. And the environment is like, turn off your lights and recycle, not like we need to regulate companies and make sure that they're using...

0:31:49.5 Peter: Exactly. And racism, is it something that needs to be addressed with something big, like maybe reparations or something that looks like that? No, no, it's just get your vibes right, bro. Just sort of reframe your vibes and you'll be good. So again, we have the conservative Court here saying that Congress can't regulate domestic violence in this way by making up this sort of fictional distinction between economic and non-economic activity, and they're saying, well, domestic violence, that's non-economic activity.

0:32:21.0 Peter: And the fact that the conservatives essentially made up a new and arbitrary rule to limit the power of the federal government to pass laws, very telling. The Constitution says that the feds can regulate commerce between the states; like I mentioned back in the day, that might have meant only a few things, but in the modern economy, it means a huge amount, people, goods, data, all crossing state lines constantly. And that means that the federal government's power has grown, and conservatives don't like this, because historically, the feds have used that power to pass progressive legislation.

0:32:56.0 Peter: But that's not an actual constitutional reason to strike laws down. They're just frustrated with the reality here, the reality of the implications of the Commerce Clause. And so they're engaging in what they claim to hate, traditional policy-making. And this opinion is rife with it. Rehnquist is basically saying, well, look, if the federal government can regulate everything that substantially impacts commerce, they're going to have too much power. And it's like, well, that's not really your job to decide, that's not the Court's role.

0:33:27.9 Peter: How many times have we heard the conservatives basically say, well, whether or not this is good policy is irrelevant. Our job is just to correctly interpret the Constitution. And yet here they are, oddly rejecting that train of thought when the outcome is something that benefits the left. They're actively doing living constitutionalism, the very thing that originalists claim to hate. Living constitutionalism is the idea that our understanding of what the Constitution means should evolve over time. That's what they're doing here. The bottom line is they're saying, look, the social context has changed enough that we shouldn't read the Constitution so literally, which I don't find to be in and of itself particularly offensive, but I'd like to see them admit what they're doing.

0:34:11.6 Rhiannon: Right, just be real about it.

0:34:13.2 Michael: Absolutely.

0:34:14.5 Peter: I also want to point out some of the historical context for their opposition to federal power under the Commerce Clause. 'Cause I think you can think about like, well, interstate commerce, it all seems maybe a little bit abstruse, maybe a little bit like I don't know how much this matters. In 1964, there was a case called Heart of Atlanta Motel v. United States. That was a case where hotel owners in the South who wanted to discriminate against black people in their business sued the federal government saying that they did not have the power under the Constitution, under the Commerce Clause to pass the Civil Rights Act. Part of the Civil Rights Act of 1964 was a law saying that places of public accommodation such as hotels could not discriminate on the basis of race. And Congress said their power to do that was found in the Commerce Clause. Hotels, they accept people that have been traveling between states and therefore they could be regulated under the congressional power to regulate interstate commerce.

0:35:09.0 Peter: And the Supreme Court agreed, upholding that pivotal civil rights legislation. And conservatives quietly bristled, maybe not so quietly at the time, but they're a little quieter about it these days. They didn't want the federal government using its commerce power to pass what they view as sort of socially progressive legislation. And the same thing is happening here, the conservatives are upset that the government is passing socially liberal legislation, and they're trying to throw as many wrenches at it as possible.

0:35:40.5 Rhiannon: Yes. And I think it's important to talk about the impact of US v. Morrison on women and what remedies were left for victims of gender-based violence if this provision of the law was deemed unconstitutional. I think a lot of people have rightly pointed out that the case has a much bigger impact really on Congress's ability to pass laws under the Commerce Clause, rather than just taking away all of the remedies available to these victims. And that's because states have their own statutory schemes addressing gender-based violence. Depending on what state you're in, you can sue in state court. And certainly, there are state criminal laws that have been beefed up to address domestic violence more seriously.

0:36:24.5 Rhiannon: But I do think there's discussion to be had about what it means to women to treat gender-based violence as a violation of your civil rights. And that's what this provision of VAWA was passed as. This is very similar and mirrors Civil Rights legislation, like Peter was just talking about. One of the ways that we show as a society that we are taking a problem seriously is by enacting legal accountability. It's symbolically and culturally important to have laws that address problems because it shows that sort of government and stakeholders and everybody are taking the problems that citizens face seriously. It's saying gender-based violence is incredibly degrading and dangerous, and because that is so, you have this legal accountability mechanism. You can go to federal court and get damages for the harm that you have experienced. And I think that impact is significant, that we don't have that because it shows the Court is not taking this problem seriously.

0:37:34.5 Rhiannon: The legislative history for VAWA as a Civil Rights remedy shows that Congress was responding to the effect of discriminatory, gender-based violence on women's full participation in commerce. For example, documented in this legislative history was that gender-based violence deters women's movement. It keeps them from walking at night, even in their own neighborhoods. It restricts their use of public transportation, which limits where and when they'll travel. There was documentation that gender-based violence reduces consumer spending, showing that women, for example, don't go to movies alone after dark.

0:38:15.2 Rhiannon: And just like the impact of race discrimination on racial minorities in their choice of jobs, Congress also documented in passing VAWA that gender-based violence deters women from taking jobs in certain areas or at certain hours, like Michael said earlier. And so overall, this is like this broad conclusion that gender-based crimes and fear of those crimes restricts movement, reduces employment opportunities and reduces consumer spending. And so, as a woman, you think, okay, what is my remedy for that happening to me? If my movement has been restricted, if my employment opportunities have been restricted, if my consumer spending and participation in the economy like I please, if that has been limited because of gender-based violence, because of this discriminatory violence against me, where is my remedy? What law allows me to sue for that, right?

0:39:09.5 Rhiannon: And so, I think it's important to just highlight that, yes, while there are other remedies available, like criminal law or state statutory schemes for being made whole after suffering gender-based violence, I think the impact in this provision of VAWA being found unconstitutional is really in what it demonstrates about our government and the society not taking this seriously.

0:39:35.8 Michael: Right. And it's worth mentioning that part of the motivation and part of the congressional findings behind this law was that those alternative remedies often are no remedy at all.

0:39:47.0 Rhiannon: Yes, exactly.

0:39:48.6 Michael: That the same biases that create gendered violence in the first place are also endemic among police officers, among prosecutors, among judges and juries and court employees and everyone, and so those remedies don't become available. There was a Senate report in 1991 that said study after study commissioned by the highest courts of the states, over 20 states from Florida to New York, California to New Jersey, Nevada to Minnesota, has concluded that crimes disproportionately affecting women are treated less seriously than comparable crimes against men. And further, that collectively, these reports provide overwhelming evidence that gender bias permeates the courts system and that women are most often its victims. And so I think it's fair to say that this Supreme Court case, rather than engaging with those facts, is like an example of that bias.

0:40:51.5 Rhiannon: Yes, yes.

0:40:51.5 Michael: This is that same permeating discrimination that sort of downplays the harms and impacts of gendered violence.

0:41:00.7 Rhiannon: Right, right. And that's exactly what Congress was trying to point out. But yet again, in this case, you have the Court stepping in and sort of claiming expertise where they don't have any and denying this really extensive fact-finding.

0:41:13.1 Michael: Yeah, that's right.

0:41:15.5 Peter: Although to be fair, William Rehnquist might have a kind of expertise in domestic violence...

[laughter]

0:41:24.1 Michael: Yes. Yeah.

0:41:24.2 Rhiannon: It doesn't matter 'cause that motherfucker is dead.

0:41:26.0 Peter: That's right. To the lawyers of his estate, I said "might."

[laughter.

0:41:33.8 Peter: There's also a much bigger picture issue here. The impact of this case is not limited to domestic violence issues. Like we said, Congress has historically used its commerce power to pass progressive legislation, from the labor rights laws of the New Deal to the Civil Rights Act, and then in the '90s, to guns and domestic violence regulations. What the conservatives are doing in this case is arming themselves. They're giving themselves a weapon to wield against progressive legislation in the future. And we've already seen it used, our sixth episode was about NFIB v. Sebelius, a case about Obamacare, and there we explained how the Court claimed that the federal government did not have the power to regulate aspects of the insurance market.

0:42:18.3 Peter: The stakes here are huge. If and when Congress ever steps up and passes Green New Deal legislation, for example, there's almost no question that aspects of it will be challenged under the Commerce Clause. The conservatives have taken their control of the Court over the last several decades and turned it into a bulwark against progressive legislation, really usurping Congress's ability to pass laws and placing it in the hands of five and now six conservative Justices.

0:42:47.0 Michael: Right. When we were preparing for this episode, we talked about this case as sort of like one of the first instances of the conservative Court really starting to flex its muscle. And I think that's a good way to understand it, is them sort of being like, "You know what? We can fuck with them. We have some power now and we can use it."

0:43:07.8 Peter: Yeah. Now, before you wrap up, I want to mention one thing. I mentioned earlier that there's a second justification that Congress had for the Violence Against Women Act, and that's the Equal Protection Clause. Congress says, hey, the Fourteenth Amendment has a clause that says that everyone must be treated equally under the law, and so we're passing this law to further the equal treatment of women. And the Court rejects this, and what it says is that the Equal Protection Clause prevents states from treating citizens unequally, but that's it. It does not allow the federal government to pass laws to further the cause of equality.

0:43:40.5 Peter: This is itself a very academic discussion that we don't need to get into and we don't have the time to get into, but I just want to point out that it's another area where conservatives have tried to arbitrarily limit progressive legislation, this time by limiting the scope of the Equal Protection Clause and what its implications are. The view being espoused by the conservatives here is very commonly accepted among lawyers, but it's actually very shaky and ahistorical. And again, I don't want to get into too many details, but Kermit Roosevelt, a professor at Penn Law who clerked for Souter, who wrote the dissent in this case, in US v. Morrison, when this case came down, published a compelling article titled Bait and Switch: Why United States v. Morrison is Wrong about Section 5.

0:44:23.3 Peter: The article is worth the read, especially if you're a law student or a lawyer, only if you're a law student or a lawyer, I'll say, I can't subject everyone else to this, because it's a good example of how conservatives have kneecapped the possibility presented by the Equal Protection Clause, which we've harped on on this podcast. The Equal Protection Clause is a part of the Constitution that says that the law must treat everyone equally and if you are on the left, you have to look at that and think that if we want a constitutional basis for a better world, a better country, there it is staring us right in the face, everything that we believe in is laid out right there, and conservatives saw that before anyone.

0:45:04.8 Peter: And for 150 years, they've been working to arbitrarily narrow it to the best of their ability, and if we want, as leftists, as people on the left, who want to use the law as a weapon for equality and for justice, if you want to have a legal argument that you can lay out in defense of what we believe, it has to center around the Equal Protection Clause. And that's why, although I think it's probably too technical and academic of a discussion to get into here, but I couldn't ignore it entirely in this episode, 'cause I think it's important to point out the various ways in which the conservatives have hampered the cause. Worth noting that this is a project that spans the entire Constitution, and every clause that might give Congress power to pass progressive legislation, conservatives will push back against and argue that it's limited for whatever arbitrary reasons they can come up with.

0:46:01.1 Michael: And so I want to hit a point that Souter makes in his dissent. We've talked a lot about the record that Congress amassed here, and the point he makes is that it's actually bigger and more comprehensive than the historical record supporting the Civil Rights Act, which just goes to show how thorough this was. I mentioned earlier that there were 20 states doing gender task force reports as a part of this. It was just such a massive, massive project, and this law was the output of that project, and the Court is looking at that and saying, "No, no, just, no."

0:46:47.9 Michael: And I think it's just worth emphasizing that that's really what this is, this isn't objective, and this isn't the Court being constrained by the view of the Founders or the text of the Constitution. This is their biases and their own attitudes about women dictating the outcome of this case.

0:47:08.7 Peter: This is one of those cases where... What explains it better? What explains the conservative view of the Violence Against Women Act better? What explains the conservative view of the Commerce Clause better? Is it truly that they have some extremely specific view about the intersection of commerce and violence against women, or is it perhaps that they see a bigger picture here? That they can see the ways in which the federal government is able to step in and create progressive legislation and view that as a threat to the conservative political project, and recognize that they have the power to put a stop to it.

0:47:51.0 Peter: The simplest explanation is the correct one here, and it's really frankly the only thing that explains their extremely awkward and completely arbitrary creation of new rules every time a new law pops up that they don't like.

0:48:08.4 Rhiannon: Yes, yes. We've said this once, and we will say it over and over again, but if you think that conservative judges are writing their decisions based on a specific limited legal principle, you're wrong, and let this case be an example of policy preferences and views about what problems are important in society and what harm against what kind of groups of people is important to address, that's what they're actually making this decision on.

0:48:42.4 Michael: That's right.

0:48:42.9 Peter: Absolutely.

[music]

0:48:47.0 Peter: Next week is Atkins v. Virginia, a case about the execution of the mentally disabled. I'm not even sure if I'm ready for this one, guys.

0:49:00.9 Michael: No jokes, there's no...

0:49:01.0 Peter: There's no jokes here.

0:49:02.2 Michael: The sound of a balloon deflating.

[laughter]

0:49:04.6 Rhiannon: Right, yeah.

0:49:05.9 Peter: Oh, that's good. Taking the air out of our liberties like a balloon deflating. Alright, coming at you next week with a new metaphor, baby.

0:49:10.4 Michael: Right, exactly...

[laughter]

0:49:15.2 Peter: This is the earliest I've ever had one ready. Follow us on Twitter @fivefourpod. Go to our website, buy our merch, tell your friends and family.

0:49:24.5 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our Artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

Navarette v. California+

0:00:01.5 S?: We'll hear argument in case 12-9490, Navarette v. California.

[music]

0:00:08.2 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about Navarette v. California, a 2014 case about policing. In it, the Supreme Court ruled that an officer can pull someone over based on an unverified anonymous tip. The ruling gave rise to police practices that are ripe for abuse and discrimination.

0:00:32.1 S?: Navarette's attorney Paul Kleven argued the initial police stop was improper, saying California Highway Patrol did not witness any signs of reckless or drunk and driving before pulling the man over.

0:00:43.8 S?: Police officer allowed to pull them over without the reasonable suspicion that they're supposed to have, so they're intruding on all those people's privacy.

0:00:50.2 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:58.9 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have driven our liberties to the outer edges of their habitats, like American settlers did to the gray wolf. I am Peter, I'm here with Rhiannon.

0:01:12.6 Rhiannon: Hey, pour one out for the gray wolf.

0:01:15.0 Peter: And Michael.

0:01:16.0 Michael: Hey, everybody.

0:01:17.5 Peter: Yeah, unfortunately, as we go forward, the more likely I am to use an extinction metaphor every single week.

0:01:29.7 Rhiannon: Have you done buffalo?

0:01:31.2 Peter: I have not done buffalo, but it is on my quick list of potential metaphors.

0:01:37.7 Michael: Do not tell me that you're saving that for when we do native rights stuff.

0:01:44.3 Peter: No, in that case, I would use the natives themselves.

[laughter]

0:01:54.0 Peter: Today's case is Navarette v. California. This is the latest entry into our canon of episodes about the various ways in which cops are allowed to bother you, thanks to the Supreme Court. This is a case about whether the cops can pull you over and stop you on the street because they received an anonymous tip that you are doing something wrong, even if the cops themselves did not see it. One interesting thing about this case is that it did not split across the usual ideological lines. Justice Scalia, who had a fairly strong libertarian streak on Fourth Amendment issues, joined the liberals in dissent, but Justice Stephen Breyer, the ostensible liberal Justice, joined the conservatives, as he often does in Fourth Amendment cases and criminal defendants' rights cases more broadly, which means that while this is one of a long line of our cop episodes, it is the first in our Stephen Breyer retire immediately line of episodes.

0:02:52.2 Michael: That's right.

0:02:54.1 Peter: There has been an increasingly strong call for Breyer to retire, and we're throwing our hat in the ring here with a substantive critique, because not only is he a very old Justice who should step down and be replaced by someone who can hold the seat for longer, but he also low-key sucks on several key issues.

0:03:14.7 Michael: That's right. You won't find us stanning him like some other legal podcasts.

0:03:19.3 Peter: That's correct.

0:03:23.6 Michael: We genuinely don't stan anyone, and I think that's right, fan culture is toxic in legal media.

0:03:28.9 Peter: That's true, we come closest to stanning Sotomayor, but when the time comes, we will throw her to the wolves.

0:03:35.3 Michael: She is a former prosecutor.

0:03:39.3 Peter: That's right. Alright, Rhi, if you can walk us through some background here.

0:03:43.3 Rhiannon: Yeah, sure. So this happens back in 2008, this is a cop story, but I feel lucky to just not be telling all of you listeners a cop story where somebody ends up horribly maimed or dead, so maybe just a little bit better than the usual cop stories we're bringing you. So back in 2008, what happens is a dispatcher for California Highway Patrol in Mendocino County got a call from a counterpart dispatcher in another county. That counterpart told the dispatcher in Mendocino that they had just received a tip from a collar, and the substance of the tip was that a silver F150 pick-up truck had run the collar off the road, and the collar, a woman, gave the license plate number for the truck.

0:04:35.4 Rhiannon: So note right here, this is a woman who was allegedly run off the road calling into 911, and then that dispatch person calling California Highway Patrol dispatch in Mendocino County. So we're already on a bit of a game of telephone here. The Mendocino County dispatcher alerted their colleague and that person broadcast the message about this truck that had run somebody off the road. They broadcast that message to all of the California Highway Patrol officers in the area. That message went out at 3:47 PM. Now, by 4:00 PM, 13 minutes later, an officer from the California Highway Patrol had spotted a vehicle matching that description. By 4:05, just five minutes later, the officer pulled that vehicle over, even though the officer had observed no abnormal or illegal driving.

0:05:30.7 Rhiannon: Inside that truck were two people, Jose Prado Navarette and Lorenzo Prado Navarette. Now, cops get their documents, their license, their registration for the vehicle and they take it back to their cop car, but then as they return, they say that they suddenly smell marijuana. Based on the smell of marijuana, they search the truck and they find 30 pounds of the devil's lettuce. And so...

0:06:00.5 Michael: I gotta say, usually when cops say they detected an odor of marijuana, I'm like, do the jerk-off motion or whatever. But if there were fucking 30 pounds, I buy it. I totally buy that they detected an odor.

0:06:12.8 Peter: We will do a separate episode about why the cops are allowed to say that they smelled something and search your car.

0:06:20.0 Rhiannon: Yeah, totally. As a defense attorney, I'm skeptical about searches that result from an officer smelling something, but 30 pounds is a lot. So, okay. So, because of the marijuana that's found, both of the Navarette guys are arrested. In court, though, they challenged that stop, they challenged being pulled over by California Highway Patrol, and they argued that the cops didn't have reasonable suspicion of any illegal activity. Now, reasonable suspicion, of course is the standard that cops have to have to pull you over, they have to have reasonable suspicion that you have committed some criminal act.

0:07:03.9 Peter: Right, so to be clear here, their claim is not that they didn't have marijuana or anything like that, right, their claim is, you would have never found the marijuana if you had been abiding by the law, but instead you pulled us over without any constitutional reason.

0:07:20.4 Rhiannon: Exactly. And they argued that the officers hadn't observed any illegal or even erratic driving.

0:07:27.5 Peter: Better believe they were driving well, you're at 10 and 2, baby.

0:07:32.6 Rhiannon: Yes, at 10 at 2.

0:07:36.0 Michael: Signalling before you change lanes, for sure.

0:07:39.1 Rhiannon: Sure, right, exactly. One bead of sweat just slowly down the temple. So they argued that the officers hadn't observed any illegal driving and also that an anonymous tip about reckless driving without more doesn't get you to the level of reasonable suspicion that's required, because it's so vague, somebody called in and said, I was run off the road, here's the truck that did it.

0:08:04.9 Michael: Right, right. A long time ago now, at this point in our fifth episode, we covered a case called Terry v. Ohio, where we explained that police are allowed under the Constitution to stop you or your vehicle if they have "reasonable suspicion" that you were violating the law. That was a case about stop and frisk, which I think most people are familiar with, and this is a traffic stop, but the legal rule is actually the same, cops need to have reasonable suspicion that you were violating the law in order to stop you, whether you're on foot or in your car. And so both these situations come up under the Fourth Amendment, which protects you against unreasonable searches and seizures, and as I think most people know with stop and frisk, when cops had a lot of discretion, they abused it, and the same goes with automobile stops, as we'll discuss.

0:09:00.7 Michael: And so in the case here, the question is very simple: Can the cops stop you if the only evidence they have that you were violating the law is an anonymous tip?

0:09:12.3 Peter: Right, and the Court in a 5-4 opinion authored by Clarence Thomas says that, yes, they can. So like Michael said, the Fourth Amendment protects us from unreasonable searches and seizures, that includes protecting you from unreasonable traffic stops. Under the Constitution, if the cops find evidence during an illegal traffic stop, they can't hold that evidence against you in court. The plaintiffs here are saying that the marijuana found during the traffic stop can't be used as evidence against them because the cops did not have a legal reason to pull them over to begin with. This is important to the Navarettes because they don't want to get in trouble for the weed, but it's important to the rest of us, because it sets the boundaries for how flimsy the cops' excuse for stopping you or your vehicle can be.

0:09:58.8 Peter: As we'll dig into a bit later, if the cops can rely on a single unverified anonymous tip to pull someone over, that gives them a huge amount of discretion, and it will inevitably lead to innocent people being stopped in large numbers, either by accident or because the cops are abusing that discretion. If the Fourth Amendment is meant to protect against unreasonable searches and seizures, but the cops can seize you based on one vague anonymous tip that they have not corroborated, then what does that constitutional protection actually mean?

0:10:33.5 Peter: So let's talk about the Court's opinion here, written by Clarence Thomas. Thomas starts off by listing all the reasons that he believes this anonymous tip was enough to justify pulling these guys over. Let's go through them. First, he says that the specifics given by the anonymous caller, which were just the car type, the color and the license plate, lend credibility to the tip, which seems sort of weird to me to say that those details add credibility, because no one's saying the car doesn't exist. The question is what the car did, and whether the caller is either mistaken or lying, and the details about the car are entirely separate from the question of whether the person had violated the law, they're not related at all.

0:11:20.0 Peter: If someone says, hey, that car is red, and the guy inside it is actually a space alien in disguise, and you look at the car and it's red, you're not gonna be like, oh, shit, she was right about the car being red.

0:11:36.0 Michael: Are aliens here?

0:11:36.1 Peter: That really lends credibility to the alien thing.

0:11:39.8 Rhiannon: I want to believe.

0:11:42.1 Peter: And to put it a little more succinctly, this might be a little too much for Supreme Court Justice Clarence Thomas to process, but people are capable of saying a true thing and then a false thing. So second, he says, look, we have reason to believe that this person was telling the truth. If you look at the time when the call was made and compare it to where the truck was eventually spotted, it looks as though the call was made at about the time she would have been run off the road. Thomas is referring to an axiom of witness reliability that essentially says that people's statements are much more reliable as an event is occurring or right after an event occurred. This is something that's called an excited utterance, and it's the idea that something someone says as an event is happening or right after is generally reliable. Because the person is sort of reacting in real time. So if someone shouts, "He's got a gun," that's generally going to be an honest reflection of what that person was witnessing.

0:12:44.7 Peter: Justice Scalia, who writes the dissent here, points out this doesn't really apply to a situation where someone has pulled over to the side of the road, right, they had a moment to gather themselves and process. It's not really the same thing. But regardless, Thomas is just like bullshitting about psychological phenomena that he doesn't even remotely understand. There is an enormous body of research on this stuff, and he's not even pretending to engage with it in the context of this situation, he's just sort of like spouting off. And another important thing about this is, this is information that we know now, the time that she made the call, it's not something that the police knew at the time.

0:13:24.6 Peter: And the question here is whether the police had enough information at the time to pull the car over. They didn't know whether the tip came in right after or not, and so because of that, it shouldn't be relevant here. And I mention this because not only is it part of Thomas's analysis here, but you often see the court in cases like this sort of blur the line a little bit between what the court knows and what the officers knew at the time. But in reality, if the officers didn't know something, then it can't be factored into our evaluation of their mind state. And then Thomas says, look, this person called 911, so even though it's anonymous, they could theoretically be traced if it was a false report, which makes it more likely that the person calling was telling the truth.

0:14:11.3 Peter: Which it is true, that they could be traced, I guess, in a vacuum, maybe. I'm not sure it's worth much, especially since a false report of reckless driving is something you would never, ever get caught for. How would they even catch you? And also, we have zero reason to believe that this woman who called in knew that you could trace 911 calls. So why are we having this conversation at all?

0:14:37.9 Michael: Right, this was over a decade ago, but wasn't there just in the news now, New York wanting to talk about passing new laws about false reports because they are having issues with people trying to use the cops as like...

0:14:49.6 Peter: Yeah, it happens.

0:14:50.1 Rhiannon: Right. False reports are made all the time.

0:14:52.9 Michael: Right, and it's an issue.

0:14:55.2 Rhiannon: People call 911 and fucking lie to the dispatcher all the fucking time.

0:15:00.4 Peter: False reports are up 85% during the pandemic. I just made that up, but that sounds right, right?

0:15:07.8 Rhiannon: Yeah, and I want to take a minute to differentiate and maybe just sort of explicitly draw the difference between an anonymous tip and sort of a regular call to 911. So if you call 911 and you're reporting a crime that you have witnessed, what usually happens is that the caller will state their name, state where they were when something happened, often an address is given, they might talk about other witnesses who were there, they will tell the 911 dispatcher about any injury they suffered, and they will describe that, the 911 caller asks questions to get more information, so that the dispatcher can give the police that information, and the police have a sort of important substantive chunk of information that they then when they're going out to answer this call, they are then collecting even more evidence to corroborate that initial report to 911.

0:16:06.5 Michael: Yeah, you give them your location so the cops can show up and based on your credibility, they can either pretend like they're gonna do something and then just blow it off or just tell you to your face that they're not going to do anything.

0:16:17.5 Rhiannon: That's how policing works.

0:16:19.1 Peter: The are the options if you're white, it gets worse if you're not.

0:16:22.8 Michael: It definitely goes downhill from there.

0:16:26.6 Rhiannon: But here, with an anonymous tip, we have no information on which to base a judgment about the credibility and the context of the report, because all we have... We don't have a person's name, we don't have any significant details about their injury, the circumstances in which this allegation of reckless driving happened, and so there's nothing to go off of except find this car.

0:16:52.3 Peter: Right. The big picture concern here is like, if we want to live in a society where the Fourth Amendment means something, then the police should have to have some evidence that you violated the law before they pull you over. Being pulled over is common, but that doesn't mean it's like a minor thing, that is the force of the state bearing down on you. If you think being pulled over isn't a big deal, try running next time and see based on the cop's reaction whether he thinks it's a big deal. If you want to meaningfully limit the power of the government to fuck with you, then the police should have to have ample evidence that you did something wrong to pull you over, and if all they have is a vague anonymous tip, then they should have to corroborate that tip themselves, say, by following the car.

0:17:46.2 Peter: And I think that leads us to the last part of Thomas's argument, because this isn't just that they get a tip and they pull someone over, they get a tip that implies reckless driving, and they follow the guy for five minutes and they don't see any reckless driving. So one thing to note is that throughout this opinion, Thomas has been very heavily implying that the reason that these people were pulled over is because they were driving as if they were inebriated, that that's essentially what the report was and what the cops were concerned that they were inebriated, and that's why they pulled them over.

0:18:20.0 Michael: Not that just they were dicks to this one lady, but that they are going to cause a future accident and they're going to...

0:18:25.7 Rhiannon: Right, this is a public safety issue, exactly.

0:18:26.9 Peter: Yeah. But Thomas says, look, it doesn't matter that they followed the guy for five minutes and he drove perfectly, because maybe he was just being cautious because he saw a cop, which like... A couple of things.

0:18:41.4 Michael: Look, guys, I don't know if you've ever driven drunk.

0:18:44.6 Peter: All my drunk drivers now. The reason the cops are showing up is because they got a tip that they believed implied that this person is inebriated. When you are incapacitated to the point where it is illegal for you to drive, it is not easy to simply fake having motor skills and cognitive function for extended periods of time. Your fucking neurons are slowing down, dude.

0:19:09.0 Rhiannon: Right, like, you know, put driving aside. Like if you're just chilling and you're high or you're drunk, and then all of a sudden you tell yourself like act cool, act cool, dude, act cool. You can't do it.

0:19:22.0 Peter: How often does it work?

0:19:24.7 Rhiannon: Just sitting on the couch, you can't do it normal.

0:19:26.8 Peter: Look, a drunk person can probably in certain circumstances with adrenaline snap to for brief periods of time. Five minutes is not a brief period of time.

0:19:38.7 Michael: If you're hammered enough to be running car off the road, that's...

0:19:42.2 Peter: And all of that to say, look, if these people were drunk, the cops almost certainly would have seen it in a five-minute window of following them. What Thomas actually says is "extended observation of an allegedly drunk driver might eventually dispel a reasonable suspicion of intoxication, but the five-minute period in this case hardly sufficed in that regard." What he's saying is, look, five minutes isn't enough to know whether he's drunk or not. Here's the fucking thing, though, they didn't just have five minutes. They had as long as they wanted to observe this car. They only took five minutes because they didn't feel like waiting anymore, and then they just pulled the dude over, got lucky and found some weed. So how the fuck can the fact that the cops only observed them for a few minutes before deciding to pull them over make this stop more constitutional than if they observed it for longer?

0:20:38.5 Rhiannon: I just realized how stupid that is, oh, my God.

0:20:41.9 Michael: It's so dumb.

0:20:42.3 Peter: This is sort of the heart of why this case sucks so much, in my view. If cops got a tip that some guy had a kidnapped child in his trunk, then there may be an argument for allowing cops to pull that guy over immediately, because there's a big risk in not doing so, and the cop cannot directly observe the illegal activity.

0:21:02.6 Michael: Oh, they're driving like they got a body in the trunk.

0:21:08.7 Peter: In this case, though, someone is saying essentially that someone is driving recklessly. That is something that is perfectly ripe for the cops to confirm. If our Constitution means anything, surely it means that the government cannot force you to stop what you were doing just because its agents are too lazy to figure out whether or not you're breaking the law. That's exactly what happened here. They're like, alright, we hear that this guy is maybe driving recklessly, they follow him for five minutes and he's not, and they're like, well, I'm tired of this shit, let's just pull the guy over.

0:21:42.4 Michael: This is getting boring.

0:21:43.6 Peter: Yeah, so that's it. Those are all of the reasons that Thomas provides for saying that this is a trustworthy tip, it's that the tipster used 911 and that she knew the make and model of the car, and that she appeared to have called the tip in shortly after the incident occurred.

0:22:00.2 Rhiannon: You know what, all of those reasons also indicate that someone knew these people and wanted them to get pulled over.

0:22:10.1 Peter: That's a great point, 'cause lingering in the back here is the fact that maybe, maybe someone calling 911 and saying, hey, this person was driving recklessly, and then it turns out that when the cop follows them and they're not driving recklessly and then bang, they've got 30 pounds of marijuana, maybe that's not a coincidence. Maybe the caller knew there was marijuana in the car. Now, again, this is speculation, there's no information about this, we don't really know, but it's I think worth considering when you're talking about an anonymous tip.

0:22:42.2 Rhiannon: Right. And when you're talking about what the police can do with very initial vague information that's not corroborated.

0:22:50.3 Peter: There's a couple of options, right, maybe it was someone who knew them and very much just approved of their drug dealing, maybe it was a rival drug dealer or someone who had an interest in seeing them thwarted in their effort to transport the marijuana. But it doesn't really matter which one of those it is or whatever, because the bottom line is, if any of that is true, then the tipster is lying and was not run off the road, and the tape is not reliable, and the entire Supreme Court decision is predicated on the idea that it is reliable.

0:23:17.9 Michael: Right, and I don't think the Court is actually... Nor are the prosecutors or the cops or anyone is like, missing that point. I think there's a degree to which this opinion is dishonest, and there's like a sort wink wink like, yeah, maybe that was what this sort of tip is, but we're fine getting those sorts of tips 'cause it lets us get marijuana off the street. But if that's the claim, it should be stated and it should be defended, because if you're furthering the interests of a rival gang, for example, I think you're hard-pressed to say that that's actually in the greater public interest and that it's protecting public safety.

0:23:55.0 Michael: I don't think that's something that should be blithely accepted because it allows you to get a headline arrest. And I will say, my upstairs neighbors are like, they must be like CrossFit freaks or something, and since the pandemic, with all the gyms closed, they work out constantly, it's like multiple times a day, they're like jumping rope and shit right over my bedroom at 2 AM or... It's bizarre, but I would definitely call in a fake anonymous tip if I thought there was a chance I could get them arrested. 100%.

0:24:32.8 Peter: Look, the bottom line is very simple. What Thomas's majority opinion does not address is the fact that a tip being anonymous almost certainly makes it less likely that it is actually true, and like we can speculate about rival drug gangs and shit like that all we want, 'cause it's fun, that bottom line remains true regardless, and Clarence Thomas is basically giving that his blessing. Although in his defense, maybe we can assume that Clarence Thomas, a man who made his marital vows to Ginni Thomas, a QAnon proponent who had a fairly sizeable role in the January 6th insurrection in Washington DC, is perhaps not the foremost scholar on the concept of trustworthiness or reliability.

0:25:17.6 Michael: Yeah, I do want to note, like there's a footnote early in the opinion where Thomas says like, look, it's not clear that the tip was actually anonymous, but thanks to some procedural quirks at the very beginning of this case, it has to be treated as anonymous in this case. And I have to say, I think that's doing some work here. Like, for all the talk about treating this as anonymous, a lot of the argument is this sort of hand-waving back during the idea that it wasn't anonymous, oh, look, 911 calls can be traced and blah, blah, blah, blah, technology has advanced so much. And that's just a poor, lazy way to handle an important constitutional issue. Using a case where you suspect the tip wasn't actually anonymous as the use case for setting rules going forward for actually anonymous tips, it's terrible law-making, if you want to call it law-making, it's terrible jurisprudence. However you want to frame it, it's just very bad.

0:26:16.1 Peter: I think, Michael, that you're right about how Thomas perceives this. Just to give our listeners some color, basically, what Thomas points out is that we don't actually know if it was an anonymous tip. It is sort of agreed upon by the parties that it was for the sake of procedure. So when the Court evaluates it, the Court has to evaluate it as if it is definitely anonymous. In reality, we don't 100% know, and I think that Thomas thinks that it wasn't, and he's just sort of like, well, this wasn't really an anonymous tip, and that's how he's going. But the law now applies to anonymous tips, so it doesn't matter, it doesn't matter if it was or not.

0:26:49.0 Peter: And maybe the most important point against the cops here goes completely unaddressed by the majority. The question is whether this tip was enough for the cops to say that they have reasonable suspicion of illegal activity. And like I mentioned, the majority acts as though it's sort of a given that the tip suggested that the driver was drunk. Thomas talks about this as if this is like a matter of intoxication throughout the opinion, but what the 911 call actually said was that this car ran me off the highway, not that the driver seemed drunk or was generally driving erratically. Saying that someone ran you off the road can mean a number of things, it isn't even really saying that the other person broke the law, it might have been an innocent mistake, it might have been a reaction to another driver or a pot hole or an animal.

0:27:39.9 Peter: So not only is the tip anonymous, but even if you assume that it's true, it's not clear that it implies that the driver in question broke the law. And what that means is that the Court's holding here is that an anonymous tip stating that someone made a single potentially reckless driving move on the road is enough to make a cop reasonably suspicious that that driver is intoxicated, even if the cop observes them driving perfectly for five minutes afterwards. That is an egregious outcome, even by Supreme Court standards.

0:28:16.5 Rhiannon: Yeah, absolutely, it rubber-stamps bad policing, I think, and it does what we've said the Supreme Court does in a lot of cases having to do with police power, which is take the institution of the Court out of the conversation, out of being an accountability on the massive institution and the massive power of policing. And I think this is a good time to talk a little bit about the Confrontation Clause in the Constitution, because reports that are made by anonymous tipsters bring up this really important constitutional concern for me. So the Confrontation Clause is in the Sixth Amendment of the Constitution, and it provides in part that "in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him," and so generally that means that if you are accused of a crime that you have the right to have a face-to-face confrontation with witnesses who are offering testimonial evidence against you.

0:29:24.8 Peter: The right to confront your accusers.

0:29:26.8 Rhiannon: Right, exactly. And that's important for a lot of reasons, and is a long-standing legal tradition. It comes from English common law, it comes from Roman law, that you have the right to defend yourself openly...

0:29:39.7 Peter: It also comes from the streets, if someone was like, hey, Rhiannon, did you punch that chick? You'd be like, who the fuck said that? Who said I punched her?

0:29:46.3 Rhiannon: Exactly, exactly. And take my name out your goddamn mouth. Right, it makes logical sense. This is how... This is how like accusations work. So the importance of the Confrontation Clause I think is clear, but can sometimes need a little bit of explanation. Confrontation ensures reliability in the adjudication process. You can trust that someone was given fair proceedings, someone who was accused of a crime. When you require that an accuser must state that accusation publicly, that they are subject to cross-examination and that their testimony and their presentation can be scrutinized for reliability. Now, the Confrontation Clause applies to trials, if you take a case all the way to a trial, but that idea of scrutinizing evidence for reliability and to scrutinize a witness for their reliability and the truth of what they're saying, that concept is absolutely at play when cops are gathering evidence.

0:30:51.5 Rhiannon: Cops write into their reports, "this person doesn't seem credible, it seems like this person is lying, or this person seems credible because of all of this corroborating evidence." Anonymous tips allow for skipping over that accountability mechanism, and I think when we're talking about originalism and originalists' interpretation of the Constitution, it's something that's always struck me is that literally four out of the ten Amendments in the Bill of Rights are explicitly about the rights of criminal defendants.

0:31:24.2 Peter: That's why they're treated so well in this country.

0:31:27.2 Rhiannon: If you're not counting the Ninth and Tenth Amendments, which are just sort of broadly about non-enumerated rights anyway, you're left with eight Amendments in the Bill of Rights that enumerate specific rights. Four of those passed are about the rights of criminal defendants. So originalists, the Founding Fathers must have been concerned about something really fucking important, and Clarence Thomas is just like, it has nothing to say about that. And that leads me to sort of Supreme Court treatment of the Fourth Amendment more specifically.

0:32:03.5 Rhiannon: The Fourth Amendment protects everybody from unreasonable searches and seizures and what's happened in the post-Earl Warren Supreme Court era, so the last, whatever, 60 years, what's happened is that Fourth Amendment jurisprudence from the Supreme Court actually has failed to protect us in that original vision of the Fourth Amendment, and actually just serves to tell cops now how to lie and how to present their cases and how to write their reports so that it won't be scrutinized by courts. When you're just sort of rubber-stamping and blindly affirming expansive discretion to the police and giving them more and more power, when courts should be the accountability mechanism, taking a much more skeptical approach to what cops are doing, that's a problem. And I think this case exemplifies that perfectly.

0:33:04.1 Peter: One of the first times I saw a police report, which is just a tiny slice of your life, Rhiannon, the cop said, "I was reasonably suspicious that X, Y, Z." And I was like, "Wait, can he just say that?" Like, you know... Yeah, it's the Supreme Court in the '60s said you have to have reasonable suspicion. And then the cop's just like, "Yeah, I was reasonably suspicious," just mimicking the language.

0:33:25.2 Michael: And then later on that gets expounded on, they say particularized facts, and so they learn which facts count. And cops pay attention to these cases, and they write their reports to conform to the standards set forth, but that's report writing. They don't conform their behavior to them, they just learn how to describe their behavior in a way that puts them above judicial review.

0:33:54.1 Rhiannon: That's the perfect articulation, Michael, and I think when you talk to any public defender, for sure I've said this before, any public defender in the country will say cops lie in every single case. And that's exactly the problem, is that the law here, Supreme Court jurisprudence on the Fourth Amendment has not held police to account in terms of their behavior, it has only held police to account in terms of what they report they saw or what they report they gathered in terms of evidence. And this case right here, it helps police lie. You're giving them massive power to attribute their own sort of illegal stop of somebody or their use of an informant, and you're allowing them to attribute it to "anonymous tips" for which they don't have to show any proof or corroboration. And so you're further dodging the protections in the Constitution against unreasonable searches and seizures and against the Confrontation Clause.

0:34:53.1 Peter: Yeah. Scalia's dissent in this case actually has a moment of legal realism where he's discussing all these things that we're discussing, and he explicitly says, I think it's page 1 of his dissent, he's like, cops read these decisions closely, so that they know exactly what boundaries they can push. And again, it's hard to overstate how true that is. I do a little bit of research for this podcast, and part of that is I will Google our cases to see if there's like any interesting Law Review articles or blog posts, and I'll search for podcasts to see if any other podcast has covered it and make sure we're not treading on the same ground or whatever.

0:35:29.0 Peter: And every time we do a cop episode, I will find the same thing. Podcasts by cops for cops that explain in five minutes the Supreme Court decision with sort of an emphasis on like, here's what this means you can do. It's bizarre, but there's a whole ecosystem of it. They're talking to each other about this shit, about how to abuse it, and that's why these decisions need to do more than just sort of give rules to cops, they need to actually check the power of cops.

0:36:01.2 Peter: In our fifth episode, which we mentioned earlier, Terry v. Ohio, we talked at length about the propensity of cops to lie under oath in order to justify their own actions as well as to support convictions. It's been almost a year since that episode aired, so worth reiterating a couple of points. Research and reporting has shown the police lying under oath, which they have a name for, police call it testilying, is a serious and ongoing problem. So any time the Court allows cops to operate on their own discretion, that's what you're risking, you're placing the public trust in an institution that we verifiably know we cannot trust.

0:36:39.2 Peter: So if you accept that the police are not reliably honest in testimony, which is frankly just empirically true, think about what this case can do for them. This is the Court saying, hey, all you need to pull someone over, any citizen, or to stop and frisk them, is an anonymous tip that says that they maybe did something wrong. Think about what a dishonest person could do with that standard. Think about what a cop who is trying to justify after the fact a stop could say. All you need now is to say that you had a tip, and who was the source? Oh, can't tell you. This is a dishonest person's dream.

0:37:26.2 Peter: It's hard to impress upon people. There's something that I, even I, before talking to you, Rhi, extensively, probably underestimated, but I'd also done... I've done some class action litigation about public defense, and the extent to which police officers are lying really cannot be impressed upon our listeners enough. It is enormous. We're not talking about bad apples, we're not even talking about 50% of a department, we're talking about situations where every time you're unsure about a detail, it is commonplace and accepted and encouraged implicitly and explicitly to lie.

0:38:06.0 Rhiannon: Yeah, that's exactly right. And I think what I wish listeners would take away from this kind of episode is how the Supreme Court takes part in that culture-building, because what they do with a case like this is open the door to so much more lying. When you tell police that an anonymous tip is enough to pull somebody over, an anonymous tip is enough to stop you on the street and frisk you, you are opening the flood gates in terms of how police are going to use "anonymous tips" in their investigations.

0:38:41.7 Rhiannon: As a public defender, I have not an insignificant amount of cases at any given time that originate out of an anonymous tip. You don't ever find out who that person is, you don't ever know the circumstances of the report, you don't know anything about that person and about how this information originated against somebody who is now facing the full weight of the state, the full violence of the criminal punishment system, based on a complete question mark. And that I think brings me back to the goals of policing, like the way this jurisprudence has shifted and contributed to this culture where police [0:39:24.6] ____ just a ton of stops, pulling people over all the time, arresting them based on jack shit, and that being the goal of policing rather than public safety. The role of cops, ostensibly, is to keep us safe, and this case expands the power of police to stop someone who is driving perfectly.

0:39:48.8 Rhiannon: How does that serve public safety? At the heart of this case is a regular 911 call, reporting some alleged erratic driving, and the Supreme Court takes it and turns it into a massive gift to police in terms of their ability now to build a huge tip solicitation infrastructure, where police are constantly pushing the boundaries on what they can do, by saying it's for public safety. Police departments all over the country now solicit anonymous tips. There are tip lines that you can call, and you don't have to say who you are, and you don't have to say why you're reporting something, and you never have to show up in a court of law, it is just for the anonymous reporting of crimes. And so then as a step off, when we know what the police do on communities of color, which is enact violence constantly, it just makes me fucking sick like to think about this case and what it did for police.

0:40:49.5 Michael: Right, right. And it's like, with the old stop and frisk cases, at least ostensibly, the cop is supposed to have witnessed something, something that would raise their suspicion. In this case, not only do they not have to have witnessed anything, they could witness perfect behavior. And they don't even have to have a tip alleging criminal behavior, they just need a tip that alleges something that sounds like it might be criminal behavior, maybe, or it might imply future criminal behavior. And on those grounds, they can stop you. It is so lax, there's so much discretion being given to cops here, and you know, the bottom line is we know what cops do with their discretion. They fucking abuse it.

0:41:31.5 Peter: And the one thing we haven't said that we should say, that we always have to say in cases like this, is I think a lot of people just sort of roll their eyes at stuff like this and say, well, these guys had 30 pounds of marijuana, so who gives a shit? And the bottom line here is that, of course, they had drugs on them, because if they didn't, they wouldn't have appealed, they wouldn't have had any reason to appeal. If the cops had just stopped them, bothered them for no reason and let them go, they wouldn't have sued. They're suing because they don't want to get in trouble for the 30 pounds of marijuana.

0:42:02.4 Peter: That's why every time there's a case like this, they always found something, they always found a gun, they always found some drugs, and it allows people to sort of just ignore it. Well, they were criminals anyway. We're not advocating for a system that is designed to give free rein to criminals, we're advocating for a system that is designed to prevent cops from pulling over whoever the fuck they want, and that's going to include a small percentage of criminals, and it's going to include a huge percentage of people who are just going about their business every single day.

0:42:33.3 Michael: Right. It's unfortunately the case that the boundaries of your rights, the specifics of your rights and the boundaries of the state's power over you, are often gonna be decided by criminals, by people who are found with drugs or weapons or committing a crime, sometimes a very heinous one. That shouldn't matter. What should matter is the state's power over you, the way it exercises its monopoly in violence and when it can and cannot exercise that violence.

0:43:02.7 Peter: Yeah. And now for a flawless transition. Let's talk about Supreme Court Justices. So as we have noted, Antonin Scalia writes the dissent here. Scalia really has a single area of the law where he's good, and it's the Fourth Amendment, searches and seizures.

0:43:21.2 Michael: Yeah, some people give credit for First Amendment, but I think he's pretty just...

0:43:25.3 Peter: Yeah, I agree with that. He had a real libertarian streak that left him sort of very skeptical of the ability of police to intrude into citizens' property and into their personal space. That doesn't mean that he was good for criminal defendants' rights generally, his jurisprudence on the rights of defendants in interrogations and on cruel and unusual punishment, for example, horrific, some of the worst in the biz. And I think the best explanation for this is if Justice Scalia could imagine himself or someone he knows being affected by something, then he was very concerned with it. So the ability of police to pull you over is something he's sensitive to, right, it's an experience almost all of us have had.

0:44:04.4 Michael: Scalia was known for his excess.

0:44:06.9 Peter: That's right.

0:44:07.2 Peter: Yeah. He was also known as a man who drinks, and in his dissent he sort of is like, Clarence Thomas is obviously a fucking straitlaced freak, 'cause he's not drinking much, and Scalia is like correcting him. Scalia's like, no, when you're drunk, bro, let me tell you, you could not drive straight for five minutes, dude. He really relates to this. He's like, are we pulling over everyone who's swerving a little bit? But the further you get from his own personal experience, like an accused person in an interrogation room or on death row, the less he seems to care.

0:44:43.9 Peter: Now, you might think that that analysis is speculative and in bad faith, but so is basically everything the man ever wrote, so I don't give a shit.

0:44:51.5 Michael: That's right. That's right.

0:44:54.5 Peter: And the other interesting thing here is Justice Stephen Breyer joining the conservatives in the majority. Breyer was appointed by President Clinton in 1994. He is now 82 years old. Given the outcome of Justice Ruth Bader Ginsburg's decision to stay on the Court rather than give up her seat when she could be replaced by a Democrat, there is growing discussion on when Breyer will step down, and growing pressure on him to do so. This case is a good example of an area where Breyer is, simply put, a conservative Justice.

0:45:26.7 Peter: His jurisprudence on the Fourth Amendment is quite bad, and because the Fourth Amendment is an area where Scalia was actually quite good, it was Breyer's vote that often gave the win to conservatives. So it's not just that Breyer should step down because he will be replaced by someone younger, he should step down because he will be replaced by someone better, and you can thank him personally for the freedom that cops have to invade your space in this country.

0:45:51.6 Rhiannon: Yeah, and I just want to say, Stephen Breyer, you're a mealy-mouthed fucking worm bitch, and I don't like you. You think you're cute, you think you're very clever on the bench when you're asking questions. You're not funny, you're fucking old and you suck at this. God, can you imagine Stephen Breyer just spending maybe an hour in central booking somewhere at like 2:00 AM, like what that would be like?

0:46:18.5 Michael: I cannot.

0:46:18.5 Peter: He believes that he could use his logic and reason to get his way out of that situation.

0:46:22.4 Rhiannon: Right, exactly. He thinks he's much too smart to ever be arrested.

0:46:26.4 Peter: I think that if you look back at the Supreme Court for the last 40 years, there have only been a couple lines of cases that have been consistently liberal. Gay rights in the past 25 years is probably the most prominent one. The Fourth Amendment would have been another, if Stephen Breyer was an actual liberal on it.

0:46:45.9 Rhiannon: Really good point, Peter.

0:46:47.1 Peter: It's crazy to think about it, but the entire line of cases that has brought us to where we are today in terms of the ability of cops to interfere with your space and person is on the back of Stephen Breyer.

0:47:01.4 Rhiannon: Law students, I have a paper idea for you: Stephen Breyer on the Fourth Amendment and how he was a conservative, and it's all his fucking fault.

0:47:09.5 Peter: Here's another one: 5-4 and how it's changing the country's view of the law.

0:47:15.7 Michael: Alright, now shut the fuck up. I've been trying to say something for 10 minutes and you guys keep interrupting each other while I'm going, "Uh... Uh... "

0:47:25.1 Peter: Sorry that we're vibing too hard for you.

0:47:29.2 Michael: What I was gonna say is that Stephen Breyer... We keep saying he's a conservative, and I think that's a quirk of American politics, I think that he's very comfortably like a big state liberal. Because of the way race works in America and the way police work in America, it turns out that like the left and liberals have a very civil libertarian streak, but that's not... Like liberalism and the left are often associated with a big, powerful state, a big central government, and a big powerful police force is like, goes well with that. Breyer is very much in that sort of mode, and his trust in the federal government to get the welfare state right and to get all this other stuff right extends to his trust in the police, and that makes him very conservative in a country that's so racially and class stratified, where the police are used to hold the hierarchies in place and hold the poor and minorities down. That's all I wanted to say.

0:48:28.0 Rhiannon: Gorgeous. I'm so glad that you asserted yourself.

0:48:31.4 Peter: You are welcome.

[music]

0:48:39.9 Peter: Alright, closing notes: Fuck the police. Next week, United States v. Morrison, a case about the Violence Against Women Act of 1994 and how it interacts with interstate commerce. Whoof. I love the law.

0:49:00.3 Rhiannon: Titillating. Titillating stuff.

0:49:00.6 Peter: What an incredible [0:49:01.6] ____. Rhi, don't mock the episode.

[laughter]

0:49:09.0 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

Morse v. Frederick+

0:00:00.4 S?: We'll hear argument first today in case 06-278, Morse v. Frederick.

[music]

0:00:07.8 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode, Peter, Rhiannon and Michael are talking about the free speech rights of students. In 2007, the Court ruled in Morse v. Frederick that a high school principal had the right to suspend a student for holding a provocative sign during a school-sponsored outing.

0:00:27.4 S?: As the symbolic torch was carried through Juneau, Alaska on its way to the 2002 Olympics, Douglas student Joe Frederick unfurled this banner: "Bong Hits 4 Jesus."

0:00:39.3 Leon: The case created a precedent that allows schools to punish students for speech, even when they are not disrupting academic activities. The case also says a lot about whose free speech the Supreme Court really cares about.

0:00:51.3 S?: I find it absurdly funny. I was not promoting drugs. I assumed most people would take it as a joke.

0:00:56.4 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:05.2 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have like a mighty river wound their way over the great rock of our liberty, reducing it over many years to a canyon of despair. I am Peter. I'm here with Michael.

0:01:19.8 Michael: Hey, everybody.

0:01:21.5 Peter: And Rhiannon.

0:01:23.5 Rhiannon: Hi.

0:01:24.2 Peter: Alright, this is our first episode of the Joseph Robinette Biden presidency.

0:01:29.3 Rhiannon: Robinette.

0:01:32.3 Michael: Robinette.

0:01:33.1 Rhiannon: You gotta roll that R.

0:01:33.4 Peter: Do you?

0:01:33.8 Rhiannon: It's a rolled R, for sure.

0:01:35.5 Peter: Yeah, it's been an interesting few weeks. Inauguration went off without a hitch. I guess from my perspective, it's time for Stephen Breyer to die or retire.

0:01:47.7 Michael: That's right.

0:01:48.7 Rhiannon: That's what Lady Gaga meant when she was singing the national anthem and she pointed at the flag... The flag was still there. What that means is Stephen Breyer, retire, you fucking bitch.

0:01:48.8 S6: That's right.

0:01:48.2 S7: That's what Lady Gaga meant when she was singing the national anthem and she pointed at the flag. The flag was still there. What that means is, Stephen Breyer, retire, you fucking bitch.

0:01:58.8 Michael: Yeah, if you read between the lines.

0:02:00.6 Rhiannon: Right.

0:02:00.7 Peter: Right. Stephen Breyer, yeah, he should be retiring. It would be a good time. Remember the opening scene of Prometheus?

0:02:09.4 Michael: Yes.

0:02:10.3 Peter: Where the alien dude drinks the concoction and then his DNA breaks down and he dies and dissolves into the waterfall?

0:02:16.2 Michael: Yes.

0:02:16.3 Peter: If he could do that, that would be cool too.

0:02:17.6 Rhiannon: Sure. I would accept, yeah.

0:02:18.7 Peter: It's... Sacrifice for the greater good, was the theme of that scene, I think.

0:02:22.9 Michael: That's right.

0:02:23.3 Peter: I don't know. I didn't really understand Prometheus.

0:02:26.2 Michael: The movie doesn't make any sense. But I do think like, look, they just elevated Merrick Garland or pulled him off the Court, and so they'll probably put Ketanji Brown Jackson in his spot, and then in June, July, Breyer retires at the end of the term, and they elevate Ketanji Brown Jackson to the Supreme Court.

0:02:49.9 Peter: Yeah.

0:02:51.8 Michael: Inshallah. Inshallah. Please, let's not...

0:02:55.9 Peter: Yeah, yeah. I don't think that he should have stepped down by now, but I would like to start the public campaign to pressure him right now.

0:03:02.6 Michael: Absolutely.

0:03:03.2 Rhiannon: Absolutely. Yeah.

0:03:04.0 Michael: Before the next term.

0:03:05.7 Rhiannon: Yeah, and that's what J. Lo was doing when she sang, "Let's get loud" in the song, she was talking about making sure that our voices are heard, in particular, Stephen Breyer, retire, bitch.

0:03:18.1 Peter: Yeah.

0:03:18.2 Rhiannon: That's what she's talking about.

0:03:18.3 Peter: See, this is the difference between us. I listen to those songs, but you really hear them.

0:03:22.3 Rhiannon: Yeah, that's right.

0:03:24.5 Peter: So, today's case is Morse v. Frederick. This is a case about free speech. We've done a few episodes about the Court's protection of corporate speech, but this is a different kind of case. This is about the Court's lack of protection for the speech of individuals. This case has a fun set of facts. In 2002, the Olympic torch relay was running through Juneau, Alaska, right by the local Juneau Douglas High School. All of the students and teachers were excused from class to go outside and watch. Joseph Frederick, a high school student, gathered with some friends across the street from the school, and when the torch came by and the TV cameras were on, they unfurled a banner that said "Bong Hits 4 Jesus." That's the number four, by the way. Bong Hits 4 Jesus.

0:04:09.6 Rhiannon: Yes, aha, note the stylizing.

0:04:11.6 Peter: The principal stormed across the street to seize the banner from them, and then Frederick was suspended from school, and then he sued saying that unfurling a banner that says "Bong Hits 4 Jesus" across from the school during the Olympic torch relay was his right as an American under the First Amendment's protection of free speech.

0:04:33.8 Rhiannon: Tell 'em, Joseph.

0:04:35.3 Michael: He's fucking correct.

0:04:40.0 Peter: And the Supreme Court a few years later in 2007, in a 5-4 decision, disagrees, holding that the student's banner was not protected by the First Amendment.

0:04:48.0 Rhiannon: Right.

0:04:49.6 Peter: So, yeah, this case touches on the conservative vision of social hierarchy, and it also touches on a conservative tendency that we haven't really discussed too much on this podcast, and that's just good old-fashioned puritanical morality. It's about the free speech rights of students, but in a larger sense it's about what you might call the outskirts of free speech, how does the law treat speech that it views as unimportant? How does it treat speech that comes from people who it views as unimportant? So Rhi, if you can give us a little bit of color here, a little more background?

0:05:22.5 Rhiannon: Sure, sure. So I think the important facts of the case, are, Peter, you just said them, right? But I have a couple of thoughts that I think are important up top. So, one is, important for listeners, I think, to place themselves in January 2002, in Juneau, Alaska. And I just would like to pose the question, what else are you supposed to do to entertain yourself? You fucking live in Alaska. This is a dream senior prank, and it is a classic example, I think, of pre-internet trolling. So Joseph Frederick, wherever you are today, I'm sure that you're an extremely powerful online poster, and for that I salute you.

0:06:08.3 Rhiannon: Like Peter said, classes at Juneau Douglas High School had been dismissed that day and students were to attend the parade, the Olympic torch relay, and that event was considered a school-sponsored event. So as punishment for displaying the banner that said Bong Hits 4 Jesus, the school principal, Deborah Morse, suspended Frederick for 10 days, and officially the school's reason was that Frederick had violated the school policy, which forbade advocacy for the use of illegal drugs. And if I can just maybe take the opportunity to editorialize a bit here, setting aside any legal argument about the permissibility or prohibition on this kind of speech, getting suspended from school for 10 days for doing this is wild to me.

0:06:55.4 Rhiannon: That's crazy punitive. That's a harsh punishment. But it is helpful, I think, to illustrate the sort of social moral panics that were prevalent at this time, because you see what it is that squares were getting their panties in a bunch over, and it helps to explain why the suspension was so heavy and then the way a fucking dork like John Roberts is talking about the apparent horror of a poster that says Bong Hits 4 Jesus. So again, this happened in 2002, and throughout the '90s, in particular, American middle class folks had been stoked into terror about so-called super predators. Experts were warning about an explosion of violent juvenile crime committed by black and brown youth, like media portrayals of this phenomenon were calling young people animals and savages, and people were often ascribing drug use or drug-related motives to the incidence of crime among young people.

0:07:55.4 Rhiannon: Another thing, people were freaking out about Dungeons and Dragons in the '80s and '90s, Christian groups especially were saying that the game promoted Satanism and witchcraft, murder, suicide among young people, and of course, you have the background since the '70s, really, of the war on drugs, and then in the '80s Nancy Reagan's Just Say No campaign, those ideas had sort of fully permeated public consciousness to the point that people believed largely anecdotal and hyperbolic depictions of drug use.

0:08:29.4 Rhiannon: We've previously discussed at length how the Supreme Court has unquestionably employed pseudoscience and propaganda in its opinions, and I think noting what the prominent like folk devils were at this time in American society is helpful when you look at this case and pick apart what kind of rhetorical devices dusty ass John Roberts is using.

0:08:51.5 Peter: Another component of the '90s moral panic in this is there was a lot of concern about slogans on t-shirts and stuff that children were wear to school, like if you guys remember the No Fear brand of shirts.

0:09:05.8 Rhiannon: Absolutely, yes.

0:09:06.9 Michael: I had a sweet note here.

0:09:11.1 Peter: Yeah, so some kid shows up to school with like a No Fear shirt and it says "It's not the size of the dog in the fight, it's the size of the fight in the dog." And I was eight years old, looking at that like, holy shit, that is a bad ass, dude.

0:09:25.4 Rhiannon: I will never forget this. My older cousin, this would have been early 2000s, for sure. Limp Bizkit was a popular band, and my cousin got a shirt and wore it to school. The shirt said "I come to school for the nookie." This was very, very scandalous.

0:09:46.3 Michael: Oh, my God.

0:09:48.3 Peter: The Simpsons made fun of this in what must have been the mid-90s when Bart wore a shirt that said "down with homework" and it incited an anti-homework riot. And there was this idea that if children are exposed to these sorts of slogans, it will slowly unravel the social fabric that binds students and it will be pure chaos. You will be unable to control them. So that is important background, I think.

0:10:15.7 Michael: Before we continue, did you guys do any pranks like Bong Hits 4 Jesus or anything like that?

0:10:19.3 Rhiannon: Oh, God, no, I was way too good of a student and kid.

0:10:23.3 Peter: I was not a good student, I was an unruly student, for sure, but we didn't do anything on this scale, I don't think. No, I just dealt drugs.

[laughter]

0:10:36.2 Michael: We did, it's not as overt, but we had these big senior pictures, one like everybody just sitting in the bleachers and one everybody being crazy, you know, whatever. And for the crazy one, some of my friends unfurled a banner that said "Number one stunner," which was the name of the three foot bong that was very popular and passed around at all the parties. So it was more of an inside jokes, but everybody in the class itself knew exactly what that was.

0:11:09.7 Rhiannon: Being a kid is cool.

0:11:12.5 Peter: So let's talk a little bit about the law here. This is a free speech case, First Amendment free speech, and more specifically, this is about student free speech. So as you probably know, the First Amendment prevents the government from unduly abridging your speech. And so at some point, someone said, well, hold on. Doesn't that mean that public schools can't infringe upon the speech of their students? And there's sort of a tension there, right, like the First Amendment says that you have the right to free speech, but public schools also have a need and a responsibility to regulate the student conduct to some degree.

0:11:42.8 Peter: So it was for a long time unclear exactly how much the First Amendment applied in the classroom. And in 1969, in a case called Tinker v. Des Moines Independent Community School District, the Court said that actually, yeah, students do have some free speech rights as long as their speech does not cause a "substantial disruption" to schooling. And in that case, students who wore black arm bands to protest the Vietnam War had been disciplined and then they said that that was unconstitutional, and the Supreme Court agreed.

0:12:13.0 Peter: So that's the standard that the Supreme Court is applying from that point onward: Students are allowed to exercise their free speech as long as it is not "substantially disrupting" the school environment. And then in the '80s, there was a case called Bethel School District number 403 v. Fraser, where a student gave a student body campaign speech that was almost entirely a lengthy and fairly obvious sexual metaphor, and the Supreme Court there said, okay, well, it's not disruptive, but it's too sexually vulgar. The Constitution does not protect this level of horniness.

0:12:49.5 Rhiannon: You can't keep saying how long and hard you're gonna work for the student body.

0:12:54.5 Peter: Right, and that is basically what the speech was. There were other student free speech cases here and there, but this is the basic law that you're dealing with: Students in public schools do have free speech rights, but it can't be too disruptive to the classroom and apparently it cannot be too sexually vulgar. So let's talk about this case. Is holding up a banner that says Bong Hits 4 Jesus across from the school during the Olympic torch race too disruptive to be protected speech, or is it in fact exactly what our countrymen died for on the shores of Normandy?

0:13:24.8 Michael: That's right, Peter. The latter.

0:13:29.2 Peter: In a 5-4 opinion written by Chief Justice John Roberts, the Court says that this is not protected free speech. So the first question addressed by the opinion is whether Frederick was at school at all. Frederick says, hey, look, I was across the street from the school. He hadn't actually gone to school that day yet, he went straight to the place across the street, so he was saying I wasn't really at school. And that's important because, of course, students have fewer free speech protections when they're at school. So Robert says, look, if you're at a school event among students, you're at school, like the details don't matter that much.

0:14:04.8 Peter: And frankly, I tend to agree, although I think Roberts is over-simplifying it, it wasn't really a school event, it was an independent event that the school was attending. I do tend to agree that it's splitting hairs too much to say that he wasn't at school. So in the opinion, so far so good, but the next section is where Roberts really starts to go off of the rails. Again, the principal claimed to have disciplined Frederick because she believed him to be advocating illegal drug use. So there's an initial question of whether that's a reasonable interpretation of the banner. The banner says Bong Hits 4 Jesus. The kid says he saw it on a snowboard sticker and thought it was funny, and he wanted to get on TV. It's an on its face absurd, intentionally silly phrase.

0:14:49.8 Peter: So is it advocating illegal drug use? Roberts engages in an extremely funny textual analysis where he tries to break down exactly what it means, and he's taking the term bong hits and then trying to add language that it might be implying. And he's like, well, it could mean, take bong hits or bong hits are a good thing. Roberts concludes by saying that this is, quote, "a pro-drug banner." Now, I'll tell you one interesting thing, which is that when trying to break down what the banner means, Roberts never mentions the 4 Jesus part.

0:15:30.8 Peter: In fact, not once in his opinion, aside from when he initially describes the banner, does Roberts mention the 4 Jesus at all, and that's probably because if you read the whole phrase, it starts to sound a lot less like advocating for drugs and a lot more like a purposefully absurdist message that happens to involve drugs. No one actually thinks that this kid is advocating that one should take bong hits to honor our Lord Jesus Christ. And by the way, if he was, that would probably be protected religious speech, which is even more constitutional.

0:16:04.9 Peter: Justice Stevens writes the dissent and he says, "The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible."

0:16:18.5 Rhiannon: Got his ass. I love that so much.

0:16:22.4 Michael: So good.

0:16:22.4 Peter: I want to point out that I don't think that this is like super open and shut, there's a case to be made that this is in some abstract, vague way promoting smoking weed, but I do think that Robert's evasion of the actual content of the banner is telling, because he obviously doesn't want to address the nuance here.

0:16:42.4 Rhiannon: Exactly, totally.

0:16:43.1 Michael: Right. And related to that, one point to hit, I think, is that the concern driving this case, why make this a cause, is actually that just like religious Christians are simply offended by seeing Jesus's name taken in vain, and very provocatively so. And they're just trying to impose that on everyone else, it's that evangelical sort of dominance, cultural dominance, but that's not a basis for regulating speech, the fact that some Christian people are offended, and so the Court has to dodge that because if they start talking about the 4 Jesus part, that sort of seeps in. And look, you know, this could be read as a sincere message about love and community, supposed values evinced by Jesus, let's all smoke the peace pipe together. Is peace pipe problematic?

0:17:34.3 Michael: If it is, to our [0:17:36.3] ____ listeners, I apologize.

0:17:37.9 Peter: This is literally the second time on the podcast we've said it, so I hope not.

0:17:44.9 Michael: But look, pot in America has been associated with pacifism for decades, right, back to the Vietnam War at the very least. And this is right in the middle of... The war in Afghanistan is a few months old, there's a lot of talk of other war in the air, right, like the Axis of Evil speech is five days after he does this, so I don't think that's a crazy read on it. Bong hits instead of bombs for Jesus. Because that was the selling of the Iraq War and Afghanistan War, people were talking about it explicitly as Christianity versus the militant Islam, the inherently violent Islam.

0:18:23.0 Michael: So yeah, at the very least, it could be read... If you're gonna do these textual analyses like Roberts does, it could be read as a core political speech, a core religious speech. But they don't want to do that. They just want to skip it so that they can focus on the mention of drugs.

0:18:39.2 Peter: Yeah, exactly. So turning back to the opinion, now we get to sort of the heart of the matter. Can the school, under the First Amendment, discipline Frederick for advocating the use of illegal drugs? And Roberts says, "Of course you can, yeah." And this is part of why Roberts evading the nuance of the banner is so important, because it's a lot easier to say the school can discipline him for promoting illegal drug use than it is to say the school can discipline him for holding a silly banner that maybe could be interpreted by some people as promoting smoking marijuana.

0:19:12.0 Rhiannon: Yeah. And Roberts goes on this really lengthy discussion, it's straight out of 1985, about the dangers of drug use, so brace yourselves for the following horrifying statistics. He says, "About half of American 12th graders have used an illicit drug, as have more than a third of 10th graders and about one-fifth of 8th graders. Nearly one in four 12th graders has used an illicit drug in the past month." Gasp for emphasis. This is where it's worth pointing out, I think, that Roberts only ever talks about illegal drugs like categorically, but of course, like any functioning member of society in 2007 knew that marijuana is a uniquely safe drug, and it's not like all other drugs. Not to mention that there's zero reason to believe that a banner that says Bong Hits 4 Jesus would have any impact at all on drug use at this school. All this is, is puritanical, pearl-clutching bullshit.

0:20:17.4 Peter: Absolutely.

0:20:18.3 Michael: And Rhi said this is straight out of 1985, but if you ask me, the government telling you what you can and can't say is straight out of 1984. Boom.

0:20:32.1 Peter: Unbelievable.

0:20:34.2 Rhiannon: Got 'em, Orwell.

0:20:39.8 Peter: I'd like to take a step back here and talk about free speech under the First Amendment. The law looks at different types of speech restrictions differently. There are what we call time, place and manner restrictions, which restrict when and where speech can occur, and those are given a lot of leeway by the courts. So the government can say, "Okay, you can protest, but you need permits, and you can't do it at 2 AM and wake everyone up," right? It's mostly logistical. And what the courts are saying is, "Look, you can restrict speech as long as you are allowing it to happen in some way, shape or form."

0:21:13.4 Peter: But then there are content restrictions, which are restrictions on the type of speech you're allowed to make. And those restrictions are very rarely upheld, for an obvious reason. The core of free speech as a concept is that you can say what you'd like to say. So for the government to say, "Well, no, no, no, you can't say that," that strikes at the very heart of the ideal. And that's what we're talking about here. The school isn't saying you can't hold a banner up or you can't hold a banner up over there, they're saying, you can't hold a banner up if it says that.

0:21:44.8 Rhiannon: Right, exactly. And I think to let the government, even a school, control what you say, the content of your speech, that's a dangerous path to go down. Like the idea that this speech is harmful is really abstract, it's certainly not violent, so it can't be said to be promoting violence, it could maybe be said that there's this distant chance that the message could cause someone to contemplate smoking one of the least harmful illegal drugs on the planet. But is that the kind of speech you want the government to be able to regulate? That doesn't make sense.

0:22:20.8 Michael: Yeah.

0:22:20.8 Peter: There's this point that's sort of implicitly made by the majority in the concurrences here. They're saying, "Look, in Tinker, that case from the '60s, those kids were protesting the Vietnam War. That's like important, heady stuff. And this banner, this is just not important." And that's sort of a big part of the opinion here. And this stands out to me for a very simple reason, which is one of the primary purposes of free speech is that it's not the prerogative of the government to decide what is or what is not important, and that includes the Supreme Court. And it might be worth noting here that as absurd as the Bong hits 4 Jesus banner is, if it can be read by the majority to be promoting marijuana use, it can just as easily be read as promoting marijuana legalization, and that would be an unequivocally political statement that the government would not be able to suppress.

0:23:06.9 Rhiannon: Totally.

0:23:08.0 Peter: This might seem like too much of a reach, but I want to talk about it for a second. When you see people who have marijuana leaf t-shirts or stickers or whatever, what are they actually saying? Are they signaling that they like weed? Yeah, of course, to a degree, that's obviously true, but a lot of people like cocaine and heroin, so why don't you see themed paraphernalia for them?

0:23:27.3 Rhiannon: Right.

0:23:29.1 Peter: Right? I think the big reason is simple, people who put weed leaves on their snowboards and whatever, aren't just saying they like weed, they're making a statement that they believe that it's okay, that they believe that they should be able to do it, and that they should be able to announce that they do it and not take shit for that. It's in many cases an implicit statement that our laws concerning marijuana should change, or that our social attitudes concerning marijuana should change. Is it purposefully fun and silly to a degree? Yes, but it's just as much a political statement.

0:23:57.9 Peter: You see the similar deployment of iconography by people who are into guns on the right, right? If I want to make a comparison on the other side of the spectrum. The culture is simultaneously about enjoying guns and also about making a political statement. And I'm not trying to get too melodramatic about this kid's dumb banner, but what I'm saying is that the line between absurdity and a serious political statement is often a lot less clear than you might initially think, and we should be careful before we let the government start treading all over that line.

0:24:25.7 Michael: Right, and like earlier, we talked about the context of religiosity and warmongering that was in the air, but also there's a far more nuanced message here than just do illegal drugs. Some other context worth considering is just that this was being broadcast literally all over the world. It's the Olympics, everybody's watching, and there's this inherent statement, which I think is reflected in this lawsuit itself about free speech itself, that this is a country where you can hold up a dumb sign like Bong Hits 4 Jesus. And that could be received as not just absurd or funny by citizens of other countries, but as an expression of freedom and liberty that they might not have themselves.

0:25:07.5 Rhiannon: Totally. Yeah.

0:25:08.9 Michael: It's like an important core value here.

0:25:11.2 Rhiannon: Right.

0:25:11.5 Peter: Absolutely.

0:25:13.3 Michael: Except apparently we don't have them, it turns out.

0:25:18.0 Peter: That's right.

0:25:18.6 Michael: So I also want to... Continuing from our lack of liberty, we should talk about Thomas's concurrence, 'cause this shit is crazy.

0:25:29.1 Rhiannon: This is a step inside the mind of somebody... Wow.

0:25:34.8 Michael: It is not pretty, and it's also not honest, it is like a phenomenally dishonest opinion. The basic gist is that Thomas doesn't believe students should have any free speech rights when they're in school, he doesn't think those kids who wore black arm bands to oppose the Vietnam War in the '60s should have been allowed to do that. He wants that case overturned, he's an originalist, so he thinks we should base our analysis of what's allowed by the Constitution on what people were doing around the time of the Founding.

0:26:05.8 Michael: Thomas says in 1820, if a student was out of line, a teacher could take a belt with nails in it and just whip you in the back.

0:26:17.3 Peter: Which is proof that students shouldn't have free speech rights now. You can't argue with that.

0:26:25.8 Michael: It's worth noting that pretty much everybody agrees that the First Amendment is much broader now and provides much more speech protections for everyone than it did at the time of the Founding. That's just like a fact. You learn that in law school. It's also a pretty uncontroversial opinion that that's a good thing, and we should not wind back the clock. But Clarence Thomas is like, "I agree and disagree. Free speech is far more protective of expression now, and we should wind back the clock." All of his historical analysis is done by looking at regular practice in schools prior to 1850, which like, okay, if you're an originalist, that kind of makes sense, except that the First Amendment didn't apply to the states prior to 1850. And he even says that, he recognizes that, and in fact, the First Amendment wasn't fully incorporated against the states until 1925, so who fucking cares what was happening in 1840, how does that have any relevance to how the First Amendment works here.

0:27:26.0 Michael: It's totally nonsense. And so what does he say is going on in these schools that he thinks is constitutionally permissible? He says: "The earliest public schools, teachers taught and students listened, teachers commanded and students obeyed. Teachers did not rely solely on the power of ideas to persuade, they relied on discipline to maintain order." And if that sounds sort of fucking authoritarian to you, you should know that he uses the phrase "maintain order" at least two other times in this opinion. It's just...

0:28:03.9 Rhiannon: God, just addicted to rigid social hierarchy for no reason, and pointing to this invented tradition again as the model that we should be emulating. For what? Like shit was bad back then, bro.

0:28:20.8 Peter: The idea that kids were not misbehaving in the 1800s, even if you give credence to the idea that our constitutional interpretation should somehow derive from what was happening in a classroom in the early 1800s, which by the way, it's like a classroom of only white boys led by whatever woman in town is a widow, just like your husband dies and you're like, "Don't worry, Mary, we'll find you some purpose, you will teach these children." And then the kids fucking sit down and they learn about fucking alchemy or whatever, I don't know, whatever they thought was true back in the 1800s.

0:29:04.9 Peter: And like Clarence Thomas for some reason has this vision of this time that is this pristine vision of how children should be learning. It's fucking embarrassing.

0:29:15.6 Michael: Anybody who's read Tom Sawyer and Huckleberry Finn knows that's absolute bullshit. There's one scene where Tom Sawyer's like carrying around a dead cat or something, and it's like... I don't think it's ever explained, it's just like left to your imagination, what the fuck he was up to.

0:29:30.8 Rhiannon: Right, the idea that kids were organically good back then is a total lie. I mean, the classic example of misbehavior and a prank on a teacher is putting a pin or something sharp in her chair. Kids were straight up assaulting their teachers, okay?

0:29:51.6 Michael: Maiming them. Causing physical pain. Yeah, but so it's worth asking, though, what does Thomas mean by maintain order? Because if wearing a black armband is disorder, it's not like unruly, that's not loud, that's not running around or breaking things, it's just putting a fucking arm band on. Like, what is disorder in his mind? It's basically accepting the idea that any expression of a contrary or subversive opinion is inherently disordered.

0:30:27.3 Peter: Yeah. The classic conservative position, which is everything that happened in the '60s and onward has been a horrible mistake. We should, by total coincidence, go right back to right before the Civil Rights movement, that's when things were spot on.

0:30:43.5 Michael: Or in this case, right before Civil War Amendments.

0:30:48.2 Rhiannon: Yeah, even further.

0:30:51.7 Michael: Jesus Christ, man.

0:30:53.6 Peter: So I mentioned earlier that the legal test for student free speech is the substantial disruption test. If student speech is not a substantial disruption to the educational process, it is supposedly protected under the First Amendment, but like I mentioned, there was a case in the '80s about a student who gave a vulgar student election speech. The Supreme Court in that case said, well, no, it's not a substantial disruption, but it's too lewd, so we don't think that's protected speech.

0:31:18.3 Peter: And this case is very similar. Roberts does not say that this is disruptive, he just says, well, look, you can't say that, it's about bong, you can't say bongs. So in 1969, the Court had established a very simple test: You can say what you'd like as long as it's not disruptive. But ever since then, every time the conservatives on the Court have seen some new student speech that they didn't like, but that isn't actually disruptive, they just make a new rule up to ban that too. If the rule is that you can't say anything that's disruptive, and the Court just makes up a new rule every time they see some speech they personally don't like, then there really is no rule. You can add that to the laundry list of examples of how the conservatives claim to be just like passively and objectively interpreting the law is absolute bullshit.

0:32:04.1 Peter: And one final thought I have here is maybe slightly less academic, but it really feels to me like this opinion goes to the heart of the basic premise of freedom from the government. If you're doing something that doesn't hurt anybody, they should have to leave you alone. I think that's true whether you're at school or anywhere else. If you're not hurting anybody, you ain't done nothing wrong. That is just morality 101, baby. From Jesus to Gandhi, right across the board. But conservatives, they don't really believe in freedom in any general sense. They believe in traditional hierarchies and morality derived from authority.

0:32:41.4 Peter: When they say freedom, they mean freedom from liberal interference with what they believe to be the natural order. That's why their perception of who should be brutalized by cops is just so completely dependent on the context, because their beliefs are not about ideological notions of freedom, their beliefs are about who has power and who should have power. And when they see someone who they don't believe should have power try to exercise influence, they don't care about that person's freedom. It's a consistent belief structure, if you view it as one that's about power rather than anything particularly ideological.

0:33:17.2 Rhiannon: Right. And you can see this in their rhetoric. When it comes to the free speech of the powerful, they speak breathlessly in flowery language, and there are examples from lots of different cases of this kind of treatment. Justice Kennedy in Citizens United said, "Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it."

0:33:53.5 Rhiannon: In a case called McConnell v. FEC, Justice Scalia said, "There is no such thing as too much speech." And Roberts himself, John Roberts, said in FEC v. Wisconsin Right to Life, he was quoting another case and he said, "First Amendment freedoms need breathing space to survive." And then back in McConnell v. FEC, Justice Kennedy again, "The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms and new forums for the expression of ideas. The civic discourse belongs to the people and the government may not prescribe the means used to conduct it."

0:34:36.1 Peter: Wow, beautiful.

0:34:36.8 Rhiannon: Thanks, boys.

0:34:39.6 Michael: Sounds great.

0:34:42.1 Peter: Yeah. So those quotes, if you're wondering, that's how the conservatives on the Court talk about free speech when what it means by free speech is the right of corporations to engage in unfettered political advertising, which is what all of those cases are about. That sort of rhetoric is conspicuously absent from this case, which is a case that's much closer to what I think most people conceptualize as their actual right to free speech, the right to hold up a sign that says whatever you want it to say. By the way, holding up a sign is also something that anyone can do.

0:35:12.6 Peter: Contrast that with spending millions of dollars on political advertising, which might be something you can do constitutionally, but it's not something that I think any of our listeners realistically could actually do, even if they wanted to.

0:35:26.0 Rhiannon: Yeah, yeah, we've talked before about you have to have access to a right and to your freedoms in order for that to really be real.

0:35:36.3 Peter: Yeah, and if you've got a marker and some poster board, you can do this, right? You can hold up a sign that says "Bong Hits 4 Jesus."

0:35:42.3 Rhiannon: Right.

0:35:44.1 Peter: When it's the ultra-wealthy dictating the shape of our political discourse, the Court just goes to the mats for their rights to do it. This is what our democracy is built on, right? But when an average person wants to express themselves in a very simple way, to the Court that is and will always be just rabble-rousing. I think that's the bottom line here, and that's why their view of social hierarchy and the Thomas concurrence is so important to this stuff. All of this bullshit about what students should be able to say and the right of the school to control them is always gonna be secondary to the fact that the Justices just don't have that much concern for people who aren't that powerful.

0:36:23.8 Peter: They were never gonna view subversive speech as being particularly important. They will always view it with skepticism. Thomas is still saying that those kids from 1969 should not have been able to wear arm bands to school that signal their opposition to the Vietnam War because it's subversive, and conservatives naturally have this tendency to oppose subversion.

0:36:47.0 Michael: Right, and it's subversive to the very power structure that empowers them.

0:36:50.9 Rhiannon: Yes, exactly.

0:36:52.9 Michael: That they rely on, that they're a product of.

0:36:56.4 Peter: Yes, absolutely. Earlier, we were talking about the sort of gray area here, right? There's a link between this sort of silly rhetoric about weed, and more serious statements about weed and about drug use and about freedom. This incident happens in 2002. This case is handed down in 2007. Here we are in 2021, and legalization across the country feels like an inevitability. And a big part of that is that in the early 2000s, you had a protracted movement, and a lot of which involved this sort of fun but subversive speech that was meant to poke at the traditional understanding of marijuana as dangerous. And you see the Court sort of taking a stance that it... Of course, yeah, we're just gonna grant that it's dangerous, right? And schools of course should be able to push against illegal drug use. But this stuff is important in the aggregate. You see this sort of speech build up to become the actual law in our country. And it did so to a large degree by convincing people that this is in fact relatively harmless.

0:38:04.4 Rhiannon: Right, exactly.

0:38:05.1 Michael: That's right.

0:38:05.9 Rhiannon: You can say that there was a strategy of juxtaposing how harmless, how fun smoking weed can be with how seriously people in power were demonizing it and talking about how it was so dangerous.

0:38:19.1 Peter: Yeah, and we're talking about something that might seem in a very discrete way to be unimportant. Whether or not this kid got suspended from school, certainly in and of itself, probably the least important case we've tackled, but this is not about this kid. It's not even just about free speech. The rhetoric that is being used by the Court here, the idea that the government should be able to drop the hammer on people for expressing these sorts of viewpoints is deeply intertwined with the idea that people should have to go to prison for possession of small amounts of marijuana. The impact of this sort of cultural viewpoint, the conservative view of drugs at this point in time is responsible for immense human suffering. And that's exactly why this sort of speech is important.

0:39:07.7 Michael: That's right.

[music]

0:39:13.5 Michael: Well, I'll tell you what, right after this, I'm gonna go take a bong hit and I will do it in Jesus' name.

0:39:18.8 Rhiannon: Thank you, Michael.

0:39:19.5 Peter: Amen.

[laughter]

0:39:23.3 Michael: [0:39:23.3] ____ again.

[laughter]

0:39:30.5 Peter: Next week is Navarette v. California, a case about whether the cops can pull you over because they received an anonymous tip. We're back on our cop-hating bullshit, you know what I mean? It's good.

0:39:41.6 Rhiannon: That's right.

0:39:43.2 Peter: Back to our roots. I'm excited.

0:39:45.2 Rhiannon: Your girl's back and ready to.

0:39:46.6 Peter: Follow us on Twitter @fivefourpod. Fivefourpod.com to go buy our merch. Tell your parents about us. We'll see you next week.

0:40:02.5 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

Herrera v. Collins+

0:00:01.3 [Archival]: We'll hear argument next in number 91-7328, Leonel Torres Herrera v. James A. Collins.

0:00:13.0 Leon: Hey, everyone. This is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon, and Michael are talking about Herrera v. Collins, a death penalty case from 1993. In a 6 to 3 vote, the Court held that having new evidence of innocence does not entitle someone sentenced to death to habeas corpus proceedings, the last resort for capital punishment cases. This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:49.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have killed off our civil liberties in the service of a misguided intellectual experiment, like Edison killed Topsy the elephant.

0:01:04.0 Rhiannon: Wow.

0:01:04.0 Peter: Are you guys familiar with the Topsy story?

0:01:06.1 Michael: I am. From Bob's Burgers. I know it from Bob's Burgers.

0:01:09.3 Peter: That's right.

0:01:09.9 Rhiannon: Did he electrocute an elephant or something?

0:01:12.0 Peter: Yeah, Edison wanted to prove that electricity was powerful, and so he just killed an elephant with it.

0:01:18.1 Rhiannon: God damn.

0:01:20.1 Peter: Yeah.

0:01:20.3 Michael: Yeah. American hero.

0:01:22.1 Peter: Thanks for the light bulbs, dude. I am Peter. I'm here with Michael.

0:01:26.9 Michael: Hey, everybody.

0:01:28.0 Peter: And Rhiannon.

0:01:29.3 Rhiannon: Hi, hi, hi, hi.

0:01:30.7 Peter: And today we are talking about Herrera v. Collins. This is a case about the death penalty. And we haven't done a death penalty case yet, and we thought it would a good time to do one for a couple of reasons.

0:01:42.5 Rhiannon: The holiday season.

0:01:46.9 Peter: Well, but I think first, we're like 48 something episodes in, so maybe a little overdue.

0:01:51.2 Rhiannon: Right.

0:01:51.9 Peter: And second, the Trump administration has, in its final months, begun what appears to be a calculated effort to expedite pending federal executions. So after two decades without a single federal execution taking place, the administration carried out three in the span of four days this summer, has carried out 11 total this year, and has more scheduled, including several immediately before Biden's inauguration.

0:02:17.2 Michael: Yeah.

0:02:17.8 Peter: So this has reignited some public debate, in large part because most likely the administration is doing this to make a statement about what they believe the role of the state to be in criminal justice, which is a mechanism for inflicting punishment.

0:02:33.1 Michael: Right.

0:02:33.2 Peter: I will say up top that I am opposed to the death penalty, in large part because I think the risk of executing an innocent person far outweighs whatever utility you might find in killing evil people. To me, I think you can make a moral argument that certain crimes are deserving of death. If someone brutally murders a child or founds a chapter of College Republicans, I get it. I'm not saying I agree, but I get the argument in the abstract. But this case isn't about the morality of killing someone who did something heinous. It's about the risk that you are almost always running, which is that you are maybe killing an innocent person. In this case, a man about to be executed filed a petition for a writ of habeas corpus in court, claiming that he had evidence of his innocence. If you don't know, habeas corpus is essentially a procedural mechanism for prisoners to claim that their imprisonment is unlawful and request that a court look into the matter. A habeas corpus is a right that stretches back to medieval times, which is why we keep using the stupid Latin name, in order to show that this is very old and fancy.

0:03:44.3 Michael: That's right.

0:03:45.0 Rhiannon: Right.

0:03:45.5 Peter: So Rhi, give us the background here.

0:03:48.3 Rhiannon: Sure. So just to note, this kind of feels like hearkening back to some older episodes. We're back in cases that start with some gruesome facts. So it's a murder case, right, so it's a tough story. In September 1981, a passerby happened upon the dead body of police officer David Rucker, on a highway in South Texas. This happened like just north of Brownsville. At about the same time that the passerby comes upon this dead body, another officer, officer Enrique Carrisalez pulled over a speeding car travelling away from the scene where Rucker's body had been found. The driver of the speeding car fired at officer Carrisalez and nine days later, Carrisalez died of those wounds.

0:04:38.3 Rhiannon: And Carrisalez had had a passenger with him, an officer partner in his police car, though, and that passenger as well as Carrisalez, before he died, identified a man named Leonel Herrera as the shooter. So the investigation found other evidence that it linked Herrera to the murder as well. A license plate check on the car that was pulled over revealed that Herrera's girlfriend owned the car and he was found with the keys in his possession. Splatters of blood on the car and on Herrera's jeans matched officer Rucker's blood type, but not Herrera's.

0:05:14.7 Peter: This is before you could do the full DNA, so they were just like, "Yeah, it's Type A, we got the guy."

0:05:20.0 Rhiannon: Right, right, yeah. Herrera's Social Security card was discovered next to officer Rucker, the first victim's car.

0:05:28.2 Michael: Well, that one's pretty damning. Not gonna lie.

[laughter]

0:05:30.4 Rhiannon: And...

0:05:30.9 Peter: Criminal mastermind, dude.

0:05:34.3 Rhiannon: Yeah.

0:05:34.6 Peter: Did he leave a signed confession at the scene too? Jesus Christ.

0:05:38.6 Rhiannon: Oh, well, Herrera was carrying on him, at the time of his arrest, a letter that sort of... It implicitly referred to knowledge of the deaths of the two officers.

0:05:48.8 Peter: Dude, who even has their Social Security card on them? Let alone in a precarious position where it might fly out of your pocket.

0:05:56.5 Michael: The note is so ridiculous. It's like accusing the cops of being involved in a drug smuggling ring with them. It's pretty good, though.

0:06:04.6 Rhiannon: Right.

0:06:05.3 Michael: Yeah.

0:06:05.6 Rhiannon: Yeah. You know, common conceptions of how sort of extreme interpersonal violence happens and murders and stuff is that... I don't know, people plan it and try to do a good job at it. But as somebody who defends convicted murderers sometimes, that's just not how it happens.

0:06:26.5 Michael: I'm convinced I could get away with a murder. I read this cases and I'm like, "I know all the pitfalls to avoid. I will not bring my Social Security card."

0:06:35.2 Peter: Yeah, if, you know, you're the type of guy who might kill two cops one night, then just leave the Social Security card at home.

0:06:42.8 Michael: Even if you take his confession card in his pocket at face value, it's like, "Dude, you're in a drug smuggling ring that involved several cops and you're carrying around your Social Security card?"

0:06:53.5 Peter: Right. "Here's a letter explaining the drug smuggling ring that I'm in."

[laughter]

0:07:00.5 Rhiannon: Oh, man, I wish you guys could spend five minutes with people accused of crime.

0:07:08.3 Michael: Well, I have...

0:07:08.9 Rhiannon: Just talk to them about how they ended up where they are...

0:07:11.7 Michael: Mine were always people with MBAs, though. Unfortunately. A more polished version.

0:07:18.5 Rhiannon: Right. So, Herrera went to trial and he is convicted of capital murder. A jury sentenced him to death. So began a long appeals process in which, starting in 1990, so just about a decade after the trial and everything, Herrera began to assert that he was actually innocent and he had not murdered the officers. And in support of his innocence claim, Herrera submitted to the courts four affidavits that pointed to the guilt of Raul Herrera, who was Leonel Herrera's deceased brother.

0:07:55.8 Peter: Wait, wait, how did his brother die?

0:08:00.6 Rhiannon: His brother had been murdered in 1984, a few years after the facts of this case happened. So I'm not gonna get into the claims within the affidavits, the specifics of the affidavits, but it's important to say, I think, that these four pieces of evidence were all collected after Herrera's trial. And they call into question the reliability of his conviction. One affidavit is written by a former state judge in Texas. So there are questions about whether this conviction is real, if Leonel Herrera really did it. The important thing is that new evidence that has come up since the initial trial, since Herrera's conviction, is what needs to be reviewed here. And I think here we should explain a little bit more about the habeas process.

0:08:47.5 Rhiannon: So habeas corpus is a parallel pathway to your direct appeals process. And the process is for asserting that your constitutional rights were violated at trial. If you're allowed to have your claims reviewed in habeas proceedings, this is a separate track from your direct appeals process, in order to get a new pair of eyes to make sure that your trial was constitutionally fair. If there was a constitutional defect at your trial, like for example, you weren't given access to your attorney, or the prosecutor didn't turn over exculpatory evidence, you can be granted a new trial in habeas review. And habeas is also special, because in some ways, it's the only pathway to get your claims in front of any court.

0:09:34.2 Rhiannon: Some states have their own habeas procedures, but federal habeas is the last hope, kind of the last resort for constitutional claims after other appeals processes under state and federal law are exhausted, or if you're past those appeals deadlines. And so, Herrera submits all of this documentary evidence of his innocence in federal court, and the Fifth Circuit Court of Appeals denied his claims. And basically they said he had not presented claims for which there was federal relief that could be granted.

0:10:06.4 Peter: Right, so they wouldn't even review the evidence?

0:10:08.6 Rhiannon: Right, right. They just tossed it out saying, "We can't help you, this isn't a legal claim that we can even review." So Herrera then appealed that decision to the Supreme Court, and that's how we get this...

0:10:21.7 Peter: Case.

0:10:22.1 Rhiannon: Dog shit opinion.

0:10:24.7 Peter: Oh.

[laughter]

0:10:25.7 Peter: Yeah, so to be clear, what Herrera is asking for is just that the evidence be heard. And he is asking that that be done through habeas corpus, the right of habeas corpus. And when it is denied, what he brings to the Supreme Court is a constitutional claim. What he says is, "Look, the Eighth Amendment forbids cruel and unusual punishment." And what exactly that means has been the subject of much debate between liberals and conservatives, both because it's a very vague term, and also because most of conservatism is just sort of creating fictional enemies and then fantasizing about punishing them. And so, Herrera is saying, "Look, executing me would be cruel unusual punishment, because I am innocent."

0:11:06.1 Rhiannon: Right.

0:11:06.4 Michael: Makes sense.

0:11:07.0 Peter: And you should review this evidence and determine whether or not that is the case." And the court, in a 6-3 decision says, "No, no, I think we're good here.

[chuckle]

0:11:20.5 Rhiannon: Right. We're not gonna look at this shit.

0:11:21.5 Michael: No, thank you.

0:11:22.9 Peter: I should note up top, there's also a Fourteenth Amendment claim here, a substantive due process under the 14th Amendment claim, basically saying that his fundamental right to have his evidence heard is being violated. We think it's sort of substantively the same as the Eighth Amendment claim, so we're gonna mostly ignore it, but just... Again, it's just so some nerd doesn't yell at us about not covering every aspect of this case. So, Chief Justice William Rehnquist takes off his Klan hood and pops on his executioner's hood to write the majority opinion here. His opinion does not actually address the question of whether executing an innocent person would violate the Eighth Amendment. Instead he sort of turns this into a procedural issue.

0:12:01.2 Peter: He says like, well, look, you already had a trial here, and that trial determined that you were guilty. So you can't use a habeas corpus petition to claim that you're innocent after a trial occurs, because that would essentially require a court to look at this again, and that's just too much, we don't need to do it. Put in the best light, taking the conservatives... Assuming they're acting in good faith here. The idea is that all of these procedural protections under the Constitution, like the due process protections, are meant to protect innocent people. But you can't just claim, according to them, "Well, I'm innocent, and that's a constitutional issue." What they're saying is, "If you had a fair trial and that determined you were guilty, then you're not innocent. Because innocence or guilt is the output of that process." You have to tie your innocence claim to some procedural unfairness. That's what the conservatives are saying.

0:12:51.2 Rhiannon: Right.

0:12:52.4 Michael: Right. Right. And so, Rehnquist has this sort of remarkable portion... A couple of paragraphs right in the middle of the opinion, where he says, look, evidence that you're innocent, it's not that it has no place in habeas, let me tell you where we care about it. And the thing is getting into a habeas court is complicated and you have to jump through a ton of hoops. And if you mess up one, maybe years ago, the court won't hear your claims. They'll say, sorry, you didn't do this weird random thing that no reasonable person should even know that they had to do, and so we can't even hear your claim. And what Rehnquist says is, look, in those cases, if you have evidence that you're actually innocent, we'll give you a pass on messing up this nuts and bolts process. But once you get into habeas court, we still don't care whether or not you have evidence that you're actually innocent, that's still not what the court's looking at and it's not what it's concerned with. It's still concerned with whether your trial met the constitutional bare minimum of fairness.

0:13:52.1 Michael: And so, think about what this is saying. This is saying, we don't actually care if you're actually innocent. All we care about is whether you got proper process. If your trial was fair. If you have a claim that your trial was unfair, we'll hear that. But actual innocence is only important in so far as it let's us decide whether your trial was fair. It's elevating process over substance.

0:14:23.9 Peter: Yeah, absolutely.

0:14:24.4 Michael: And saying, what's important is the fairness of your trial and not the accuracy of the outcome.

0:14:30.6 Peter: Yeah. It's like they're treating innocence as if it's not a real thing, but just the sort of determination of this system.

0:14:38.2 Michael: That's right.

0:14:38.9 Peter: It's just completely bizarre.

0:14:40.4 Rhiannon: Right, and the obvious gaps that this is creating and who can sort of avail themselves of the process of habeas corpus, is people with newly discovered evidence, evidence that's found after their trial, right? So they can't say that they have a constitutional claim about what happened at trial, because it's something new or subsequent developments that happened separate and apart from their trial and afterwards.

0:15:04.8 Peter: Yeah, so what Rehnquist is saying, I think, in short is, this guy has already had a trial, at that trial, he was found to be guilty, and after you're convicted and sentenced to death, you can't use a habeas corpus petition to claim your innocence. That is not a cognizable claim under the Constitution. So Justice Sandra Day O'Connor files a concurrence that is basically just a slightly more empathetic version of the majority opinion. We haven't really ever talked about her that much. She was the first woman on the Court, conservative, appointed by Reagan. And these types of concurrences are a staple of her jurisprudence, in my view.

0:15:45.9 Rhiannon: Absolutely, yeah.

0:15:46.3 Peter: The dudes on the Court will file some deeply heartless opinion, and she'll file a concurrence saying like, "Look, I agree with every pertinent part of that opinion, but here is a slightly nicer version of it." And everyone will be like, "Wow, Sandra was so nice."

[laughter]

0:16:03.4 Rhiannon: What if you take this awful psychotic opinion, but you just take it with a spoon full of sugar.

0:16:10.6 Peter: Yeah, so here she says like, look, if an innocent person were executed, that would violate the Constitution, but that's not what's happening here, because this guy had a fair trial and he was found guilty and that's that. And it's important to note what the Court is being asked is not to decide whether this guy is innocent or not. It's to decide whether this evidence should be looked at to figure out whether he is innocent.

0:16:31.5 Rhiannon: Yes.

0:16:31.9 Peter: The conservatives are reacting to a man on death row claiming that there's evidence of his innocence with like the exasperation of a chef reacting to a guy sending back his food for the third straight time, just like, "It's always something with this guy."

0:16:49.2 Rhiannon: Yeah, yes.

0:16:49.6 Peter: It just doesn't seem like too much to ask for a court to take a look at a fairly... I shouldn't say necessarily legitimate, but a fairly extensive claim of innocence before the State of Texas literally ends his life. Is that really too much to ask?

0:17:05.1 Rhiannon: Right. Look at it. Review it. It's obviously stupid and cruel even on their own terms on this procedural question that they choose to answer. Do we have to require courts to review new evidence, that kind of thing. By most accounts and based on the way the majority opinion was written, it actually seems like Chief Justice Rehnquist wanted to answer the constitutional question and he wanted to answer it no. Rehnquist would have liked to rule in the way that Scalia describes in his concurrence, which we'll discuss in just a little bit, to basically say that actual innocence is not a cognizable constitutional claim. And one reason the majority and concurrences kind of seem confusing on some ticky tack points, is that Rehnquist likely wrote this majority opinion saying what he wanted to say and coming to his conclusion, but he just couldn't get a five justice majority on that.

0:17:56.6 Rhiannon: Sandra Day O'Connor, Anthony Kennedy are sort of known as the more centrist conservative Justices, and obviously, they wouldn't join that kind of opinion. So Justice Rehnquist sort of changes, just the end of the opinion to be like, well, okay, really, this is just about the procedure stuff. And it would be terrible if someone was allowed to get a second bite of the apple just 'cause they have new evidence that tends to show their complete fucking innocence. So still, this opinion and the concurrences stand as one of the starker cases from the Supreme Court on the death penalty, because while they dodge the bigger questions for more narrow procedural ones, it's clear that what they're doing is tacitly accepting that the Constitution does not prevent an innocent person from being executed. I feel like if you told someone on the street that that was the case, they wouldn't believe you. That seems like anathema to the legal protections you're supposed to get in court.

0:18:52.2 Michael: Yeah.

0:18:52.5 Peter: Yeah, we always talk about the fact that rights without remedies are not really rights, and this is I think a big theme of this case. The majority is sort of dodging the question of whether there's a constitutional right to not be executed if you're innocent, but in a way they're answering it. They're holding that there is no constitutional remedy for an innocent person who has been sentenced to death. And without that remedy, the right doesn't exist.

0:19:15.3 Rhiannon: Exactly.

0:19:16.0 Michael: When I read cases like this, there's a question that always is just sort of in the back of my mind, which is like, what's the point of having a criminal justice system at all? And I don't mean that rhetorically. Like literally, what social problem are we solving? A lawless society, I imagine, would be something like the mob, like a lynch mob. That's what we're trying to replace. We're trying to prevent. If you have a fair, just criminal justice system, you won't have gangs of people going around putting nooses around someone's neck because they're pissed that their store got robbed. And when I read opinions like this, that doesn't feel right. It's not compatible with this. If that were the case, then executing an innocent person would cut to the core of that. Instead, it feels like what they want to do is like formalize the mob, like legitimize the mob. Like, "Oh, it's okay if we're putting a noose around some rando's neck, as long as he had a lawyer and he got to, you know, present evidence."

0:20:23.2 Peter: Yeah, so believe it or not, the opinions in this case get worse.

0:20:28.1 Rhiannon: Boy, do they.

0:20:29.3 Michael: Yes.

0:20:29.4 Peter: Justice Antonin Scalia (buy our merch: fivefourpod.com...)

[laughter]

0:20:35.2 Peter: Filed a concurrence here. As we just noted, the majority doesn't expressly say that executing an innocent person is not a violation of the Eighth and Fourteenth Amendments. So Scalia files this concurrence so that he can say that it's definitely not a violation of the Constitution.

0:20:53.8 Rhiannon: Yeah. That's right.

0:20:55.5 Michael: Yeah. Yeah.

0:20:55.6 Peter: His concurrence is brief and snarky. This is 1993, and Scalia sort as... Sort of hit his stride, in terms of his sense of intellectual superiority. It only grows from here, but this is where you really start to see it, in the early '90s, from decades of being bullied for being a big know-it-all dork has culminated in a lifetime appointment without any tangible accountability, and so he's taking it out on everyone. We all have to deal with it. Scalia says there's no reason to think that there's a constitutional right to have new evidence heard after you're convicted. Specifically, he says, there's nothing, quote,"in text, tradition or even in contemporary practice," unquote, to suggest that such a right exists. He doesn't really elaborate, but I still think it's important to talk about this, 'cause it fits squarely into a theme we've touched on several times before, which is the conservative weaponization of history to justify the wrongs of the present, and that's really what he's getting at here.

0:21:51.3 Rhiannon: Yes. Right.

0:21:52.5 Peter: Scalia's originalist interpretation of what cruel and unusual punishment means is rooted in what would have been thought to be cruel or unusual at the time of the Constitution being written. I don't want to get too into originalism as an academic pursuit, but when it first gained steam in the early '70s, it was primarily about trying to determine the original intent of the Constitution, meaning what the Founding Fathers intended, and over the ensuing decades, that sort of fell out of fashion in favor of what they call the original meaning, meaning what the public would have thought the Constitution meant at the time.

0:22:30.2 Rhiannon: Right.

0:22:30.8 Peter: And I bring this up because in a way, the shift from intent to meaning was sort of strategic by conservatives, because, in large part, what the Founders intended was probably going to be a bit more liberal than what the public would have interpreted, and I bring it up because this is a great example, the Founding Fathers themselves had fairly nuanced views on capital punishment. It's the late 1700s and Western aristocracy have just started to think about whether killing people is bad or something...

0:23:00.8 Rhiannon: Right, right, yeah. Yeah. [chuckle]

0:23:00.9 Peter: Cesare Beccaria, that's my attempt at the pronouncing that Italian name, wrote about punishment and specifically sort of condemned capital punishment and that... Like his work really gained favor among the Founding Fathers, so if you're trying to figure out what they intended, you might think, "Well, the Constitution might want to avoid a situation like this."

0:23:20.4 Rhiannon: Right.

0:23:20.9 Peter: But if you're trying to figure out what the general public would have thought, you're talking about people who were living substantially closer to a time when we executed people suspected of witchcraft than they do to the present.

0:23:31.5 Rhiannon: Right. Right.

0:23:31.7 Peter: In the early colonies, petty larceny could result in execution, so to use that era's norms as a barometer for what cruel and unusual punishment means is essentially to just write the clause out of the Constitution, right, these people were psychotic. And I bring this up to point out how conservatives' embrace of history as a useful tool for guiding the present is done very selectively, and that's why we say that they're weaponizing history, right? They're not learning from it or building on it, they are selectively using it to back what they already believe.

0:24:05.5 Rhiannon: Yeah, I think that's right.

0:24:06.6 Michael: Yeah, and there is one bit of Scalia snark that I want to talk about for a sec, which is he says that he understands the Court's reluctance to admit publicly that the Constitution would let stand any injustice, much less the execution of an innocent man, so he's literally being sarcastic about the idea that the Constitution might have something to say about killing someone you know to be innocent. And he turns around and he follows that up and he says like, "Look, if you have some real evidence, you'll probably just get a pardon."

0:24:40.8 Peter: Yeah.

0:24:41.4 Michael: And then the Court won't have to deal with this shit anymore. Literally he says, "It isn't probable, the evidence, which failed to produce an executive pardon, with any luck we shall avoid ever having to face this embarrassing question again." Embarrassing, whether or not the Constitution has anything to say about killing an innocent person.

0:25:00.8 Peter: Yeah.

0:25:00.8 Michael: That's what he thinks. Fuck that guy.

0:25:02.4 Rhiannon: Yeah, yeah, I think it's worth talking about, since we've mentioned that the conservative majority here is choosing to take on a formalistic procedural question rather than a big constitutional question. I think it's worth discussing a little bit what the Supreme Court could have done in this case, to have come to a better result. This one is almost so obvious that it's maybe a little bit stupid or elementary, the Court should have taken up the larger constitutional question, "Is it cruel and unusual punishment to be executed for a crime you did not commit?" And the answer is obviously, obviously, yes. That is unconstitutional.

0:25:39.7 Michael: Right.

0:25:40.4 Rhiannon: That is cruel and unusual. Because of course it is. What kind of depraved, fucked up, insane, authoritarian view of state power do you have to think otherwise?

0:25:51.7 Peter: Right. Right.

0:25:52.5 Rhiannon: You don't have to be a fucking whizz-kid legal genius to think that in a democracy, the law shouldn't have to sometimes be cool with innocent people being murdered by the state. That's crazy. But there are lots of reasons why that didn't happen, not least of which, because of an ideologically conservative understanding of when and where a court is supposed to step in on a case, and on whose behalf.

0:26:18.2 Peter: Yeah.

0:26:18.7 Michael: Right.

0:26:19.2 Peter: I think it's important to note that it might have been very simple for the conservatives to say, look, it's unconstitutional to execute an innocent person, but in this case, we're not gonna give him habeas review and for all these reasons. I think the reason they didn't do that is because they don't want to create a constitutional right, that they then have to sort of afford some procedural protections to. If you say, you can't do this under the Constitution, then you have to explain what they're actually doing to prevent it from happening. And this Court doesn't want to do anything to prevent it from happening.

0:26:51.0 Michael: Right, it's very easy to see how that would play out. Even if you were sending it down to the lower courts to figure it out, there'd have to be some standard for the type of evidence that even gets you habeas review and then the persuasiveness of that evidence to actually get your petition granted. And it would be a lot of work. And man, it would suck if they would have to hear a lot of these cases.

0:27:12.3 Peter: Yeah.

0:27:12.8 Rhiannon: Exactly. And I think the Court sees itself here, and I'd say in the vast majority of its cases, not as reviewing a criminal case and subsequent developments in order to vindicate an individual person's rights. They aren't looking at the procedures in place for people to have their day in court, and they're not trying to formulate more expansive pathways so that even people and prisoners with few resources can have all of the information that they would like presented to a court reviewed closely and fairly before the state can fucking kill them. Here, it's very clear that the Court sees itself instead as protecting the dockets of lower courts, making sure that the pathway is as narrow as possible, because we don't want all of these cases.

0:27:58.8 Rhiannon: On the one hand, in death penal jurisprudence, the Supreme Court emphasizes that the death penalty should only be given to the worst of the worst, the most extreme or depraved or violent or hurtful kinds of capital murder. But in this case, we see how much those writings, those other opinions are just paying lip service to sort of these more just principles. Because here what they're saying is, man, if some guy who's innocent gets executed, that's just a sacrifice our system must bear. Because God damn, would it suck if people were able to use federal courts to hear these kinds of claims. Like, God, we're tired of all the complaining. And I don't think it's worth trying to get into the mind of these freaks too much, because I promise you, it'll be 100 times more terrifying and depraved than any of the minds of any quote-unquote criminal client I've represented.

0:28:50.5 Rhiannon: But this flows, I think, from a conception of what it means to be a judge, that you make courts and access to legal remedies less available to common people. This idea that it should be hard, that the burden on an individual must be impossibly high to get a court to do shit for you. That from this opinion really makes me really sick.

0:29:11.0 Michael: Yeah, and I think something that makes this case maybe even worse, is that, look, this guy... There was a lot of evidence against him, and...

0:29:21.4 Rhiannon: Sure.

0:29:21.8 Michael: I think you could argue that the evidence that he was innocent is kinda weak. And so... I could see a listener listening to this and being like, "Well, yeah, but look, I don't think they put an innocent man to death. I think they put a guilty guy to death." And maybe... But that's even worse. That's literally even worse because the Court is closing off pathways that maybe should be available for people with far more persuasive evidence, far more compelling evidence. In this case, sending this back, the most likely scenario is that a judge looks at this, maybe takes testimony from the former judge in person to evaluate its credibility. And otherwise it's like, "Nah," and that's it.

0:30:01.0 Peter: I think all three of us would like, put a gun to my head and say, is this guy innocent or guilty? Guilty.

0:30:05.3 Rhiannon: Don't speak for me.

[laughter]

0:30:07.1 Peter: You think he's innocent? No, you don't.

[laughter]

0:30:10.3 Rhiannon: I think it doesn't matter, you know.

0:30:12.0 Peter: No, it doesn't matter. But that's the point I'm making, Rhi, God.

0:30:14.6 Rhiannon: Yeah, yeah.

0:30:15.2 Peter: The innocence of this guy is not what's really at issue here. The question is whether someone who produces evidence that he is innocent after his conviction, can have that heard in court. And if this guy is guilty, so be it, let a court look at the evidence.

0:30:30.4 Rhiannon: Right, exactly. And I think it should be emphasized how much this opinion is sort of a sign of the times, in terms of where our legal institutions... Where they were at in their treatment of criminality and the justice system. It wasn't that long ago, we mentioned this opinion came down in 1993, but it does feel like the product of a sort of bygone era, particularly because of the consequences this decision, and other so-called Tough on Crime approaches in the '80s and '90s, had particularly on the poor and people of color and how that's affected public understandings of how the death penalty is carried out. So just to illustrate this point a bit, this opinion comes down in 1993.

0:31:10.1 Rhiannon: The next year, 1994, the Federal Crime Bill, written by Joe Biden, becomes law, and that included the expansion of the use of the federal death penalty to more than 60 new crimes. And then in 1996, AEDPA, which is The Anti-terrorism and Effective Death Penalty Act, was passed.

0:31:29.7 Peter: Yeah, how'd that do on preventing terrorism, by the way... 1996...

[laughter]

0:31:34.4 Michael: Weren't the first World Trade Center bombings in '96?

0:31:38.4 Peter: No, it was '93.

0:31:40.2 Michael: Oh, were they? Oh.

0:31:41.8 Rhiannon: '93 is Oklahoma City.

0:31:41.9 Peter: No, '95 is Oklahoma City, '93 is World Trade Center. Guys, really.

0:31:47.1 Rhiannon: AEDPA is passed after Oklahoma City.

0:31:49.6 Peter: Yeah, yeah.

0:31:49.7 Rhiannon: So that... Tim McVeigh can get fucking fried.

0:31:53.4 Peter: That was back when they called that terrorism.

[laughter]

0:31:55.4 Michael: And not MAGA.

0:32:00.1 Peter: Right. Oh yeah, the official position of Ted Cruz is that Timothy McVeigh was a freedom fighter.

[laughter]

0:32:06.7 Rhiannon: So you see that institutionally in the US, at this time, there was a sort of blood-thirstiness for use of the death penalty. And often this urge for state-sponsored violence was couched in language about making capital sentencing and the criminal justice system, more broadly, more efficient.

0:32:23.8 Michael: Effective Death Penalty Act.

0:32:25.6 Rhiannon: Exactly.

0:32:26.0 Michael: We want an effective death penalty.

0:32:28.1 Rhiannon: Yes.

0:32:29.4 Michael: God.

[laughter]

0:32:32.8 Rhiannon: From the late '80s to the late '90s, the incidence of people being sentenced to death in the US peaked, as did the number of executions carried out. So in 1994, 1995 and 1996, there were more than 300 people sentenced to death each of those years in the United States, and this is happening at the same time that Governors, state legislators, Congress and Judges are talking about death penalty appeals taking too long, that we need to reduce the amount of time between when a person is convicted of a capital crime and when they're executed.

0:33:05.8 Michael: Look, you can't really sate the mob if you make them wait 10 years to see their public hanging.

0:33:11.4 Peter: That really is it, right?

0:33:12.7 Rhiannon: Yeah.

0:33:13.6 Peter: That really is it.

0:33:13.7 Rhiannon: No, that is it.

0:33:14.4 Peter: It's satiating the sort of public blood thirst, and it's so deeply intertwined with the conservative conception of what to do about crime, which is just...

0:33:24.2 Rhiannon: Which is genocide.

0:33:24.9 Peter: Well, sure, but you divide society into good guys and bad guys and just act accordingly. And it's like, "We already found out they're a bad guy. What else is there to discuss?" That's really their perspective.

0:33:35.1 Rhiannon: Right, right. All that said, with today's understandings of how all of these laws actually played out, it's hard to imagine this opinion being written in 2020, this level of callousness. In 1993, the idea that innocent people were routinely being caught up in the criminal justice system, much less that they were being executed, had not really proliferated across public discourse. At this time, there were not innocence projects across the country bringing a light to these cases, and there just wasn't like a comprehensive body of information about wrongful convictions. The Death Penalty Information Center, it's a really big non-profit organization that does a lot of reporting and dissemination of studies about how the death penalty is carried out in the US, they were only founded in 1990.

0:34:22.1 Rhiannon: And they say that since 1973, there have been 172 people exonerated from death row in the United States, and the vast majority of those have been after 1990 and after this case. The Justices, when they're writing Herrera, they just don't have in the front of their minds these stories of innocent people being executed. They just don't think it's a big problem.

0:34:47.9 Michael: Right.

0:34:48.4 Peter: A huge aspect of this is advances in technology, especially in DNA, where all of a sudden we have something that is as close to proof as the criminal justice system will ever really see, and you have these cases where you can definitively say, "Why, that guy didn't do it. He wasn't the rapist. He wasn't the murderer." And the idea that we were getting some sizable chunk of these wrong was suddenly introduced into the public consciousness with strong evidence.

0:35:15.8 Michael: Right. We said that there hadn't been federal executions in two decades and that spans Bush's tenure.

0:35:22.1 Rhiannon: Right, yes.

0:35:23.0 Michael: Just a few years later, you had a conservative president and they were not putting people to death.

0:35:28.9 Rhiannon: Yes.

0:35:29.2 Michael: It's not a big stretch to think that this was just like a few years too early.

0:35:33.9 Rhiannon: Yeah, exactly, and we should say that developments in forensic science, DNA, technological innovations, all of that has prompted some states to change their appeals and habeas proceedings slightly, which is why you might hear of people on death row being exonerated. We said up top that there are state habeas proceedings in some states and federal habeas proceedings as well, and we should be clear that this decision still stands, it's still law. So at the federal level, you are not entitled to habeas relief based only on an innocence claim. We should keep in mind that states don't always do a great job at reviewing cases in state court, in part, because they have a history of doing a shit job at all of this, like being racist, of being discriminatory, of carrying out executions in arbitrary and capricious ways.

0:36:27.2 Rhiannon: And the other thing, of course, is that you have federal prosecutions, like the ones we mentioned up top. Those cases don't start in state court. And because of this decision in Herrera, people with stand-alone innocence claims are not entitled to federal habeas review even if you have something like newly discovered DNA. This case is still identified as being one of the worst cases in Supreme Court jurisprudence on the death penalty by academics who study the Eighth Amendment and capital defense practitioners.

0:37:00.6 Rhiannon: The broad lesson for me is that the Supreme Court is sort of always behind the times. It's not gonna be out front on these issues even though they could be equipped to do so, and even though I think in public conceptions of what the Supreme Court does or is supposed to do, I think most people would think like, "Yeah, that's what the Supreme Court does, is step in on exactly this kind of issue. Is hear somebody's plea who's saying I'm scheduled for execution and I'm actually innocent and I have evidence." And I just think this case is a reminder that they are going to be behind public trends, not in front of them, and certainly not starting them. And in many ways, the institution sort of holds us back from social progress.

0:37:47.2 Peter: Yes, and I want to point out something that goes hand-in-hand with that, which is, yes, they are sort of behind the times in many ways, that doesn't impact their confidence. That didn't impact the way that Scalia wrote about this case as if it was open and shut. This is an institution that has in this case, no fucking idea what it's talking about. No concept of what the risk that they're running when they deny this man a hearing on his evidence of innocence actually is, and yet they speak as if they do. And just take a step back and picture the various ways in which the current court speaks with confidence, when they have no real vision into what's actually happening in criminal justice, in employment, across a hundred different possible topics. These are people who need to demonstrate some amount of humility, humble themselves a little before their responsibility, and you just do not see that in what they do, and that's why they fucking suck, that's why they suck.

0:38:48.7 Michael: Yeah, yeah. I was chatting with somebody the other day, and I made the point that I was like, "Look, as long as your brain isn't like totally rotten from cable news, especially, but not limited to Fox News, and you have an ounce of compassion, your politics are probably fine." Maybe not great, maybe you're not like fucking Martin Luther King or whatever, but they're probably fine. Cable news wasn't really nearly what it is now in 1993, and their politics was still awful, and you just have to think like how little empathy and compassion and concern for their fellow man, these people had... They are fucking demons.

0:39:30.4 Peter: Yeah, it's this ideological poison. They have this concept in their mind that they stick with very firmly, which is that the Constitution doesn't necessarily do anything, and we're not making these sort of moral judgment calls, and so that is how we create emotional and moral distance from our rulings. We can say, look, sure, the Constitution doesn't prevent this from happening, that's so unfortunate. You know, we totally wish it did, but it just doesn't, and you libs need to accept that. That's the sort of consequence of what is in the early '90s, 20 or so years of conservative ideology in the law being ascendant.

0:40:15.1 Rhiannon: Yeah, and I just want to get back to the Trump executions that we mentioned at the beginning, so the latest three people who have been executed by the federal government, I think it's worth just saying their names and talking a little bit about what happened at their trials, because in this case, Rehnquist and O'Connor and Scalia are so focused on the fairness of the trial proceedings, and I think it's worth highlighting what happens in this area of the law that the conservative justices have convinced themselves is sufficient and fair and constitutionally permissible.

0:40:55.6 Rhiannon: Orlando Hall was executed on November 19th of this year. Mr. Hall was a black man, he was convicted by an all-white jury, and his attorneys argued until his execution that the prosecutor in his case had engaged in racially discriminatory behavior throughout the entirety of Mr. Hall's trial. Brandon Bernard, you might have heard about, he was executed on December 10th, just a couple of days ago from this recording. He was executed for the shooting deaths of two people, but Brandon was not the gunman. We've talked in a previous episode about felony murder rules where somebody who actually did not kill anybody can be executed for somebody's murder, and in fact, in Mr. Bernard's case, newly revealed evidence showed that prosecutors withheld important information at Mr. Bernard's trial, showing that he had an even less important role than jurors were led to believe at the time they convicted him and sentenced him to death.

0:41:55.2 Rhiannon: With that new information, five of the nine jurors who convicted Mr. Bernard said that if they had been aware of the new information which was undisclosed to the public, they would not have sentenced Brendon Bernard to death. And in the case of Alfred Bourgeois, he was executed on December 11th, just a day after Mr. Bernard, he was executed despite the fact that he was intellectually disabled, he had an IQ between 70 and 75, there is a fairly long standing constitutional rule that we cannot execute a person who is intellectually disabled, and that execution was carried out you know, Peter, you said up top that you think that there is probably a moral argument for somebody who commits a specifically or egregiously heinous act of murder, and that may be morally being deserving of the death penalty. I think what's important, and that would I see sort of in my work and talking and thinking about these issues all the time, is that I probably agree with you, I probably think like there is a CEO who has wrought violence and harm on enough people that maybe morally is deserving of getting offed, but.

0:43:25.8 Michael: Robespierre over here has some thoughts about what crimes are and are not capital.

0:43:31.9 Peter: Alright, let's restate so that you don't have to say getting offed.

0:43:35.6 Rhiannon: That are deserving of execution, of the death penalty. But I think that in carrying out the death penalty in a modern society, the instances of where it actually happens, for which crimes, who gets prosecuted for it, the sort of just meta-moral argument is so abstracted from the reality of how human beings in a society like are meting out punishment.

0:44:02.3 Peter: And that is how I meant. I see the moral argument, I don't necessarily agree with it, but to the extent I do agree with it, it's completely in the abstract and sort of manifestation of that abstract concept into the death penalty as we know it, is completely distant from the moral argument. It has almost no relation, it's the manifestation of public blood thirst, state violence, and the systemic oppression of massive populations of people...

0:44:29.4 Michael: I don't know that I buy the moral argument, even in the abstract, we give the state the monopoly on violence, that's part of the social compact, we get to decide the limits of that violence. I think there's an argument for just saying, look, you don't get to kill people. That's it. And it doesn't matter the crime, that's something that we've decided we don't want to give the state for small l libertarian reasons about autocracy, oppression, injustice, all that, and just like... I think what I'm saying is that I just don't even think the death penalty discussion is even asking the right questions all the time.

0:45:09.7 Michael: Are there crimes heinous enough to deserve death? That's not the right question to me, I think you guys agree. But also, is there an intolerable risk of getting it wrong and killing an innocent person? I don't think that's the right question either. Maybe they're good for persuading people, but in terms of what's right and wrong, it's sort of first principle questions. What type of society do we want to live in? What do we collectively value? How should those values be reflected in the government we build for ourselves? And I want to live in a society that's compassionate, it's merciful, it values life. And I don't see a place for the death penalty in that at all.

0:45:49.8 Rhiannon: Yeah, something that is sort of really persuasive to me is the idea that because we live in a society that allows the state to murder people legally, then what sort of violence do we accept from the state after that? If they're allowed to kill somebody, then it sort of just logically flows that we accept a lot of state violence.

0:46:16.1 Michael: Yeah.

0:46:16.2 Rhiannon: Just from that premise.

0:46:16.1 Peter: Right. I think there's an idea that is common among reactionaries, that part of the state's role, and maybe even one of the largest parts of the state's role, is to punish malfeasance and to act as the manifestation of the anger of society broadly, towards people who deviate in their minds. And of course, what reactionaries view as deviation always aligns with their views of social hierarchies, etcetera, and that's why these systems act to facilitate and continue these oppressive structures.

0:46:52.6 Rhiannon: Yeah.

0:46:53.8 Michael: Yeah, and there's sort of academic or legal argument for things like the death penalty and retributive justice that, like it discourages private violence. I am not convinced that it's not the opposite, that it creates a culture in an idea that death is an appropriate punishment. And so we forgive when people mete it out privately. Like when a fight breaks out or whatever, and one guy gets killed, well, that's just what happens. And this ends up often being that when white people kill black people, we're like, "Well, what was he up to?" This is the output, a culture where Trayvon Martin can be murdered, where Eric Garner can be murdered and people think that's fine, because death is an appropriate punishment for selling loose cigarettes.

0:47:46.5 Rhiannon: Right.

0:47:47.4 Michael: Right.

0:47:48.9 Peter: An eye for an eye leaves the whole world blind.

[laughter]

0:47:52.2 Rhiannon: Gandhi told you already.

0:47:55.3 Peter: So, we are gonna take the holiday season off, there are gonna be some announcements, the first of which we can actually make. We will be guesting on a podcast very soon called Know Your Enemy, which I think will probably pop into our feeds so our listeners can check it out. And we will have some very big announcements in the new year. You may have noticed, we don't currently have ads. We have cast off our corporate shackles and are looking for newer better shackles to place on ourselves. So, hopefully some cool announcements in the new year.

0:48:35.2 Rhiannon: Peter, what'd you get me for Christmas?

0:48:37.6 Peter: I was just gonna Venmo you 10 bucks.

[laughter]

0:48:44.4 Michael: I actually do have a Christmas present for you guys.

0:48:46.2 Rhiannon: Shut up.

0:48:47.0 Michael: It's the friendship bracelets I promised you 10 months ago...

0:48:50.2 Rhiannon: Oh, yeah!

0:48:50.8 Michael: And never sent.

0:48:51.2 Peter: Yeah.

0:48:52.5 Rhiannon: Yeah.

0:48:53.1 Peter: Hell, yeah.

0:48:53.2 Michael: They're coming.

0:48:54.9 Leon: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova, with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

Freedom is Contagious+

[music]

0:00:03.6 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about a very recent case in which the Supreme Court blocked New York Governor Andrew Cuomo from restricting the size of religious gatherings because of COVID-19.

0:00:20.6 [Archival]: This was a 5-4 decision, it was an injunction that was issued late last night.

0:00:25.5 [Archival]: The majority said houses of worship had been singled out for tougher treatment, while the dissenters said that government needs leeway when it comes to public health in a pandemic.

0:00:34.7 Leon: The decision has already spawned new complaints about pandemic-related restrictions nationwide and it likely foreshadows the expansion of legal exemptions for religious groups.

0:00:43.7 [Archival: Justice Amy Coney Barrett, the newest Justice, voted to block the restriction along with Justices Thomas, Alito, Gorsuch and Kavanaugh.

0:00:52.1 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:01.3 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have coalesced like that garbage island in the Pacific Ocean, together a monument to the sheer scale of man's folly. I am Peter, I'm here with Rhiannon.

0:01:21.2 Rhiannon: Hi.

0:01:21.3 Peter: And Michael.

0:01:22.3 Michael: Hey, everybody.

0:01:23.8 Peter: Today's case is Roman Catholic diocese of Brooklyn v. Andrew Cuomo, the Governor of New York.

0:01:31.3 Rhiannon: Ooh, who do we like more?

0:01:34.0 Peter: This is a fresh one. The opinion dropped the night before this past Thanksgiving, the Court held in a 5-4 decision, where John Roberts joined the liberals in dissent, that New York's restrictions on certain large religious gatherings were unconstitutional under the First Amendment because they violate the right to the free exercise of religion. This case is a big deal for a few reasons. Most immediately, it signals a shift on these COVID-related court cases. Before RBG's death, the liberals were upholding most of these COVID restrictions, with John Roberts joining their side. With RBG being replaced by our wide-eyed buddy Amy Coney Barrett, these cases are now going in the other direction.

0:02:17.5 Peter: More holistically, this case is the first of what are likely to be many more in which the conservatives on the Court hold a very expansive view of what constitutes protected religious activity under the First Amendment. We are in a new era of unfettered special treatment for religious institutions, and this case seems like a good indicator of just how emboldened the conservatives feel about their hold over the law.

0:02:43.7 Rhiannon: Yes.

0:02:45.0 Michael: Yeah.

0:02:45.9 Peter: It's also a good reference point for how high the brain rot among conservatives goes. I think a lot of people view the most aggressively anti-science positions of the electorate, like COVID denialism and so forth, as like the province of the less educated GOP base. But here you have the conservatives on the Supreme Court, supposedly the tippy top of the conservative intellectual brain trust, essentially replacing the perspectives of medical experts with their own.

0:03:17.0 Michael: Yeah.

0:03:18.2 Peter: As we've noted before, the degree of separation between right-wing talk radio and the like, and the ostensibly foremost minds of American conservatism is much, much smaller than you might think. Since the pandemic started, you've probably seen hundreds of viral videos where some lunatic in a grocery store is spouting off about the tyranny of COVID restrictions. Just imagine that that lunatic was associate Justice Neil Gorsuch, that he was marginally more eloquent, and you're beginning to understand this case.

0:03:54.0 Rhiannon: That's right, yeah.

0:03:54.9 Michael: That's right. Before we get started, I just want to note, like Peter said, this is our sort of first post-Ginsburg 5-4 decision. And so I do think it's worth taking a minute to contemplate that. I don't want to trash a dead woman who was justifiably an icon to so many people, and I don't want to rehash everything from our episode about her, but I do think as you listen to this case it's probably good to remind yourself that her hubris is part of what brought us here, and the result is going to be that a lot of people probably needlessly die. That's like a very predictable outcome of this case. Luckily, it seems like vaccines are on the way, and so that might dull the impact, but the broader point is that there are real consequences to the decisions people in power make, and this is a particularly poignant and visceral reminder of that.

0:04:53.1 Rhiannon: Yeah. Michael, I'm not letting it slide, your little flex on Amy Coney Barrett just now, that you pronounced poignant correctly. Congratulations.

0:05:00.5 Michael: That's right.

0:05:04.0 Rhiannon: So I can lay down some background for us today. Just to ground us in a bit of reality before we talk about what Andrew Cuomo and the State of New York were trying to do in this case and what got shut down. We all know that we are living through or trying to live through a pandemic right now, and that in the United States, the federal government has been more or less utterly ineffective at keeping us safe, and that it's been left to individual states and their respective public health officials by and large to figure out what to do and how to manage this crisis.

0:05:40.0 Michael: Yeah. I was going to say, this is the first moment where I really get why the Articles of the Confederation did not last. If we had six more years of this where it'd be... We're starting over from scratch. This just doesn't work. You need a strong federal government...

0:05:58.2 Rhiannon: Yes, excellent point. So this fucking virus... The first thing we know about this virus is that it's deadly, it's alarmingly so. And then the second thing we know is how it's passed around, like how people transmit and contract the virus. It's passed person to person, typically through the transfer of respiratory droplets, obviously from coughing or sneezing or talking, and this transmission happens quickest indoors in enclosed spaces. A recent Stanford study, in fact, found that on average across metro areas in the US, restaurants, gyms, hotels, cafes and religious organizations produced the largest predicted increases in infections when those places were re-opened and people were allowed to congregate again in those spaces.

0:06:46.1 Peter: And kissing booths.

0:06:50.5 Rhiannon: Yeah.

0:06:50.6 Peter: Please God.

0:06:54.9 Rhiannon: And of course, we are now experiencing a surge in COVID numbers that scientists and public health officials predicted would happen as the result of colder winter months, students going back to school, all of it. So in response to all of this, New York Governor, Andrew Cuomo, for his part, has issued dozens of executive orders since the initial outbreak of COVID 19 in March, but the one at issue in this case was a specific order issued just in October. This measure was prompted by surging cases in certain neighborhoods of New York City.

0:07:27.9 Michael: Right. Some of them included Orthodox, like Hasidic Jewish neighborhoods.

0:07:33.3 Rhiannon: And what it did was allow the Governor to designate specific areas as red zones, orange zones and yellow zones. So in a red zone were areas where concentrations of COVID cases were highest, and in those zones, the Executive Order capped attendance at religious services at 10 people; in an orange zone, the maximum capacity allowed in houses of worship was 25 people. So importantly, though, businesses that were deemed essential were not ordered to have the same capacity limits, so like for example, a hardware store in a red zone didn't have the maximum 10-person occupancy, but large indoor gatherings, importantly, like concert venues, those are completely shut down, whereas religious gatherings are allowed, but at these kind of limited numbers, depending on what zone they are in.

0:08:24.0 Rhiannon: So this made some of our more pious neighbors angry and two religious organizations, the Roman Catholic diocese of Brooklyn, as well as Agudath Israel of America, applied for an injunction so that the capacity limits from Cuomo's Executive Order would not be enforced against them, and they could meet in larger groups in their churches and synagogues respectively. So this case makes it to the Supreme Court on the shadow docket, we've mentioned before, but the shadow docket refers to the body of legal orders that are issued by the Supreme Court outside of the cases for which the Court hears oral argument and issues its formal written opinions.

0:09:07.2 Rhiannon: The shadow docket orders, usually they can be peripheral or purely procedural, kind of technical legal matters, so if a party is asking for additional time on a case, it would be on the shadow docket and the Supreme Court should just quickly issue an order, but some orders from the shadow docket decide kind of contentious and urgent matters. The important thing here, I think, is that usually orders from the shadow docket are issued without additional written justification from the Justices. Here, though, we did get written opinions.

0:09:43.5 Michael: A lot of them.

0:09:46.5 Rhiannon: Yeah, and that's significant because it could be that the Justices have heard like recent criticism about orders coming down from the shadow docket without written reasoning, and because the Justices are all kind of signaling what might be done on future cases that look like this, particularly with regard to freedom of religion and free exercise cases.

0:10:06.6 Peter: So the legal question is whether these restrictions violate the First Amendment right to the free exercise of religion. And the main thing to remember here is that if something only coincidentally limits the exercise of religion, that is generally not considered a violation of the First Amendment. So if the government says no crowds of 10 or more anywhere, that's pretty much never going to be a violation of the free exercise clause because it impacts everyone equally. The only question here is whether this order is sort of unfairly targeting religious institutions or religious people without adequate justification, and the Court, of course, says that it is.

0:10:45.9 Peter: One notable thing here, this is a per curiam decision, which we have talked about before, but essentially means that no single Justice put their name on the majority opinion; instead, it is sort of symbolically presented as if it is the opinion of the Court itself. Naturally, that symbolism is in and of itself meaningless bullshit, but it's important because it's a signal that the conservatives believe that they are making a statement here. It's a presentation of a unified front, and it's also important because it means we don't really know who wrote the majority. Gorsuch and Kavanaugh both filed separate concurrences, and I think if you look at the writing style, there's enough there to say that it was probably Amy Coney Barrett herself.

0:11:30.0 Michael: I think so too. It doesn't feel like an Alito opinion.

0:11:33.8 Peter: No, it doesn't. It has some of the indicators of her writing style, but again, we're just guessing. So on to the case itself. The central argument of the majority opinion is very simple, the order in New York limits attendance in religious houses of worship to, for example, 10 people in designated red zones, but it does not apply attendance limits to other businesses in the same zones, so if you're a hardware store in that red zone, you could technically have more than 10 people in the store. And the Court says that that is essentially singling out religious institutions in an unconstitutional fashion. I don't think you need to be a legal genius to see the counterpoint to this, which is that religious services are not really comparable to other businesses, people sit down generally in groups, generally for long periods of time, often singing and chanting and shit, that is uniquely high risk.

0:12:30.9 Michael: Speaking in tongues, if you're at one of Coney Barrett's.

0:12:34.4 Peter: Who knows what these people do. And the state order entirely prohibits similarly large indoor gatherings like concerts. Like Rhi said, religious services actually get favorable treatment under the law compared to those secular gatherings. Gorsuch files a concurrence here where he is extremely sanctimonious about this point.

0:13:01.4 Rhiannon: Gosh.

0:13:01.5 Peter: He points out that there are no capacity restrictions on hardware stores or liquor stores or bike shops, so he says, "According to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine or shop for a new bike," the paragraph ends with "who knew public health would so perfectly align with secular convenience." That is obviously a complete dodge of the fact that none of those businesses operate anything at all like a church or synagogue.

0:13:30.6 Rhiannon: Exactly.

0:13:31.3 Peter: No one hangs out in those stores for two hours conversing and belting out hymns and shit. I am a man in my 30s, I drink alcohol, big fan. When I tell you that never in my life has someone tried to talk to me in a liquor store, I am not exaggerating.

[laughter]

0:13:48.9 Michael: Absolutely not.

0:13:50.1 Peter: If someone who was not an employee approached me in a liquor store, I'm immediately fight or flight. Just high alert right away.

0:13:58.3 Rhiannon: This is unnatural.

0:14:00.4 Peter: They are not comparable situations. Comparable situations would be public speaking events or concerts, and those are banned.

0:14:07.4 Rhiannon: Exactly.

0:14:07.9 Peter: So what's the fucking complaint here? I think that Gorsuch just wanted to use this opportunity to make one of those sorts of decay of society points that conservatives always bust out, like, "Oh, you can't go to church, but you can buy a beer. You can't pray in schools anymore, but the substitute teacher will put on Love Actually and you have to watch that." It's just like fodder for small minds.

0:14:33.2 Michael: Exactly. It's like Fox News brain. It's playing on the caricature that like a lot of suburban and rural residents have of cities, the same people who would tell you on Twitter or Facebook that New York City's a hell hole during the BLM protests. And you'd be like, "It's not. I'm here. I'm walking in the bodega and nobody's assaulting me." They'd be like, "No. I know for a fact, it's basically a war zone." Those are the people that this is written for. It's like, "Look, they're fucking drinking MD 2020 and not going to church, 'cause they're secular heathens." That's what this opinion is.

0:15:18.8 Peter: Absolutely. And so all through one per curiam opinion and two concurrences, the conservatives do not once try to address the fact that religious services involve people sitting, speaking, singing in a closed space for prolonged periods of time, where none of the businesses they call comparable share that feature. And that's sort of the bottom line here, the entire position of the conservatives rests on the idea that religious services are comparable to these other types of businesses, from grocery stores to department stores. And if you accept that those are fundamentally not comparable for purposes of analyzing COVID risk, you have to reject the Court's argument. I think it's as simple as that.

0:15:57.4 Rhiannon: Exactly. Yeah. A really important piece of this, I think, is that New York's restrictions are policy decisions made with significant input from experts, and those experts continue to back the restrictions. The district court in this case did extensive fact-finding to establish that the restrictions were backed by medical expertise. The American Medical Association filed a brief that was in support of New York's position, and up against that is basically five dipshits on the Supreme Court, just sort of eye-balling whether they think these restrictions make sense or not. And sorry, that's not the same as what the doctors and scientists are saying.

0:16:35.6 Michael: Right. Right. It's like the old Onion article, right? I think war on Iraq will unleash chaos in the Middle East first. No, it won't. [laughter] That's this opinion in a nutshell.

0:16:49.0 Peter: So the legal analysis does not end there. The Court has determined that religious institutions are being treated differently, and now they have to evaluate whether that is justified. And they do that by applying a strict scrutiny analysis, meaning they determine whether the restrictions are narrowly tailored to fulfilling a compelling state interest. If that doesn't sound like it actually means anything, congratulations, you are basically a lawyer now.

0:17:18.1 Rhiannon: The Court points out that there's no evidence that the churches or synagogues in question have contributed to the spread of COVID. I'm like, "Do you get how fucking viruses work?" Large crowds gathering in close proximity is going to be a high-risk situation pretty much anywhere. So what is it that we're talking about here?

0:17:40.2 Peter: Right. If you buy a gun, do you need to see it shoot someone to know it's dangerous or is it enough to know how guns work?

0:17:48.7 Rhiannon: Yeah. Right. Right. Exactly.

0:17:50.7 Peter: So the Court then says that the order could have been tailored to the size and capacity of the relevant buildings, which I think is fair enough, they could have done capacity restrictions. I think there's a good argument that capacity restrictions make more sense than pure head count caps, so fine. But in my view, that's just sort of an irrelevant argument because there's zero reason to believe that religious institutions are being singled out and unfairly targeted. It would also be fine to just ban them altogether like concert venues, but instead, they were given this sort of additional privilege of, "You can have 10 or 25 or whatever people." So even if you believe that the hard caps on capacity don't make much sense, that as conservatives so often say, doesn't necessarily mean it's unconstitutional.

0:18:36.2 Peter: So we noted that two concurrences are filed here, one by Gorsuch, one by Kavanaugh, both of them a little bit crazier than the per curiam opinion. The only thing I'll say about Kavanaugh's concurrence is that it substantively adds almost nothing to the other opinions, and this is like the third or fourth time I've thought that about a Kavanaugh concurrence. My boy just, he loves to file a concurrence.

0:19:00.5 Rhiannon: He loves to repeat what we just read and just put his name on it at the top.

0:19:06.1 Michael: Yeah. But put it in his own voice. No, that's... Peter made this point when we were prepping for this episode, it was like this moment of clarity for me in understanding Brett Kavanaugh, because like in any fraternity, there's like a dude, who he drinks two beers and then cannot shut the fuck up. He just loves the sound of his voice and will just fucking yammer on, and I know that guy well because it was me in my fraternity.

[laughter]

0:19:36.7 Michael: So, no judgment on Brett on that point, but it's like a thing where, once you see it, it's like, "Oh, yeah, I know this guy."

0:19:45.2 Rhiannon: That's him.

0:19:46.0 Peter: Yeah.

0:19:46.3 Rhiannon: And even if you weren't in a fraternity, Brett Kavanaugh is exactly the guy that I had intense culture shock over 1L year. You know this person from 1L con law or civ pro. It's a white man who, for his entire life, has been told things like, "Oh, you're really good at debate, you should go to law school."

[laughter]

0:20:08.8 Rhiannon: They've just been stoked with that kind of praise their entire life. And so, they get a platform, and they can't say no.

0:20:16.1 Michael: Yeah.

0:20:16.3 Peter: Yeah. Yeah.

0:20:16.9 Michael: That's right. I was told I was good at debate and I should go to law school.

[chuckle]

0:20:18.7 Rhiannon: Yeah, I know your kind.

0:20:24.9 Peter: We already talked a bit about Gorsuch's concurrence, ranting about what he sees as secular privilege. But probably the most notable thing about it is just how sanctimonious it is, generally. The concurrence starts off with the line quote, "Government is not free to disregard the First Amendment in times of crisis."

0:20:44.4 Rhiannon: Okay.

[laughter]

0:20:47.2 Peter: And the tone of his concurrence is all along the same lines. His position is not just that they're right, but that any other position is clearly disregarding the Constitution. And that's just fucking stupid. You could take that tone if the First Amendment said, "During pandemics, you can't put capacity restrictions on churches." If that's what it said, I'd be like, "You got me, Neil. That's right."

0:21:12.0 Rhiannon: Yeah. [laughter]

0:21:13.6 Peter: But the First Amendment says that it protects the free exercise of religion. Every single person who has ever studied it understands that that entails a massive gray area and requires a balancing act between the freedom to engage in specific religious activities and public policy needs. I think the Court's position here is bad and wrong, but even I will tell you that there is no objectively correct answer here. And to act as if there is shows a wild amount of hubris and over-confidence. And I think it's a good sign that we are not about to see a restrained conservative Court.

0:21:49.3 Rhiannon: Really good point.

0:21:50.0 Michael: I think that's right.

0:21:51.0 Rhiannon: Yeah. So, one of the big stories here is that Roberts joined the liberals in dissent. And Roberts' dissent dodges the merits of the constitutional question. He's making the argument that the case is moot because the churches and synagogues in question are no longer in the designated red zones, and therefore, the hard attendance caps no longer even apply to them. Roberts' argument is that we should not be issuing an opinion here where the situation can still be changing day-to-day. This is classic Roberts equivocation, trying to dodge the touchier issue. Sometimes conservatives, and the occasional centrist, criticize us for not giving more credence to the conservative side of the argument. And generally, I would like to respond, "Go fuck yourself." But...

[chuckle]

0:22:37.8 Michael: That's right, that's right.

0:22:39.1 Rhiannon: But I'll give you this. I think Roberts is wrong, and this case is not moot. It's true that the churches are no longer in the red zones, but that can easily change at any time. And in any event, the case is relevant to other houses of worship. So, calling this moot is just ticky-tack procedural bullshit. And Roberts is kinda being... Flat-out, he's being cowardly, because he doesn't want to address the real issues here.

0:23:03.7 Peter: Right, right. Yeah, Roberts and Gorsuch get into it a little bit in their opinions. Some of it's very technical and dry, but Roberts calls out Gorsuch for the condescending language he uses. Roberts' response is very weak. He just said that dissenters, quote, "View the matter differently, after careful study and analysis, reflecting their best efforts to fulfill their responsibility under the Constitution."

[chuckle]

0:23:26.9 Peter: And this reminds me very much of the broader Court's interaction with Antonin Scalia, who Gorsuch is trying to emulate to what I would consider to be an embarrassing degree.

[laughter]

0:23:38.7 Rhiannon: Yes.

0:23:38.9 Peter: Scalia was famously venomous when he disagreed with his colleagues, veering into outright disrespect without much hesitation at all. And his colleagues' response was generally to ignore his histrionics and maintain a measured tone no matter what he said. In my view, that approach was catastrophic, leading to a generation of conservative attorneys like Neil Gorsuch, who believed that Scalia was untouchable, that he was intellectually superior, that he was revered and feared by his colleagues. His sort of like boisterous over-confidence went unaddressed for the duration of his career, and it helped build a marketable brand, not just around him, but around his type of conservative jurisprudence. Scalia was never as sharp as he thought he was. Gorsuch is even less sharp. I would suggest that someone on the Court put him in his place before history repeats itself here.

0:24:36.1 Rhiannon: Right, yeah.

0:24:37.0 Michael: I think that's right. I do want to say, I think Roberts is being a little pragmatic in here, and that he is looking at the imminence of a vaccine and saying, "Look, we can just wait this out." [chuckle] "Just let the public health officials do what they want to do for a few more months, and then all these issues will be gone. And we won't potentially be responsible for tens of thousands of unnecessary deaths." Like, "We can take that hit. We can grit our teeth and bear it, and let the church restrictions go on till April." It's not the end of the fucking world. And he's saying, "If I have to engage in some legal bullshit and say this is moot, that's fine."

[chuckle]

0:25:17.0 Michael: It's better than the alternative, which is, making it much harder to control the pandemic.

0:25:23.1 Rhiannon: Yeah, totally. So, turning to the other dissent... So Justice Sotomayor writes a dissent. And predictably, it's well-written, it's smart, it goes through an easy to follow logical process. And she uses accessible language to explain why this case is basically turning doctrine on its head. She highlights how religious institutions are being singled out here for preferential treatment, like we said before, which is why the Court has no grounds for applying heightened levels of scrutiny to these laws. She says, quote, "Free religious exercise is one of our most treasured and jealously guarded constitutional rights. States may not discriminate against religious institutions even when faced with a crisis as deadly as this one. But those principles are not at stake today, the Constitution does not forbid states from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives."

0:26:27.0 Michael: Right, and I'm especially glad that she points out that the conservatives here are entirely full of shit on a particular issue which is related to statements from public officials, because one thing the majority tries to do here is it cites to statements from Andrew Cuomo talking about the spread of COVID in Hasidic communities, and the majority wants to say this is the evidence that the regulations and the red zones and the orange zones were designed to target religious groups, and Sotomayor rightly notes that, look, there's a case directly on point about this question, Trump v. Hawaii, the Muslim ban case, in which the conservatives flat out said that Donald Trump saying that they're trying to ban all Muslims from entering the country shouldn't in fact, make the Court suspicious that there's religious discrimination going on. That was the holding of that case.

0:27:24.7 Michael: If you haven't listened to our episode on Trump v. Hawaii I suggest you go back and do so now and then have a heart attack when your blood pressure just skyrockets, knowing how they're going to do a complete about-face on this issue. I think calling people hypocrites is kind of weak sometimes, but in this case, it's just like you can't avoid how obviously, bullshit it is. I do want to say also, though, that I thought her dissent was a little weak on what I think is an important point, which is that a lot of people are going to undoubtedly die because of this decision. If she had said that, I'm sure the majority and concurrences would have lambasted her as engaging in overheated rhetoric and demagoguery and saying it's all speculation and blah, blah, blah...

0:28:13.0 Michael: But it's not any of those things. It's just a fact and she should have stated it plainly, conservatives are killing people with this decision. And if they think that's the price we pay for religious freedom, you know, they should say so openly and honestly. Instead, she sort of dances around the point twice, once in the line Rhi quoted above about the regulations "saving lives" and also when she says Justices for this court play a deadly game in second-guessing the expert judgment of health officials, blah, blah, blah, blah blah. And it's like, come on, don't say it's a deadly game, just fucking say it, say what everybody knows. I just think it's weak. I think this is just going to cost a lot of people their lives, many of whom didn't attend religious services, but just got stuck ringing up some reckless asshole getting groceries a couple of days after going to a crowded church, and those people deserve something more from the dissent.

0:29:11.4 Rhiannon: Yeah, that's a great point. And I want to make a point too about the politicization of the shadow docket. I said up top that it's significant that this is a shadow docket case, because it could be that the Justices are hearing criticism about all these important decisions coming down without any sort of written rationalization or explanation of who comprise the majority, but I don't want to discount like Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch. This is a victory lap.

0:29:40.5 Michael: Absolutely.

0:29:42.0 Rhiannon: They are deeply religiously conservative and they've switched the make up of the Court, and they won here, and there's no reason for three separate opinions saying the same thing, and so we shouldn't discount like the extent to which these weirdos who represent a deeply and idiosyncratically conservative legal mindset took advantage of an opportunity to do culture war theatrics on a shadow docket case on which they didn't hear the merits. In fact, it's unusual to have even one written opinion in a case like this, so the usual procedure for a case on the shadow docket is that the Court just gives a thumbs up or a thumbs down based on whether the case when it is heard is likely to win or lose on the merits. These are mini Scalia freaks who consider themselves genius little proteges or whatever, and they're just flexing, they're just flexing in the same way that Donald Trump might give some sort of token speech or a photo opportunity in front of a church to speak to his base.

0:30:44.0 Peter: Right, right. They're stunting on the liberals...

0:30:47.1 Rhiannon: Exactly.

0:30:47.6 Michael: You write those two concurrences to say, and fuck you too.

0:30:52.4 Rhiannon: Exactly.

0:30:52.8 Peter: I want to talk a little bit about the First Amendment more broadly. This is a case about the free exercise of religion, but that's only one of two clauses in the First Amendment concerning religion. The other is the establishment clause, which says that Congress shall make no law respecting an establishment of religion, and there's sort of an inherent tension between these two clauses, because they are requiring that the government afford people the right to engage in religious practices, but not go so far as to actively endorse or facilitate those practices. And the irony is that the Court's holding here borders on requesting that states violate the establishment clause by going out of their way to cater to religious institutions.

0:31:35.1 Peter: New York made an active effort to treat religious services equally or better than what it felt were comparable businesses and venues, and the Court found that that still wasn't enough, and that's where I think we're going to see First Amendment jurisprudence go where the Court champions the free exercise clause while marginalizing the establishment clause, forcing governments to consistently draft laws that are overtly designed to accommodate religion rather than drafting laws that are indifferent to religion, which is what the First Amendment should require. And I don't want to get too deep in this, but there was a case that was written by Scalia himself.

0:32:12.6 Rhiannon: Yes.

0:32:13.9 Peter: Employment Division v. Smith, I think, from 1990 or so, where the Court held this, again, this is Scalia writing it, saying that laws are supposed to be indifferent to religion. If something just so happens to coincidentally negatively impact a religion, that's not against the First Amendment. I believe that there is a good chance that we see that functionally overturned by the Court over the span of the next several years.

0:32:39.5 Michael: I think that's right. And switching gears a little, Peter and Rhiannon have laid out the law really well, and at the danger of just reiterating what they've said, I'm just not convinced that the First Amendment has anything meaningful to tell us here. Like if houses of worship were being outright shuttered while people were out at concerts and shit or there were stricter limits for Hasidic Jews than for Christians, sure, okay, yeah, that sounds like the right scenario for the First Amendment, but what we're talking about here is whether the capacity limits, which are presumptively legitimate, are too strict, and whether they should have used a percentage of total capacity rather than a hard count. The Court is literally micro-managing the Governor of New York's response to a catastrophic pandemic, that at the time of this recording afflicted over 650,000 New Yorkers, killing over 34,000 of them, and what they're saying is, we get to nitpick that response to the pandemic. It's profoundly anti-federalist, it's profoundly anti-democratic, it's just absurd, and I think doing it under the guise of the First Amendment is a joke.

0:33:56.5 Peter: Absolutely. So final thoughts, one of the best things about this for me, was that the Pope immediately published an op-ed supporting restrictions like these...

0:34:07.0 Michael: Yeah, it ruled. [laughter]

0:34:07.1 Peter: And very expectedly, the reaction of conservative Catholics has mostly been to reject the Pope. You are an adult in a religion where the central principle is that there's this one dude who is essentially the infallible mouthpiece of God, part of a line of succession that started with Jesus's appointment of St. Peter himself, and then that dude's like, "Hey, maybe try not to get other people sick," and the Republicans are like, "Who's this fucking guy?"

[laughter]

0:34:39.9 Rhiannon: "Who died and made you king?" and it was like, "Ah, literally Jesus."

[laughter]

0:34:50.0 Peter: Literally, you could just watch on Twitter and in op-eds, etcetera, all of these conservative Catholics just slowly crawling towards Protestantism because the fucking Pope didn't fully endorse the conservative political position on this. I think that touches on something that's very important to this country's conception of freedom of religion, and that is the merger of institutionalized religion and politics in this country. This is something that has been researched and written about and talked about fairly extensively, but even a casual observer can see how many hot button political issues are intertwined with religion, to a point where disentangling them almost seems like a fool's errand, it's nonsensical.

0:35:37.3 Peter: You can't have a discussion about abortion or LGBT rights that is either partisan or religious, it's inherently both. And this stems at least in part, from a concerted effort by monied interests on the right to push religious issues in the political sphere and political issues in the religious sphere, and the result is a milieu where the basic conservative position is that the First Amendment's protection of religious practices functions to protect their political viewpoints.

0:36:09.0 Peter: When you see someone say that they don't want to bake a cake for a gay couple, or that they're concerned about working with trans people, or in this case, thinks that their right to go to church in the pandemic should not be mitigated, is that really about religion? To use the religion at issue here, as an example, all of those beliefs are certainly held by some Catholics. They might be shared by many or most conservative Catholics, but are they shared by all Catholics? Or is it more accurate to say that it's the shared belief of a subset of Catholics who are, not coincidentally, politically conservative?

0:36:45.3 Rhiannon: Ding, ding, ding.

0:36:46.5 Peter: Isn't the determinative factor, then, their politics rather than their religion? And look, I'm not saying that as if it's definitively true, this is a gray area for sure, but the Court has essentially allowed many almost nakedly partisan beliefs to parade themselves around as if they are purely the manifestation of religion, when anyone who's looking closely can see that the truth is not that simple.

0:37:11.3 Michael: That's right.

0:37:12.2 Peter: So if you doubt us about the sort of potential scope of this decision, know that a case has already been filed in Kentucky challenging the closure of religious schools due to COVID. Note that all schools are closed in Kentucky and they are simply saying, "Well, that shouldn't include religious schools." And to me, that signals that the conservative bar is strategizing and thinking about how far they can stretch this, and that is clearly dangerous.

0:37:48.2 Rhiannon: Right, and a more concerning case came out of California where a church was asking the Supreme Court for emergency relief against the California COVID restrictions, and that case actually has already been sent back from the Supreme Court to California, basically in light of this opinion, which signals that the Supreme Court is telling lower courts in California to side with religious organizations like they have here.

0:38:15.9 Michael: It's sending a signal to churches, to lawyers, to conservative advocacy groups, and most importantly to lower courts that the Court no longer has much appetite for regulations at all on religious institutions. And this case is in a lot of ways an easier case than the more neutral regulations that were upheld back in the spring. And so I think we should consider this a green light for right-wing conservative religious groups to challenge COVID restrictions anywhere, and a clear signal to courts that they should be entertaining those challenges seriously. And that's going to result in a lot more people getting sick in and a lot more people dying. And I'll also just say, I feel like there's more urgency to this stuff now that the vaccine is imminent.

0:39:16.6 Michael: So it's not like every single day you can delay opening up of establishments like churches and synagogues or gyms, if you can, or whatever. I just feel like district court judges should just be like, "Fuck you." Like, alright, we'll reconsider in light of it, and then make some fine distinctions between these regulations and the regulations in New York and just say, "These are fine," even in light of that decision, and I'm sure there's going to be like expedited review and all that stuff, but that stuff still takes time, and they should just delay, delay, delay. And that could save lives.

0:39:57.1 Rhiannon: Absolutely.

0:39:57.4 Peter: Absolutely. And, to take a step further back here and talk about the implications of these broad conservative conception of the First Amendment protections of their religion and speech rights, the Eleventh Circuit just a couple of weeks ago struck down bans on conversion therapy. Conversion therapy is, if you don't know, the extremely anti-scientific and deeply morally disgusting practice of trying to convert gay children to become straight using what is essentially psychological torture. The Eleventh Circuit said that conversion therapy was protected as free speech under the First Amendment, and, that's not a freedom of religion thing, at least in this case, but, it goes to show exactly how they use the First Amendment as a weapon for their cause, just disgusting shit.

0:40:52.7 Michael: You guys ever get sort of maximally solipsistic and be like, "Actually, this is all just a grand experiment to see what it would take to get me to kill someone."

[laughter]

0:41:06.3 Rhiannon: We must be in a simulation because... This is... It's just a... It's a test.

0:41:11.4 Peter: When that one dropped, I couldn't even process it, I was just sort of like, "I'm going to move on. I'm... "

0:41:16.2 Rhiannon: Right. Like I can't... I can't process this right now.

0:41:18.8 Michael: Yeah. And a final point, I think the biggest, most important point of all for this episode is that a lot of you thought you were so clever on Twitter and were like, "Are you going to rename to 6-3?"

[laughter]

0:41:33.0 Rhiannon: Yes.

0:41:34.5 Michael: And I told you all at the fucking time, and I'm going to say it again, there are still going to be 5-4 decisions, and they're going to be worse than ever.

0:41:43.3 Rhiannon: Exactly.

0:41:43.5 Michael: 'Cause that's what's going to happen, is the conservative bar is going to just keep testing the limits, and they can afford to lose a Roberts or a Gorsuch or a Kavanaugh here and there, and still win.

0:41:53.3 Peter: Also, it's a metaphor about the ideological split of the Court, okay? It's not a literal description of every case.

0:42:00.3 Rhiannon: Yes. Yes. It is timeless. So fuck off.

0:42:02.6 Michael: Yeah, that's right. [laughter]

0:42:05.4 Michael: We love you, listeners.

0:42:06.7 Peter: Yes, thank you so much for listening. Buy our merch.

[laughter]

0:42:11.3 Peter: Buy our shit, baby.

0:42:12.4 Rhiannon: It's www.fivefourpod.com, all spelled out, and then click on merch, check out all the stuff we have for you.

0:42:21.5 Peter: Next week is Herrera v. Collins, a case from the '90s where the Court held that, just 'cause you're innocent, doesn't mean you don't get put to death.

0:42:32.9 Michael: Right.

0:42:33.5 Rhiannon: That's basically it.

0:42:34.5 Michael: You might think...

0:42:35.2 Peter: That's a quick summary. We'll give you the deets next week. Follow us on Twitter @fivefourpod, throw us an email telling us you respect and appreciate us. We'll see you next week.

0:42:48.0 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

How Do You Plead?+

0:00:00.0 [Archival]: We'll hear argument first this morning, in case, 07-1015, Ashcroft versus Iqbal.

0:00:08.5 Leon Neyfakh: Hey everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about Ashcroft v. Iqbal.

0:00:18.9 [Archival]: Javaid Iqbal is a Pakistani national, who was picked up in the wake of the September 11 attacks. He was deemed to be an individual of high interest, and was placed in the Special Housing Unit in the federal detention center in Brooklyn, New York. He subsequently alleged that he was beaten and denied medical care.

0:00:34.5 Leon Neyfakh: Iqbal made a point in his lawsuit of targeting top Bush Administration officials, not just their subordinates. The Supreme Court throughout the case, arguing that Iqbal had no way of knowing whether the higher-ups were responsible for what happened to him.

0:00:48.4 [Archival]: Is it plausible to think that after 9/11, high government officials might have used race as one of the bases for sweeping people up? And this is where the government says, "We don't think that's plausible."

0:01:02.7 Leon Neyfakh: This is 5-4 a podcast about how much the Supreme Court sucks.

0:01:13.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have locked out America's sun, like a California brush fire. [chuckle] I am Peter. I'm here with Rhiannon.

0:01:29.7 Rhiannon: Hey, everybody.

0:01:30.6 Peter: And Michael.

0:01:31.4 Michael: Hi.

[chuckle]

0:01:32.2 Michael: Hello.

0:01:33.7 Rhiannon: Good one. Good human talking.

0:01:38.9 Peter: And today's case is Ashcroft v. Iqbal. This is a case about a Pakistani Muslim man living in Long Island, who tried to sue higher-up government officials for the racist treatment he experienced while in custody shortly after 9/11. But it's bigger than that, because what the court held here in a five to four decision, didn't just result in his lawsuit getting tossed out, it also resulted in it being substantially harder for anyone anywhere, but especially poor and less educated people to sue for anything at all.

0:02:13.2 Rhiannon: Yeah.

0:02:13.6 Peter: I should note we will cover some of the ongoing Trump campaign, coup-adjacent shenanigans at the bottom of the episode. But for now, Ashcroft v. Iqbal. This case is fundamentally about a long-standing divide between the left and the right on just how difficult it should be to bring a lawsuit. Liberals on the court have generally taken the position that bringing a lawsuit should be simple. That if people have a dispute it's their right to have it resolved. Conservatives, however, have generally taken the position that litigation imposes a substantial burden on the people being sued and that steps should be taken to curb cases that they believe are frivolous.

0:02:54.2 Rhiannon: Right.

0:02:54.6 Peter: One thing that we've discussed a few times in this podcast is the extent to which conservatives on the court rely on procedural mechanisms to protect powerful interests. And this is Exhibit A. Every law student in the country learns about this case during week one of civil procedure. And not only is this case, in and of itself a deeply racist product of the post 9/11 atmosphere in this country, it has also shaped, lawsuits are filed in America, and quietly taken its place as one of the most pro-big-business Supreme Court decisions in American history. So this decision is terrible in at least three ways. First, very racist, very racist.

0:03:38.0 Rhiannon: Yeah. [chuckle]

0:03:38.3 Peter: Second, it makes it exceedingly difficult to hold the higher up government officials liable for the programs that they oversee. And third, it makes it harder to bring any lawsuit, moving forward, by requiring that lawsuits contain a higher level of specificity than was previously allowed. So instead of courts being a venue where someone who has been harmed can ask for, what's essentially an investigation of what happened, this case holds that the plaintiff needs to show in their initial lawsuit that their claims are plausible. Even though the evidentiary phase of the case has not begun. That might sound like a minor or technical thing, but it has completely reshaped litigation in this country with a very devastating impact on plaintiffs.

0:04:22.4 Rhiannon: Yeah.

0:04:22.5 Michael: Right. And what your idea of plausible is, probably isn't gonna jive with what some federal society goon thinks think is plausible.

0:04:32.0 Peter: Yeah.

0:04:32.2 Rhiannon: Exactly.

0:04:32.5 Michael: Just a reminder.

0:04:34.1 Peter: So, Rhi, walk us through the background here.

0:04:37.4 Rhiannon: Yeah. So before, maybe, getting into the factual background of the case, I do wanna make a quick note about law school and how law school teaches these cases. The details I have here about what happened to this man, Javaid Iqbal, in the wake of 9/11, in the United States, those facts don't come from the majority opinion in Ashcroft v. Iqbal. The facts don't come from the dissenting opinion, and they certainly don't come from how I was taught the case in Civil Procedure, my first semester of law school. I don't think it's an overstatement to say that the holding of this case had far-reaching consequences, like Peter already said, across all civil litigation. And the fact that it happened while the court and the legal profession sort of ignore, frankly, really important context and facts, it's crazy to me.

0:05:29.8 Rhiannon: And one important aspect of the many effects of this decision is how it contributes to our collective memory of how our government responded to 9/11 inside the United States. A lot of us were young, so we didn't pay attention or we didn't know, or if your only understanding of the government detention of immigrants in the wake of the September 11th attacks was from reading this decision, maybe, the US Government's actions would seem fairly limited in scope and maybe even pretty reasonable.

0:06:00.0 Michael: I don't think that was actually the case though. Is that where we're going?

0:06:04.6 Rhiannon: Yeah, that is actually not the case. So, the opinion, for example, starts with the following two sentences. This is literally how the majority opinion starts. Javaid Iqbal is a citizen of Pakistan and a Muslim. In the wake of the September 11th, 2001 terrorist attacks, he was arrested in the United States on criminal charges and detained by federal officials. Okay, so just from that. What is the natural inference here about what Mr. Iqbal is up to that got him arrested? Right?

0:06:38.0 Michael: Right. Right.

0:06:38.1 Peter: It seems like maybe he was involved.

0:06:40.6 Rhiannon: Yeah.

0:06:41.7 Michael: Yeah.

0:06:42.1 Rhiannon: It seems like he's involved. It seems like he's a freaking member of Al-Qaeda, right?

0:06:47.0 Michael: Right. Right.

0:06:47.9 Rhiannon: Like it's something that he's involved in some way. So actually let's talk about the facts, which I had to do some real digging and research to find. So backing it up a little bit, in 1992, Javaid Iqbal arrived in the United States from Faisalabad, Pakistan with a false passport that he got from immigration smugglers. Now, he made a home in Long Island, and Mr. Iqbal worked long hours at multiple jobs for about a decade, and he did so to send money to family back in Pakistan. For example, he worked in Huntington, Long Island as a gas station attendant, sometimes he worked for seven days a week. He opened the gas station at 5:00 AM, he closed it at 10:00 PM. He also worked as a cash register clerk at a 7-Eleven, he made sandwiches at Subway, he washed dishes at a bar, at various times, he also worked graveyard shift as a security guard.

0:07:40.3 Michael: And if you don't think that's tough enough, remember, he was living in fucking Long Island.

0:07:44.0 Peter: Yeah.

[laughter]

0:07:44.6 Michael: As a brown man. Can you imagine?

0:07:47.6 Rhiannon: Great point. [laughter]

0:07:48.7 Michael: Jesus Christ.

0:07:50.3 Rhiannon: Yeah, but by his own account, actually, he loved living and working in the United States. His favorite job, according to him, and the one that he had at the time that he was arrested was as a cable repair technician. He called himself the Cable Guy because The Cable Guy is his favorite movie.

0:08:09.8 Peter: What kind of Pakistani immigrant is a huge fan of The Cable Guy?

[laughter]

0:08:15.6 Rhiannon: One who loves America.

0:08:19.7 Michael: Yeah, yeah.

0:08:20.8 Peter: Yeah, maybe a little too much.

0:08:21.9 Michael: Yeah.

[chuckle]

0:08:23.8 Rhiannon: He said in an interview that he loved the work because of the people he met, and quote "Every dollar makes a difference. I send money home and I will change my family's life." Mr. Iqbal, in fact, married an American woman and lived with her and her children. The two did end up splitting after about five years of marriage, and it's important to note that for part of his time in the United States, Mr. Iqbal was working using a false identity, because he was undocumented, and doing so, it's a pretty common feature actually of many undocumented immigrants' working life in the United States.

0:08:56.9 Peter: Right. 'Cause you need a social security number to get jobs.

0:09:00.5 Rhiannon: Exactly.

0:09:00.6 Michael: Right.

0:09:00.7 Rhiannon: But in Mr. Iqbal's case, that false identity ends up factoring pretty heavily into the allegations of criminal activity that lead to his detention here. So, less than two months after September 11th, in November 2001, Mr. Iqbal is unexpectedly... He has no idea that he was being investigated, he was arrested by two men who were wearing civilian clothing, who just show up at his house one night. They accused him of lying about who he was and why he was in the United States, and he was eventually charged with identity fraud. Basically because he had obtained a driver's license with that false name that he had been using for work and for possessing the false Social Security card. Now, that's where his really horrific stay in federal custody begins. Initially, Mr. Iqbal is incarcerated at the Metropolitan Detention Center in Brooklyn, and he's kept with the general inmate population for a couple of months. But at some point, and actually to this day, it remains unclear why this happened, Mr. Iqbal was added to a list of over 100 of federally detained individuals who were supposedly connected to the September 11th investigation. So for example, there's an FBI list from early 2002 that identifies Mr. Iqbal, but it notes only that he was using a fraudulent passport and was charged with making false statements, and that was in the section that was supposed to provide a factual narrative of the case.

0:10:29.0 Rhiannon: So it's really unclear why he was ever attached to the investigation of terrorism from September 11th. So again, without knowing why, but likely related to him being on this list, Mr. Iqbal was transferred in January 2002 to the Administrative Maximum Special Housing Unit that's also as ADMAX SHU, or just The SHU, and he's kept there for the next six months. And what followed was really just awful abuse to him personally, as well as to the group of Muslim men that is detained in the same conditions at this time. So the night he was transferred to this heightened security isolation housing, Mr. Iqbal was severely beaten by multiple officers, they kicked and punched him, they threw him against the wall, he was left bleeding from multiple places on his head and face, and then in March, he was subjected to another severe attack, and this one was in retaliation for Mr. Iqbal protesting the fourth strip and body cavity search of that day. He was left bloody after that attack, after being badly beaten by officers, and an officer also urinated in his cell, and then shut the water off so that Mr. Iqbal couldn't flush until the next day. And Mr. Iqbal's repeated requests for medical attention, because he is severely injured, obviously, those requests are denied for more than two weeks.

0:12:01.8 Michael: I just wanna say something, and this isn't really, it's not meant anything towards you, but I just... The term body cavity search sounds so sanitized to me.

0:12:11.1 Rhiannon: Yeah.

0:12:11.8 Michael: I feel like it's sexual assault, right?

0:12:15.5 Rhiannon: Yeah.

0:12:16.4 Michael: If you're body cavity searching someone four times a day, that's just fucking assault.

0:12:18.7 Peter: Right, that's sexual assault.

0:12:19.2 Rhiannon: That's absolutely right. And they do it too to specifically to Muslim detainees, because of the religious conceptions of modesty and stuff like that.

0:12:28.1 Michael: Right.

0:12:29.7 Rhiannon: So that kind of physical abuse, the beatings, that doesn't even really touch the day-to-day harassment and abuse that Mr. Iqbal and other Muslim prisoners received, being caged in The SHU, that means that they lived in lockdown, in isolation for 23 hours a day. The remaining hour that they were permitted to be outside their cells, they were handcuffed and had leg irons on them, and they were always accompanied by a four-officer escort team. On rainy days, Mr. Iqbal was left outside until he was drenched, soaking wet, and then when he was brought back to his cell, guards would turn the air conditioning up so that he would be really cold. On cold winter mornings, the jailers would take groups of Muslim prisoners outside without clothes and they made fun of them while they tried to keep warm. Like I said, strip and body cavity searches. I mean, what is actually sexual assault were routine to all of these prisoners. And Mr. Iqbal was also deprived of adequate food and subjected to such harsh treatment that he lost more than 40 pounds over just a few months.

0:13:38.5 Rhiannon: Jailers routinely refused to let him and other Muslim prisoners pray, saying that they don't allow terrorists to pray, and other verbal abuse was super common. Using dehumanizing and pejorative language, saying two Muslim detainees, stuff like, "This facility is where terrorists come to die. You're never gonna go home. Your family, your country is going to be decimated. This is what you get for attacking America." Those kinds of things.

0:14:07.7 Michael: These guys are also from Long Island, apparently.

[chuckle]

0:14:13.0 Peter: Yes.

0:14:14.2 Rhiannon: Yeah. Eventually, Mr. Iqbal pleads guilty to one count of using the false Social Security card, and after he finishes his sentence, he is deported to Pakistan and he signs voluntary removal paperwork where he agrees basically that he will not come back to the United States for at least 10 years.

0:14:39.7 Peter: Wait. Wait. The guy who was, what? Shackled, beaten, starved, raped, and tortured, voluntarily left the country and said, he doesn't wanna come back, that's naïve. [chuckle]

0:14:53.0 Rhiannon: Yeah. [chuckle]

0:14:53.6 Peter: I'm shocked that guy is not banging down the doors to get back in here.

0:14:57.8 Rhiannon: Yes.

0:14:58.4 Peter: Yeah.

0:15:00.0 Rhiannon: Yeah, he at that point, didn't... He just didn't believe that the American government would let somebody stay who had been labeled a terrorist or investigated as a terrorist, and he was like, "Yeah, get me out of here."

0:15:11.5 Peter: Right, right. I mean, you'd never be safe here again.

0:15:13.8 Rhiannon: Right, exactly. So he was like, "Get me out of here." And so once he gets back to Pakistan, Mr. Iqbal sues. He sues based on the racially motivated discrimination and abuse that he suffered while he was in federal custody inside the United States.

0:15:31.6 Peter: So more specifically, he sues a couple of higher-up government officials, John Ashcroft and Robert Mueller. I don't know if you guys know about him.

0:15:42.6 Rhiannon: Hey, that name sounds familiar.

0:15:44.5 Peter: Yeah. Saying that they oversaw and helped implement a discriminatory program that targeted Muslims, right? And targeted people from the Middle East. But the court rejects Iqbal's allegations saying that they aren't plausible because there was no way that Iqbal could be sure that Ashcroft and Mueller had overseen the discrimination in the program. And the fundamental legal question here is very simple. How specific does a lawsuit have to be? In other words, everyone knows you can't file a lawsuit that is purely frivolous. If I sued Michael for wearing a shirt I didn't like, the court would throw it out because that's not illegal. When you file a lawsuit, you need to describe what the person you're suing did that was illegal. But the question, in this case, is how specific do you need to be when you do that?

0:16:37.3 Rhiannon: Right.

0:16:37.5 Peter: Until this point, the courts had always said that it's enough that the allegations you make give the defendant enough information that they could reasonably understand the complaint and respond to it, but this case changes that standard for all future cases and raises the bar for future plaintiffs who wanna bring a case.

0:16:56.5 Rhiannon: Right.

0:16:57.0 Peter: Procedures in the federal courts are governed by the Federal Rules of Civil Procedure, the bane of every first-year law students existence. [chuckle] And all they say about this is that a lawsuit must include a "short and plain statement of the claim showing that the pleader is entitled to relief," and the rule specifically says that "detailed factual allegations are not required." And despite the fact that the rule itself says you don't need anything specific, the Supreme Court holds in a five to four ruling with a majority written by Justice Anthony Kennedy, that federal lawsuits must state what it calls a plausible claim for relief. And the court says that Iqbal who alleged that Ashcroft and Mueller oversaw a discriminatory program, did not do so. So again, Iqbal is arrested in a fraud case in November in 2001. He is deemed a person of high interest in the September 11th attacks, and as a result, is placed in a special maximum security section of a prison where he is physically and verbally and sexually abused, denied medical care, denied his ability to engage in religious activity and denied access to counsel.

0:18:07.1 Peter: What he claims in his lawsuit is that being made a person of high interest in 9/11 and subjected to this treatment, was the result of a policy either directed or approved by Bush Administration officials like Ashcroft and Mueller, that discriminates against Muslims and Arabs. And what the court says, first, is basically that high-ranking government officials like them can't be held responsible for the illegal conduct of their subordinates, in this context. And usually, in the law, there's a concept called the respondeat superior, which means that if you are a manager, if you're someone in charge and your employees, the people who work for you, do something illegal, generally speaking, you'll be held responsible. And the court's basically saying "No, that doesn't apply to these government officials," which is a pretty weird position, because as the dissent points out, Ashcroft and Mueller themselves admitted to the court that they could be held responsible. They literally conceded that they could be held liable at least theoretically, but the majority just ignores that, pretends they didn't actually concede the point. So as a result, the opinion is sort of predicated in large part on an idea that even the government admit is false.

0:19:14.0 Rhiannon: Yeah, exactly. And the court taking on an issue that both parties agreed upon is really like out of bounds, especially for the more formalistic conservatives, right? The only reason they're doing it here is to go to bat for the Bush administration in a circumstance where there might be questions about their liability for their conduct in the war on terror. And we've said before on this podcast that Anthony Kennedy is not the brightest crayon in the box, not the sharpest tool in the shed, and when he's talking, this is just a stupidly needlessly offensive part of the opinion. I think when he's talking about respondeat superior, he defines it in the majority opinion by saying like, it's a part of the law "where masters do not answer for the torts of their servants." Can we think of a single fucking metaphor for explaining something that doesn't like harken back to when people owned slaves, like why? Why are we doing that, Anthony Kennedy?

0:20:14.3 Peter: Like why can't he just say subordinates?

0:20:15.8 Rhiannon: It doesn't make sense. He's just so stupid.

0:20:18.2 Michael: Masters and servants is just classic conservative legal-scholar type language.

0:20:24.0 Rhiannon: Yeah, right, exactly.

0:20:24.5 Michael: Where they can like pretend that they're using sort of terms of art, but in reality, they just enjoy saying it.

0:20:29.5 Rhiannon: Right, exactly. It just has a nice ring to it.

0:20:32.7 Peter: Right.

0:20:33.0 Michael: So, the court then says, "Look, even if Ashcroft and Mueller could be held responsible, you're saying that they knew about this discriminatory policy, but you don't know that, you're just guessing.

0:20:43.6 Rhiannon: Yeah.

0:20:43.9 Michael: And the court says that that's not enough for a lawsuit.

0:20:47.5 Peter: Which raises a big issue, which is of course he fucking doesn't know, right? No one's ever gonna know for certain what the higher-up government officials are engaging in, especially when they're engaging in wrong doing. They're not gonna be like... Well, in the Trump era maybe, they will be airing that publicly.

[laughter]

0:21:04.9 Michael: Yeah.

0:21:05.9 Rhiannon: Lots of smoking guns in this administration.

0:21:08.5 Michael: Yeah, yeah.

0:21:09.7 Peter: Yeah, but for the most part, it's a pretty safe bet that you're just not gonna know what's happening. And since there's no real way to have access to that, this decision serves as functional immunity from civil lawsuit for higher-up government officials.

0:21:24.2 Rhiannon: Yeah.

0:21:24.3 Michael: Yeah, yeah.

0:21:24.4 Peter: All they have to do is basically cover their tracks. And when you think about the other legal immunities available to them, like qualified immunity, which we've talked about, it's essentially impossible for a citizen to hold them accountable under this rubric.

0:21:37.2 Rhiannon: Yeah.

0:21:38.4 Michael: So this creates a problem where someone can experience the output of a racist system, in this case, his discriminatory treatment in federal prison, but they can't do anything about it because they have no vision into the system to see who is ultimately responsible. The Court is basically saying that if government officials can, yeah, cover their tracks well enough, there's nothing you can do because you're just sort of guessing about what the government officials did.

0:22:03.4 Rhiannon: Right.

0:22:03.8 Michael: But also, it's pretty fucking obvious that this dude was subjected to a racist policy of some kind, right?

0:22:09.5 Rhiannon: Exactly, yes.

0:22:10.1 Peter: He's not really guessing.

0:22:11.4 Michael: Right.

0:22:11.5 Rhiannon: Right.

0:22:11.7 Peter: This guy was originally jailed for using a false Social Security Number when he was like working at 7-Eleven.

0:22:17.3 Rhiannon: Right, yeah.

0:22:18.8 Peter: He's then deemed a person of high interest in 9/11.

0:22:22.8 Rhiannon: Yes.

0:22:23.2 Peter: And by the way, as far as I'm aware, the government has never explained why that was the case, and I think we would have heard about it if there was a real good reason.

0:22:29.9 Rhiannon: Right. If he planned 9/11, I think they would have said that, right, like there would be a story.

0:22:35.1 Michael: Yeah. He would still be in fucking Guantanamo Bay if he was actually involved in 9/11.

0:22:38.9 Peter: Right.

0:22:39.9 Rhiannon: Right, exactly.

0:22:40.9 Peter: Yeah, of course. The most likely explanation for what happened here is they saw a Muslim guy committing identity fraud in the general vicinity of 9/11 and figured, "Fuck it. Better safe than sorry. Let's lock this guy up."

0:22:53.2 Rhiannon: Right, yeah.

0:22:53.7 Peter: Which is absolutely discrimination on the basis of his race and religion, like no question.

0:22:58.0 Michael: Absolutely.

0:22:58.9 Rhiannon: Exactly. We also know that shortly, after 9/11, the government was extremely frivolous with its designations of quote-unquote, "persons of high interest" in the September 11th attacks. So like in 2003, the Department of Justice published a report on the detention center that Mr. Iqbal was being held in, and that report found that the FBI and INS made little attempt to differentiate between detainees who were and were not affiliated with terrorism. And also, that the methods the government used to identify persons of high interest were both imprecise and inconsistent.

0:23:34.9 Peter: Right, and yeah, the court does not address any of this.

0:23:39.4 Rhiannon: Right.

0:23:39.5 Peter: Instead, Kennedy does his own sort of half-baked analysis where he basically says, in so many words, "Look, obviously, anti-terrorism efforts are going to disproportionally impact Muslims because Muslims did it."

0:23:52.3 Rhiannon: Yeah.

0:23:53.1 Michael: Yes.

0:23:54.3 Peter: To make an anti-terrorism omelet, you gotta break a few Muslim civil rights eggs.

0:24:00.7 Michael: That's some class.

[laughter]

0:24:00.8 Michael: That's the gist.

0:24:03.2 Peter: That's the message, yeah.

0:24:04.6 Rhiannon: Yeah.

0:24:05.6 Peter: That's basically as close to like a Fox News talking point as you can get. The general philosophy of the conservative movement at the time was just like, "Let's get them all. Fuck it, we're going absolutely nuts at these people."

0:24:19.5 Rhiannon: Yeah.

0:24:19.6 Michael: Who was it? Who said like the sand was gonna be glowing green or whatever?

0:24:23.6 Peter: Yeah, like the conservative position after 9/11 was, "Nuke the entire Middle East."

0:24:30.8 Michael: Yeah.

0:24:30.9 Rhiannon: Right.

0:24:31.0 Peter: The moderate conservative position was like, "Just Afghanistan." And then it goes down from there.

0:24:33.1 Michael: And then invade the entire Middle East. That was me, the middle guy.

0:24:35.0 Rhiannon: Right. Yeah.

0:24:35.1 Peter: Yeah, George W. Bush was taking the leftmost position of the Republican party when he just invaded two countries.

0:24:42.5 Michael: Right.

0:24:43.3 Rhiannon: Right, exactly.

0:24:44.7 Peter: So the court's position is a total dodge. The question isn't whether this disproportionately impacts Muslims, it's whether it's targeting Muslims regardless of any tangible connection to terrorism, which of course it is, 100% no questions asked.

0:24:58.6 Rhiannon: Exactly.

0:25:00.3 Peter: This guy was a fucking 7-Eleven clerk that got thrown into a federal prison right after 9/11 and is being called a terrorist by guards. We don't need to pretend that we don't know what this is about.

0:25:10.6 Rhiannon: Exactly, right.

0:25:11.9 Michael: Right.

0:25:11.9 Peter: It's also important from a legal perspective to understand that what Kennedy is doing is questioning the accuracy of the lawsuit that Iqbal filed but that is sort of procedurally improper. The court, when litigation is first filed is supposed to assume that the allegations are true. So you take the example I provided earlier where I'm suing Micheal for wearing a shirt I don't like, the court dismisses that, because even if you assume it's true, he's still not breaking the law.

0:25:38.8 Rhiannon: Right.

0:25:38.9 Michael: Right.

0:25:39.0 Peter: But the key is that they still have to assume that it's true.

0:25:42.9 Rhiannon: Exactly.

0:25:44.0 Peter: Kennedy isn't doing that. He's sort of interrogating whether or not the allegations are correct, but that's not the court's role. That's what discovery is for. Discovery is the stage of litigation where you identify and review evidence and the court is even letting it get to that stage.

0:25:58.7 Rhiannon: Right. Yeah, and something that just occurred to me is that Kennedy and the conservative majority, they're not just not taking the allegations as true, they're not just sort of questioning the accuracy or veracity of Mr. Iqbal's allegations. They are questioning those things, but then giving the benefit of the doubt to the government's reasons for picking up, for detaining all of these immigrants.

0:26:22.8 Michael: Right, their justifications, yeah.

0:26:24.3 Rhiannon: Exactly, and you can see this in the opinion, right? There is a part of the opinion that's particularly sort of... Wait, what? Are you a Fox News commentator? It goes like this, "The September 11th attacks were perpetrated by 19 Arab Muslim hijackers, who counted themselves members in good standing of Al-Qaeda, an Islamic fundamentalist group. Al-Qaeda was headed by another Arab Muslim, Osama Bin Laden, and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks, would produce a disparate incidental impact on Arab Muslims."

0:27:09.1 Peter: Incidental, yeah.

0:27:09.9 Rhiannon: Incidental, yeah. And he goes on. "On the facts that Mr. Iqbal alleges, the arrests Mueller oversaw were likely lawful and justified by a non-discriminatory intent."

0:27:23.8 Michael: I'm so angry.

0:27:24.9 Peter: I love that they keep saying, "Arab Muslim" when everyone involved is Saudi. That's because the sponsors of the next cocktail party that the Federalist Society was hosting was some collection of Saudi princes. But also this guy is Pakistani, which they mentioned in the first line and never again, it's like very fucking bizarre.

0:27:44.3 Rhiannon: Right, this man is not Arab.

0:27:45.5 Peter: Yeah, for our less educated listeners, Pakistan is South Asia, not considered an Arab country.

0:27:51.5 Rhiannon: Right, exactly. Ethnically different. So that quote to me, just goes to show how much work the court is doing for the government when actually they're supposed to be taking Mr. Iqbal's allegations as true.

0:28:05.9 Michael: Right, they call it a legitimate policy, when whether or not it's legitimate is precisely what's in question, in the lawsuit.

0:28:12.7 Rhiannon: Exactly. That's the question, if whether this policy was legitimate or discriminatory.

0:28:16.3 Michael: Right. And look, this outcome isn't really surprising, that this is where we land. Obviously, like Peter was saying, this is a period of anti-Muslim hysteria generally, and especially on the right, but across the ideological spectrum. And it's very consonant with our history as a country. We've seen discrimination claims go right out the window during wartime many times in the recent past, most infamously, when the Supreme Court blessed Japanese internment during World War II. We've also talked on the podcast about harsh anti-communist immigration decisions during the Cold War. And this is all, I think, part of a larger phenomenon in conservative politics generally, and in conservative legal circles as well. The technical term for it is "boot-licking".

[laughter]

0:29:14.1 Michael: The output of boot-licking is effectively giving up on the rule of law, in times of quote-unquote "Emergency in war time." It doesn't happen by accident. There are some prominent conservative academics, Eric Posner and Adrian Vermeule.

0:29:30.7 Rhiannon: Perfect villain name.

0:29:31.3 Peter: Yes.

0:29:31.5 Michael: Well, they are both freaks in their own special ways. But so they wrote a book after 9/11 called "Terror in the Balance", where they argued, in emergencies... Look, the executive is well suited to gauge the appropriate balance between civil liberties and security, and courts are ill-suited to second-guess that judgment. And so basically, the courts should just let the fucking president do whatever he wants, like, just go wild, man.

0:30:00.2 Rhiannon: Right, yeah. They love this.

0:30:01.5 Peter: Conservatives always pose this hypothetical where they say like, "Do you really want the courts making national security decisions?" And they try to suggest that the executive branch is better suited to it, but that's missing the point. Which is, we should avoid placing excessive discretion in the hands of any one branch of government. And they should be pushing and pulling at each other to avoid abuse of their own power. And the other aspect of this is, they are saying, "Do you really want the courts making national security decisions?" It's like, "Well, do you want some fucking moron like George W. Bush or Donald Trump making them?" Because that's the alternative.

[laughter]

0:30:34.2 Rhiannon: Yeah, exactly.

0:30:35.9 Peter: It's no great answer here, right?

0:30:39.4 Michael: Right.

0:30:40.0 Rhiannon: Right.

0:30:40.4 Peter: But the real question is, do you want a check on the power of those morons? And, yes, yes I do.

0:30:45.0 Rhiannon: Exactly.

0:30:45.2 Michael: Right, but these guys don't. And they believe so strongly in that, that they wrote a fucking book about it. I find the idea offensive in general, but it's hard for me to wrap my head around being so possessed with the idea that the government should be able to just trample everyone's civil liberties, that you write a fucking book about it. Then you're like, "This idea needs to be out in the world with my name on it, everybody needs to know this."

0:31:11.0 Rhiannon: Yeah.

0:31:11.2 Michael: Oh, by the way, Vermeule is currently serving in the Trump Administration. [chuckle]

0:31:14.7 Rhiannon: Great.

0:31:16.0 Michael: Like somebody that oversees the entire administrative state. So... No biggie. These guys are leading conservative intellectuals.

0:31:24.1 Peter: Yeah, it's as good as you're gonna get. [laughter]

0:31:25.3 Michael: Yes, it really is.

0:31:26.3 Rhiannon: This is the best and brightest of them.

0:31:28.2 Michael: The cream of the crop. And so they shrug off the idea... There's a common complaint here, you see, which is that like, "Look, if you sacrifice civil liberties during times of war, you'll never get them back." Once they're gone, they won't come back. And they shrug it off and say, "No, that's not fucking true." Just as the emergency fades, things will get better, courts won't defer to the Executive as much.

0:31:47.9 Peter: That's why airports are great now, and you can just walk right through.

0:31:52.8 Michael: Right. Exactly. Right. The last two decades put the lie to that thesis, so comprehensively. Our entire society has been restructured around a permanent war footing and it'll take decades to undo it if we can do that.

0:32:06.3 Rhiannon: Exactly.

0:32:07.3 Michael: And so circling back to this case, this is a perfect example of how fucking wrong they are and how fucking wrong Conservatives are on this point. The court is doing what they say, it's eliminating itself from the discussion about what is and isn't appropriate executive behavior in a time of national emergency. And saying, "Look, you don't even get to look into this." We don't even get to hear this lawsuit, because you need to have fucking ESP and be able to read the minds of John Ashcroft and Bob Mueller before you can sue them for this shit. Which effectively makes it impossible to sue. And this insurmountable bar has stayed in place for over a decade now, it didn't fade, it hasn't gotten better, and it hits on every corner of the law. Like we were saying before, it goes everywhere. It's civil rights litigation in all respects, not just discrimination and war. And this is precisely how this shit works. Civil liberties just get eroded the longer we're on this war footing. And this is maybe the quintessential example of that.

0:33:13.8 Peter: Yeah. And so this is where this case goes from being about the mistreatment of Iqbal himself, to something that transformed the litigation in this country in a way that benefits large corporations and other powerful interests.

0:33:25.7 Rhiannon: Yes.

0:33:27.6 Peter: In simple terms. This case made the bar for how detailed your lawsuits allegations have to be quite a bit higher than it was, which makes it harder to bring a successful lawsuit. More specifically, it gave the courts the greenlight to do what Kennedy is doing and sort of like question the allegations of the complaint before any evidence has actually been gathered, and this has resulted in courts dismissing lawsuits with a substantially higher frequency than they used to. Plaintiffs like Iqbal don't always have all of the facts at their disposal when the lawsuit is filed, and the standard that the court is creating here essentially leverages that against them. A good example of how this works is in discrimination cases, so let's say you were fired and you think it's because you were black or a woman, and you wanna file a lawsuit, 90% of the time, you're not gonna have specific evidence that that was the case, right? No one's gonna say, Oh, I'm firing you because you're black, I'm firing you because you're a woman, that's not how discrimination works in reality. The purpose of having a court case is to determine the truth of the matter, to figure out what actually happened, but because of this case, courts will often toss out cases that aren't specific enough about how they were discriminated against when the lawsuit's filed, so companies can often get these cases tossed out before the court even sees any evidence.

0:34:45.2 Rhiannon: Exactly.

0:34:46.5 Peter: So if you're not a lawyer, you might be wondering like, who does this help? Who does this hurt? And in simple terms, it helps large companies the most because they defend a lot of lawsuits, and it makes it easier to throw lawsuits out, and when you're consistently defending lawsuits, getting an extra 10 or 20% of them thrown out is worth a fortune. That's why I stated up top that this is maybe on balance one of the most business-friendly decisions in history, and I don't think that's an exaggeration.

0:35:13.7 Rhiannon: Yeah, obviously the corollary is that this hurts plaintiffs, but more specifically, it hurts unsophisticated plaintiffs. Wealthier people who have access to more expensive lawyers, they are going to be much less troubled by this standard because those lawyers don't have as much trouble navigating all of this and putting together a lawsuit that can hold up to the higher standard that we get from Ashcroft v. Iqbal, but people who can't afford lawyers or who frankly can't afford good lawyers, run into the most trouble here, it's a really unforgiving rule that basically punishes people who aren't familiar with the legal system, and it also is extra protective of large companies and the government for the reasons that this case makes clear, people have limited vision into big organizations, so it's hard for them to specify in their lawsuits what exactly the organization did.

0:36:06.0 Peter: Right, so if you have a large company or the government, you're not in the room with Bob Mueller or John Ashcroft when they're designing some policy that ends up being racist.

0:36:17.3 Rhiannon: Exactly.

0:36:18.1 Peter: You're not gonna have that sort of access to that information, this case allows your lack of access to result in your case getting tossed out because you're not allowed to get to the stage of litigation where you can actually get evidence and find out what happened. And we should talk for a moment about what a better system would look like, there's a very reasonable middle ground here, which to be frank, is where the courts were before the Supreme Court changed the standard. The question is, how specific does your lawsuit have to be? And it used to be specific enough that the other party would have notice about what you were talking about, and now...

0:36:51.7 Michael: It is pretty specific.

0:36:51.8 Peter: Is it plausible? That's completely different. That's a much higher bar. Basically, my view is that if a lawsuit seems to identify illegal activity and is not completely speculation, it should be allowed to continue period, that should be really the end of it. The legal system is supposed to be a way for us to address wrongdoing among private parties, so why should the courts stand in the way of that? The whole point of litigation is for evidence to be found and reviewed and analyzed so that people can draw conclusions, and this case has allowed Courts to essentially draw conclusions before any evidence is presented.

0:37:26.2 Rhiannon: Exactly.

0:37:27.0 Michael: And I wanna take a minute to call out an underrated way in which the conservatives are just full of shit here. This isn't a constitutional decision, it's not a statutory interpretation decision, this is a case supposedly interpreting the rules governing the federal courts, the Federal Rules of Civil Procedure, which that is all technically under Congress's legislative powers, but there's a law about this called the Rules Enabling Act, which basically gives that power to write these rules to this committee of judges called the Standing Committee, and everybody agrees that this case changed that standard. There's a reason why it's cited 85,000 times, it's the way it's taught in law school, it's the way everyone understands it, it was the entire fucking point, they rewrote the rule. And here's the thing, there's a process for rewriting the rules of civil procedure, and it's used regularly there's an advisory committee to the standing committee, and they take suggestions from academics and lawyers, they review them, they maybe propose publicly a draft, they take comments from activist groups and academics again, and then they move that up the ladder and then the standing committee.

0:38:36.9 Michael: If they like the rule, then they move it up the ladder to the Judicial Conference, and if they like it, and that's like the heads of all the circuit courts of the appeals, and a bunch of district judges, if they like it, it goes to the Supreme Court and then the Supreme Court can veto it, and if they like it, then it goes to Congress, and if Congress doesn't veto it, then it becomes a rule, this is a long process that requires broad buy-in across the ideological spectrum, a ton of public comment, a ton of advance notice and the supreme court is like well yeah fuck that though. Fuck you guys, fuck everyone, we're rewriting this rule the way we want it, and there's nothing you can do about it, because courts have to listen to us and we have veto power, if the standing committee wants to come and re-write the rule and say, No, actually you guys got it wrong, we can just fucking veto it.

0:39:27.2 Rhiannon: Right, it's pure, pure, purely gatekeeping. That's it.

0:39:31.1 Michael: Yeah, exactly. They are leveraging their position in this whole fucking system to bypass this elaborate process and enact their own agenda. It's pure policy making, and a pure exercise of political power. On a bright side to this though, that means that it can be overturned very simply. Legislation can overturn it. There was actually legislation to overturn it in 2009 in both houses of Congress, I don't know why they died, and I don't know if there's any movement, like if Democrats take the Senate, they're not really talking about Iqbal anymore, like they were back then, so who knows?

0:40:07.5 Peter: Right. So we should talk about what's driving this. We've mentioned once before, I think, that conservatives sincerely believe that the legal system is unfair to corporations and powerful people because they are often stuck in litigation. And so, you know, they're constantly defending against lawsuits and that's expensive, and they just think that's bullshit. They hate it.

0:40:26.3 Rhiannon: Right.

0:40:26.8 Peter: So what conservatives have done is engage in what is essentially a PR campaign. We've talked about this a bit in the past too. How many times have you heard that America is an overly litigious society? Where there are too many frivolous lawsuits.

0:40:40.0 Rhiannon: Yes, yeah.

0:40:40.5 Michael: God.

0:40:40.7 Rhiannon: And we're in need of tort reform and...

0:40:42.2 Peter: Right.

0:40:43.3 Rhiannon: Yeah, right.

0:40:44.1 Peter: That is based on an orchestrated PR effort by the right. They latch on to specific lawsuits, distort the facts to make them seem more frivolous than they are, and use them to promote the idea that litigation in this country is out of control. They did it...

0:40:57.7 Rhiannon: Absolutely.

0:40:57.9 Peter: Maybe most famously with the McDonald's hot coffee lawsuit, which was, when you look into the details, an incredibly legitimate case that still stood out in the popular consciousness for decades as sort of the exemplar of frivolous litigation. There's also this famous story, which you've probably heard in some form or another, of the burglar who fell through a skylight and sues for his injury.

0:41:21.6 Rhiannon: Yeah, yeah.

0:41:22.6 Michael: Right.

0:41:22.7 Peter: That occurred in the early '80s. It was substantially more nuanced than it first sounds. There was a kid on the roof of his high school, fell through and these windows that were just... I think they were like painted on, literally. So, it's just some nonsense. They were very poorly maintained windows that should have been maintained better legally, and the school settled for money. This is still being used 40 years later to promote the idea that lawsuits in this country are out of control.

0:41:48.9 Michael: Right.

0:41:49.3 Rhiannon: Yeah.

0:41:49.7 Peter: So what conservatives have done, is promulgate and leverage this idea of an overly litigious society to suppress one of the only avenues of redress that ordinary people have against powerful interests. To corporations, lawsuits are just part of the balance sheet. They're a financial nuisance. For a lot of people though, they're the only way to obtain some justice, to recover what they've lost.

0:42:13.5 Michael: Absolutely.

0:42:13.9 Peter: But conservatives on the court treat that as if it's just petty, as if every lawsuit is simply a business transaction, because if you spent your career representing powerful interests, that is all you've ever understood lawsuits to be.

0:42:26.4 Rhiannon: Exactly.

0:42:26.7 Peter: That's the disconnect that can't be repaired. Their idea of what is fair will always be tainted by the power they hold, that's why they can sneer at the plate of Javaid Iqbal, who was tortured by the federal government because of his race and religion, and at the same time, express this deep concern for the desire of the government and big business to operate as smoothly as they would like to operate.

0:42:49.0 Rhiannon: Yeah, you know something that that connects to, too, is another idea we've talked a lot about on the pod, which is that the conservatives couched these decisions as purely procedural decisions, not substantive, this isn't about this person's rights, this isn't about vindicating somebody who has been harmed. This is just procedure, sorry. And I've just been really moved by learning more about Mr. Iqbal's story and finding those facts that were not included in the opinion. It just reminds me that procedural decisions really contribute to shaping broader narratives that ultimately influence substantive rights. So when you hold as the Supreme Court, that pleadings have to be plausible and that Mr. Iqbal's pleadings here are not plausible, they're not specific enough, what you're saying is that this discrimination on the basis of race and religion by high ranking officials in the US government is implausible. It's just not believable.

0:43:45.0 Michael: Right.

0:43:45.3 Rhiannon: And that contributes to broad understandings of what happened, whether people's rights were violated, what it is people can be upset at the government for, all of that. It legitimizes the government practices that were at issue. And for the thousands of Muslims who were interrogated or questioned or detained across the US after 9/11, many without cause or connection to any terrorism allegations, that's a really big deal. What the Supreme Court says and does, it's incorporated into legal canon, often uncritically so, and this means that the narrative of what this case is about, a narrative that minimizes racist violence perpetrated by the government, that narrative is perpetuated in legal practice across the country now.

0:44:27.8 Peter: Right.

0:44:28.5 Michael: That's right.

0:44:29.9 Peter: Next week... [chuckle] So, I don't think this episode would be complete if we didn't check in on the Trump campaign's tiny little coup.

0:44:41.7 Michael: Ongoing soft coup.

0:44:43.2 Peter: Little baby coup going on. We've got a few things happening. Rudy Giuliani's humiliation in the Pennsylvania case, the sort of potential for some electoral college shenanigans and the Sidney Powell complaint in Georgia, all of it looking very, very pathetic in my view.

0:45:04.8 Michael: Right. You may have thought the coup was off when they started to formally recognize the Joe Biden transition, but the coup is still on and still pathetic.

0:45:13.9 Rhiannon: Yeah, that's right. Still a joke.

0:45:17.6 Peter: Yeah. It's been an interesting couple of weeks. We've had quite a bit of flailing on the part of the Trump campaign. Rudy Giuliani just absolutely tanking what was left of his career. At this point, like 50-50 shot he just gets too far when this is all done.

0:45:36.0 Rhiannon: You can't even do fascism, bro?

0:45:37.8 Peter: It was very embarrassing. His performance at oral argument, just the stuff of legends. One of the worst performances you're gonna hear, out of an attorney that has that kind of experience. Sidney Powell, the Trump campaign distanced themselves from her, and then she filed... I shouldn't even say one of... The worst complaints I have ever read in my life, in Georgia. Spelled the name of the court wrong multiple times in the header, which should be a copy and paste situation for most attorneys. And then, it was literally just like a conspiracy theory Facebook post except like extrapolated out to 100 pages. Just one of the wildest things I've ever read. Nothing even resembling a real solid complaint.

0:46:23.9 Rhiannon: No.

0:46:24.4 Michael: It also looked like parts of it were copy pasted off like a website or something. Where like the formatting was weird. So one line would have three words with massive spaces between them, and the next line would have 30 words all mushed together in one word, literally just like... And as you can see from the affidavits attached with it... [laughter] Like it's just one long line of words. Very weird. I've never seen anything like that, yeah.

0:46:52.9 Rhiannon: Listen, when you're vibing, when it's 3:00 AM and you're trying to meet a deadline and you're just vibing, you just gotta let it flow.

0:47:00.1 Michael: Yeah, just like... Who needs the fucking space bar? That's for clowns.

0:47:03.7 Peter: Yeah, and the only evidence, by the way, they didn't attach a lot of real evidence to the complaint. The only evidence they attached were affidavits, which are just sworn statements by people. So just like random fucking morons who were like they're poll watchers being like, "Yeah, I saw some shady stuff when I was watching the polls. You can read the affidavits." And none of them seem to come close to concrete allegations that make sense. Most of them involve what is clearly a hyperbole. They all say like, "All of the ballots were tainted," and stuff that's just like not something that I would describe as a factual statement. All of this extra funny, mostly because, if you've been deep in the right-wing hive mind ever since the election, which I have been, one of the big themes was like, "Look, this all seems like it's not going well now, but wait until Sidney and Rudy really get going."

0:48:00.1 Michael: The secret evidence.

0:48:01.4 Peter: When they drop their case, you'll see, and the tides are gonna turn. And these fucking just like wine and Xanax addled morons, just toss a bunch of papers at the court and they're like, "Here it is." [laughter] And that's it. And it's just the most incoherent bullshit you've ever seen. It's a pleasure to watch, I gotta say.

0:48:28.2 Rhiannon: You know, it's a basic and kind of short thing that as a lawyer you're taught, but you see in circumstances like this, like how important it actually is. The party that makes it kind of easier for the judge to do what they're asking for, is going to win. But they can't even do that because their pleading's on their face, it's just a mess.

0:48:50.6 Peter: Yeah, and maybe... 'Cause this is our Iqbal case, and maybe it's worth noting, the Giuliani case, which at the time of recording, has been dismissed by the Third Circuit, and it might go to the Supreme Court, that's a case about the pleadings, about the specificity of the pleadings and whether they have alleged something plausible. So I think the funniest outcome here is that the Supreme Court overturns Iqbal, just so that Rudy Giuliani can win. [laughter]

0:49:16.9 Michael: It would be incredible.

0:49:18.6 Peter: It would.

0:49:19.2 Michael: I do wanna note that in Pennsylvania, at the time of this recording at least, the next phase, if you can't get relief from the court is like what we discussed in our episode on the Electoral College, like state legislatures just appointing electors or trying to, at the very least. And there's some indication in Pennsylvania that they might do that. Senator Doug Mastriano tweeted that he was going to introduce a bill for them to appoint their own slate of electors. To highlight how much this is a clown show as well, he tweeted that there were some numbers posted on the Department of State dashboard that have since been deleted, showing Pennsylvania official votes that would show Donald Trump winning the election and only 2.5 million mail ballots being mailed out. And he says, "Well, like Joe Biden, supposedly there were like three million mail ballots in the general election tally, and so clearly, there are all these votes being manufactured out of thin air." The issue being that he tweeted numbers from the primaries.

0:50:30.1 Rhiannon: Beautiful. Beautiful.

[laughter]

0:50:36.0 Michael: This is precisely this sort of how disconnected from reality it is, but at least at the time of this recording, it does seem like they're going full steam ahead, they don't care.

0:50:45.7 Rhiannon: Right.

0:50:46.2 Peter: Yeah, I mean, they need it to pass the state legislature, which my guess is, would be a tough hurdle.

0:50:53.3 Michael: I don't think this is gonna happen. I think this will fizzle out just like the court cases have.

0:50:57.1 Peter: If they did, though... I mean, if it passed the state legislature, then all of a sudden, we have a very interesting issue. I just don't think it gets there.

0:51:03.8 Michael: Right. Can the governor even veto it? That would be a Supreme Court case, I think.

0:51:09.0 Peter: Yeah, that would be a Supreme Court case, and I think the legislature wins, just sort of eye-balling it. It would depend on what exactly the arguments are, but based on my understanding of their understanding of the Constitution, it feels like something the Republican state legislature would win. I don't think we'll get there, but...

0:51:27.4 Michael: There are a number of judges who've said specifically, they think they hold a special place in a constitutional order on this stuff. And then we would get into madness. It's not really clear under the law what happens when there are two slates of electors.

0:51:42.1 Peter: It would be extremely funny to me if this goes to the Supreme Court and there's just this massive constitutional crisis, but at the end of the day, Joe Biden has 286 electoral college voters, just like...

0:51:53.3 Rhiannon: Right, it's like for what?

0:51:56.0 Michael: Yeah, I don't see this happening in enough states. It does also highlight another point I wanna make, which is after our last episode, we got a lot of comments from people who thought we are a little too blithely optimistic, actually. A more cynical take on the court than us, which is surprising, of course. And how do we square this? How do we square the idea that we always say it's all politics at bottom and it's about the exercise of power with sort of just assuming the courts are gonna toss all these cases out and laughing about it? And a point I wanna make on that goes back to our very first episode, when we discussed why we wanted to do this. And I think all three of us said... At the very least, I know I said, and I'm pretty sure Rhi did, that we felt the court puts up a facade. A facade that gives it legitimacy. Part of that is like the way they format their opinions and the citations that make them opaque and impenetrable to lay people and give them an air of legitimacy. And we felt like we had to do something like this in order to strip away that facade, so people can see the brute power that underlies it.

0:53:13.8 Rhiannon: Right.

0:53:14.5 Michael: You wouldn't need an hour-long 5-4 episode. You wouldn't need a season of Fiasco to understand that the Supreme Court giving Donald Trump this election is a raw exercise of power. It would fully de-legitimize the entire 40-year project of the federal society. It would be done. There would be nothing left. And again, it's not even clear that they would still be able to do this, even if the court ruled that way, you'd still have to have Congress counting the electoral votes and there would be riots and violence, and it's totally antithetical to their purpose. What they're trying to do here is do this under the cover of law.

0:53:57.8 Rhiannon: Right.

0:53:58.4 Peter: Right, I think one thing that sometimes people don't get is, cynicism doesn't always mean the worst thing happens. Think about the ways in which power intersects with the law and the practice of law, and think about what the most likely scenarios are. And in this case, it is very, very unlikely that you see something like state legislatures rising up for the cause of Donald Trump. Even if you have these nutjob true believers all throughout their ranks, it's just not something that makes sense for the Republican Party as a whole, for the courts, etcetera, and that's why we are optimistic, if you can use that word to describe us in any real sense.

[music]

0:54:45.8 Peter: Next week is Roman Catholic Diocese of Brooklyn v. Andrew Cuomo, Governor of New York. This is the case that just drops about New York's COVID-based restrictions on houses of worship in the State. [laughter] It's gonna be great. I'm excited to do the episode. I'm excited to go to church, finally. [laughter]

[music]

0:55:17.6 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

Arizona Free Enterprise v. Bennett+

00:00 [Archival]: We'll hear argument first this morning in case 10-238, Arizona Free Enterprise Club Freedom Club PAC versus Bennett and the consolidated case.

00:12 Leon: Hey, everyone, this is Leon from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about a campaign finance case you probably haven't heard of: Arizona Free Enterprise Club PAC v. Bennett. In 2011, the Supreme Court struck down an Arizona program that provided matching funds for political candidates who opted out of private fundraising. The ruling effectively killed publicly-funded campaigning.

00:39 [Archival]: When elected officials are beholden to big donors, they may act to serve those special interests. By supplanting private cash in elections, public financing eliminates the source of political corruption.

00:58 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

01:03 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have infiltrated American life like an invasive species. I am Peter. I'm here with Michael.

01:18 Michael: Hey, everybody.

01:18 Peter: And Rhiannon.

01:19 Rhiannon: Hi, there.

01:21 Peter: And today's case is Arizona Free Enterprise Club v. Bennett. We're coming off a spate of election-related episodes, and it's been a while since we just sort of did a case. We want to try to return to normal in the hopes that doing so will distract you from the ongoing soft coup, which we'll talk about a little bit at the bottom of this episode.

01:42 Rhiannon: The incompetent coup.

01:44 Peter: Yeah.

01:44 Michael: Yeah.

01:46 Peter: So let's talk about some fun election facts, 'cause this case, it is sort of about the election. It is estimated that the aggregate spending on this election was about $14 billion.

01:57 Rhiannon: Jesus!

01:58 Michael: Jesus!

01:58 Peter: Which is a twice 2016, more than the last two presidential election cycles combined.

02:04 Rhiannon: That's wild.

02:05 Peter: Also, apparently, $3 billion or so of that came in the last few weeks and was driven at least in part by the campaign-related fights over Amy Coney Barrett's nomination. Maybe those numbers set the vibe here. This case is a tale about the lengths the Supreme Court will go to ensure that our Constitution doesn't just operate to the benefit of the wealthy and powerful, but does so in a way that expressly excludes the weak and marginalized. Seeing as we just had an election and the world's biggest idiots are talking about how it was unfair to them, we thought we might talk about one of the many ways in which it actually was unfair.

02:45 Peter: We've done episodes on cases like Buckley v. Valeo, which established that money is speech, and Citizens United, which protected the ability of corporations to spend endlessly on campaigns, but this is a story about how some states tried to stem the influence of big money in elections, and how the Supreme Court stepped in to make sure they didn't. So in 1998, the state of Arizona, seeing how big money in elections was becoming a problem, came up with a pretty novel solution. If a wealthy candidate was spending big money in an election, the state itself would provide matching public funds to their opponent, as long as the opponent was garnering sufficient support. That would ensure that wealthy candidates could not drown out the voices of their opponents. It sounds cool enough, right? It seems pretty reasonable.

03:36 Michael: That's smart, creative.

03:38 Peter: But in this case, the Supreme Court struck that law down, claiming that it somehow infringed the First Amendment rights of the wealthier, private-financed candidates. Essentially, the Court held that the state funding other candidates was watering down the speech of the wealthier candidates. And by the way, the Court refers to the candidates as privately-financed, but I will just be calling them the rich candidates from here on in.

04:03 Michael: Yes, yes.

04:04 Rhiannon: Right. Yeah, I think that's perfect.

04:05 Peter: We're talking about candidates that have access to money, their own bank-rolling of their own campaigns, or it might be. PAC funding or whatever. But regardless, these are either people that are rich or representing the interests of rich people.

04:18 Rhiannon: Yes.

04:19 Peter: I think that this case is more egregious than Citizens United, and when I say that I'm serious, but I don't mean that its impact is more egregious. What I mean is that this case is just transparently the Court granting favor to the wealthy at the expense of everyone else. It's hard to believe that it's real. It is symbolic and symptomatic of the same anti-democratic tendencies of the Court that have marched us to the precipice of fascism, which we are very much teetering on at this very moment. So Rhi, give us a little background here. How did we get here?

04:51 Rhiannon: Yeah, yeah. Peter, you've touched on it already, but this case, I think is particularly relevant in this moment, because we just experienced an election, actually not past tense, it's fucking ongoing. We are experiencing an election that had more fundraising and spending than any other election in history, like you said.

05:11 Michael: I feel like prior to this year, we'd say we held an election or we're in the middle of an election, but experiencing an election feels like it captures the trauma of this one accurately. It's the right way to describe it. It's like we are experiencing the 2020 election in our full bodies.

05:30 Rhiannon: This is happening to us.

05:31 Michael: Yeah, it's something that is being put upon us in a way that we feel at a very fundamental level.

05:39 Rhiannon: Totally. Right. Something to highlight even within those massive numbers is that the spending in this election cycle was really unprecedented, specifically in the Presidential contest, which is expected by the end of all of this, to see over $6 billion in total spending alone, that's up from $2.4 billion in the 2016 race.

06:03 Michael: Jesus Christ.

06:04 Rhiannon: Yeah, so we're going to say it over and over on this podcast, and this is actually an obvious problem that people on both the left and the right want to fix, and so someone should really do something about this. But when states or Congress try to rein in this poisonous shit, the Supreme Court says, psych, we're not going to do that. So, moving to Arizona and this case specifically, and first of all, Arizona is a weird state, I'm just going to say it. My understanding is that the climate there makes it uninhabitable and yet people still habitate it.

06:39 Peter: Yeah, I believe it was Peggy Hill on King of the Hill, who described Phoenix as a monument to man's arrogance.

06:46 Rhiannon: That's right, yeah. And don't DM me on Twitter about how living in the desert is great and cool.

06:51 Peter: No, it's awful.

06:52 Rhiannon: Yeah, you're not supposed to be living there.

06:53 Peter: Those places, they're just funneling in water from inhabitable parts of the country, right?

07:00 Rhiannon: Right.

07:00 Peter: It's like Las Vegas.

07:01 Rhiannon: Exactly.

07:02 Peter: If you stopped shipping water to Las Vegas from other parts of the country, everyone there would die within three days.

[laughter]

07:10 Rhiannon: Exactly, you're not supposed to have a manicured lawn, Scottsdale. So the good people of Arizona, after a string of political scandals throughout the '80s and '90s, including multiple governors being criminally indicted or impeached or recalled from office, or actually all of the above, shout out to this guy, Mecham, who appears to have been the Governor of Arizona for like five minutes before he became the first US Governor to ever face removal from office, simultaneously through a criminal indictment, an impeachment and a scheduled recall election.

[laughter]

07:51 Peter: Hell, yes.

07:53 Michael: That guy... incredible levels of corrupted.

07:57 Rhiannon: Right. So after dealing with all of this bullshit, citizens of Arizona passed the Citizens Clean Elections Act in 1998. And the purpose of the act, according to its language, was to restore citizen participation and confidence in the political system, to improve the integrity of Arizona State Government and to promote freedom of speech. Now, the act did that by establishing a sort of a new system for voter education, clean funding for candidate campaigns, and also setting up mechanisms for campaign finance enforcement. The most important provision of the Act for our purposes today was providing public funding for legislative and statewide candidates who opted into this public financing system. And if you opted in to get public funds, you give up private fundraising. In addition, there was a unique aspect of the public funding of campaigns that sought to make campaign spending schemes more fair in Arizona.

08:58 Rhiannon: So if a candidate opted in to have their campaign publicly funded, the law contained a provision for triggered matching funds, which would be distributed to the publicly-funded candidates, if they had an opponent who was rich and privately financing their own campaign and who spent over a threshold trigger amount in that campaign. So say that you're a candidate for office in Arizona and you opt in to have your campaign publicly-funded. There are some conditions, like giving up private fundraising, like I mentioned, but also that you participate in a certain number of public debates, that you limit your expenditure of personal funds in your own campaign, you agree to adhere to an overall spending cap.

09:38 Rhiannon: These are things that the people of Arizona said they wanted to clean up the campaign and election process in their state. And so to just give an example of how the matching funds provision works, imagine that as a publicly-funded candidate, you get $10,000 from the state to run your campaign. It wasn't $10,000 in real life, but just so we have a kind of round number. So you get $10,000 from the state to run your campaign. If your opponent was a privately-funded, read rich person, who did not agree to public funding, then for every dollar the rich person candidate spent on their campaign over that $10,000, you'd get a dollar from the state to spend on your campaign. So they match that amount. For purposes of calculating the total sum that rich candidates were spending in their campaigns, the law included spending by independent expenditure organizations too. So the state gives you $10,000 and maybe the privately-funded, the rich candidate might spend $10,000 of their own, but if expenditures by an independent group in support of the rich candidate was like another $10,000, then you, as the publicly-funded candidate would get matched those funds also.

10:51 Michael: Right, so I just want to say really quick why this is important. Public funding is basically dead at this point, and a big reason is because you can just raise more money privately. So this sort of sought to address that concern. The idea was, "Well, look, like, if we just set a number like $20,000 or $50,000, privately-funded candidates are going to out-raise that, and so nobody's going to want to go into the public system, but if we set it an obscenely large number like $3 million, yeah, nobody's going to out-raise that, but we as the state are going to be on the hook for an obscenely large amount of money for all these elections." And so this was a creative and elegant way of meeting that challenge, saying, "Well, we'll you a baseline amount of money, but then if the race is more expensive, if being competitive in the race costs more than that, we'll give you some more money so that you can be competitive."

11:51 Rhiannon: Right. Exactly.

11:51 Michael: And so that there isn't a major drawback to taking public funds. And this is a way to encourage people to take public funds and ignore private funding altogether and engage in a more corruption-free form of campaigning, free of the influence of monied interests.

12:09 Rhiannon: Right.

12:10 Michael: Obviously, as we'll discuss, the Supreme Court did not like that one bit.

[laughter]

12:14 Rhiannon: Yeah, so petitioners in this case, the people who brought the suit, were five past and future candidates for office in Arizona, as well as two independent expenditure groups. And what they're saying is that this matching funds provision of the law was unconstitutional because it penalized their speech and it burdened their ability to exercise their First Amendment rights. Now, Peter, you get to talk about the law.

12:42 Peter: Yeah, yeah, so this is a free speech case, and so we should talk about the relevant free speech law here. It's pretty much uncontested at this point that campaign spending is speech, so that's not the issue before the Court here. The issue is whether the State of Arizona providing matching funds to the non-wealthy candidates somehow burdens the free speech of the wealthy candidates, and the Court in a 5-4 decision, authored by Chief Justice John Roberts...

13:13 Michael: Pod favorite.

13:14 Peter: Says that, yes, it does, in a decision that is almost devoid of any meaningful analysis. So the Court starts off by saying that this matching funds law "imposes an unprecedented penalty on any candidate who robustly exercises his First Amendment rights." And I was waiting with baited breath. Like, okay, what's the penalty? So the law doesn't limit how much a wealthy candidate or a PAC spends it all, it just provides matching campaign funds to other candidates, so how does that penalize anyone? And when I tell you that the Court never really answers that question, I'm not lying. Robert says, "the vigorous exercise of the right to use personal funds to finance campaign speech," to describe like rich people funding their campaigns, and he's like, when they do that, when they vigorously exercise their right to use personal funds, that leads to advantages for opponents because then the state provides matching funds, and it's like, okay.

14:18 Rhiannon: This is so stupid.

14:22 Michael: You're penalized by not being able to drown out your opponent.

14:25 Peter: Right. Yeah, so that might "penalize" the rich guy in the sense that it makes his campaign harder to win, but winning your election is not guaranteed under the First Amendment. The Court's primary argument is basically, well, this isn't fair. Which is a matter of opinion, but has very, very little to do with whether it is legal, which is the question the Court is supposed to be answering. The question isn't just generally, well, this doesn't seem fair. These other people are getting in the money from the government. The question is, does that violate the First Amendment.

14:58 Michael: Right. And I think you're right, that Roberts' opinion sort of is infused with this idea that this isn't fair, but he phrases it differently, they use fairness derogatorily later on. And I think that ties back into other cases we've discussed, like Rucho, which was the gerrymandering case, where the entire opinion seemed to be like, look, politics isn't always fair and elections aren't always played cleanly and all that, but all they're really doing is re-casting their ideas of fairness as constitutional, it's not fair that when I spend more money, my opponent also gets more money. So that's a burden. Your concerns are "fairness concerns," my concerns are constitutional burdens, that's how they frame this and it's just transparent bullshit. It is.

15:55 Rhiannon: Yeah. Yeah, and to just underscore Roberts using fair in sort of a derogatory way, there's a quote where he says "leveling the playing field can sound like a good thing, but in a democracy, campaigning for office is not a game. The First Amendment embodies our choice as a nation, that when it comes to such speech, the guiding principle is freedom, not whatever the state may view as fair." Okay, you're deciding what is fair, this is your idea of fair, it's your opinion.

16:26 Peter: Well, he's also deciding what freedom means, right?

16:30 Rhiannon: Exactly.

16:31 Michael: Right. At no point does this law prohibit anyone from spending any money of their own on their own campaign or somebody else's.

16:39 Peter: That's the fundamental issue. The question is supposed to be whether this burdens the speech of the rich guy spending his money. He still gets to spend as much as he wants, spread his message, as much as he wants, that's his speech. It's not inhibited at all. There's no restriction on his spending, on his ads, on the content of his speech, absolutely no restriction on his ability to get his message out. All this does is allow other candidates to spread their message as well. An analogy would be like if I said I have a First Amendment right to hold up a sign, and also no one should be allowed to hold up a sign near mine because that would take attention away from me, right? To make the analogy more accurate and get the government involved, if I get a permit to hold a protest and my political opponents get a permit to counter protest nearby, which happens all the time, can I claim that they are burdening my freedom of speech, and therefore shouldn't have been granted a permit?

17:31 Peter: It's the same logic. Any judge would laugh at the idea that your speech is somehow burdened by the mere presence of someone else's speech nearby, but here is the Supreme Court treating that idea as if it's common sense. It's fucking crazy.

17:46 Rhiannon: Yeah, it absolutely is. And Michael sort of touched on with a matching funds program really embodied earlier in the episode, the way I think about this is it's an incentive program. Arizona wanted to clean up election spending in campaigning because they had experienced what happens when this stuff is played dirty and wealthy people have too much influence over campaigns, and so they're incentivizing public funding. If you agree to some clean campaign conditions, we will give you the money to run your campaign. That's good for voters in Arizona and the political process. And if you don't do that, well, the more and more money you spend, it's going to be matched and given to your public-funded opponent, so consider carefully what amount you're spending and what you're spending it on. This is encouraging good governance and accountability in campaign finance, it's encouraging people to opt in to a public-funded program, it's like inexplicably so stupid and absurd to say that somehow that's actually unfair for rich people.

18:49 Peter: The dissent argued something that I think is pretty obvious, they're like, doesn't this just increase overall speech, we're giving funds to opposing candidates, which results in more ideas being shared and more overall public debate, like that's promoting speech, that's not inhibiting speech. And the Court's like, well, yeah, maybe, but that doesn't matter because you are still burdening speech of the "privately-financed" candidate, but again, the Court just fails to articulate how one person's speech is penalized by the presence of another person's speech. And I'll keep coming back to that because it is central to the case and it's never adequately addressed, never once in the opinion does Roberts clearly state why that is true, it's just sort of assumed throughout.

19:33 Peter: And this brought us to a discussion we had when we were discussing this case, which is like I feel like Roberts is sort of dumb in a way that he doesn't eat a lot of flak for. Obviously, he's very savvy in some ways, he's a consensus builder, he appears to be talented at that, but I think because of that, people have given him credit for being sharp in general, and he actually has some of the weakest opinions of the conservative bunch just from a pure legal reasoning, legal analysis perspective.

20:02 Peter: We talked in Shelby County about how he never explained what the Court's constitutional basis for interfering with the Voting Rights Act actually was, and then we have the same problem here where he's just never laying out the central premise of the case. This is the sort of opposite of what Clarence Thomas does. Roberts gets a lot of credit for taking more moderate positions every now and then, too much credit, of course, we believe, but he actually can't articulate his positions effectively at all. The opposite of that is someone like Clarence Thomas, who takes insanely radical positions constantly, but is actually pretty good at laying out the sort of internal logical consistency.

20:36 Rhiannon: Right. There's a legal framework that you can track when Thomas is right.

20:39 Michael: There's a clarity of thought and writing that sort of shines through and it's very forceful and it can be persuasive.

20:46 Peter: Yeah, and it flows from insane premises, but it still flows. So the Court then goes on to talk about how the government does not have an interest in "leveling the playing field" between different types of speech, which is something we mentioned earlier. This is something that conservatives on the Court have long held. They say like, look, it's not the government's responsibility to make sure that speech is fair, which is a very convenient position to take if you are looking to justify the fact that wealthy interests have access to vastly speech than everyone else.

21:17 Rhiannon: Exactly, and Justice Kagan points out in her dissent that the citizens of the state of Arizona have a strong interest in preventing wealthy donors from controlling their government by proxy, and this law was designed exactly to fight against that. And that reasoning is really compelling, but it just doesn't fly with conservatives. 'cause they don't give a shit.

21:39 Peter: Yeah, a core part of the conservative philosophy, and maybe the central part of conservative philosophy, as we've discussed before, is the idea that people generally deserve their lot in life. The wealthy have earned their wealth, the poor have failed to achieve and therefore deserve their poverty. The idea that it's unfair to purchase influence just does not comport with the conservative brain, because to them, those outcomes are inherently fair. They believe that the wealthy deserve to enjoy the fruits of their hard-earned wealth, and that includes influence over the government, it's as simple and twisted as that. Like you will never be able to convince them that the powerful should not be powerful, because that premise is the very core of conservatism.

22:23 Rhiannon: That's right.

22:24 Michael: Right. And I think we've hit on the ways this is like pro-wealthy very clearly and I think that's good, but I do want to highlight that it's not just in favor of Republican donors. It's also very anti-majoritarian and anti-democratic. Rhi mentioned that the citizens passed this, this was an initiative. This was a referenda, it wasn't passed by the Arizona legislature, this was literally passed by the citizens on the ballot. This is a popular legislation in the most pure sense of the word, in response to real documented ongoing corruption concerns.

23:05 Michael: And you have the Supreme Court stepping in saying, well, you gotta fucking live with the corruption, you don't get to decide, people of Arizona, how fair your elections are, you don't get to make these decisions, we do. It's transparently anti-majoritarian, and it ties into the larger Republican anti-majoritarian project in that way. I think it's important to think about it from that perspective as well, and remember that there's a real disdain here for the voting public.

23:37 Peter: Absolutely. I think it's worth noting, like when you take a step back here, what's happening. People within Arizona, average citizens, are saying, okay, corporations, rich people, whoever, have too much control and influence over our government, so let us pool our money together to combat that influence.

23:57 Rhiannon: Yeah, we'll pony up the funds.

24:00 Peter: How do we do that? Through the most natural vessel, the government, the public financing system.

24:05 Michael: Our tax dollars.

24:06 Peter: Right. And the Court is saying, no, you're not allowed to do that, you're not allowed to all agree, by referendum, to pool your funds to combat that. That is fucking crazy. And by the way, not once are the speech implications for that voting public referenced in this opinion, not once.

24:22 Michael: No, no.

24:24 Rhiannon: A glaring omission, for sure.

24:26 Michael: Yeah. I think it is important to note that the Justices are sort of just doing what they want here, this is a bare assertion of their policy preferences. As much as they want to act like they are bound by precedent in all this, the First Amendment at its inception, was very limited, and our earliest presidents were jailing newspapermen and political opponents for criticizing them. And you had Supreme Court Justices saying that was totally constitutional and above board. And the ideas that now sort infuse our First Amendment jurisprudence are all sort of 20th century inventions of the Supreme Court. And I think that's a good thing, but it's important to sort of remember that the Court here is sort of on its own, doing its own policymaking, and the First Amendment, more so than pretty much any other area, and the campaign finance environment that we live in should be properly understood as the Court's creation.

25:28 Rhiannon: That's right.

25:29 Michael: We have time and time again seen Congress trying to rein in campaign spending decade after decade after decade in cases we've discussed and the courts striking it down and picking and choosing what they think is okay and what is not. And so if you think campaign finance is broken and if you think money in politics is disgusting and all our politicians are corrupt, the people to thank are the Supreme Court Justices. Period.

25:57 Rhiannon: That's right here. Oh, guys, I had a really important thing to say. We need to go to an ad.

26:05 Peter: So we've complained about the Court's speech doctrine before, but it bears repeating. These doctrines are layers and layers of precedent that don't make sense. First, you have the idea that money is speech. You have the idea that governments can't "level the playing field." You have the idea that money and politics does not lead to corruption, which is established in Citizens United. All of those things are bizarre and detached from reality, but they're all settled precedent when this case is being decided in 2011. And at that point, you're talking about something that is so distant from what actual speech is, that the boundaries of the doctrine become very hazy and unclear, and that sort of a gray area gives conservatives the wiggle room to hold that somehow not only can candidates and corporations and whoever spend as much as they want, but public financing that helps balance that out is illegal.

27:00 Michael: Right, and I think this opinion sort of drives home how abstract and disconnected these discussions are, because this wasn't enacted in a vacuum. This was enacted in response to real documented corruption that was taking place in the presence of federal campaign finance laws, pre-existing campaign finance laws and spending caps and all the stuff that the Supreme Court has already said was okay. This was in response to corruption surviving despite those limits, and instead of an engagement with that reality, what you have are these citations to cases where they cite Citizens United, and they're like, "As we held in Citizens United, independent expenditures cannot be corruption or create the appearance of corruption."

27:47 Michael: That's not a legal determination. That's like saying, "As we held in Citizens United, the world is flat." Either they can or they can't, but you don't get to hold that. If somebody accepts a quid pro quo from independent expenditures, it happened, whether or not you intoned that it cannot. But they want to make this so abstract because they know the second you get into the facts, there's no, no justifying their position here at all, because it's blatantly obvious what's going on, why people are spending $14 billion on federal elections. They're not doing that because they expect to get nothing in return.

28:27 Rhiannon: Right, right, exactly. Reading these cases, reading Roberts' writing in particular on this stuff, it's sometimes hard to discern whether they actually believe this bullshit that they're saying and writing. John Roberts is either straight up lying or he lives on a completely different planet and is deeply disconnected from the reality of how our alleged democracy works. Both of those are really concerning, right? Like the Chief Justice lying to us about how this works, or the Chief Justice completely not understanding how this works in real life.

29:02 Rhiannon: There's a quote later on that gets, I think, Peter, to your point about how abstracted this discussion is and these concepts are in a way that just builds on their assumed premises from precedent, from shitty precedent. Roberts writes, "This sort of beggar thy neighbor approach to free speech, restricting the speech of some elements of our society in order to enhance the relative voice of others, is wholly foreign to the First Amendment." So that's stupid and incorrect, but what's he actually talking about right now? You're not even talking about speech, you're talking about fucking money. That's what you're talking about, but because y'all held a few years before this that money is speech, then you get to these even more absurd conclusions.

29:50 Peter: Yeah.

29:51 Michael: Right. And because you've assumed that somebody else speaking is a restriction, you can say, here's somebody who is not being restricted in spending at all, and that somehow has been converted into their speech being restricted.

30:06 Peter: Yeah, I mean, what they really mean when they say this is, like, interfering with or restricting the wealthy candidate's speech, what they really mean is like you are interfering with the natural order. There is a hierarchy that exists and you are fucking with it. There's this idea called the just world fallacy or the just world hypothesis or something. It's a bias held by people where you believe that people reap the just rewards for their actions. So if someone acts in a good or noble manner, they will be rewarded, and if they act in a evil or negative manner, they will be punished. That's the fallacy, and I feel like conservatism sometimes is just that fallacy extrapolated to all of human existence, and that just explains 95% of conservative positions.

30:50 Rhiannon: Right. And how illogical it is with how things work in the real world. In the real world, it's okay to have rules about how people do something. There's a rule in soccer about not being off sides, not passing to a player who is off sides, and there's a reason why we have that rule, right? It prevents you from cherry-picking, from having an unfair advantage. It forces you to meet an opponent and win. You earn your goal, right? And everybody accepts restrictions and rules on daily life because it makes things more fair. Here, what they're saying is the First Amendment gives you a right to just unrestricted speech, and since speech is money, if you have unrestricted money, you got all the speech in the world, right?

31:35 Peter: Now that you've made that analogy, Rhi, I am 100% positive that there's a Federalist Society dipshit somewhere who has written an article about how the off-sides rule is unfair. [laughter] It penalizes the fastest players.

31:49 Rhiannon: We don't like it.

31:50 Michael: Right. I do want to say, earlier, I think one of you, I think it was Peter, it may have been Rhiannon, said something about how this opinion says that it's not government's responsibility to make sure that speech is fair. And I think that's a good articulation of the opinion, but I just wanted to make the point that I do think it's the government's responsibility to make sure that elections are fair. I think the foundation of any democracy is a free and fair election, and that's like a pretty uncontroversial idea, and that's what campaign finance laws have been about since the start. And that's what they take umbrage with, the idea of free and fair elections is ultimately what bothers conservatives. The foundation of their electoral project is making sure that elections are as unfree and unfair as possible, and I think that's been never more ably demonstrated than this year.

32:45 Peter: Yeah.

32:46 Rhiannon: And they couch this in a so-called principled legal stance. Conservatives act like this is the only logical result because we are... Like, "I'm sorry, this is what the First Amendment says." Right? "And y'all can do what you want in your little democracy, but these certain lines are off limits," or whatever, and they make it seem like, well, this is the only thing we can do, we're sorry, our hands are tied because this is what the Constitution says. That ends up being weaponized against people, because what they're not saying is that our most important principle is democracy. There's language in the opinion where they say, well, we're not seating an opinion, Roberts says, on public financing of campaigns. Public financing of campaigns is fine, but after this decision, public financing...

33:35 Peter: Public financing of campaigns is fine, you just can't do it.

33:38 Rhiannon: Right, right, exactly.

33:39 Michael: In any way that's useful or meaningful.

33:44 Peter: If you come up with a way to do it effectively, they will strike it down, that's the basic premise.

33:46 Rhiannon: Right, exactly. I wonder what a constitutional public finance scheme would look like after this.

33:51 Peter: Using this logic, you could strike down any public financing scheme.

33:54 Rhiannon: Exactly, right.

33:55 Peter: The end result of this opinion is that the Court is holding functionally, that the First Amendment protects not only your right to speech, but the relative power of your speech. In other words, the First Amendment protects your right to drown out the message of your opponents. When you take a step back, what you have here is a law passed by the citizens of the state directly, allowing those citizens to ensure that they maintain influence over the government, and the Supreme Court steps in to say, no, that's unfair to the powerful interests who are using their hard-earned money to buy that influence. They've taken the First Amendment and essentially held that it gives the wealthy not just a right to speech, but a right to power, and that is self-evidently dangerous and untenable.

34:42 Michael: That's right.

34:45 Rhiannon: Correct.

34:46 Peter: Alright, so we mentioned we would talk a little bit about the soft coup currently currently under way in the United States. As we're recording this, things are sort of still unclear, but it's fairly clear that A, Donald Trump is not able to admit that he has been defeated and will never openly admit it, and B, that the Republican Party is, with some small but notable exceptions, essentially standing behind him, but in a way that's sort of a hedge, right, sort of a, well, let's see how this pans out.

35:22 Michael: We don't want to rule out a coup just yet, we're not diving head first either.

35:28 Peter: Right. There's going to be recounts in several states. A recount has been ordered in Georgia, which is like in and of itself sort of crazy, because it almost certainly would not have been ordered if not for just the political pressure, like politicians in Georgia very much want to appease the GOP base by acting like they're all in here, right, they're going for it. So the next step here is that the states would certify their electors to the Electoral College, and the question is whether something can be done by the states that were won by Biden, by the legislatures in those states, for example, to either refuse to certify results or try to appoint Republican electors that would actually vote for Trump rather than Biden, despite the fact that Biden has won the state.

36:12 Peter: So that's what's sort of hanging in the ether, like the extent to which that could happen, obviously it technically can happen, but whether there's really like they have the political capital and motivation to do it, that's what's sort of outstanding right now. And it's an impossible question to answer, but I think we can say it feels very unlikely. It feels very unlikely. Much more likely than it should, no question about that, but it still feels like we're in a situation where that is a very low probability.

36:39 Peter: Now, we mentioned last week that there was a lawsuit in Pennsylvania basically attacking all mail-in ballots. I don't think they're going to get anywhere with that, but they sort of showed what their move might be because what they were asking for in that lawsuit is an injunction preventing the certification of electors in Pennsylvania. They are never going to fucking... If they get that it, it's over.

37:03 Michael: Right at the Supreme Court and at every state house.

37:06 Peter: Just a campaign saying, well, look, this all looks a little bit shady, this state doesn't count, that's functionally the end of democracy. I don't think they're going to get it. I've had people online like, you really don't think there's five conservatives on the Court that would buy that? No, I don't.

37:21 Michael: I don't either.

37:21 Peter: I mean, it's genuinely something that might lose 9-0 in the Supreme Court, I wouldn't really guarantee that, but there's a real shot that it would get 9-0, that's how bad it is.

37:27 Michael: Yeah, it's a pretty laughable lawsuit. I read it.

37:33 Peter: Yeah, it's garbage, it's just garbage. Like we said last time, it has this sort of scope to maybe, at least it's trying to flip Pennsylvania or at least get rid of Pennsylvania, but it's even worse on the merits then all of the other lawsuits. There is still one avenue, which is that the state legislatures that are controlled by Republicans could band together and refuse to certify the election for Joe Biden. I don't think they have the sort of unanimity that is necessary to do it, it doesn't feel like they have, there's already dissent being voiced publicly by Republicans in Pennsylvania, but it is fun. I know you guys are dreading this. I on the other hand am sort of excited because I've been more or less a leftist, at the very least on and off since I was about 15, and when you're a leftist in 2001, trying to explain to people that the United States is a fascist dystopia, everyone's like what the fuck are talking about, you idiot. And here I am, 20 years later, I'm like, see? Now you see, motherfuckers.

38:37 Rhiannon: I'm just exhausted. I'm like same, right. But I don't know how...

38:41 Peter: But this is energizing me. This is giving me energy.

38:44 Michael: I wish our listeners could see us, because Rhi and I are both just like ground into dust by the past few months, and Peter is like, man, I could go for a fucking run, I'm going to clean my apartment, I think. Guys, there's a coup coming, I'm feeling good. He's like shadow boxing.

39:03 Rhiannon: And I am breaking out in hives.

39:07 Peter: Do not mistake me, I am sleeping five hours a night tops. I feel like garbage. However, yeah, I do have to say that something about the fascism in this country becoming undeniably transparent is sort of refreshing to me in a way that gives me energy. Of course, that'll wear off after a week and I'll be like, well, now you just live in a dictatorship, but I... For now, it feels like I'm winning an argument that I've been having my whole life, you know what I mean?

39:39 Michael: Yeah, yeah.

39:40 Rhiannon: Right.

39:41 Peter: And what's better than winning an argument, baby?

39:44 Rhiannon: The podcaster's creed.

39:45 Michael: I cannot wait to tell @Jeet_here to eat shit for saying that we were indecent for wishing Trump to die of COVID. See, motherfucker? It would have been better. I told you.

40:00 Peter: That's true. Michael, in our Trump got COVID episode said... He said outright, it'll be smoother if Trump dies, than if the election actually happens. And you've gotta take credit bro, you gotta pat yourself on the back for that one.

40:13 Rhiannon: That's why you tune in to 5-4.

40:16 Michael: That take nailed it. Fucking nailed it.

[laughter]

40:21 Peter: So like brass tacks on the coup stuff, certification for electors in most of these states is a late November, early December thing, so as those dates approach, you're going to start to understand one way or another which way it's tilting, and we don't have that insight right now. I still feel like the avenues are very narrow, but a lot of this... People keep asking me, "Can you explain the legal sides of this?" And it's like, this is not about law, this is about the coalescence of power around a position. If every conservative institution, from the media through the Executive Branch to the Federal Congress and state legislatures, takes the position that this election belongs to Trump, that is a very different story than a situation where you only have fractured support across those institutions.

41:14 Rhiannon: Right, and it's also a very different story than saying the Constitution allows this. The point is, is that power says what the law is and what the legal conclusions are.

41:24 Peter: By the way, even if the state legislatures certify the results either to nobody or to Donald Trump, if that happens, if there is sort of a fight over it, it almost certainly ends up in Congress, and although Democrats don't have a firm grip on Congress, someone like Mitt Romney is not about to throw the election to Trump. Republicans would really struggle to get a majority in the Senate, for example. And I don't think that they think it's worth the fight. We talked about that last time too, is they've done so much damage that it really feels like to some degree they need to step back and say, "Alright, mission accomplished, let Biden enter power," and that will be that.

42:00 Michael: And Kelly, in Arizona, I think he already has the temporary senate office and he assumes office soon, since that was a special election. He doesn't have to wait till January. And the Georgia runoffs, those would also be seated the first week of January and would be involved in the electoral count. So I also don't think that the Republican Party wants to make the Georgia runoffs and control of the Senate about whether or not they're going to do a soft coup and seat Donald Trump as President despite losing the election handily, which is what it would very quickly turn into, if this was the route they took, was like, "Look, Democrats need to control the Senate if you want American democracy to continue going forward."

42:47 Peter: I think there's a sort of question of just like how far can Trump's stubbornness get him? What if he just holds out, he refuses? I think the answer to that is that just results in him being kicked out of the White House, which is just way too embarrassing for him to tolerate, which is why at some point he's going to voluntarily leave, sort of a Nixonian peace with honor sort of thing, like, "I do not admit defeat, but I admit that everyone else agrees and thinks I was defeated and I'm leaving." Or alternative, if you guys remember the end of Parasite where the dad just stays in the basement of the house, [laughter] and then Donald Trump Jr has the dream about becoming the President himself and freeing Trump from the basement. But then the final shot is a cut to Donald Trump Jr, bleary-eyed on a couch somewhere.

43:37 Michael: Like coke spread out in front of him.

43:42 Rhiannon: Yeah, uh-huh, uh-huh.

[music]

43:49 Peter: Alright, next week, we are taking off 'cause it's Thanksgiving. It's not Thanksgiving on Tuesday, but just let us take a fucking break. For the love of God.

43:57 Rhiannon: For once. For once.

44:00 Peter: And in very important news...

44:02 Rhiannon: So exciting.

44:03 Peter: We have launched a merch store.

44:06 Rhiannon: Yes!

44:06 Peter: If you go to our website at fivefourpod, all spelled out, dot com, and click on Merch, it will take you to our merch store where you can choose from an assortment of options.

44:17 Rhiannon: Get your wares. You need some stickers? You need a shirt? You need a tote? You need a mug? We got you.

44:26 Peter: Follow us on Twitter @fivefourpod, tell your friends and don't sweat the election, I'm sure it's going to be fine. [chuckle]

44:39 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

44:58 Leon: From the Westwood One Podcast Network.

The Courts Can't Save Him+

[music]

00:03 Speaker 1: Hey, everyone. This is Leon from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon, and Michael look back at the results of last week's election.

00:13 Speaker 2: The people of this nation have spoken. They've delivered us a clear victory.

00:20 S1: They scrutinize the complaints of voting irregularities that the Trump campaign has attempted to bring forward since November 3rd.

00:26 Speaker 3: Millions and millions of people voted for us tonight and a very sad group of people is trying to disenfranchise that group of people.

00:38 S1: They also discuss the state of play in the Senate and what the Democrats failure to achieve a majority means for the prospect of court reform. This is 5-4, a podcast about how much the Supreme Court sucks.

00:54 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left America flailing and helpless, like an outgoing president who is emotionally incapable of admitting defeat. I am Peter, I'm here with Rhiannon.

01:11 Rhiannon: Hi, good morning, Sunday morning.

01:13 Peter: And Michael.

[chuckle]

01:14 Michael: Hey, everybody.

01:17 Peter: Oh man. This is a special episode. The election was a few days ago, it has now been called by every major media organization for Joseph Robinette Biden.

01:31 Rhiannon: Robinette.

01:32 Peter: And I think I speak for everyone when I say, this was a weird one.

01:36 Rhiannon: Yeah.

01:36 Michael: Yeah, yes.

01:37 Peter: We're a Supreme Court podcast, we're gonna get to the implications for the Court and courts generally in just a few, but first, general reactions. I think for me, in the beginning this felt like a loss. A, the initial results looked bad. He lost Florida immediately.

01:53 Rhiannon: Right. Florida being on the East Coast really fucked the vibe of the whole thing because that was coming in early and I just thought we were fucked.

01:58 Peter: Yeah.

02:00 Michael: Yeah, it really did.

02:03 Peter: Right. Even once the results started looking a little better, Biden winning is moderately good news, Trump losing, fantastic news.

02:10 Rhiannon: Yes.

02:11 Peter: But I think having it be this close, losing seats in the House, not winning the Senate, all of which is very embarrassing, together it adds up to what I think is generally speaking, bad news for the Democrats, and maybe even worse news for the American Left. Without the Senate, McConnell's gonna block everything. No real hope of substantial progressive legislation. And the Dems maybe at high risk of getting wiped out in 2022 and 2024 because they won't have any accomplishments to hang their hat on, and they won't have anti-Trump animists to drive turnout.

02:43 Michael: Right.

02:44 Peter: And that was sort of dragging me down but as the days have passed I've been feeling better mostly because we've all gotten to bear witness to the pathetic whining of Donald Trump and his cronies who have never sounded more like losers than they have in the past few days.

[chuckle]

03:01 Michael: Yes, it's hilarious.

03:03 Rhiannon: So many dirty diapers.

03:06 Peter: All these fucking morons who spent the past four years openly gloating, and wearing the hats, and flying their fucking Trump flags on their 10-year payment plan boats, these people are now exclusively in two camps. Most of them are screaming about widespread fraud without anything really resembling solid evidence, and the rest are sort of shifting to a very somber Gore/Lieberman 2000-style, like calls for counting all the votes which is just mwaah, just fucking incredible. Go fuck yourselves, go fuck yourselves you fucking losers.

03:43 Rhiannon: Yeah, either way, I love this song, I'm jamming, too. [laughter]

03:46 Peter: Yeah, it's good.

03:47 Michael: Yeah, it's fantastic. It's fantastic.

03:50 Peter: I really feel like this is one of the first times, if not the first time in his political career, that Trump's bullshit has really run up against reality in a meaningful way. He can still bullshit, he's still tweeting that he won, but he can't bullshit his way out of it. Barring something really unprecedented, at some point in the next three months, he has to admit to himself that he's gotta pack up his shit and leave.

04:14 Michael: Right. World leaders around the globe are just congratulating President-elect Biden. At some point you can't ignore that, it's happening whether or not you want it to.

04:24 Rhiannon: Yeah. I heard stuff about the Secret Service, and US marshals and other sort of federal law enforcement.

04:30 Michael: Just going about the normal thing?

04:32 Rhiannon: Right, going about the normal thing, doing what they usually do in preparation for a presidential transition. But in addition, maybe prepping themselves also to do a little eviction.

04:42 Peter: Yeah.

04:42 Michael: Oh, really? Awesome.

[laughter]

04:45 Peter: If Trump refuses to leave the Oval Office, that's a direct threat to Joe Biden and the Secret Service has to kill him. That's how it goes.

04:52 Rhiannon: Right, those are the rules. [laughter]

04:54 Michael: Those are the rules.

04:55 Peter: I don't make them.

04:56 Rhiannon: How's that for a little procedure, bitch?

[laughter]

05:02 Michael: I'm gonna call into the FBI with a hot tip about a plot against the president.

[laughter]

05:06 Rhiannon: There's a plot against the president, and it's coming from inside the House. [laughter]

05:14 Michael: In terms of the election week, the real monkey's paw where we talked about how cool it would be to have an election week and then we had an election week and it was truly awful. I'm kind of a data nerd, I taught math at one point in time in my life, in a past life. And so I felt very comfortable about this Tuesday night, when the AP called Arizona, and then certainly Wednesday morning, I was feeling very good. So for this whole week, I think there was this very frustrating divide between me and a lot of my family who were freaking out and who did not have this sense of calm and peace that I did about where this was going inevitably because things seemed very uncertain. And the people to blame for that are, obviously, the Republican Party in Pennsylvania, in Michigan, in Wisconsin who rebuffed efforts to start pre-canvassing mail-in ballots because they thought they would benefit from this period of uncertainty because they thought that that would create the conditions for legal challenges and de-legitimizing mail ballots that while the vote was changing several days after the election, this would be a chance for them to make a case for throwing out mail ballots.

06:31 Michael: And we had to live through that stress. And also later on, it was some bullshit from the networks. And I think they should take some heat for that. They sat on this for a long time. Well past the point where their own people on air, were basically saying like, "We haven't called it, but it's pretty much over." Kornacki is sitting there begging the Decision Desk on air, to finally just fucking call Pennsylvania...

06:54 Rhiannon: Right. So he could go to sleep.

06:55 Michael: Yeah, and it was irresponsible. It was a disservice to its viewers. It's a disservice to the public, and it dragged out this period much longer than it needed to. The explanation was like, "We'll let the conspiracy theorists say that the votes aren't getting counted." And all this shit. The conspiracy theorists are gonna say whatever they want. What we saw happen... It was inevitably what happened once they called it, which is an outpouring of support in normalization of President Elect Biden, from world leaders, from other institutions, things that would normalize the loss and start moving...

07:27 Rhiannon: From the streets, yeah.

07:29 Michael: Yeah. Start moving us to the next phase. And they delayed that at least 24 hours, probably 36.

07:36 Peter: But I'm glad they waited for like a Saturday afternoon, 'cause it was just good vibes.

07:40 Michael: Yeah.

07:40 Rhiannon: Yeah, that way we could really get lit. Yeah, no. I spent the week absolutely way more stressed out than I needed to be, even though I knew those objective realities and objective... Certain eventualities. You guys know. I was checking in with you, because I would be like, "Michael, can you calm me down? Michael, what's gonna happen again? Can you please remind me that it's okay?"

[laughter]

08:04 Rhiannon: And yeah, I put a lot of that on the media. I don't understand why... I do understand, because it's for ratings, it's for making it look like it's close, it's for making it look stressful, but in terms of the media talking about it like, "Oh, Trump has gained on Biden in this state. Or, Biden just lost a lead in Florida in... " Whatever. "In Arizona, in Georgia." When that's not... There's a total number of votes, it's already there.

08:31 Peter: Right, right.

08:32 Michael: Right.

08:33 Peter: It's not like an actual foot race.

08:33 Rhiannon: Right. We're not watching people race right now. The votes are done.

[chuckle]

08:37 S1: Yeah, Right.

08:37 S1: Right.

08:40 S1: There's no more coming in...

08:40 Michael: Right. We're just [08:40] ____ it.

08:40 S1: There's a total and we're counting them.

08:42 Peter: Yeah, but you have to imagine... I sort of agree in a vacuum, that it does seem like the horse race, ongoing coverage of the election is awful, but I need you to envision the alternative, which is that you're stressing out for a week and then the next Sunday CNN's like, "Trump wins." And you're like, "Oh, fuck."

[laughter]

09:00 Peter: And it all hits you a once. I don't want that.

[laughter]

09:07 Rhiannon: To be honest, my emotions were so up and down that right now, the memory of this past week isn't even super there, and I wonder in years to come, if I'm trying to recall this awful week, if I'm just gonna black it out because it's too stressful and wild.

09:25 Michael: It's very surreal.

09:26 Rhiannon: Yeah, yeah.

09:27 Michael: It was.

09:28 Peter: Yeah. So we don't wanna get too deep into the politics, but to me, politically, the real lesson of this election was that we are in a new era of politics and political engagement. Even to a greater extent than everyone understood. A lot of key assumptions about politics appear to be plainly untrue at this stage in history. And a big one that's long been held on the left, is that most people lean left on key issues but are not politically engaged, and that if you could just engage them, the left would win a lot more. And we've even talked about that here in the context of this election, that if you really drove turnout, Trump's loss would be inevitable. The more people you get out, the larger the margin becomes. But I think that the 2018 mid-terms, and Biden's under performance, make it clear that's not inherently true. Right-wing engagement with politics has reached a point where it's at a perpetual fever pitch and is capable of rising to meet the effective get out the vote efforts of the left. Last year, Biden said that Republicans would, quote, "Snap out of it once Trump was gone."

[chuckle]

10:37 Peter: That's even more clearly wrong now than it was when he said it, because as many people have observed, this is in a lot of ways, a victory for Trumpism, a narrow loss in a year with a global pandemic, tanked economy, racial tensions and riots, every single person's lived experience of this year was miserable and they barely lost. Barely. I think there's only one way to explain that. The right wing's engagement in politics is driven by a vast and deep network of propaganda that consists in large part of outright misinformation. We all knew that to some degree, politics had changed with Trump, but it was still assumed that things that really impact people's material reality, like the economy tanking, would hurt a sitting president badly. But, I think that this deeply entrenched propaganda network has in a lot of ways changed people's... Like their day-to-day experience of reality. It colors their perception so deeply that their own literal suffering is re-framed as anger and grievance and redirected at pre-defined out groups. And that perseverance of that manufactured reality in the face of real and tangible failures of the state, is a victory for Trump's brand of reactionary politics. And I think the only lingering long-term question to me, is whether that politics can survive without Trump himself.

12:03 Rhiannon: Right.

12:03 Michael: Right. And so something I've been thinking about, and it's like, I'm reticent to do too much in-depth analysis right now when we don't even have complete vote counts and demographic data, what the elector looked like and all that stuff, but at a preliminary glance at least, Wisconsin seems to have been much closer than you'd expect given its demographically similar states. Like Michigan, Minnesota, Pennsylvania. Those states generally, they're sort of akin, they move together. And the question is, Why is it much closer than Pennsylvania is going to be and Michigan was, and there's one explanation that sticks out, which is that it had an awful COVID outbreak in October. The worst in the country since New York.

12:53 Michael: And going into this, you would have thought that would have benefited Biden. How do you even reconcile the idea that having an awful COVID outbreak in fucking October helped Trump and the Republicans? What do you even do with that information? I don't wanna say this is definitely what happened, I think it's too early to state that with certainty, but it's concerning, it's something that's been on my mind a lot, the last few days. I don't even know how your politics goes forward, in light of that. That's something that requires a lot of soul searching and a lot of reflection on who you can reach and how you can reach them. That was one big thought I've had, another is that it's very hard to disentangle Biden's performance from the Democrats performance. Democrats did worse than Biden. When all is said and done, it seems like he's gonna have a result that if you told me a year ago Democrats would win by five points nationally and get 300 electoral votes, you'd be like, "All right, great. That's a successful campaign."

13:54 Michael: But what do you do with that when they lose ground in the house and they only pick up one seat in the Senate? They could still pick up two more, I don't wanna write off Georgia just yet. I think for sure, Warnock could win that race, Ossoff has a harder challenge. But in these conditions too, anybody who has claims they have answers right now about where to go, who's to blame, what to do next, I think is full of shit, but I'm concerned that those answers are gonna be hard to come by. And there's a lot of uncertainty, like Peter said, about what this is gonna look like when Trump is no longer a public figure, whether crazy QAnon freaks are still turning out but Democrats are not, or vice versa, or what. It's just a period of a lot of uncertainty.

14:38 Peter: Yeah.

14:39 Rhiannon: Yeah, and I think a lot hinges on what kind of role Trump takes after this. People talking about him leaving the public space and not being a public figure anymore, this man isn't gonna give up the attention, which is what drives him, the attention and the power. So as a media figure, starting his own channel, whatever that is, he's still going to be around and I think that it will depend a lot on what he builds his role as. Peter made the point about Biden saying last year that Republicans would just snap out of it if somebody else wins. Look, nobody snapped out of it after eight years of George W. Bush and then Obama, that's not how people's politics works, just the next day they up and they're like, "Okay... "

15:26 Peter: It's also not how cults work.

15:28 Rhiannon: Right, exactly. That's not how...

15:29 Michael: It's not.

15:29 Rhiannon: In particular, Trump's base works. I was watching especially the early results come back, seeing that this race was going to be closer than any of the polls indicated, all of that stuff. I think it's shocking to a lot of us that Trump actually grew his base, got more people to vote for him. Michael, I think you're right, that there isn't a lot of clarity about what to do to address that growing base, but I think you have to start with the understanding that these people, in their politics, approach politics, approach government, from a completely different premise.

16:09 Michael: Absolutely.

16:10 Rhiannon: We're not talking about, "Joe Biden will do better on this policy than Trump has been able to deliver for you." They're not at that level of engagement with politics. Where they're at is, "All of this is corrupt, I reject all of it."

16:24 Michael: They're all crooks.

16:25 Rhiannon: Right, exactly. "They're all crooks, and so I have to choose the crook that speaks to me the best."

16:32 Peter: Yeah, and they're living on a diet of fucking Facebook posts.

16:35 Rhiannon: Right, exactly.

16:38 Peter: It's a completely different type of media consumer than we've seen in political history.

16:43 Rhiannon: Right.

16:43 Michael: Yeah. When I worked on campaigns, we often had vote targets, educated guesses about what we need in a specific precinct or a specific county to win. And I would not be surprised if a lot of these losing Democratic campaigns hit their vote targets. Biden basically matched Hillary's turn out in Miami-Dade County, which was his big loser county in Florida, but Trump got 200,000 more votes there. There are 200,000 people in Miami-Dade who spent four years living in Trump's America and were like, "Fuck yeah, now I'm ready. Now I'm coming out and I'm voting for the President."

17:19 Rhiannon: "I want more of this, baby."

17:20 Peter: They were mad about LeBron supporting Biden. This all makes sense.

17:25 Michael: Yeah that's right. So it's like...

17:26 Rhiannon: But I think, at the same time, it's really important... It's a little early to bring it into the conversation, but in Florida, a referendum on the minimum wage, raising the minimum wage to $15 an hour, passed in Florida with over 60% support.

17:41 Peter: Yeah.

17:41 Michael: Which was a policy supported by Joe Biden, it was on his platform. I believe he even cut ads about it.

17:46 Rhiannon: Yeah, these are the same people voting for Trump on the one hand, and also to raise the minimum wage to $15.

17:55 Peter: Fucking crazy.

17:56 Rhiannon: So, that's what I'm talking about. There's a disconnect there.

17:58 Michael: Right.

17:58 Peter: A massive failure of the Democratic Party. If the distance between the policy that is on their platform...

18:04 Rhiannon: Yes, yeah.

18:05 S1: And the votes garnered by the actual candidate, if there's a, whatever, 15 point gap almost, that is just a massive political failure.

18:14 Rhiannon: Exactly.

18:15 Peter: The one thing, before we start talking about the legal shit going on, I wanna end on a slightly optimistic note. Initially, I was very pessimistic about the future, but you can already sort of see that there's a potential rift in the GOP between Trump and non-Trump.

18:31 Rhiannon: Yes.

18:32 Peter: If Trump refuses to concede in any meaningful way and the GOP tries to move on, you can see a real material divide forming, where the GOP is sort of split between these party loyalists and Trump loyalists. Trump probably has the upper hand in that fight frankly, but hard to imagine that a real political split in the GOP wouldn't be a disaster for them. If they don't sort it out by the mid-terms they'd be fucked.

19:01 Michael: Right.

19:01 Peter: Alright, let's talk about the law.

19:04 Rhiannon: Sure.

19:05 Peter: Obviously, the major concern that we voiced, going into this, was that maybe it's about to be Bush v. Gore 2.0, we've talked about that extensively, and legal challenges are ongoing, and so the question that we keep getting asked is, "Is there a chance that Trump can wriggle his way out of this through the courts?" And I think to be flatly honest, the answer is almost certainly no. I think that there is less than a 2% chance that you even see a really meaningful challenge get to the Supreme Court, let alone that he wins one. And that's a real 2%, not like Quinnipiac 2%.

[laughter]

19:45 Rhiannon: Right. At the end of this, can you guys explain to me like why polls are so wrong?

19:49 Peter: Yeah. We can talk about polls being wrong. I think the real answer is that the current system for polling is just like, "Well, what if we sent everyone a fax and they fax back their preferred president."

[laughter]

20:01 Rhiannon: Okay. So it's like in the outreach, they're not reaching people.

20:03 Peter: Yeah. A buddy of mine on Twitter was like, "It's obviously they're under-counting. Polls are under-counting Republicans." He was like, "What they should do is add the polling questions to telemarketing scams." So it's like, those Indian guys that call you claiming that they're Tom from Microsoft and then they throw in like, "And who are you voting for?" And those people will be like, "Trump." But what is wrong with my computer?" I think that will work.

[laughter]

20:29 Peter: Yeah. So look the reason that we can be so confident that the courts aren't a realistic avenue for Trump is that there's only really two ways to use courts to win an election. One is like in Bush v. Gore sue to stop the vote counting. That's not gonna work here because Biden is ahead across all of the relevant swing states. The other option is to find a basis for challenging batches of ballots in the hopes that they are thrown out. That is still technically on the table but the GOP just has not found a color-able legal hook here. And that's mostly because the margins are just too big.

21:06 Rhiannon: Yeah.

21:07 S1: Yeah.

21:07 Peter: The states appear to have just generally done a good job running the elections and as a result Trump's team has been litigious to some degree, but it's been really sort of ticky tack shit that won't really get them anywhere. Most of the Republican complaints about this stuff... And I've been by the way digging very deep into Republican media as you guys know for the past few days just to see what they're saying.

21:29 Rhiannon: Yeah, your poor brain.

21:29 Peter: Most of it is just sort of almost conceptual. They have a general sense that some fraud was occurring. They have no exact idea as to what that entails or how it's done and of course they can't articulate how they know that it's happening.

21:42 Michael: But they know that this can't be right.

21:43 Rhiannon: Right.

21:45 Peter: Yeah. That's it. They just parrot the Trump line that mail-in ballots are shady. And then they latch on to every sort of error or singular instance of fraud that they can as evidence that something is afoot even though they have no real idea what that is. And some as always, just the biggest fucking bunch of morons on the planet.

[laughter]

22:07 Rhiannon: No. That's it. And that tracks with this idea of a general sort of skepticism. You can tell me whatever the numbers are but I just don't think it's right. That's how the Trump base reacts when you talk to them about policy. Whatever it is you're telling me, I just think that's wrong.

22:23 Peter: Yeah. I think it would be useful though to just go state by state and touch on some of the legal challenges and explain why they're all pretty much just dumb bullshit.

22:31 Rhiannon: Yeah. Yeah. So the most substantive lawsuit out of the Trump campaign so far, probably the one in Nevada. So the Trump campaign there have alleged that thousands of ballots cast in Nevada were cast by people who are no longer living in the state or people who died and they have not up to this point provided any real evidence of fraud except [chuckle] for one 78-year-old woman who claims that she showed up at the polls on Tuesday on election day, but she was told that her vote had already been cast by mail. And she was told that the signature on the mail-in it matched her signature. She was offered the opportunity to challenge the ballot and she declined doing that. So if you're following the only specific instance of alleged fraud in Nevada that they have, is definitely just some lady who forgot that she voted by mail.

23:36 Peter: Yeah. 100%.

23:37 Michael: See that old lady.

23:37 Peter: The only reason that this has any teeth... So first of all they are challenging batches of ballots and that's important. It's definitely not gonna be enough at this point to flip Nevada but that was what made it a departure from the other states. The other thing is people do vote from out of state when they shouldn't. That happens all the time. Right?

23:55 Rhiannon: Sure.

23:55 Peter: People leave the state and if they... Especially if they want their vote to matter in a swing state. It's never gonna flip Nevada. They're never gonna be able to actually track this stuff down.

24:04 Michael: They're walking into a PR issue too because there was a thing that leaked that they had called out specific geographic tags or whatever, it turns out they were for Armed Services posted in Europe and Asia and stuff. And so they're gonna sit here and start saying that the military can't vote. The collateral damage here, if they start trying to challenge everyone who voted out of state is gonna be not pretty for them.

24:26 Rhiannon: Right. Exactly. This thing I think to keep in mind when we're talking about all of these legal challenges is two things. One is that they are dog shit stupid and the Trump campaign is getting dunked on in court left and right. That's great. But number two, the other thing is, no one of these lawsuits or even if they won altogether, it just doesn't matter. The numbers are not there. It's not gonna change the result.

24:52 Peter: Yeah.

24:52 Michael: Right.

24:52 Peter: Right. Okay, there's no pertinent legal challenge in Wisconsin. The bottom line there is there's gonna be a recount. The Trump campaign has requested a recount, although Wisconsin law requires that they pay for the recount which cost $3,000,000 and there are rumors that they have not ponied up.

[laughter]

25:09 Rhiannon: Broke-ass, sorry-ass, punk-ass, dumbass bitches.

25:13 Michael: Right. Tell 'em.

25:14 Peter: Also it was a 20,000 vote margin. A recount changing that would be unprecedented just completely bizarre.

25:21 Rhiannon: Right. Right.

25:21 Michael: Yeah. Florida is a much bigger state their recount changed like 1000 votes I think.

25:26 Rhiannon: Right. Right.

25:26 Michael: And there was a recount recently in Wisconsin for Scott Walker and it only changed a few hundred votes.

25:31 Rhiannon: Right. Right. To get into the five-digit range on a recount in terms of the margin of error, it's unheard of. It just doesn't happen.

25:38 Peter: So Michigan is a done deal. It's interesting because I think a lot of people think that Michigan was close just because of the way the Trump campaign and the news media played it. The margin in Michigan is over 150,000 votes right now.

25:51 Michael: Yeah. It's comfortable.

25:53 Peter: Yeah. There was some drama there. Essentially, when Michigan began to swing to Biden... This is when Republicans started freaking out. And there were calls for Republican poll workers to converge on the Detroit polling locations to watch the count. Trump sued, claiming that his poll watchers weren't being granted access which the judge quickly surmised was bullshit and threw out. The GOP poll watchers then engage in a number of bad faith attempts to challenge ballots, including at least one request that a ballot be thrown out because "It looks sticky," by some poll watcher.

26:28 Rhiannon: Love that.

26:28 Peter: Yeah. At some point, the GOP strategy openly shifted to challenging literally every single ballot, so poll-watchers would be like, "I challenge that one, I challenge that one," and they would all have to be reviewed. All of this slowed down the count, but did nothing to change the outcome. Michigan was also the location of a reporting glitch that briefly showed Biden getting over 100,000 votes, without Trump getting any, which was quickly corrected, but of course, corrections mean nothing in the right-wing media world, and that is still being talked about, in right-wing circles as evidence that some fraud is occurring. And I think this brings us to Pennsylvania, which is where most of the drama is, currently. Most of the substantive issues in Pennsylvania unfolded before the election, which we've talked about...

27:16 Rhiannon: That's right, yeah.

27:18 Peter: When the GOP challenged late arriving ballots, as a result... Well, the Supreme Court didn't rule one way or another on whether they would toss out the late arriving ballots, they did request that the state set aside those ballots, in case a later ruling on their validity was necessary. But the gap in Pennsylvania is too big for those ballots to matter, so it's sort of moot and despite a whole lot of whining about unfairness, Trump's campaign hasn't really found another substantial legal hook in the state.

27:43 Michael: Right. And I think this highlights that Trump's legal operation writ large, prior to the election, was really effective, and it was everywhere, it was in a bunch of different states, literally hundreds of lawsuits, they racked up a ton of wins, very hack-ish job by a lot of Republican judges, coming down on the side of the GOP, time and time again, on the side of the Trump campaign.

28:09 Rhiannon: Right. You could see it was a concerted effort, right? They were organized.

28:13 Michael: Right. But the flip side of that has been, that they essentially put everybody on notice about what they were planning to do after the election, and as a result, this has been one of the best run elections in memory, leaving them almost nothing to challenge. And two, left the situation, like in Pennsylvania, where the best ballots for them to challenge, have been segregated. If all those late arriving ballots had been mixed in and counted with the rest of the mail ballots, the GOP could now be arguing, "Hey, those shouldn't be counted." And we could have a big debate about, "Oh, you should have said this months ago, weeks ago, whatever, and that should be barred and that we know how many arrived and it wouldn't have made a difference," but that would all be hypothetical, you could see how this would work...

29:01 Rhiannon: Yeah, yeah, totally.

29:03 Michael: To make this seem not legit, but instead, what they've done is helped Pennsylvania do this in a way, where the results are unassailable.

29:11 Rhiannon: Yeah, yeah, so their over-litigiousness, pre-election, fucked them for all of these challenges in the past week, after the votes were in.

29:19 Peter: Right, they did their best to cheat. But what are you gonna do, when you're cheating and your opponent's beating you?

29:23 Rhiannon: Right, right.

29:23 Peter: "Well, that was that."

29:27 Michael: Right.

[chuckle]

29:27 Rhiannon: We gave it the good college try, y'all.

29:31 Michael: And so I do think who deserve some praise are one, all the people involved in the actual administration of these elections.

29:38 Peter: Yeah.

29:39 Michael: And I think, Democratic party made a real big effort in the last few months, to educate voters about...

29:42 Peter: I think that's right, yeah.

29:44 Michael: The best ways to vote, and when to do it. As a result, there are very few ballots even in the segregated population in Pennsylvania, 'cause most people voted on time, or if their mail ballots were late, they went and cast provisionals in person instead and people got it right. And then the states did their part to count right. And as a result, Trump has nowhere to go.

30:05 Peter: Yeah.

30:06 Michael: The courts aren't gonna be very receptive to their arguments.

30:08 Peter: Yeah, the campaign also publicly claimed that their poll watchers were not being given access to the counting in Philly. Unfortunately, that blew up, when a federal judge asked their lawyers straight up, if it was true, and they had to admit that it was not.

[laughter]

30:27 Michael: Yeah, exactly. They didn't have nothing, they're literally like, "They're not letting us in." "Well, are they really not letting... "

30:33 Peter: Right.

30:33 Michael: "Well, they're letting us in."

30:36 Peter: Yeah, right.

30:37 Michael: "I got to admit."

30:37 Peter: There are some developments in Pennsylvania... 'Cause again, I'm deep in Breitbart world right now. The current move is that they have a supposed whistleblower, who works for USPS, who is claiming that he overheard someone planning to back date mail-in ballots that arrived late, which of course would be against the law. They also stated in their press conference at a landscaping company off of I-95, that they have identified a few dead people who voted. One lady apparently died on October 22nd, and then applied for and cast a ballot after that date. Which if true, is probably evidence that her grieving husband or something, cast a vote on her behalf, after she died, which is illegal, but that's not gonna give Trump Pennsylvania.

31:23 Rhiannon: Right, what I love about this is, "Okay, minus one, Biden." What do you want? Okay. That doesn't do anything, bro. [laughter]

31:32 Michael: Yeah.

31:32 Peter: It has long been the republican position... This is no joke, they think that Democrats are just rounding up the names of dead people and having them vote, in bulk.

31:42 Rhiannon: Right, right, yeah.

31:43 Peter: They have no real basis for believing that, but every little story like this, adds to that narrative. They also claim that Joe Frazier, the famous boxer, who died in 2011, voted this year, and my genuine best guess is that they saw a dude named Joe Frazier had voted and they were like, "Joe Frazier, the boxer? That guy's dead." My best example of how far right media is handling this, like the Breitbart's of the world, is that there's a story about a... I told you guys about this. A Pennsylvania mailman got caught on the other side of the Canadian border...

32:15 Rhiannon: Oh, right.

32:16 Peter: With mail, which is against the law. That's against their rules. You can't take mail to another country, I guess. And he claims that he just took a wrong exit.

32:25 Rhiannon: Right, he was on the highway.

32:25 Peter: But one way or another, he had 800 pieces of mail, among those 800 pieces of mail, there were three absentee ballots. So the headline on every right wing website was like, "USPS worker caught bringing the ballots across the border... "

32:40 Rhiannon: Right, right, yeah.

32:42 Peter: And it's like, "Are you fucking kidding me dude?"

32:42 Michael: Three ballots.

32:44 Peter: This shit is important to some to read, because what they're implicitly accusing Democrats of, is a fraud scheme on par with the greatest crimes in history, in its complexity.

32:55 Rhiannon: Right, right.

32:55 Peter: And what they have as evidence are these just little bullshit instances, of what maybe constitutes voter fraud. Not to mention that democrats didn't win the Pennsylvania state legislature, for example.

33:10 Rhiannon: Right, right.

33:10 Michael: Right.

33:11 Peter: Meaning that if there were hundreds of thousands of faked ballots, many of them would have had to have votes for Republicans on them. It doesn't seem like that would have been the move.

[chuckle]

33:20 Rhiannon: Right, right.

33:20 Michael: No. I would have gone big, especially given the polling, you have all this pulling information and all this expectations, Democrats that they could win 53, 54 senate seats.

33:30 Rhiannon: Right, yeah, yeah.

33:31 Michael: Instead, we're praying that they could, by the skin of their teeth, get to 50.

33:36 Rhiannon: Don't you think we would have given ourselves a landslide? Why...

33:39 Peter: Right, right.

33:40 Michael: I do think people have trouble with orders of magnitude, the difference between three ballots and 100,000 is like the difference between zero and 100,000, they're just not even in the same universe and people have trouble even comprehending what 100,000 ballots would look like and what it would take to falsify that.

33:58 Rhiannon: I completely, embarrassingly relate, because I don't understand the difference between a million and a billion.

34:04 Peter: But that's like a human thing. You don't have to be embarrassed. That's like a normal human...

34:07 Michael: Yeah, that's normal.

34:08 Peter: You're not supposed to be able to comprehend...

34:10 Rhiannon: Okay, well, this part is embarrassing, which is that for a long time, many years, I thought Justin Bieber was a billionaire.

[chuckle]

34:15 Peter: You moron, he's only worth $300 million. Georgia's currently about a 10,000 vote race, tightest of the outstanding states, and as such, seems like a plausible target for litigation. But elsewhere, so far, the GOP has been able to do nothing but stir up rumors about technical glitches that they found suspicious.

34:41 Rhiannon: Yeah.

34:42 Michael: Yeah.

34:42 Peter: Worth noting that just yesterday, the right wing media went nuts about a reporting glitch in Georgia, and then they fixed the glitch and it turned out, the glitch actually helped Trump and now Biden is up by even more.

34:52 Rhiannon: Amazing.

34:54 Peter: The Trump campaign filed a lawsuit about ballots that arrived after the election deadline, being counted, that was dismissed pretty quickly, when multiple election officials testified that they had actually been received on time. There's stuff being fought about in Georgia. I haven't seen any legal action that would be enough to challenge the legitimacy or validity of a 10,000 ballot gap that now exists between the candidates.

35:18 Michael: The Georgia lawsuit, that was the one where the evidence was somebody who's like, "Oh, those came in late." And then when they had to swear that at oath, they were like, "Well, I think that... "

35:27 Peter: Yeah, yeah.

35:28 Rhiannon: Right, "I'm actually not sure if those came in late."

35:31 Michael: They had an aura, a late ballot aura.

35:33 Peter: Right. Right, right.

35:34 Rhiannon: Now that I read that this says under penalty of perjury, I'm not so sure that I really know when they came in.

35:40 Peter: "Your Honor, when you say penalty of perjury, can you be more specific about the penalty?" Yeah, this is a part of a trend in these lawsuits, where someone will speak up in conservative media, like, "I have witnessed this wrong doing." So the lawyers descend on them and they're like, "Will you swear to that?" And they're like, "Oh. Well, maybe."

[laughter]

36:07 Rhiannon: "When you put it that way."

36:08 Peter: Right.

36:08 Michael: Yeah, Trump is... They're desperate for anything, to get into court right now. But that's what happens, they're like, "Okay, let's fucking go." And then they're like, "Well, I don't know." And there's like 53 ballots, it wasn't even that many.

36:21 Peter: There's just nothing here, and I think that is the story across these states, they've just been finding these tiny little things, but they are not going to set the legal groundwork to find a hook, to investigate tens of thousands or hundreds of thousands of ballots across these states, let alone to change the outcome by that sort of margin, it's just not really possible. There is one case in Pennsylvania that just popped up Monday night, that does seem to be a little bit broader in scope, than some of the more ticky tack cases that Trump has brought thus far, and the case is basically saying that mail-in votes are subject to less scrutiny than in-person votes, and that's unconstitutional and violation of the equal protection clause and the electors clause. And what they're looking for, is a holding that mail-in voting is unconstitutional.

37:11 Michael: Right.

37:13 Rhiannon: Right.

37:14 Peter: They're never gonna get that, but this is the first lawsuit that is broad enough, in scope, that it feels like it would be at least theoretically challenging the validity of tens of thousands or hundreds of thousands of ballots. I don't think they're gonna get there. I think it's incredibly frivolous bullshit, but it is sort of a lawsuit of the size you would need, to start turning around an election that Trump clearly lost.

37:39 Michael: Right.

37:39 Rhiannon: Exactly.

37:40 Peter: Alright, before we keep going, let's go to an Ad. One thing we should address... We did an episode, a few weeks back, about an electoral college coup, "Could Trump take advantage of the electoral college rules to somehow get enough electoral votes?" I think the answer to that is just sort of technically, yes, there are a bunch of avenues, but the only real realistic one is that Republican state legislatures in, say Pennsylvania could just reject the outcome, calling it illegitimate and propose a slate of their own electors. That's going to run into problems. Pennsylvania, for example, has a Democratic Governor, who would probably propose his own set of electors under the rules, the Supreme Court probably would just defer to the state legislature. So in a lot of ways, this is just a political question, more than a legal one, "Are the state legislatures ballsy enough to do this or stupid enough to do this?" My instinct is that they're probably not gonna get there. What would be the basis for really rejecting it? They would need the full support of the full Republican delegation, across these states. That would be very difficult.

38:46 Michael: I think this stuff has been in the air a little bit, Newt Gingrich mentioned it on Fox News, other politicians have talked about it, and clearly, early on, in election week from hell, there were Republican legislatures talking about the vote tallying being illegitimate and this outcome maybe being on the table, the electoral college coup, and I just think politically, it didn't play out in a way where they feel comfortable doing it. I think they've surveyed the scene at this point and been like, they don't think they could get away with it, or they don't think that it would fly, one way or another. Which is why the head of the delegation in the Pennsylvania House, I think, has said that they're not gonna do it. Which is, I think, basically sort of being like. At the end of the day, they counted the votes in a way that people generally believe the results, and we can't even pretend in a plausible way.

39:39 Peter: So let's move in to some sort of interesting down ballot stuff. You could tune in to some nerd ass podcasts, for senate and house stuff, but I feel like there are some actually genuinely good news, in the DA election space. Rhia, are you up on this stuff?

39:53 Rhiannon: Yeah, most importantly, really big one is that in Los Angeles County, progressive prosecutor candidate, George Gascon, or Gascon...

40:02 Peter: I don't think it's Gascon, that's the beauty and the beast guy.

40:05 Rhiannon: Well, it has the accent.

40:07 Michael: Gascon?

[chuckle]

40:09 Rhiannon: In Los Angeles County, the progressive prosecutor candidate, George Gascon won. This race was by the New York Times called, "The most important district attorney race in the country." Gascon is now the district attorney in a jurisdiction over 10 million people, so this is a really big win in sort of the decarceral... Getting rid of cash bail, those kinds of movements and the progressive prosecutor movement across the country, in general. Another huge thing, in terms of applying sort of decarceral logic, Oregon is the first state in the country now, to decriminalize personal possession of all drugs, including heroin, cocaine, meth. So that's really, really huge for Oregon.

40:54 Peter: Yeah, also, does anyone know what a one bedroom goes for, over there?

[laughter]

41:01 Rhiannon: Congrats to Oregon, the coolest state in the country. And decriminalization of drugs, not just marijuana, is really important, in terms of criminal justice reform, because personal possession of drugs, ends up being the sort of mechanism that drives mass incarceration. So that's great. And then marijuana, legalized or medical marijuana use, decriminalized in a bunch of states. Arizona. What up? I'm just excited in saying that, as somebody who lives in Texas. Arizona, Montana, New Jersey, South Dakota, way to go. Texas, get your shit together.

41:42 Michael: Did we mention, I think DC decriminalized shrooms, as well.

41:46 Rhiannon: Oh, right. Yeah.

41:47 Michael: Things gonna get weird, in the next legislative session. [chuckle] Control of the Michigan State Supreme Court changed, from Republicans to Democrats.

41:58 Rhiannon: That's huge.

42:00 Michael: That'll be good, because Michigan is gerrymandered, Michigan should be a fairer state, electorally, going forward, than it has been in the last decade. And that's a good thing.

42:10 Rhiannon: Yeah.

42:11 Michael: Absolutely.

42:12 Peter: A bunch of other stuff happened, there was some good news in wage laws, we mentioned that Florida passed the $15 minimum wage, paid family leave was expanded in Colorado, Louisiana got rid of the Confederate flag, that is on its flag, is just replaced now, with the words, "The white race is the superior race," so small step forward in Louisiana.

[laughter]

42:36 Michael: Mississippi got rid of their weird electoral college that they had for state-wide office.

42:41 Rhiannon: Oh, yeah.

42:42 Michael: Which is good. Which is a real... A legacy of Jim Crow and a step in the right direction, for having more representatives and fair elections at the state level.

42:49 Rhiannon: Right.

42:50 Peter: Yeah, both Utah and Nebraska modified their constitutions, to remove slavery as a punishment...

42:56 Michael: For crimes, yeah.

43:01 Peter: For crimes. Congrats.

43:01 Rhiannon: Thanks.

[laughter]

43:01 Michael: Way to keep up with the times.

43:03 Peter: That's a joke about how behind the times Utah and Nebraska are. But that puts them ahead of the United States Constitution...

43:11 Rhiannon: Agreed.

43:12 Peter: Which still allows for slavery as a punishment.

43:12 Rhiannon: That's what the 13th Amendment says.

43:15 Michael: Yes.

43:15 Peter: So let us talk a bit about the Supreme Court. Obviously, we were banking on this going to the Supreme Court, which would have been bad for America, but just gangbusters for the podcast.

43:25 Rhiannon: Just beautiful content. Yeah.

43:27 S3: Obviously, we're not quite there, but we should talk about what this election means for the court, moving forward. Obviously, the clear implication of not winning the Senate, or at least probably not winning the Senate, is that court reform through legislation, is effectively off the table here. It would be hard to get court reform through even a nominally democratic senate, let alone a GOP-controlled one. That does leave one option on the table, which we've discussed, which is ignoring the court. What if Joe Biden's administration simply treats the court's rulings as non-binding? It's an interesting possibility. You can listen more to our court reform episode, to hear us talk about it. We've talked about the trade-offs, and the big one is that it might result in Republican state governments also ignoring federal courts, and it's hard to see that trade-off being worth it, if we don't control the Senate and can't pass meaningful, progressive legislation. It feels like wasting ammunition, to say, "Alright, we're gonna ignore the Supreme Court," when you can't even get meaningful, progressive legislation passed. It's not like Biden can use this to save a green new deal or something that would actually be worth it. He's gonna just be passing executive orders and shit.

44:34 Michael: But this does highlight the importance of the Georgia run-offs.

44:37 Peter: Yeah.

44:39 Michael: Even if Ossoff or Warnock, or both, don't really excite you, they're probably worth your time or your money or something, because the Supreme Court's not getting reformed with a 50 vote, quote unquote, "Majority," with Vice President Kamala Harris providing the tie-breaking vote, but the lower courts might get expanded and the caliber of justice or judge that Joe Biden can nominate and get through the Senate, it would be much higher, in this scenario. The Supreme Court and courts in general, and the judicial system in general, would be much healthier, if they win those run off races.

45:14 Peter: I am sort of mentally and emotionally preparing myself for the Democrats to score an own goal here, by passing Ro Khanna's forward-looking, term limits bill, so that the term limits only apply to Biden's appointees.

45:28 Rhiannon: Right. Yeah, right. [laughter]

45:30 Michael: Right.

45:30 Peter: Alright, we should talk about the composition of the court. There's a solid six. The oldest conservatives are Alito and Thomas, who are, I think, both 71. Thomas looks like shit though, he could die.

45:43 Rhiannon: Yeah, he's eating...

45:43 Michael: He could.

45:44 Rhiannon: A lot of cheeseburgers still.

45:45 Peter: He's been on the court for so fucking long. One of the really good things about Biden winning, from a court perspective, is that if he hadn't, I think there's a really good shot that Thomas retired at the end of Trump's second term.

45:57 Michael: Yeah. And Alito and Thomas are both dumb enough right-wing nuts that I could see them at mask-free, indoor parties or whatever.

46:06 Rhiannon: Oh, good point. Yeah. Oh, definitely.

46:07 Michael: In two months, when it's 500,000 Coronavirus cases a day, in the middle of this awful surge, they could definitely get sick.

46:17 Peter: Yeah. If you're coming home every night, and sharing a bed with Ginni Thomas, you're never safe.

[laughter]

46:27 Michael: Yeah, and I do think if we assume that Democrats can only win one or none of the Georgia run-offs and Republicans control the Senate, it's worth wondering what that looks like for Joe Biden placing judges and justices. I wouldn't be surprised if McConnell lets him have a Brier replacement on the Supreme Court, it would have to be somebody moderate. I think they would take that as a way that they could prove that they're being bipartisan and good and things are quote, unquote "Returning to normal" while they fend off a young, black, progressive woman and instead end up with Merrick Garland or some other milquetoast white dude who's only gonna be around for 15 years.

47:10 Peter: A bluff that I think Biden should call because the optics of the Republicans...

47:14 Michael: I agree.

47:14 Peter: Holding back on a black female candidate... Which was Biden's promise, would be disastrous I think, for them.

47:21 Michael: Absolutely. And after all their shit from Merrick Garland and Coney Barrett, if then in the first year of his term, they're still not giving his nominee a hearing or they're voting them down on party lines, like, fucking do it. I agree, I think the Biden position here has to be sort of picking fights with the Supreme Court and with the Senate on this stuff and highlighting how political it is and keeping it relevant as an issue for the base and not seeming like it's something that they're walking away from.

47:55 Peter: I think there really is an open question about whether McConnell continues the Obama era strategy of just stone-walling on lower courts.

48:03 Michael: I think that's a tougher... They don't have a huge majority, they can only handle losing one or two votes basically. And Biden has long relationships with a lot of key senators, with Grassley, with Graham. Look, I don't wanna buy into this bullshit that they're gonna snap out of it 'cause they're not, they're gonna do what's best for them. But they might think that what's best for them is for a few years to just say, "Okay," if Biden is nominating moderates. And that might be what we see for the next couple of years, is them trying to reduce the temperature on this. 'Cause they've already won, they have control of major circuits. They control the Fifth Circuit, they control the Eleventh Circuit, they control the Supreme Court. They've dulled the Democrats hold on the Ninth Circuit considerably. These are major circuits that cover Texas and Florida and California, and a lot of the sources... A ton of litigation. So that gives them avenues to make any legal inroads they want. They can just bring cases in Texas pretty much whenever they want and get the ruling they want heading into the Supreme Court where then they have a six vote majority. So why keep it a battle ground if they can make it seem A political again, that might be in their interests.

49:21 Peter: I think all the more reason for the Democrats to say, "Fuck that" and not nominate moderates and turn it into a fight. If you don't have Congress and you can't...

49:29 Michael: I agree.

49:29 Peter: Pass meaningful legislation, what else do you have to do?

49:31 Michael: Yeah.

49:31 Rhiannon: Right.

49:31 Peter: Besides fight over this stuff.

49:32 Rhiannon: Exactly.

[music]

49:40 Peter: Alright, next week we're actually doing a case. Arizona Free Enterprise v Bennett case about campaign financing, the lengths that the Supreme Court has gone to ensure the power of big money in politics. And that should just about round out our election themed episodes as we move, thank God, out of election season, into some sort of lame duck session hell. [laughter] The depths of which we cannot possibly prepare you for. [laughter] Follow us on Twitter @fivefourpod. Enjoy the victory, enjoy watching Donald Trump have what I can only imagine is going to be a sustained and lengthy bitch fit over the course of the next week or two.

50:35 Rhiannon: I'm gonna very much enjoy that and I'm gonna enjoy screaming at Joe Biden and his administration for the next four years.

50:43 S1: Fivefour's presented by Westwood One and Prologue Projects. This episode was produced by Kacha Kamkoba with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY and our theme song is by Spatial Relations.

51:06 Speaker 7: From The Westwood One Podcast Network.

How to Fix the Court feat. Rep. Ro Khanna+

0:00:02 Leon: Hey everyone, this is Leon from Fiasco and Slow Burn. This week, Peter, Rhiannon and Michael are talking about how the Supreme Court could be fixed through Court packing and other means. They also talk to special guest, California Congressman Ro Khanna. Khanna introduced a House bill to impose term limits on the Supreme Court Justices.

0:00:22 Ro Khanna: Well, it's very simple, there shouldn't be Supreme Court Justices who are there for 40, 50 years.

0:00:27 Leon: But the hosts think it does not go far enough to reverse decades of conservative judicial activism. This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:47 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have taken control of American life, like that fungus that takes control of ants' brains and turns them into zombies. I am Peter, I'm here with Michael...

0:01:07 Michael: Hey, everybody.

0:01:07 Peter: And Rhiannon.

0:01:07 Rhiannon: Hello, friends and allies.

0:01:08 Peter: You guys know about that fungus?

0:01:09 Michael: I do, it's fascinating. I wondered if COVID had that effect when Trump started talking about kissing men as well.

0:01:18 Peter: No, he got the ant fungus.

0:01:21 Michael: That's what it is.

0:01:22 Peter: He's also susceptible.

0:01:25 Rhiannon: His brain is the same as an ant's brain.

0:01:30 Peter: So today we are talking about Court reform. Amy Coney Barrett's confirmation to the Supreme Court is at this point leaving us staring at a 6-3 conservative majority, and that leaves us with the question: What is there to be done about these goddamn people? A couple of weeks ago, we had a listener Q&A episode where we talked a bit about reforming the Court, and we want to expand and expound on some of the ideas we discussed. And we'll also be talking to Congressman Ro Khanna, who has proposed a bill imposing term limits on the Supreme Court, and has openly been discussing more aggressive Court reforms moving forward, and whose PR people have made a terrible, terrible mistake. We are ringing through the halls of power, folks.

0:02:22 Rhiannon: That's right.

0:02:23 Peter: So what we want to do with this episode is yes, talk about some possible ways to reform the Court, but also provide you with what we think is a useful lens through which to view possible Court reforms. You've probably seen a bunch of proposals floating around for how to reform the Court, how to fix the Court, and it's not always easy, especially if you're not a lawyer or you're not familiar with the machinations of government to evaluate how effective they would be.

0:02:48 Peter: So we want to give you a simple framework to distinguish between two different types of reform. The first is reform that is designed to take political power away from the Court, and the second is reform designed to shift the Court itself toward the left. This is an important distinction to make, because these types of reforms are designed to address very different problems. It's true that the Court currently wields a lot of political power and probably too much, and there are reforms that can sort of serve as a valve to let out some of that pressure and lower the stakes a little bit, and that can be a good thing, but it doesn't in our review solve the real problem.

0:03:26 Peter: The real problem with the Court is that it is pervaded with a deeply reactionary ideology. And that's not the fault of a system or a procedural mechanism that can be altered, it's the fault of 6 or soon to be 6 far-right Justices who themselves are reflective of an increasingly reactionary right-wing politics in this country. So we want to provide this analytical framework, A, so you can understand Court reforms a little more clearly, but also so that you can understand that there is only one reform that we think goes far enough: Packing the Court. And we say packing the Court, we mean one way or another, adding Justices to the Court. The time for more moderate institutional reform has long passed, we're at a point where what we really need, what this country really needs is more left-leaning Justices on the Court.

0:04:17 Rhiannon: Yeah, and I think we should maybe open up this discussion by talking about the discourse around Court reform right now, because a lot of it is really misguided. A lot of the discourse is centered around the idea that the Court is kind of like too political and needs to be made less political, but that is, if you've listened to this podcast, you know we think that's just nonsense. No matter what you do to the Court, it will be a body that makes decisions about laws that affect millions of people, and as a result, there's no way to remove politics from that.

0:04:52 Michael: Right, if you wanted to describe the biggest problem in American politics, it's like huge segments of the population and their representatives are like fucking right-wing freaks who believe in QAnon et al, expressly calling for fascism in this country.

0:05:11 Rhiannon: Right, yeah.

0:05:12 Michael: And the courts are just as much a part of that problem as are the other branches of government and the fucking psychos who go to Trump rallies. But nobody's talking about reforming Congress, right? There are, I'm sure, some procedural ways that we could change the Senate to limit like Lindsey Graham's influence and power, but the problem with Lindsey Graham is that he's an amoral piece of shit, that for some reason like the voters of South Carolina continued to send to office, right? That's the problem. And the fix to that is like making him immaterial by putting him in the fucking minority, and we should be willing to talk about the Court in the same way.

0:05:56 Peter: Yeah. Yeah, I'm very sympathetic to the idea that the Court wields too much power, 'cause it's true, right, it absolutely does. It's nine unelected elites who are each more powerful than all but maybe a small handful of elected officials in this country. And it would be good to reduce that power a bit. But when the Court is composed of a supermajority of fascists, that's a band-aid on a bullet wound. It's not addressing the real problem. I feel like a lot of dorky journalists and academics like this approach because it feels like non-partisan, but I think their minds have been corrupted by notions of fairness that don't exist in the real world. And it reminds me of movies where there's a super weapon and the good guy's mission is not to get the super weapon and use it against the bad guys, but instead to just destroy the weapon.

0:06:44 Michael: Toss the ring into the fire.

0:06:47 Peter: Exactly, exactly. Like no one should hold this power, it's too much. Cool and very noble stuff, but maybe it would be a bit more meaningful in a world where we are not in the midst of a world-defining cultural, social and political battle, with immense human stakes. If Democrats seize control of Congress and the Senate this year, they need to use the power, you don't disarm yourselves when you have the upper hand, and this is an opportunity to take that power and wield it for good. So in light of this, while we are pretty supportive in general of various options for reform and we will discuss their merits, there's only one that will really work, and that's packing the fucking Court.

0:07:27 Michael: I like the super weapon analogy, because also the super weapon isn't the Court, which is the way it's being sort of put forward by some commentators. The super weapon is having a supermajority of insane fascists on the Court. And if you want to blow up that weapon, what you do is you deprive them of that majority, which means either like you remove them or you just increase the Court until they are like on the fringe. Those are the two options if you want to destroy the super weapon, pack the fucking Court.

0:08:02 Rhiannon: Right. One proposal that we're going to be talking about with Congressman Ro Khanna in just a bit, one proposal for reforming the Court is term limits, putting term limits on Supreme Court Justices so that their appointment is not for a lifetime. And the intent obviously of a term limit proposal is pretty clear. If the Justices aren't serving 30 to 40-year terms, the political stakes therefore surrounding the nomination process aren't quite as high, and you're more likely to see an even distribution of Justices across the ideological spectrum. Those are good things, but it should be obvious that they're also sort of tinkering with the institutional machinations of the Court to make them nominally more fair.

0:08:49 Peter: So the current proposals to add term limits would likely not change the make-up of the Court for another 10 to 15 years at best. Now, that's assuming that the Democrats would have political power at the time when the current Justices start leaving the Court.

0:09:02 Rhiannon: Right, there's also the fact, as we'll discuss with Congressman Khanna in just a bit, that term limits are fairly likely to be held unconstitutional, actually.

0:09:13 Michael: Right. The Constitution says that the Supreme Court Justices stay in office in good behavior, which basically is interpreted to mean that it's a life term, unless they do something that's essentially impeachable, so that's basically the only way to get them out of office.

0:09:27 Peter: Yeah, not good, not a good feature of a reform. There's also the idea that instead of a Supreme Court, we'd have a rotating panel of justices from the lower courts. Speaking of definitely unconstitutional reforms. This would result in more ideological diversity, and you would also get more judicial restraint; most likely justices may feel like they're not in a position to aggressively rule one way or the other because they're not full-time members of the Court. And you also might see the Court bounce back and forth on key issues depending on who is on the Supreme Court panel at a given time. Again, there's an argument that term limits are constitutional. I genuinely don't know what the argument is that this is constitutional. I guess the President could agree to it, and if the President agreed to it because the President is granted the right to appoint Justices, then maybe it's constitutional then, but what's the point of that when the next President can just get rid of it.

0:10:24 Peter: There's also another problem with it, which is Mitch McConnell stonewalled Obama appointees and has pushed Trump's appointees through at an unprecedented rate, meaning the lower courts are not ideologically balanced at all. I think in terms of the sort of reforms that add up to institutional tinkering, this is probably the best, at least in theory, because I think you could actually see a more restrained Court and one that tends towards ideological balance. That feels like a real way to lessen the Court's power. Unfortunately, I think this is like the most pie in the sky in terms of actually getting it done. And maybe we should take this opportunity, since we had mentioned lower courts, to talk about lower court reform. This is a Supreme Court podcast, but certainly if the Democrats are able to muster enough political capital to institute significant Supreme Court reform, it would be a huge mistake not to do the same thing to the lower courts, the most obvious reform being to expand them because you now have a massive number of Trump appointees, vastly disproportionate.

0:11:37 Rhiannon: Yeah, a quarter of all federal judges on the bench were appointed by the Trump administration. That's a quarter, 25%. One in four.

0:11:47 Michael: It's not right, we gotta get that number down.

0:11:49 Peter: Get that down to a solid zero.

0:11:51 Rhiannon: Yeah, I like zero more.

0:11:54 Michael: Yeah. Unlike the Supreme Court, which has been fixed at nine for a very long time, the lower courts expand all the time, like the 11th Circuit is relatively new. It's younger than me. We added I think 150 district courts in 1981 or something like that, as well as a whole new federal appellate circuit. And the caseload is huge, it's much bigger than it used to be, there should be no controversy, this is just like good governance sort of thing that needs to be done regardless.

0:12:20 Peter: Yeah, even if you took away the ideological aspect, everyone knows the federal courts are over-burdened and need to be relieved, and the only way to do that is to add more judges.

0:12:30 Rhiannon: Yeah, and I'm glad that we're talking about lower courts, because I think the entire federal court system needs to be reformed. We are hearing words like reform the Court, pack the Court, that kind of thing, but it's always sort of limited to just the Supreme Court and reforming the federal courts to the better has to take into account the lower courts as well. One aspect that I like about making sure that we're talking about the lower courts as well is that right now you see Republicans sort of using deference to the Supreme Court and respect for the institution of the Supreme Court. They're weaponizing that in the dialogue and discourse about Court packing.

0:13:10 Rhiannon: So they're saying, it's this untouchable institution, it's been nine, you can't expand it. That kind of thing, basically setting it up to look like Court packing is this radical act that shouldn't be accepted by the public. But when we make sure that we're talking about lower court reform too, you can see that Republicans have been doing just that, packing the courts, for the past few years, that's been Mitch McConnell's thing is making sure that those lower court appointments get through and blocking Democrat appointments to federal appeals courts and federal district courts.

0:13:45 Michael: And there's some real fucking monsters in the lower courts.

0:13:50 Rhiannon: Absolutely awful, yeah.

0:13:50 Michael: Just really, really awful judges, ones that like the American Bar Association has been like, they're not qualified. Not qualified to be a judge, sorry.

0:14:00 Rhiannon: And these are people denying prisoners rights, denying reproductive rights, denying immigrants rights, they're doing this all of the time, and then you think about the tiny percentage of cases that the Supreme Court actually accepts, and so these are the people, the lower courts, that's where Justice Sotomayor has said, that's where the law is me. So they're really, really important.

0:14:21 Peter: Yeah, I mean, look, the Fifth Circuit held last week that Texas has planned to have one ballot dropbox in each county, meaning like one in Houston, and then one in rural counties that have a few thousand people...

0:14:35 Rhiannon: For mail-in ballots, yeah.

0:14:35 Ro Khanna: Doesn't negatively impact anyone's ability to vote. That's one step below the Supreme Court.

0:14:43 Rhiannon: Exactly.

0:14:43 Michael: They also said, just recently, voters have no due process rights in any sort of notification or anything like that, if the state finds a problem with their absentee ballot, like if there's a signature matching issue or whatever, literally the state can just throw out their ballot...

0:15:00 Rhiannon: And you would never know.

0:15:00 Michael: Without giving them a chance to cure the issue in the name of chasing some imaginary like voter fraud.

0:15:07 Peter: It is better for a million ballots to go uncounted than for one instance of voter fraud to go uncaught. That is the official position of the Fifth Circuit. By the way, we're getting in the swing of launching a merch store, so to our listeners, if there's any interest in maybe like a mug that just has the addresses of every Fifth Circuit judge on it, let us know, reach out.

0:15:36 Rhiannon: Yeah, we can send that to the artist for a design rendering.

0:15:41 Michael: Right.

0:15:41 Peter: Absolutely.

0:15:41 Michael: Floor plans of their houses. Just decorative.

0:15:46 Peter: The weak points in their security systems.

0:15:50 Michael: All their pets' names, birthdays, kids' birthdays...

0:15:54 Peter: Their kids' school schedules and shit. Alright, so let's talk about other types of reform. Rhiannon, you told me that you were looking into jurisdiction stripping, and then I saw you tweeting that you were not doing that, so I'm interested to see whether you can dive into it right now.

0:16:12 Rhiannon: You see, some really important news dropped that distracted me, and I promise it was really, really important, like I said, really crucial that I spent time on it. Jeffrey Toobin has been jerking off during Zoom calls...

0:16:26 Michael: On Zoom, on Zoom.

0:16:27 Rhiannon: So yeah, so you know, I had to... You understand, I had to look at that.

0:16:32 Peter: That is important to us, because Toobin's a legal analyst at The New Yorker and appears on CNN, and obviously that could be us, so... It's drama, yes, but it's also a job opportunity.

0:16:44 Rhiannon: Yeah, call us up, The New Yorker. So some scholars, notably Samuel Moyn over at Yale, have been talking about Court reform proposals that could be enacted in conjunction with or in lieu of Court packing. One such option would be jurisdiction stripping. Now, this proposal would decrease the power of the Supreme Court or the federal courts in general, by basically writing into new legislation a provision that would say that the federal courts or the Supreme Court do not have jurisdiction to look at cases that come up under these new laws. So for example, if you could imagine a Green New Deal getting passed, somebody who wants to strip the Supreme Court of jurisdiction would propose that written into the Green New Deal, it would say the Supreme Court does not have jurisdiction to hear any cases that come up under this Green New Deal.

0:17:41 Peter: And does this actually work? I mean, I've heard this bounced around, but the sort of alternative position is that they are not meaningful, at least at some percentage of the time.

0:17:49 Michael: Yeah, the idea is like, I don't want to get into the details of fed court shit, but it's like the Supreme Court, its appellate jurisdiction and a lot of stuff is not mandatory under the Constitution and the lower courts don't even have to exist, so Congress can definitely strip the lower courts of this jurisdiction to hear this stuff. And then the Supreme Court would have nothing to hear an appeal from, there's no avenue for it to get to the Supreme Court. But I have faith that the committed combined intellect of the Federal Society and the Supreme Court Justices, if they took aim at the Green New Deal could find a way to get it in front of the Supreme Court.

0:18:29 Peter: That's the thing, like at the end of the day, jurisdiction is, in a lot of ways, theirs to claim. And once they do, you're saddled with the same problem, and that's why this has always sort of rang a little bit hollow to me, although I do find it interesting.

0:18:44 Rhiannon: Right. Another proposal for Court reform that would decrease Court power is a supermajority requirement. And what that means is that instead of five members of the Court being required to make a ruling to overturn important legislation from Congress, requiring a supermajority. So something like maybe six or eight members of the Court, or all nine would be required to overturn big bills from Congress. And the idea behind that is that not requiring a supermajority to overturn legislation is really anti-democratic. If the people have elected their representatives and representatives enact legislation that the people want, then it's really anti-democratic and it should be a sort of huge issue that warrants overturning that kind of legislation, not just the whims of just five people.

0:19:39 Peter: Yeah... Go ahead.

0:19:40 Michael: I was just going to say, I'm just really enjoying the imagery of like this Florida law professor, Jed Shugerman, who's written about this. And he had an article a little while ago about an alternate history of how different things would look if you had a six-vote requirement to overturn legislation, and just like right now, him going back and quietly changing it to like a seven requirement. He'd be like sweating and being like, "Fuck, my big idea. It's no longer that useful at all."

0:20:14 Peter: The real problem with the seven vote requirement or an eight vote requirement or a unanimous requirement, is that overturning legislation, meaning invalidating Congressional legislation, is a very, very, very small percentage of what the Supreme Court does. What they're usually doing is interpreting legislation, so if you imposed a supermajority requirement to invalidate a law, what they would do is instead of invalidating it, just interpret it in such a way that functionally invalidates it. Roberts didn't get rid of the ACA, but he got rid of Medicaid expansion. There are all these avenues they can take to hollow out important legislation without actually invalidating it, and that's why I think that this really, at the end of the day, gets us not nowhere, but not so far at all.

0:21:03 Michael: Also of questionable constitutional character and something that I think you would get far more pushback on from the Court than even jurisdiction stripping. It would be one of the toughest sells, I think the Court would bristle at Congress dictating to it what it can and can't do.

0:21:21 Rhiannon: Yeah, I think it's important to note that both of those reform proposals, jurisdiction stripping and the possible requirement of a supermajority to invalidate legislation, both of those proposals kind of don't work without other reforms. They would need to be in conjunction with other sort of massive Court reforms, namely, again, Court packing. Even scholars like Samuel Moyn recognized that saying, with the inevitable confirmation of Amy Coney Barrett, in the short term, the necessity and urgency of Court packing is pretty obvious even to people who are saying, no, we shouldn't just be Court packing, we should be looking at decreasing the overall power of the Court and reforming the Court that way.

0:22:06 Rhiannon: I wanted to quote Samuel Moyn and a co-author, Ryan Doerfler, wrote a long piece about Court reform and decreasing Court power from that perspective in The New Republic, and they say: "We must set about reforming the Supreme Court by reducing its authority, not praying that its Justices will somehow refrain from using it. No other course of action is equal to the urgent crises and the democratic imperative of our present." And they kind of note throughout the piece the sort of perilousness and precarity of the welfare state, which has been kind of laid bare with the pandemic and economic inequality, that basically what that is going to require from Democrats as a response is massive sweeping legislation that they argue is basically unprecedented.

0:22:58 Rhiannon: And the Court in its current form is literally constructed to invalidate, it's an inherently reactionary institution, and it's an anti-majoritarian institution, so there just has to be a recognition and sort of an incorporation into Court reform measures that we are decreasing the power of the Court along with maybe changing its make-up.

0:23:23 Michael: Right, right, and I appreciate that, because one thing that I've been thinking about the entire time we've been recording is this debate in academic and legal and political circles right now about expanding versus disempowering the Court. I just feel like this is a conversation that is like 10 15, 20 years too late, like the time to have this conversation was after five unelected life-tenured politicians said in unequivocal terms that they choose partisan ideology over allegiance to democracy, and the rule of law in Bush v. Gore, literally stopped the vote counting to pick the president. That's what they did. That was the time to be like, maybe we should start thinking about reforming the Court.

0:24:10 Peter: What about this, then, Michael, tell me if this changes your mind, 'cause I just thought of a type of reform.

0:24:15 Michael: Okay.

0:24:16 Peter: Okay, alright. In both chambers and during oral arguments, they have to stand the whole time, no sitting.

0:24:23 Rhiannon: The judges do, the Justices do?

0:24:26 Peter: Yeah, yeah, if you sit, you're off the case. That's it.

0:24:26 Michael: Off the Court.

0:24:27 Peter: Well, that would be unconstitutional.

0:24:28 Michael: They have life tenure. No, life tenured...

0:24:31 Peter: No, okay, under good behavior...

0:24:33 Michael: No, life tenured as long as they're in good behavior, but you can just buy legislation, good behavior requires them to be standing.

0:24:38 Peter: I think this is a good idea.

0:24:41 Michael: They ought to be standing.

0:24:42 Peter: This was my second idea. My first was like sort of literal Floor as lava situation. I think the standing thing works, I think it's constitutional.

0:24:52 Rhiannon: You could jump these three couches to the bench, and the floor is literally lava, then cool. You get to be on the Court for life.

0:25:01 Peter: Imagine Clarence Thomas just having to stand there.

0:25:01 Michael: But yeah, so look, obviously Bush v. Gore was a big watershed. I think also 2010, Citizens United was a case that something like 70% to 80% of Republicans dislike, independents dislike. It was hugely controversial. Barack Obama was talking about it in the State of the Union, and Sam Alito was saying, "You lied." There was a time, that was a beautiful time for the academic and legal left to be like, let's talk about Supreme Court, let's have an agenda for disempowering the Supreme Court. But they didn't. And it's fucking cowardly. Nobody wants to be the person who's like first through the gate, saying, we have a real problem and we need to think about making big changes because you could be ridiculed, maybe you're not invited back on CNN, if you're saying that the Supreme Court has abandoned democracy and blah, blah.

0:25:54 Michael: But that moment's passed, like too much has happened in the last 15 years, and we've talked a lot about it, Citizens United, the gutting of the Voting Rights Act, just two off the top of my head that are like big issues. But it's no longer the case that we just need to fix the Supreme Court, we have to undo the damage they've done, that's going to require exercising power from the Supreme Court itself as a seat of power. We no longer just need to disempower it, we need to make use of it it. There's just no viable left project without it.

0:26:31 Rhiannon: I think that's exactly right, and I also... The lack of intellectual honesty and just intellectual engagement on this issue, I put a lot of that on law schools. I mean, the three of us went to three different law schools.

0:26:46 Peter: Yale, Harvard and Stanford for our listeners.

0:26:47 Michael: That's right.

0:26:49 Rhiannon: Not true, but okay.

0:26:52 Michael: That was me, I transferred from when I... I was never happy.

0:26:54 Rhiannon: Yeah, 1L at Harvard, 2L at Yale, 3L at Stanford.

0:27:00 Michael: I couldn't find the place that was really challenging enough.

0:27:02 Rhiannon: Right, that's right. Michael's only one on the pod for whom that's a halfway believable statement. Anyway, but yeah, I put a lot of this on law schools, we went to law school, we know how this stuff is taught, it's wholesale acceptance of the status quo, and I've only realized now looking back how intellectually lazy that is and how...

0:27:26 Peter: It's beyond acceptance of the status quo.

0:27:28 Michael: It's reification.

0:27:29 Peter: Yes, exactly, and it's treatment of the status quo as if it is sort of...

0:27:32 Rhiannon: As if it's the ideal.

0:27:34 Peter: Not just the ideal, but as if it's organic, as if it's something that pre-exists and you have to sort of work with it.

0:27:41 Rhiannon: Right, right. And that kind of abdication of intellectual responsibility in the legal education system across the board is super concerning too.

0:27:52 Michael: Yeah, I think there's a level of like... I don't know if it's cowardice or naivety or both. I'm not saying this about like Moyn, through a lot of the current clever alternatives to Court packing, people who didn't want to own up to what was going on 10 years ago, and don't really want to own up to what's going on now either, but are having to give some ground in the face of reality, kind of like, well, fuck, like the head-in-the-sand routine only works so long, but they're still not ready to fully embrace the facts on the ground, what this project has been from the right wing, from their colleagues that are in the Federal Society, and who they lunch with or whatever.

0:28:32 Rhiannon: Exactly, yeah, and I'm so glad that you brought up, Michael, that this stuff was obvious, it was obvious 10 years ago, 15 years ago, 20 years ago, and it's a simple thing that we say a lot, which is like, learn from history. When fascism comes to the country, it doesn't announce itself as fascism. It never does, right. And also, I think people assume like, well, if things were bad and this was fascism or whatever, if there's too much power consolidated in the few, then things would be really, really bad for everybody, or I don't know where the line is for some people, right, but just a reminder that fascism leads to good results for a few people, like some people are doing really well.

0:29:14 Peter: Sometimes for a plurality of the population.

0:29:16 Rhiannon: Right, exactly, exactly. And so I don't know where the line is for people to start being concerned about it and really engage intellectually and creatively in what needs to be done with federal courts, but yeah, it was obvious. The line was passed on for me a long time ago.

0:29:34 Peter: Alright, let's circle back to some reforms, and there's one that we had talked about before, which has been floated by a bunch of prominent voices on the left, that you just could ignore the Court. The idea here is that the Constitution doesn't grant the Court the final say on constitutional issues, the Court granted itself that power in Marbury v. Madison, a case from 1803, that leads to a very weird part of law school where early on you learn that the Court doesn't really have the power to bind any one on constitutional issues and its entire role in society is built on what everyone more or less agrees is a false premise. And then you just move on and do the rest of law school like that didn't just happen.

0:30:14 Rhiannon: It's like you said before, the Court sort of builds its jurisdiction and then takes it.

0:30:18 Peter: Yeah, this is very similar to jurisdiction stripping, but it doesn't require a provision in a law, it just requires that either Congress or the Executive Branch or both ignore the Court's rulings and say thanks for the tips, but no thanks. And the Court has no inherent enforcement powers, those enforcement powers rest within the Executive Branch, so if the Executive Branch isn't playing ball, that's it. The nice part of this is that you sort of side step one of the biggest problems with Court reform, because this doesn't need to be legislation, so you don't need buy-in from congressional Democrats. This can be effectively done without consensus, that's the big plus on this idea.

0:30:55 Peter: The Supreme Court strikes down a law or a regulation and people just carry on like it didn't happen, and you don't need to worry about getting every fucking centrist Democratic hack on board. I think that's very alluring, and I always circle back to the Green New Deal as an example of where it would be most effective. Like Congress passes this necessary and urgent legislation and the Court tries to invalidate it or whatever, and there's a point at which we may not have time to fuck around with trying to deal with the Court's bullshit, you need the legislation implemented ASAP, etcetera. I think that's pretty compelling.

0:31:29 Michael: Yeah, we can imagine something where the Court strikes down some regulations under the Green New Deal, and then it's hard to imagine actually President Biden doing this, but his EPA or whatever, somebody just being like, okay, and then just reissuing the regulations. And like continuing to enforce them and continuing to fine companies that were not in compliance with them and whatever, just going full steam ahead, and being like, well, what the fuck are you going to do about it, John Roberts?

0:31:55 Peter: So yeah, the problems with this are kind of varied and complex, we talked about this in the listener Q&A episode, but one conceptual issue here is that the Court doesn't derive its power from Marbury v. Madison. Power doesn't come from Supreme Court decisions, it comes from a network of norms and institutions embedded in our government and in our society, but yes, the Supreme Court technically doesn't have any enforcement power, it essentially relies on the cooperation of the Executive Branch, so if there's full-fledged consensus within the Executive Branch to ignore the Court, this could be done. If not, though, if not everyone agreed about this, there might be a lot of chaos and internal tension, etcetera.

0:32:33 Peter: And I think -- I brought this up in the Q&A episode too -- and I think it's the most important issue, signaling to state governments that they are effectively unconstrained by the federal constitution, that feels like a nightmare. Now, the federal government could try to enforce Court decisions against the states, but if it was also ignoring decisions from the same Court, that feels like an issue, and it feels like the inevitable stand-off between the feds and insane state-level Republican governments, which seems pretty high risk. Like we're talking about people who think Joe Biden is about to do communism in America. If you fucking... If Biden's administration started ignoring the Supreme Court, what would state governments do in response? I think that's something that you need to really seriously consider.

z Peter: This brings us to Court packing, or Court expansion, as we're now saying in order to make MSNBC viewers less nervous.

0:33:30 Rhiannon: Does that feel better?

0:33:31 Peter: Is our preferred reform, because it gets to the heart of the issue. The issue is the Supreme Court is comprised of reactionary nut jobs. The only way to negate their power is to add Justices who have better politics and dilute the influence of the Court's conservatives. You don't tinker with the rules, you don't try to contain the power of the Court, you make it an active and powerful force for good. It takes the power and the political significance of the Court and weaponizes it in favor of left liberal interests. That's why this is by far the best option available to us, everything else is effectively a half-measure. To use a flawless metaphor, there's a conservative Court and it's shooting at you at this very moment. Do you want to pass legislation banning guns, or do you want a Steven Segal to grab that gun and turn it around in the Court and unload? There's a clear choice here.

0:34:29 Michael: I metaphorically want to unload the gun.

0:34:35 Peter: That was a good metaphor, right?

0:34:36 Rhiannon: Yeah, yeah, yeah. Total metaphor.

0:34:38 Michael: Yeah. And I think sometimes the divide... We've talked about it this way, and I think it's sort of framed this way often by people on both sides as a divide between people who are interested in sort of like a good governance perspective, like, I want government to work right, I want the Court to work well, I want this to be whatever, like things to function well versus like I want robust left power. But I don't think that those two things are mutually exclusive, and I think actually the Court functioning well is thinking about this too myopically. If you want the government to function well, if you want good governance, that also requires things like campaign finance reform, we need to get money back out of politics, and that means like we can't run away from Citizens United, right? Fixing our elections, re-passing the Voting Rights Act, passing a better, more robust Voting Rights Act. What would make the federal government work better requires a Supreme Court that has good politics that is ready to back your Voting Rights Act or campaign finance reform, all your other good governance shit. We're dealing with a Court that has been slowly tilted to the right bit by bit for 40 years, and if we want good government and we want just outcomes, it means filling the Court with people with a clear vision that aligns with ours, and who are willing to act on that vision.

0:36:10 Peter: So let's talk about the politics of this a bit. I think the big open question is pretty obvious, can Democrats rally the political support necessary to do any or all of this? Obviously, it'll probably take a bit more to get Court packing through than it would Ro Khanna's term limits proposal, and there's something to be said for a reform that can actually pass, but this is the moment. Republicans openly and shamelessly strong-armed a seat on the Court. They held up Merrick Garland, they put in Neil Gorsuch, they didn't extend the same favor to RBG's seat, so it should be considered fair game to at least get that back. And I think that mainstream Democrats see that, that's a good sign that Biden hasn't ruled it out, though I'm not confident about him driving an openly partisan power grab. Another good sign is that Republicans seem to be incredibly nervous. And I think they've proposed legislation to stop this, which wouldn't work, by the way, it could just be repealed or overridden by subsequent laws.

0:37:09 Michael: I do want to say, I think the Republicans are fucking up the politics of this, I know political punditry not our lane.

0:37:15 Peter: No, it's not anyone's, it's a fake lane, so let's just hop right in.

0:37:19 Michael: It is, so let's fucking do it. Let's do it. Court reform is not something that Joe Biden was excited to get behind. He was comfortably nursing like an 8 point, 9 point lead in the polls and trying to keep the race steady. Court reform was sort of thrust on him in part by circumstances by Amy Coney Barrett and activist Democrats. It doesn't poll that great, it polls roughly when you pair it next to confirming Amy Coney Barrett the same, like people don't think that they should confirm her, and they don't think that they should expand the Court. It's the Republicans are trying to tie Democrats down into this right now, trying to get them on record and harassing Joe Biden about it, 'cause they think maybe it'll help them on the margins electorally, but all they're doing really is putting Democrats in a position where they can't fucking depress their base right now.

0:38:14 Michael: So they have to at least nod towards it, they have to at least say it's on the table, if not, come out and be like, you know what, yeah. And they're pushing Democrats into this corner where they have to at least be open to it, and they're creating a situation where Democrats might end up with a very large electoral win because of COVID, because of a recession, because of a lot of things that have nothing to do with the Supreme Court, but nonetheless will have a mandate for reforming and possibly expanding the Court. Like they are putting it front and center in the election right now because they think it might help them on the margin, but all they're doing is creating a situation where there's going to be a mandate for this. I thank them for that.

0:38:54 Peter: Yeah, I agree. One thing we can expect if talk of reform gets loud enough is that you may see the Court and Roberts especially try to protect itself by moderating a bit, they side with the liberals on a few key issues, and essentially they say, look, see, nothing to worry. We are the fair and impartial Court that you always dreamed about. Now, a couple of things on that. First of all, it is to some degree obviously a bluff. The vast majority of the Court's rulings will still be conservative and they'll tack harder right if they get the opportunity. Second though, this is why the sincere threat of Court reform is so important, even if it doesn't come to pass, the Court is pressured to start moderating. A lot of people tout the independence of the Court, as if it's like this inherently and unequivocally good thing, but this is an example of how beneficial it could be for the Court to be susceptible to political and institutional pressure. The law has political implications, so some matter of responsiveness to the body politic, no matter how indirect, makes sense.

0:39:53 Michael: A perfect example of this, I think, is the case that just at the time of this recording just came down, which was the appeal the Supreme Court heard from the Pennsylvania State Supreme Court. And so this was an issue that had to do with deadlines related to mail-in ballots, and Pennsylvania law required that mail-in ballots be received by election day, and because of delays with the mail and because of the influx of mail ballot requests because of COVID, the Pennsylvania Supreme Court said, you gotta extend that, this is burdensome on the right to vote. And so instead of receiving the ballots by election day, what the Pennsylvania Supreme Court said was our state constitutional right to vote requires that at the very least they have to be able to send their ballots by election day. Anything received within three days of the election, we'll say was mailed by election day.

0:40:48 Michael: And Republicans challenged that 'cause they said that this was an intolerable risk that people will cast ballots on Wednesday or Thursday after the election and have it received on time and counted.

0:41:01 Peter: That is the greatest offense to democracy when you cast your vote a day late.

0:41:07 Michael: The biggest fear.

0:41:07 Peter: After the shock Glock.

0:41:11 Michael: And so they were very concerned about this, they appealed it to the Supreme Court, and they put a lot of arguments forward. The most extreme one was that this was an unconstitutional erogation of the legislature's power to set the terms of the election, because the Federal Constitution delegates the power of the time, place and manner of elections to state legislators, and if the Supreme Court came down and put their thumb on the scale and accepted this argument going forward, it would allow for a lot of malfeasance from state legislatures, which are like often gerrymandered to shit by a bunch of craven careerist assholes or idiots, both parties, but especially Republicans, so like putting them in a special place in the constitutional order.

0:41:56 Michael: It's very scary. This case, the Supreme Court, they split 4-4. So it's a pretty strong indicator of just how eager Gorsuch, Kavanaugh, Alito and Thomas are to step in at the most extreme reaches of their power to help out Republicans in this election. And Amy Coney Barret is ripe to join the Court. But Justice Roberts joined the liberals and realizes that if they had come out right now 5 to 3 and invalidated a Pennsylvania State Supreme Court ruling based on Pennsylvania State Supreme Court grounds over Pennsylvania State Law, to make voting more difficult, essentially telegraphing to the Democratic Party that there is no limit to the degree to which the Supreme Court would be unwilling to go to help Republicans win this or any other election, you could basically guarantee that Court reform and probably, I think, Court packing would be happening if Democrats win. There's like no way that you'd get around that.

0:43:06 Peter: Right, we've mentioned before, Roberts on voting rights is Roberts at his most conservative, so him deviating here, like immediate red flags, like he's doing something. He's telling people and politicians who may be considering packing the Court, look, don't worry, the Court as it is, is eminently reasonable and moderate.

0:43:25 Rhiannon: Right, exactly. We should also though be taking seriously that the four conservatives on the Court, and certainly Amy Coney Barrett when she joins them, are so not concerned with the politics of this moment and the Supreme Court losing power, that they are willing to do something this extreme, right.

0:43:42 Michael: Right, I already consider myself like somewhat of a Court packing maximalist, right, who's like, we should expand it to 15, so it'll 9 liberals to 6 conservatives. I was thinking about this today before this case dropped, and I was like, man, if they overturn the Pennsylvania Supreme Court, fuck like 15, it should be like 21, 25, like, fuck these guys, they should be nothing. I was literally like, should I write a Medium post about it, like what should I do to circulate this idea? And I think that Robert gets that, this could be very galvanizing moment.

0:44:19 Peter: Yeah, so to wrap this up, these are all the reasons that we side with Court packing, right. It's not about tinkering with the institutional power of the Supreme Court, it should be about gaining power for the left and utilizing it to the best of our ability. So we'll leave it here for now and move on to our interview with Congressman Ro Khanna. We're going to talk about his bill as well as some of these other reform ideas we've been discussing. One quick note about this interview is it was recorded after the confirmation hearings were over, but while the confirmation process was still very much under way, so you might hear some of that in how we talk about the Democrat strategy. So I think we're probably going to take a quick ad break and then we're going to talk to Ro.

0:45:07 Rhiannon: That's right.

0:45:07 Peter: Alright, Congressman Ro Khanna, thanks for joining us, man.

0:45:15 Ro Khanna: Great to be on.

0:45:15 Rhiannon: Yes, thank you for being here.

0:45:17 Peter: We do this podcast with the broad goal of critiquing the Court from a left progressive perspective and sort of demystifying the Court and its role in society, and we view the Court as it's currently composed as a very ideologically conservative institution. So we were pleasantly surprised to see calls for reform coming from the halls of Congress. You've proposed an 18-year term limit on future Supreme Court Justices. So first things first, we want you to tell us a little bit about the bill, what it says, and what you're hoping to accomplish with it.

0:45:54 Ro Khanna: Well, Peter, thanks for having me. Our Framers never intended people to be on the Court for 30 or 40 years, and what we currently have is a previous generation making laws for a contemporary generation, it's actually quite anti-democratic. The Framers' intent when they said people should be there for life was an assumption that people would go on the Court at the end of their careers for five years, 10 years as sort of a capstone to their service, not that there would be gaming in terms of getting people on at a very young age so that they could have a long tenure. And the Constitution says that a judge has to be there for life so that you don't have the whims of politics influencing them, but the Constitution nowhere says that a judge has to be on the Supreme Court for life.

0:46:43 Ro Khanna: So what our bill says is that a judge can be a Justice for 18 years. After they've done their service, they can then go on to a circuit court or a lower court and continue to be a judge. They just don't have to continue on the Supreme Court. And every president would get two appointments in their term, so you wouldn't have this oddity where some presidents get zero appointments and other presidents get three appointments, and you wouldn't have a national drama every time we have a Supreme Court vacancy. The idea is actually not to be partisan, it's just to be common sense and to restore the Court to what its original purpose was.

0:47:22 Peter: Right, and so I want to talk about the constitutionality of it just a little bit, at least. So the Constitution says that they shall hold "their offices during good behavior," meaning essentially for life. I think when you read that, it seems to imply a single office. I imagine that your argument is that because the bill applies only the future Justices, the term "their office" is a little more flexible than that, that it could mean something that involves them stepping down to a lower court at a given time. We don't have to get into the details of the constitutionality, but there is sort of a tension here, because this might have to get 5 votes at the Supreme Court.

0:48:00 Ro Khanna: It might be 7.

0:48:04 Peter: I guess my question is, is there a real concern in your mind that the five Justices of the Supreme Court just strike this down?

0:48:10 Ro Khanna: Well, there is a concern, of course, about what the Court would do. Your point about the office, one other option is that you could have someone go senior on the Supreme Court, not be able to actually adjudicate on the Supreme Court decisions, but from senior status get to choose what circuit court they want to sit on, so there are ways of framing this that would, in my view, pass constitutional muster.

0:48:33 Ro Khanna: Now, John Roberts, the Chief Justice, in 1983 actually came out for term limits, and here's my view, I think many more people on the Court would be amenable to term limits then they would to the expansion of the Court, so you could see the pressure building on them to say, okay, let's take this option, this option is better than the calls for expansion. And maybe that leads to them holding it constitutional; though, no one knows what they would find until it was actually litigated.

0:49:06 Rhiannon: Right, yeah. And Congressman, I'm going to jump in, I think, I'm glad that you brought up the proposal of term limits sort of decreasing the political whims and the politicization currently of Supreme Court nominees. A big benefit, I think, in the idea of term limits is that it creates predictable institutional norms. Right now, lifetime appointments mean that there's literally life and death urgency sometimes around appointments to the Supreme Court and the confirmation process being this politicized and frenzied, it leads to a lot of norm breaking. Predictable vacancies definitely cut against that, but I'm also thinking about a potential pitfall that the term limit proposal actually might have, which is increased politicization.

0:49:48 Rhiannon: We can foresee then, for instance, a Supreme Court Justice planning to run for political office after the end of their term. For example, former Supreme Court Justice Peter plans to run for governor, right? So towards the end of the Justices' terms, we would need to be looking out for campaigning in their decision-making, conflicts of interest, that kind of thing. What do you think about the potential of creating this whole new moral hazard in politicizing the work of being a Justice?

0:50:16 Ro Khanna: Rhiannon, that's actually an excellent point, and one could look at whether you could prevent someone from seeking political office after being on the Court. Of course, nothing would prevent someone from doing that today. You could see Justice Roberts saying, I want to resign and run for governor or president, so you would have that option today. I guess you would aggravate it if people didn't think that being a senior status would allow for sufficient prestige, you'd want to have a culture where that was very much frowned upon. And then if people really were doing it, then one could look at some legislation saying you have to have some time of separation before doing that and being on the Court, and you would have to look at the constitutionality of it.

0:51:10 Michael: Right, it sounds like what you're saying is that these are political questions that demand political answers, legislation and congressional involvement, which I think philosophically we agree with.

0:51:22 Peter: Yeah, our general position on term limits is they would be nice, but they don't solve a larger and more immediate problem, the immediate problem being that we're right now on the verge of a 6-3 conservative majority with the six conservatives ranging from young to not particularly old, and your bill proposes that future justices would have the limit applied to them. But the conservative Court right now and for the next 10 to 15 years or so is poised to undo reproductive choice protections, continue to assault voting rights, undermine progressive legislation like a potential Green New Deal, dismantle workers' rights, on and on and on. So I think term limits are a very viable and sensible reform, but even if you snapped your fingers and pass edit, we're saddled with this Court.

0:52:10 Peter: So there's a question of what reforms could actually tackle that issue more directly. Are you sort of supportive of other options and the big one that you mentioned is Court expansion. Is that something you consider to be on the table in your view or is that a step too far?

0:52:26 Ro Khanna: Well, Peter, first, there are other proposals on term limits, for example, Jamie Raskin of Maryland, who's a constitutional scholar, was working on term limits that actually would apply to the current Justices, and he has an argument for why he thinks that could be constitutional. I think it's a harder argument, but a possible argument, and I haven't studied it enough, but that could be one way of going, is to say then, no, it should apply to the current Justices. And again, you could see a Justice Roberts who cares so much about the legitimacy of the Court preferring that to potential expansion. I think Court reform has to be open to all considerations, but I don't think that that means Court packing, I don't think that you just have a Democratic president get in and then say, okay, we're going to pack the Court with ideological people who we like.

0:53:17 Ro Khanna: I think that what a Democratic president can do is appoint a commission to study all of the different Court reform options and look at the different scholars who have proposed different options for Court reform, and then should make a decision that could lead to a more legitimate depoliticized Court that also is capable of dealing with the increased caseload and see where things lead. But I think that's very different than the Court packing that Roosevelt tried in the 1930s.

0:53:46 Peter: Yeah, I think there's a distinction to be made here between different types of Court reform. Some, like term limits, are sort of tinkering with the machinations of the Court to make them fairer and maybe less susceptible to politics in the general sense. But I think that's separate from reforms that address the fact that as it stands right now, the Court is too conservative. I think in our view, in my view, the only real fix to that is one way or another, more left-leaning Justices. Now, that doesn't necessarily mean Court packing, but it certainly would mean either Court packing or the replacement of current conservative Justices with left-leaning Justices. I think the question is, when it comes to more timid institutional reforms is, do we have that kind of time in the next five years if Roe v. Wade is really at stake, which it seems like it is.

0:54:37 Peter: If we have a Green New Deal that has the potential to be gutted by a conservative Court, we don't know exactly how yet, but certainly it's something that could happen, do you think that we should be looking to increase the number of left-leaning liberal Justices on the Court? Is the real problem in your view that the Court is inherently institutionally unfair or is it that the Court is too conservative?

0:55:00 Ro Khanna: Well, they're two different issues. One is that it's institutionally problematic, and that needs to be solved, and the second issue is, as a person of my own political persuasion, what do I think of the Court? And obviously, I think that the Court is too conservative. I guess the one thing I would say is that with the Lochner Court in the 1930s, there was a change in the Court, and that change came because the Court itself didn't want to lose its legitimacy and be deeply out of step with public opinion, and that they realized where the New Deal was going, and they did not want to be an anti-majoritarian body. And so the question is, if you have a conversation about Court reform and making sure that the Court is legitimate and responsive in some sense to the popular will, though, of course, adhering to the Constitution, does that give sufficient pause to Justices that they would blatantly exercise anti-democratic unconstitutional interpretations?

0:56:02 Ro Khanna: I think it's an open question, 'cause you've seen with Roberts that he has been unwilling to strike down the ACA, unwilling to take the certain measures, very much concerned about the legitimacy of the Court. So could it be that you would have a Court totally indifferent to being anti-majoritarian? You could, and in which case, you may need to have other remedies. But I guess I would first approach things with a genuine effort at Court reform that did have commission, that did have a bipartisan buy-in or some sense of fairness that was beyond ideological, and see if that works and see where that leads us.

0:56:43 Michael: So when I hear that, I get kind of flashbacks to 2009, which to me was like a time when Barack Obama just won this big convincing victory, Democrats had the supermajority in the Senate and massive majorities in the House and spent months trying to convince a few Republicans whose whole legislative platform had been resoundingly rejected at the polls to get on board with their healthcare plan and give it some bipartisan support and make it look legitimate and make the process seem fair, and in the process, diluted the bill, made it less strong and less faithful to what the party had run on, and the result was a weaker bill with benefits that were delayed, it hurt the party politically. We didn't get a single Republican vote for it. So the lesson I took from that was, when you have power, you gotta use it, you gotta use it to do things to make people's lives better.

0:57:42 Peter: Right, if I can build on this, 'cause I think the Court in the '30s is kind of instructive here. It's true that the Court saw the risk of really aggressive institutional reform and then sort of moderated on FDR's New Deal policies, but that came with the real serious and sincere threat by FDR of packing the Court. Isn't there a risk, if you go at this with an approach of sort of starting from a non-partisan perspective, that the Court doesn't really feel that same pressure, they're not at the barrel of a gun like the Court in the '30s was.

0:58:16 Ro Khanna: Both very thoughtful counter-arguments, Michael and Peter. Let me say a couple of things. First, I agree with you, Michael, in terms of that we should have gone bigger in 2009, we needed double the stimulus, and Paul Krugman was screaming about that, Christina Romer was screaming about that, and Rahm Emanuel saying, well, find me the 60 votes in the Senate was a mistake, we should have just done that on 51 votes. I have no doubt that if we win and we can get policies passed on 51 votes, we should do that and we should go bold and we should try to get the American people the help they need. And of course, I'm for Medicare for All and free public college, and for the Green New Deal and bold policies.

0:58:52 Ro Khanna: I think, though, that is a different question than the question of the Supreme Court, because the Supreme Court, I think people see that as not just ordinary politics, but to the interpretation of the Constitution. And the question is, okay, well, are we going to have an FDR-like victory? Perhaps if we have an FDR-like victory, and then the Court is acting in an anti-democratic way, the argument becomes very clear. But let's say we have a victory where you have a 20-person majority in the House, and a two-person majority in the Senate and a president, that's not quite an FDR landslide, I guess my inclination would be pursue a policy that could get Court reform with the buy-in of a larger number of people, so you just don't have the loss of that reform four years later.

0:59:45 Ro Khanna: Let's see if that works. If it doesn't work, and if you have the Congress passing Medicare for All, or the Congress passing some policy that the Court is striking down, or the Court over-ruling Roe v. Wade in a way that strikes people as totally unjust, then you can always look at other options.

1:00:04 Rhiannon: I'm glad that you brought in sort of the buy-in from the party, 'cause I'd like to zoom out maybe just a little bit. We know how you feel about this, we know about your bill, but just thinking about the party maybe a little bit more. It's clear that Republicans have played what is most politely described as hard ball with Supreme Court seats. And I think there's a lot of concern on the left that Democrats just don't have the same level of gamesmanship in them. Between the Merrick Garland debacle, the Kavanaugh hearings, and Ruth Bader Ginsburg's rapid replacement now, a lot of people seem to be eyeing more aggressive response from Democrats. Do you have a sense that there's really an appetite among the Democrats for Court expansion, for the whole host of options on the table for aggressive Court reform?

1:00:52 Ro Khanna: Well, first, I definitely think we need to be more aggressive in the opposition of Amy Coney Barrett. Senator Feinstein is giving Judge Barrett a hug at the end of the hearings and asking her to speak about her family. I just don't think that that's reflective of the sentiment in our country, it's not that I... Look, Judge Barrett is a perfectly decent person and probably a very thoughtful professor, but she's coming to the Senate in a process that most of us believe is illegitimate, and those kind of gestures I think legitimize her presence, and I believe we should have either boycotted the hearing or done things to make it clearer that this was an illegitimate power grab.

1:01:46 Ro Khanna: Going forward, I think there are going to be many, many people in the party, moderates, progressives, even centrists, who are going to be committed to Court reform. Now, what that looks like, I think remains to be seen. I believe one of the key voices on this question is going to be Eric Holder, he's done a lot of thinking about the issue, he's highly respected among progressives, he's highly respected amongst people who served in the Obama administration, he doesn't have any particular agenda, he's sort of already served at the highest levels of government, and I could see someone like him, I can see the Vice President Biden tasking him with presenting options for Court reform and seeing how he can build broad consensus among the party.

1:02:29 Peter: Yeah, we don't agree that Amy Coney Barret is a great person.

1:02:33 Michael: But otherwise, preach.

1:02:35 Peter: Otherwise, we're right there with you, yeah.

1:02:39 Michael: So something you mentioned about personalizing this to Donald Trump and Mitch McConnell especially, and the hypocrisy and just this conversation in general has me thinking about, is that talking about term limits and reforms in general, sometimes we talk about the legitimacy of the institution, and I think that's right, but it also seems like we're also talking about Republican reform in a way, like how can we get them to stop acting like insane assholes about the Court. That's what it feels like this conversation is about, at least at some level. But isn't the answer to that just that you gotta just beat them really, really resoundingly and lock them out of power until they're... Find a better way? I don't know.

1:03:18 Ro Khanna: Michael, it's not an irrational response of why the Republicans are so focused on the Court. If you believe that we have demographic change in this country, which I do, if you believe that we're moving towards a multi-cultural, multi-racial democracy, which I do, if you believe that young people are for progressive policies like Medicare for All, like the Green New Deal, and you're a conservative and you see that coming, what can you do? You know that you're probably not going to be able to win presidential elections on a conservative platform, you're probably not going to be able to win the House or Senate on a conservative platform, so the one check to progressive advancement is the Court, and I think that that is why they have been so focused on that to try to entrench the current ideology of the nation, or even an ideology going back 20, 30 years, for this century, despite the Democratic will.

1:04:18 Ro Khanna: Now, I believe, I guess I have enough faith in American democracy that I think it would be very, very hard for a Court to have legitimacy if they actually start striking down popular legislation, and so far, they haven't done that with the Affordable Care Act, though they may with a 6-3 vote. And I do think that a crisis could emerge and we have to be prepared for that.

1:04:40 Michael: Yeah. I think for us, we look at something like Shelby County and the Voting Rights Act and see already the start of striking down a different sort of popular legislation, maybe one that doesn't hit people's pocket books in the same way.

1:04:53 Peter: And maybe this goes to another issue, which is just that if you leave the conservatives on the Court and hope that they will be influenced by reform, there's a risk that what they do is rule in such a way that functionally guts, for example, a lot of progressive legislation, but optically isn't so bad. The Shelby County decision is hard to explain to the average person. What they have done to undermine the ACA without dismantling it entirely is hard to explain to the average person and has given John Roberts a lot of leeway and maybe the ability to say that he's operating in good faith to a degree that he might not be. This isn't really a question as much as I will say that if what seems to be happening in the next year or so, over the next term, especially if Biden wins, is at the Court shifts center very nominally in a way that it appears to be designed by John Roberts to be for optics. Please don't buy that, please.

1:05:49 Rhiannon: Begging you.

1:05:49 Ro Khanna: No, I hear that, no I hear that. And you're right. Look, the gutting of voting rights is a huge deal, because again, this is part of the effort to forestall the emerging new majority in this country, and you have, I think, strategists who understand that issues of getting people off the voter rolls that these are essential strategies to hold on to power.

1:06:17 Michael: Absolutely. So we're a Supreme Court-focused podcast, and we've been talking about Supreme Court reform, obviously, but would be remiss if we didn't at least ask about lower court reform. It's been about 40 years since the lower courts have been expanded last. I think it was 1980 and 1982. It seems like they're due... It seems like it's both good housekeeping at this point, given the loads a lot of these district and appellate courts have and good ideologically, given how much, like Mitch McConnell, how many vacancies he held open at the lower levels. Do you have any sense that there's any appetite for that sort of reform as well, adding a new circuit or two and expanding the district courts, adding 100, 150 district courts, that sort of thing?

1:07:01 Ro Khanna: Yes, I think that there's an administrative need to look at the caseload on district courts, to look at the case load on circuit courts. That's something that happens all the time in Congress. Frankly, some of the scariest appointments in this Trump administration have been to district courts and circuit courts, where you have people who are literally cronies, who have not had any academic background, though that's not always as important as your moral compass, but you literally have political hacks in some of these positions, which is a real, real concern. And so I definitely think that we need to look at where that expansion makes sense, and we also have to keep an eye on judges who are blatantly lawless, if they are not doing their basic jobs. It's one thing to disagree on interpretation of case law, and we should fight that, it's another thing if people are just not applying the law.

1:08:02 Michael: Right, yeah, absolutely. It's hard to explain the current Affordable Care Act case to the layman, but it is... I think it's like lawless. I think it's crazy that any judge has signed on to it, and the fact that there probably will be at least be a few conservative Supreme Court Justices who set out to is frightening.

1:08:19 Peter: Okay, so before we wrap up, I've gotta float this to a government official here. So I've got a proposal. Obviously, there is some concern about the constitutionality of term limits, the Constitution mandates lifetime terms, so my proposal is simple: Instead of term limits, lifespan limits on Justices, mandatory death around 75. I'm not committed to a given number, you don't have to commit to it, alright, I know you're a politician, but I just want you to think about it, something to float to your colleagues, see if there's anything for it.

1:08:53 Ro Khanna: Well, I just have to formally say I'm opposed to that, 'cause I don't want to be a clip on a late night tomorrow.

1:09:01 Peter: You're on Tucker Carlson after that, right, in that clip, I apologize. But I think that's it. We really appreciate you coming on, Congressman, and...

1:09:09 Ro Khanna: Appreciate your podcast, appreciate the depth of discussing these issues. One of the things I think your podcast is really doing is helping our side realize the stakes of the Court. For some reason, we have never realized that, and the conservatives for the past 40 years have realized that. I remember when I was in law school, how seriously people took the Federalist Society and how they were recruiting people back then in my law school class, grooming them on their ideology and their career path, and there was never anything really like that on the liberal side. So the fact that you're now making people realize that this is an equally important fight as who controls Congress or who controls the presidency, arguably the most important fight, I think is a real public service.

1:09:55 Peter: Thank you, we appreciate that.

1:09:56 Rhiannon: Thank you so much, we love that.

1:09:56 Michael: Thank you so much, that means a lot.

1:09:57 Ro Khanna: Thank you.

[music]

1:10:02 Peter: Next week is... Next Tuesday is going to be election day, so rather than make your election day more stressful than it's already going to be, we're going to re-run our first episode, Bush V. Gore. No special meaning, don't read into it. We just thought it'd be a fun idea. Follow us at 5-4 pod on Twitter.

1:10:29 Michael: We expect all of you. Every single one of you to.

1:10:35 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

1:10:58 Leon: From the Westwood One Podcast Network.

The Gerrymandering Heist+

00:00 [Archival]: We'll hear your argument first this morning in case 18-422 Rucho versus Common Cause.

[music]

00:07 Katya Kumkova: Hey everyone, this is Katya Kumkova, the producer of 5-4. Leon is off this week but Peter, Rhiannon, and Michael are here, and they're talking about gerrymandering, the practice of drawing voting districts to favor a particular political party. The hosts are discussing Rucho versus Common Cause, a 2019 opinion that said no courts could rule on partisan gerrymandering going forward.

00:33 [Archival]: For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

00:42 [Archival]: Whichever party gains control of state legislatures in 2020 is gonna get to set district maps for a decade, which will decide control of the US House for a decade.

00:53 Katya Kumkova: This is 5-4, a podcast about how much the Supreme Court sucks.

[music]

01:06 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have sapped oxygen from America's bloodstream like the novel coronavirus COVID-19.

[laughter]

01:20 Peter: I am Peter. I'm here with Michael.

01:24 Michael: Hey, everybody.

01:25 Peter: And Rhiannon.

01:27 Rhiannon: Hi, friends.

01:28 Peter: Today's episode is another in our mini-series on the various anti-democratic practices in institutions that make America so uniquely mediocre. And today, we are looking at gerrymandering, the process of dividing up congressional districts to favor a specific party. But first, we have to talk about the elephant in the room, the extremely wide-eyed elephant in the room, Amy Coney Barrett's confirmation hearing. It's been ongoing and...

02:00 Rhiannon: The mommy elephant in the room.

[laughter]

02:01 Peter: Oh, god. I've tried to watch portions of it.

02:04 Rhiannon: She's got kids.

02:05 Peter: Yeah, she does have kids.

02:07 Michael: Five white little scholars and two black little athletes.

[laughter]

02:12 Rhiannon: Yeah.

[laughter]

02:13 Michael: That's her description, not mine, to be clear. That's how she describes them.

02:16 Rhiannon: Yeah, yeah... She describes five as smart and two as, "Hmm, some personality."

02:21 Michael: Happy go lucky.

[laughter]

02:23 Rhiannon: Yeah.

02:23 Peter: Oh, god. It's been arduous. Like, if there was any part of your mind that felt like the confirmation process is meant to be an open and honest inquiry into the competency or intellectual ability of the nominee, I hope you have shed that by now. It has been several days at this point of absolutely nothing but political theater and some of the most unbelievably hollow non-answers I've ever heard.

02:51 Rhiannon: Yeah, yeah. Maybe even more egregious than usual. I mean, it is all political bullshit, it is all political theater. We expect the nominees to say stuff like, "I'm gonna respect the President," and not specify more about their jurisprudence, etcetera. But this one in particular, man, this past week. Her saying she can't answer hypotheticals? What?

03:13 Michael: Oh, god.

03:13 Peter: Yeah. Easily the most entertaining answer she gave, which was... She said she could not apply the law to a hypothetical set of facts, which is literally what like... All of legal practice is. So...

[laughter]

03:25 Rhiannon: Right. It's really sad really.

03:27 Peter: Pretty disconcerting that she said she couldn't do it. She dodged every substantive question, she dodged questions about Roe v. Wade, about Obamacare and Medicare, dodged questions about whether the President could delay the election, which isn't even something you need to dodge.

03:43 Rhiannon: Right.

03:44 Peter: You could just say, "No, he can't do it."

03:45 Michael: Peaceful transfer of power?

03:46 Rhiannon: Exactly. Would not say that Medicare was constitutional.

03:49 Peter: Right, right.

03:50 Rhiannon: Like, come on.

03:51 Peter: Dodged questions about whether she believes in climate change. She was like, "That's a hot button issue."

[laughter]

03:58 Peter: Every scientist thinks it's happening, and it's human-caused, and everyone I hang out with says the opposite so who knows?

[laughter]

04:06 Peter: The only thing that Democrats can really do in confirmation hearings is build enough political pressure that, at the least, Republicans who vote for her take a political hit of some kind, right? And they failed to do that primarily because they are led by Dianne Feinstein who is just a fucking blithering decrepit embodiment of everything wrong with the Democratic Party. Weak, out of touch, morally compromised, physically dying before our eyes, and worth like $65 million.

04:41 Rhiannon: That's right, yep.

04:42 Peter: She made no colorable effort to pin down Barrett on abortion or anything else. At the end of the hearings, she praised Lindsey Graham.

04:50 Rhiannon: Hugged him.

04:51 Peter: And gave him a hug, said it was one of the best hearings she's ever participated in.

04:56 Rhiannon: She's an embarrassment. This person is an embarrassment.

05:00 Michael: Right.

05:00 Peter: Oh god, retire you fucking Tales from the Crypt-looking freak.

[laughter]

05:05 Peter: There is some good news which is that Lindsey Graham refused to take a COVID test [chuckle] and then showed up maskless, and she just fucking hugged him.

05:13 Rhiannon: Right... Right.

05:15 Michael: Yeah.

05:15 Peter: She's 87 years old. It's not like high risk, that's just looking the Grim Reaper in the eyes and embracing him.

[laughter]

05:26 Michael: She's fearless man.

[laughter]

05:32 Michael: Something I can't stop thinking about all week, I read this little book 15 years ago called "On Bullshit" by this philosopher named Harry Frankfurt, and his idea was this, like you said, "Look, somebody who tells the truth is concerned with an objective truth in the world and they're trying to reveal it to you, and a liar is also concerned with an objective truth in the world and trying to conceal it from you, whereas a bullshitter doesn't care at all." And so bullshit can be true, it can be false, it doesn't matter, it's about changing the way someone feels, changing in appearance, and in this way, it's more of an enemy of the truth than the liar. And this hearing was like having a fucking fire hose of bullshit aimed directly at your face.

06:17 Rhiannon: Right.

06:17 Michael: It was so upsetting to watch considering what the stakes are, and the fact that Dianne Feinstein thought that it was the best hearing she's ever been a part of? I don't know, man, I can't handle it. I wanna punch my computer screen just thinking about it.

06:33 Rhiannon: Yeah, it's a disservice to the American people, to the public that they're acting like this...

06:37 Michael: Right. I guess for me, the question is, "What goal does this serve? This sort of disregard for the truth, and I think it serves many goals, but the biggest one is that it gives Republicans, it gives the government permission to do whatever it wants. Bullshit is what justifies all their awful excesses. It's what underlies all the worst Supreme Court decisions and her willingness to spew bullshit should be concerning for all of us on just what types of horrific Supreme Court decisions she's gonna be authoring.

07:10 Rhiannon: Right.

07:10 Michael: And in terms of her particularly bullshitty answers, off the top of my head, her saying, she can't imagine a legislature trying to outlaw contraception."

07:23 Peter: Right.

07:24 Rhiannon: Right.

07:24 Michael: Somebody's asking whether or not she believes that Griswold v. Connecticut, a foundational, important case about the availability of contraception to married couples and people generally, whether or not she believes it was correctly decided, and rather than answering that head-on, she tried to dodge it by saying, "Well look, I don't think that's an issue. I don't think that's something that's gonna be before the court... " and eventually she said that she doesn't think that this is something that states will be trying to do, outlaw contraception. And so it's not something she should be talking about. But for one thing, if it's not gonna be before the court then that's all the more reason why you should feel very comfortable talking about it. [chuckle] Usually, the reason to not talk about a case is well, "Well, that's pending before the court and I don't wanna pre-judge it."

08:11 Rhiannon: Right, if it's so settled, then it's not a controversy.

08:14 Michael: Right, it should be a very simple thing to talk about. But the other part is, obviously, states are constantly trying to do shit with the availability of contraception, whether it's Plan B and blurring the line between abortion and contraception, or pharmacists who reserve a religious right to deny contraception to women who have prescriptions or don't even need a prescription but want it and can't get it. These issues already exist and the idea that states won't be trying to do more and make it harder, that's a bullshit answer, top to bottom, in and out.

08:52 Peter: Yeah, the whole strategy at these things has just become, "Don't give the other side ammunition." which means, don't say anything at all. So you're in this position where everyone's asking you questions and you're just like, "What is the least information I can provide right now... And that's considered a good answer in these things?" It's just fucking worthless. We don't need these hearings.

09:12 Rhiannon: Exactly, but to me it's also like... It's more than worthless, it's concerning how little prep she had to do because it's clear that she knows she's through. So it went around Twitter that, under questioning by a Republican who was trying to give her a softball question, Senator Ben, is it Sass or Sasse?

09:33 Peter: I feel like I would know if it was Sassy.

[laughter]

09:36 Michael: I think that's right.

[laughter]

09:36 Rhiannon: Senator Sasse asked her to name the five freedoms protected by the First Amendment and okay, sure, she couldn't name all five and yeah, if you're put on the spot, you usually miss that last one, fair redress or whatever. But a Supreme Court nominee, that morning, you didn't just maybe just skim those first 10 Amendments one more time just to make sure you got that vocabulary front of mind. Do you know what I mean?

10:09 Peter: I mean, she knows that she's been on the shortlist for years. It's not just that.

10:13 Rhiannon: Exactly.

10:14 Peter: One of the big takeaways for me was just how unprepared she was on the legal questions. I don't know if it's just because she's not particularly smart, not particularly well read on that stuff. That's how it came off. She got the applicable law in Loving v. Virginia, the interracial marriage case, wrong. She characterized it as an equal protection case rather than what it actually is, which is a equal protection and a substantive due process case. It's important because substantive due process is what underlies the Roe v. Wade right to an abortion. She got the law in the Obamacare case, that's going to be before the Supreme Court, wrong. Just very fundamental things that anyone in her position should be knocking out of the park... It's bizarre.

11:00 Rhiannon: Yeah, I know. She sounds like a fucking idiot even to law students and that's a major concern because it means that she's willing to do whatever the conservatives want her to do and want her to decide, right?

11:11 Peter: Yeah. Her handmaiden told her not to prepare.

11:13 Rhiannon: That's right. [laughter]

11:16 Michael: I wanna give Senator Whitehouse a little shout out for the anti-bullshit, the opposite of bullshit and bringing something real to these hearings where he had a presentation on dark money in the law and these sort of dark money organizations where we don't know, specifically, who's behind them and who's funding them, but they are very involved in supporting judicial nominees and also in funding lawsuits or filing Friend of the Court briefs. And these organizations have, I think he said there were 80 cases in the last decade where they filed Friend of the Court briefs at the Supreme Court level and they have won all 80 of those cases. And I think something like all 80 were five to four, which is a wild thing to learn... And a bracing bit of truth into, "What's actually going on here?" And who Amy Coney Barrett's actual masters are and what all this bullshit is designed to keep from view of us? And he mentions the total price tag on this whole operation is something like $250 million, which is an insane amount of money. Some of which presumably is going towards Amy Coney Barrett's confirmation... So...

12:29 Peter: Right.

12:30 Rhiannon: Yeah, yeah, I like the sort of bird's eye view of, "Why is Amy Coney Barrett doing this? Who's behind her?" But also, "Who's paying John Roberts?"

12:37 Michael: Right.

12:38 Peter: Or, "If you are so committed to neutral principles, why does it seem that everyone funding you comes from one end of the political spectrum?"

12:46 Rhiannon: Right.

12:47 Peter: These things are sort of obvious, but they need to be highlighted in confirmation hearings.

12:51 Rhiannon: Yeah, right.

12:52 Peter: Alright, let's put a hold on this and go to a quick ad.

[pause]

12:56 Peter: Alright, let's move on. Bottomline, confirmation hearings, thumbs down, not good.

13:03 Rhiannon: Yeah, zero out of five stars.

13:05 Peter: Now, we can talk about one of the various ways in which our elections are just absolutely fucked. So today we are looking at gerrymandering. Again, the process of dividing up congressional districts to favor a specific party. And to look at gerrymandering, we need to look at Rucho v. Common Cause, the 2019 Supreme Court case that essentially made it legal. In Rucho, the court held that partisan gerrymandering, meaning gerrymandering done to benefit a political party, is a political question that is beyond the power of courts to address and as a result of the court's refusal to act, many congressional districts across the country, state and federal, remain heavily gerrymandered, functionally depriving millions of people of representation that reflects their will. Great country.

14:00 Rhiannon: Very good.

14:01 Peter: As we've discussed, the Roberts court in voting rights cases, may be the court at its most right-wing. They are truly disinterested in democracy as an inherent virtue in the law, and Rucho v. Common Cause is a great example. Here, the court had the opportunity to state something that I think is pretty obvious, both the purpose and the result of gerrymandering is the dilution of the will of voters and therefore it violates the principal function of democratic systems and is unconstitutional. On top of that, it just so happens to disproportionately benefit the political party of conservative justices. And, let's get this straight up top, both parties absolutely gerrymander.

14:47 Peter: And this case purposefully included a state that was gerrymandered by Democrats. But there is no question that Republicans do it more, do it more aggressively, and currently benefit from it more than Democrats do. Obviously, strategically drawing districts is in and of itself anti-democratic. But we're gonna talk about how it fits into this broader Republican project to suppress votes, to dilute votes, to alter the weight of votes of different people depending on who they are voting for and how that bleeds into this November and every election that they could conceivably see for the course of the next decade or two. States where congressional district boundaries benefit Republicans outnumber those that favor Democrats four to one, not to mention that Republican favoring, gerrymandering is prevalent across swing states.

15:40 Rhiannon: Right.

15:41 Michael: Yeah.

15:41 Peter: This case is the court washing its hands of one of the single biggest problems in American politics. And on top of that, saying that, "No court is allowed to address the issue." This case, probably, I think in my view, reflects the most egregious abdication of the court's responsibility in modern history, and has allowed for what can only really be described as the open subversion of democracy across the country.

16:11 Michael: That's right.

16:12 Rhiannon: Yeah, so let's get some groundwork then, just kind of set, on gerrymandering, just get a lay of this gerrymandered land that we live in. Gerrymandering, like Peter said, it's the practice of manipulating the shape of voting districts in order to give an advantage to a certain group. You intentionally create voting districts with certain demographic make-ups so that you can guarantee a particular outcome in an election. And there are different types of gerrymandering. Racial gerrymandering, for example, would be segregating voting districts by race or otherwise manipulating voting districts in order to get specific racial demographic make-up in those districts for elections... Or hypothetically, you could imagine if we wanted voters over the age of 65 to be spread out more among voting districts, we could draw a map that carved those voters into various districts even if, geographically, they all, hypothetically, resided in one neighborhood or something. In the US, some forms of gerrymandering, like racial gerrymandering, that I just mentioned, are illegal. They've been held unconstitutional, because discriminating on the basis of race in voting, disfavoring voters based on their race, that's supposed to be a no-no. So...

17:28 Peter: There's a whole amendment about that one.

17:30 Rhiannon: Right, exactly. [chuckle] But what we're talking about today is partisan gerrymandering, which is the manipulation of district boundaries in order to give an advantage to a political party.

17:42 Peter: It's only coincidentally racist.

[chuckle]

17:44 Rhiannon: Right, exactly, exactly. A helpful way for me to think about this concept and what's unfair about it is, partisan gerrymandering allows politicians to choose their voters instead of voters choosing their politicians. And like Peter said in this case, Rucho, the Supreme Court said that federal courts have nothing to say about partisan gerrymandering and the courts can't be involved in upholding or striking down any partisan gerrymandering because it's not a legal question but a political one. So let's talk about what partisan gerrymandering looks like in the US. When a state grows in population, it's entitled, obviously, to more representatives in Congress, so it gets additional congressional districts.

18:31 Rhiannon: And of course, states that don't have big growth or loss in population, they still will be drawing new district maps, because they need to reflect population movement within the state so that residents of the state have equal representation, no matter what city or county they live in. So the framers of the Constitution, they totally conceived of that kind of redistricting and they wanted to take into account population growth and movement and that kind of thing, but what ends up happening with the coalescence of political parties and technological advances is that now Democrats and Republicans are able to use this information to draw district maps where they've essentially hand-picked certain voters into and out of districts to get a desired party result. So let's take Texas for example, where I live, and what happened in Texas after the 2010 census data was collected. So from 2000 to 2010, the population of Texas swelled by more than four million people.

19:33 Rhiannon: Now, of those new residents, nearly 3 million were Hispanic and over half a million were African-American. So the Hispanic population of Texas had grown at a rate of 42% in that decade, and the African-American population had grown by 22%. So officially, that makes Texas now a majority-minority state. And at the same time, the population of white residents in Texas only grew by 4%. So it's important to note that without the growth in the minority population, Texas would not have received a single new congressional district, but its population did grow, so new congressional districts needed to be drawn. So you would expect that the vast majority of the population boom being people of color would mean that the new congressional districts would lean Democratic because people of color traditionally, historically vote much more for Democrats, but that's not what happened. What happened, because of partisan gerrymandering, is that the GOP map drawers basically just sliced and diced districts...

20:36 Peter: Map artists, they're called.

[laughter]

20:42 Rhiannon: Excuse me, I'm not respecting the art, yeah. And so what happened...

20:45 Michael: That's like a sandwich artist that's...

20:47 Peter: That's right, yeah, yes.

20:47 Rhiannon: Yeah, yeah, exactly.

20:48 Peter: It's the same guys too.

20:49 Rhiannon: Yeah, that's right. So they sliced and diced these districts, and what resulted is they gave Republicans a net gain of four districts, and Democrats, zero.

21:02 Peter: Fascinating. And just to give a little bit of color, in case you're wondering exactly how this works. The idea is you pack the unfavorable party voters into the minimum amount of districts that you can, right? So if Democrats are all clustered in one city, you give them that one district, and then you draw the rest so that the largely suburban and rural areas around the city go to Republicans.

21:27 Rhiannon: Right. The way gerrymandering works is by vote dilution, which is the devaluation of one citizen's vote as compared to others. So gerrymanderers use what Peter just called packing and cracking. They pack super majorities of voters of one party into a few districts, and then they crack the rest of the voters by spreading them across many more districts and spreading them so thin that their candidates would not be able to win. So that means, in the end, that each person, whether you've been packed into a district or cracked out and spread across other districts, each person's vote is less weighty, it's less valuable than it would be in a neutrally drawn map.

22:09 Peter: Right.

22:09 Michael: Right. And it's not like a coincidence that Republicans have been gerrymandering a lot, especially in the last decade or two, in a way that's more aggressive than Democrats and all that, this was and is a concerted strategy.

22:24 Rhiannon: Exactly.

22:25 Michael: There's a whole history. This is well detailed, it's people talking on the record about their roles in this, but there is this thing called Project REDMAP, which was something about the Republican enduring majorities or some shit like that. I don't remember what the acronym stands for, but it was birthed in 2009 when the Republican Party was still reeling from getting their asses kicked in the 2008 election. Democrats had a super majority in the Senate, they controlled a bunch of state houses, they had a large majority in the House, and Barrack Obama had one in fucking Indiana and in North Carolina, traditionally Republican states, in all corners of the map. And Republicans weren't sure where they were gonna go from there.

23:10 Rhiannon: Exactly.

23:11 Michael: And their big plan was this, was, "Well, 2010 is when we have our decennial census, which means that's when there'll be a lot of redistricting being done. And so if we go heavy on that election, and we really focus our spending very smartly, and switch control of a few state houses, we can grab control of the legislative redistricting process and draw the maps in a way that will give us a long-term structural advantage in those states and in federal Congress as well."

23:47 Peter: Right.

23:47 Rhiannon: Yeah, exactly.

23:48 Peter: I think after 2008, there was a meeting at the RNC where there was dead silence for 20 minutes and then a guy was like, "What if we cheated?" And everyone was like, "Yes. Okay, now... I didn't wanna say it."

24:00 Rhiannon: We're good now. Let's go with that.

[laughter]

24:03 Rhiannon: Yeah, yeah, and we've talked a couple of times now on the podcast about how Republicans sort of fail to reckon with changing demographics in the US, and instead of... At about that time, 2008, 2010, instead of changing their party to be more responsive to the needs of people of color and attract people of color, especially Latinx residents in the United States, instead of doing that, right, the Republicans decided that voter suppression, gerrymandering, manipulating the vote is the strategy that they were gonna go with.

24:37 Michael: I just wanna make a point about money well spent in strategy and all that, really quick, which is like... They spent some time, they went and looked at the laws, they looked at the make-up of the state houses, and, "What would it take for us to get control of the redistricting process, state by state? Where could we conceivably get this done?"

24:57 Peter: Right. It's the state legislatures who are drawing the maps that end up being the maps for the federal Congress, which is why control of those state legislatures is so significant.

25:06 Michael: Right. And overall, it cost them, I think, $30 million, is what they put into the 2010 Project REDMAP, state legislative races. $30 million is a lot of money, especially in state races, but by comparison, I think Amy McGrath has raised more than that, running what is clearly a failed campaign, a doomed campaign, to unseat Mitch McConnell in Kentucky this year. For the cost of running her against Mitch McConnell, they got a stranglehold on the House of Representatives for eight years, and it took fucking Donald Trump and riots in the streets and shit to break that gerrymandering, right?

25:48 Peter: Right.

25:48 Rhiannon: Right, yeah.

25:49 Michael: Like it was very smart, it was very sophisticated, and I'm still not sure that Democrats are on that level a decade later.

25:57 Rhiannon: No.

25:58 Peter: No.

25:58 Rhiannon: Yeah, so turning to this Supreme Court case, in Rucho v. Common Cause, there were a few different partisan gerrymandering claims that were consolidated into this one case that came before the Supreme Court, and the two states with partisan gerrymandering at issue here were North Carolina and Maryland. In North Carolina, their congressional districts had been manipulated to give Republicans an unfair advantage, and in Maryland, the districts had been manipulated to give Democrats an unfair advantage. So just breaking down, I think for illustration purposes, I think it's helpful to go through what exactly happened in these states, and I'm just gonna focus actually on North Carolina because this is so... Because this is so long. In North Carolina, after the 2010 census, Republican majorities enacted a new congressional districting plan that led to Republicans winning nine of the state's 13 seats in the House of Representatives in 2012, even though Republicans had only received 49% of the state-wide vote. So...

27:06 Michael: So not even a majority of the state-wide vote, but a super majority of the seats.

27:11 Rhiannon: Exactly. That plan they had used was actually later struck down because it was unconstitutional, racial gerrymandering, but when the rat fuckers got together to make a new plan, they called up this guy, Thomas Hofeller, to come and help out. And before Thomas Hofeller joined Scalia in hell in 2018, Hofeller was a Republican mapmaker and strategist, who was known as the redistricting guru. His specialty was in building these congressional districts, wherever he was needed, in order to ensure Republican victories in elections. And just a side note that I've been thinking about is, we've talked about how it costs money to manipulate maps on this level, at the state level, like the GOP is doing nationwide, and Hofeller being a character here just makes me think about the industry that flows from this, people make money being experts on how to manipulate maps.

28:11 Peter: Right, that mapmaker.

28:12 Rhiannon: Right, exactly.

28:13 Peter: By the way, just to let the listeners know, I am working on a parody of the Fiddler on the Roof, matchmaker song, it's called Mapmaker, it'll be ready in a few weeks. And then we'll release it fully.

28:27 Rhiannon: Dork reference, bro. Dork reference.

28:30 Michael: Get his ass.

28:31 Peter: Cultural milestone.

[laughter]

28:33 Rhiannon: So the assistance, in particular, that Hofeller would bring to Republican state parties was very technologically advanced map-making computer software, where with a single key stroke, he could manipulate just one factor and then the algorithm spits out like 20,000 possible ways to redraw the map in order to get their desired result. So with Hofeller's assistance, Republicans in North Carolina re-drew their districts so they wouldn't come under legal fire again for being racist, and as a result, they ended up getting 10 out of the 13 seats guaranteed to them.

29:14 Michael: Instead of nine.

29:15 Rhiannon: Right, exactly.

29:16 Peter: Incredible.

29:16 Rhiannon: Exactly, so they bumped it up even more, and they're upfront about it too. The Republican Co-Chair of the Redistricting Committee in North Carolina said that they were, "Drawing the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it's possible to draw a map with 11 Republicans and two Democrats." He also later said...

29:39 Michael: Incredible.

29:39 Rhiannon: "I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country."

29:47 Peter: And if those quotes make you angry, I got good news, that guy recently resigned in shame after pleading guilty to charges related to embezzling his campaign funds.

[laughter]

30:00 Peter: Fuck you, bro.

30:00 Michael: Yes, that's awesome.

30:01 Rhiannon: Now, Democrats do this too, and Maryland's partisan gerrymandering ensured seven out of eight House seats to Democrats in Maryland's elections from 2012 to 2018, even though Democrats never got more than 65% of the state-wide vote there. So the Democrats actions were at issue in this case too, but for our purposes, I think it's important to clarify again that this isn't quite the like, everybody does it, so that's just how the game is played like issue that the court would maybe like to frame it as.

30:33 Michael: Yeah.

30:33 Rhiannon: Republicans have gone ape shit with partisan gerrymandering in a way that Democrats haven't, and frankly, probably wish they had. In general, the thing to keep in mind, as we move into what my arch-nemesis, the little bitch, John Roberts, had to say about gerrymandering here, is that "It absolutely implicates legal constitutional questions about voting rights and how people participate in a supposed democracy, and the court just kicks the can."

31:01 Peter: Right. Right. So the underlying legal question in this case is whether purposeful gerrymandering to benefit one political party is unconstitutional, but the more immediate question that the court must address is whether the issue is what's called justiciable, meaning whether the court can hear it at all, or whether it is outside of the court's prerogative. So again, this is limited to partisan gerrymandering only, it's very clear that racial gerrymandering is justiciable because of the 15th Amendment which addresses racial discrimination in voting specifically.

31:36 Rhiannon: Right.

31:36 Michael: Right.

31:36 Peter: So what the court holds here, in a 5-4 opinion authored by your boy, John Roberts, is that the court cannot hear this issue, and therefore complaints of partisan gerrymandering must be dismissed by courts because, according to Roberts, this is a political question that courts cannot address.

[vocalization]

31:56 Rhiannon: [Grunts]

31:58 Peter: The first thing that might jump out to you here is the idea of a "political question".

32:03 Rhiannon: Right. Right.

32:04 Peter: The court has in the past held that it cannot address what it calls purely political questions. This is the political question doctrine. The idea is that some issues are so purely within the discretion of the legislature or the presidency that they can't be addressed by a court. For example, the court won't address details about foreign relations, right, 'cause it says, "Well, that's an executive branch power." But this has always been a little weird. Not least because everything is a political question in the literal sense. The court is not hearing any issues that just don't have political implications. This doctrine has always been a way for the court to sort of just punt on issues it doesn't wanna address for whatever reason. Yeah, in some cases that might be because they don't want conflict with another branch of the government. And in the others like this one, it might be because they are right-wing pieces of shit who don't give an actual fuck about democracy.

33:02 Rhiannon: Yep.

33:03 Peter: Right. So let's talk about the decision itself, which is one of the most poorly reasoned of the last few years, I think. The first thing the court does is note that gerrymandering was an issue known to the Founding Fathers at the time of the drafting of the Constitution, and the point that Roberts is trying to make is like, "Well, if they knew about it back then and they didn't create a mechanism to prevent it, then I guess we can't really interfere, right?" So look, first off, obviously, our official podcast position is that the Founding Fathers were a bunch of frilly little dips who need to be given no deference.

33:37 Rhiannon: Exactly.

33:38 Peter: But also this is a weird argument in large part because A, the Founding Fathers absolutely did not believe in actual democracy. So the fact that they didn't explicitly try to prevent gerrymandering doesn't say much. B, there weren't any real political parties at the time of the Constitution. So the idea of partisan gerrymandering to benefit a political party couldn't have been on their minds. C, the first iteration of gerrymandering as we understand it now dates to 1812, not the time when the Constitution was drafted. It was first used by the Massachusetts Governor, Elbridge Gerry, right? That's where the name comes from. And then also D... Am I at D?

34:18 Rhiannon: You're you were at D. Yep.

34:20 Peter: D.

34:20 Rhiannon: Yeap, that's number four.

34:21 Peter: The constitutional provisions most implicated here, are mainly the Equal Protection Clause, were approved almost a 100 years after the founding of the country, so it doesn't fucking matter what the Founding Fathers thought about it. So the idea that the current practice was anticipated by the Founding Fathers is both irrelevant and just revisionist bullshit.

34:41 Rhiannon: Exactly.

34:42 Michael: Yeah.

34:42 Peter: And this is part of why originalism is not just theoretically stupid, but also practically useless. Even if you think that there is some wisdom in adhering strictly to these rules set out by a group of wig-wearing slave owners who didn't understand germ theory, you're still just sort of approximating their intentions in a way that is so riddled with uncertainty that it's almost completely useless. Like Roberts is saying, "Well look, they were aware of gerrymandering and they didn't do anything about it." But they were not actually really aware of gerrymandering in any meaningful sense. And even if they were, they wouldn't have enough of a lens into modern American politics for us to be able figure out what they might have thought about it. The only purpose of this sort of pseudo-originalist interpretation is to try to pretend that the court's extremely weak argument here is somehow rooted in history. It's connected to something real.

35:40 Rhiannon: Yeah.

35:41 Michael: Right, and I think Roberts also uses history to engage in like sort of a rhetorical slight of hand here where he basically says in so many words that he assumes this is not justiciable unless there's historical evidence to the contrary, but I don't think that's right. Whether or not our democracy is functioning properly seems like a basically justiciable question.

36:07 Rhiannon: Exactly.

36:08 Peter: Right.

36:08 Michael: And I would think the presumption runs the opposite way.

36:10 Rhiannon: Exactly.

36:10 Michael: Unless there's something in Federalist 57 or whatever that says like, "Oh, drawing of districts, that's something court shouldn't be looking at," I would presume this is justiciable. Like Peter said, it's a bullshit argument, and the whole point is to just sort of throw sand in your eyes, so that you're not really like with what's going on here, which is this is an opinion running interference for the Republican Party.

36:33 Peter: Right, and that's a great point that he's saying, "Look, the Founding Fathers didn't say that we could look at this, so... " But that's not the standard. The presumption is that the court can analyze the constitution. If there's some specific reason to believe that they can't, then you work from there.

36:48 Rhiannon: Right.

36:48 Michael: Right.

36:48 Rhiannon: Right. Exactly. And I like the framing, Michael, about what question Roberts is saying is not justiciable. This question about, in particular, partisan gerrymandering, and that's not justiciable, but there is certainly a broader question. The implications of this, is our democracy functioning?

37:06 Michael: Right.

37:06 Rhiannon: That seems really justiciable and that just reminds me of all the ways, especially conservative legal scholars will narrow a question and make it so formal and technical and specific that their answer is always a no, right?

37:22 Peter: Yeah, right.

37:23 Rhiannon: Rights shouldn't be expanded in this specific way, this specific question shouldn't be before the court, that kind of thing, but if you just broaden it just little bit, even a sixth grader can see like, "This is unfair. I feel like the Constitution should say something about this."

37:36 Peter: Right.

37:36 Michael: Right. Rhi made the point earlier that racial gerrymandering is a clearly justiciable question.

37:42 Rhiannon: Right, they have cases on it.

37:43 Michael: The functioning of our democracy and our elections, and whether or not they are they're fair is something courts regularly address. The idea that they need specific instruction from George Washington himself to answer this question is ridiculous.

37:58 Peter: Yeah.

37:58 Rhiannon: Yeah. Yeah.

38:00 Peter: Alright, so the next portion of the opinion is like a very long digression into how Roberts thinks there's no way for the court to figure out what is or what is not fair when it comes to drawing districts. He's like, "Look, the Constitution doesn't guarantee that you have representation proportional to your party's share of the electorate, which is true in the most literal narrow sense, but of course it's a dodge of the real question which is whether it's constitutional for a party to engage in redistricting with the express purpose of disenfranchising the opposing party to their own benefit.

38:34 Rhiannon: Right, right.

38:34 Peter: Everyone understands that representation will not exactly align with political party affiliation. That doesn't mean that someone can purposefully subvert the will of voters.

38:43 Rhiannon: Right.

38:44 Peter: Roberts just acts like this is like this big theoretical exercise, it's so fucking obnoxious to read. The other issue with Roberts's argument is that it seems to fundamentally misunderstand the constitutional complaint. Roberts is saying, "Well, look, the Constitution doesn't guarantee that your representatives will have a particular political alignment so there's sort of no issue here." To address this more fully, I think it's important to think about a rhetorical question, "Why is it bad for someone to lose their vote?" Everyone can agree that as a general rule, adults in this country should be able to vote. That is the ostensible position of every adult in the room.

39:21 Rhiannon: Right.

39:22 Michael: Not Amy Coney Barrett. Not Amy Coney Barrett.

[chuckle]

39:23 Rhiannon: Yeah.

39:23 Peter: Yeah. That's true.

39:25 Michael: Just to be clear.

39:26 Peter: So why would it be bad for someone to just burn another person's ballot, for example?

39:32 Rhiannon: Yeah. Right.

39:33 Peter: The answer is pretty obvious, right? This is a rhetorical question. They are reportedly trying to have a government that reflects the will of the people.

39:40 Rhiannon: Yeah.

39:40 Peter: There is no functional difference between a government official burning some ballots and a government official drawing congressional boundaries that are designed to render certain ballots meaningless, no functional difference. The outcome is the same. If you believe the Constitution creates any sort of obligation upon government officials to further a government that is reflective of the will of its citizens, then it... There cannot be a question that this shit is unconstitutional.

40:04 Rhiannon: Yeah, absolutely. And like we've said a couple of times, the Supreme Court has handled many cases that are about voting rights, that are about gerrymandering but in different contexts, that would seem to indicate that this also is unconstitutional. So for example, the 14th Amendment has been interpreted to mean in part, one person, one vote. And under that jurisprudence, Justice Kagan notes in the dissent here, "The Supreme Court has ruled for instance, that districts can't be created with significantly different populations, which would dilute the weight of votes." Say for example, if you're one vote in a district of one million voters, and next door, that district is 50,000 voters, then your vote is diluted, right? And the Supreme Court has said, "That's unconstitutional." So partisan gerrymandering does this same exact thing except the dilution is based on party affiliation.

40:57 Michael: Right, right.

40:58 Peter: Yeah. And on that note, the next section is basically just Roberts saying that there's no adequate test that could be applied to gerrymandered states to see whether they are improperly gerrymandered because it's unclear what's fair and what's not fair.

41:13 Rhiannon: Yeah.

41:13 Peter: And I don't wanna get into detail in this section, but the basic argument is just extremely disingenuous. Like Rhi just said, this is about partisan gerrymandering but everyone knows that racial gerrymandering is something that courts can address. And how do they do that? Well, they take a look at the districts, they say, "It looks, based on how these are drawn, that it was intended to disenfranchise minority voters."

41:34 Rhiannon: Right.

41:34 Peter: If you analyze where the lines are going, what the implications of those districts to being drawn that way are and you say, "Okay, it looks like these are intended to disenfranchise minorities," you could do the same thing but using a partisan analysis. "It looks like these are intended to disenfranchise Democrats or Republicans or whoever." And instead of saying that, instead of saying, "Okay, look, this is difficult to analyze, but we should do our best because people are getting unjustly disenfranchised," the court is just like, "Oh, boy, we're... This is way too hard."

[laughter]

42:01 Rhiannon: Can't do it.

42:02 Peter: This is way too hard so we're not actually gonna do it.

42:05 Rhiannon: What am I a mathematician?

42:07 Peter: Yeah. That's the United States Supreme Court taking the same approach to fixing democracy that I take toward fixing the broken door hinge on my hall closet.

[laughter]

42:16 Peter: Just like, not today, not today.

42:19 Michael: I think one reading of this opinion is John Roberts basically saying, "Politics ain't beanbag kids, you know?"

42:27 Rhiannon: Yeah, right.

42:28 Peter: Yeah.

42:28 Michael: Like, "Oh, politics is tough and people play dirty. And what do you want us to do about it?" Except that there are limits to that, like understanding that politics is dirty, right? For sure. There's a difference between that and preventing people from voting. There's a difference between that and just straight writing people out of the body politic entirely.

42:50 Rhiannon: There has to be a line.

42:51 Michael: There has to be, right.

42:52 Peter: You can't be like, "Look, he assassinated his running mate, but politics is a dirty business."

42:57 Michael: Yes. Exactly.

42:58 Rhiannon: Don't hate the player, hate the game, baby. Like, what?

43:03 Michael: These guys... I don't think they believe there really is a line, I think they resent the fact that the 15th Amendment provides lines that they can't ignore. I think that's the best way to read Shelby County too, which we've discussed before. Like, they hate the Voting Rights Act because it's like, "Of course, we wanna suppress black votes. They don't vote for us, and that's fucking politics." Right? Like, fuck 'em.

43:23 Rhiannon: Right. Yeah.

43:24 Peter: Yeah. And we should note that the whole racial gerrymandering versus partisan gerrymandering thing... Yes, 70 years ago, there was a lot of gerrymandering that was done to disenfranchise black people because they are black.

43:37 Rhiannon: Right.

43:38 Peter: Now, yes, that exists, but a big part of American racism now is not... Well, simply because they are black, we're attaching affiliations and cultural affectations to the black community, for example, that you don't like. And so partisan gerrymandering and racial gerrymandering are incredibly closely intertwined. The idea that they are completely separate is ridiculous. And they're getting to that point where they can say, "Well, look, this isn't really racial gerrymandering because what they're really trying to do is disenfranchise Democrats." The functional result is that they are disenfranchising the same exact black communities that they were disenfranchising 70 years ago.

44:13 Rhiannon: Yeah, absolutely, and...

44:14 Peter: There's no real distinctions here, it's just that the justification that Republicans use when they're talking to the court and when they're talking to themselves is just a little bit different.

44:24 Rhiannon: Yes, exactly. And how do you think they're doing the partisan gerrymandering? When they're redrawing the congressional districts, when they're drawing these maps, they're looking at race demographics and where people of different races live in every voting district.

44:38 Michael: Absolutely. One of the reasons redistricting is so much more powerful now than it's ever been is because of the type of data they have on you.

44:45 Rhiannon: Exactly. Yeah.

44:46 Michael: It's more sophisticated than ever, and they... Based on your subscription habits, your race, your age, your ethnicity, your income, they can pretty much guess with specificity on how you're gonna vote.

44:58 Rhiannon: They can go block by block through a city and decide what lines to draw between which city streets.

45:05 Peter: Yeah. The last section of this opinion, it almost broke me. There's no part of this opinion where you're like, "Alright, that's a good point."

45:13 Rhiannon: Right. No, no, no.

45:14 Peter: There really isn't one.

45:15 Rhiannon: It's all fucking garbage.

45:16 Michael: Yeah.

45:17 Peter: The last section is the most outrageously disingenuous shit I've ever seen in my life. Roberts says, "Look, we're not condoning partisan gerrymandering, it's actually horrible, we hate it. We're just saying that it's an issue for the legislature." But the whole issue is that those legislatures are corrupted, right? They're compromised.

45:36 Rhiannon: Right.

45:36 Peter: They're comprised of the wrong people because of gerrymandering.

45:40 Rhiannon: Yeah. They're winning because of the gerrymandering cheating thing, right?

45:44 Michael: Yeah.

45:45 Peter: The problem is that districts are drawn such that the legislatures themselves are unfair. They can't fix the problem of their own corruption, the court has to. The court has to. Roberts is literally saying, "It's terrible that our legislatures are corrupt, undemocratic institutions. Hopefully, the legislature will do something about this."

[laughter]

46:04 Rhiannon: Right. Why have checks and balances, you stupid bitch?

46:09 Peter: This is a district attorney getting up in front of the press and being like, "Well, the mafia's doing all sorts of crime. Hopefully, that will be sorted out by the mafia."

[laughter]

46:17 Peter: "That's really... It's a mafia business." Just absolute baby brain shit, just like a statement so disingenuous that it almost feels like they put this section in just to mock you. Are you fucking with us? That's what it feels like.

46:31 Rhiannon: Yeah, yeah.

46:32 Michael: You're saying these elections are broken and we hear you, and our answer is, "Those broken elections are the solution to problem."

46:40 Rhiannon: Right. Get out and vote, baby.

46:43 Michael: What am I supposed to do with that? It's insulting. It is.

46:47 Peter: Yeah.

46:47 Rhiannon: Absolutely. So I think we should spend a little bit of time on the dissent.

46:52 Michael: It's good.

46:52 Rhiannon: It's written by Justice Kagan, and I'm not ever all that impressed with Elena or her writing, but I have to say she goes in here. And y'all know I'm a quote girl.

47:02 Peter: Is that how you would describe yourself? As a quote girl?

[chuckle]

47:05 Rhiannon: On this pod.

47:07 Peter: When you said it, I wasn't like... "Yeah. That's right, Rhiannon's a quote girl. We all know that."

47:12 Rhiannon: I'm a lot of things, okay?

47:14 Michael: She likes to read from the opinions. I get that.

47:16 Rhiannon: Thank you.

47:16 Peter: Okay, okay.

47:17 Rhiannon: I read and engage with the text.

47:18 Peter: Alright, you're a quote girl.

47:21 Michael: Yeah.

47:21 Rhiannon: Okay. [chuckle] So I just wanna read a few things that Justice Kagan says that I think really plainly identify what is so deeply concerning about this majority opinion, and I think this dissent is the closest you can get to reading something like, "What the fuck is your fucking problem, you dumbasses?" in a Supreme Court opinion.

47:40 Peter: Yeah, 'til they put me on the court, baby.

[laughter]

47:45 S?: The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights, the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In doing so, these gerrymanders dishonored our democracy, turning upside down the core American idea that all governmental power derives from the people."

48:13 Rhiannon: She goes on later and says, "Liberty demands not only that all power should be derived from the people, but that those entrusted with it should be kept in dependence on the people. Members of the House of Representatives, in particular, are supposed to recollect that dependence every day. To retain an intimate sympathy with the people, they must be compelled to anticipate the moment when their exercise of power is to be reviewed. Election day, next year, and two years later, and two years after that, is what links the people to their representatives and gives the people their sovereign power. That day is the foundation of democratic governance, and partisan gerrymandering can make it meaningless."

48:53 Michael: That's right.

48:53 Rhiannon: So she doesn't just talk about the erosion of democracy in these broad terms, she gets really specific about how individuals' constitutional rights are violated in this kind of system. You know, she points out that a districting system that is so gerrymandered on this level is flat out not giving people an equal vote, and it's not fair and free participation in people's system of government. She says this is a violation of the 14th Amendment, this is a violation of the First Amendment, and the incredulousness, I think, at what the majority is doing in saying that this isn't a justiciable issue, is really palpable in her dissent.

49:29 Michael: Yeah, absolutely.

49:30 Peter: Yeah, I think she hits all the points. One thing that she would never, and no Supreme Court justice would ever have the balls to say is that, every step that the conservatives on the court take towards conceding the illegitimacy of elections is a step towards conceding the illegitimacy of the seats that they sit in.

49:46 Rhiannon: Yes.

49:47 Michael: Right.

49:47 Peter: If you believe that the modern American election system is, to some degree, illegitimate, that Republicans have been able to artificially suppress the votes of Democrats in order to gain power, then you have to concede that, for example, Donald Trump's Supreme Court appointments flow from that.

50:08 Rhiannon: Yes. Exactly.

50:09 Peter: And Kavanaugh, Gorsuch, and, soon, Amy Coney Barrett are sitting in what are essentially illegitimate seats.

50:15 Rhiannon: Yes.

50:16 Peter: Republicans like John Roberts aren't just saying, "This is just how politics goes because it's their party." It's also them. This institution rules over us predicated upon the same exact illegitimacy that someone like Donald Trump does.

50:32 Rhiannon: Right.

50:32 Michael: Yep. That's right.

50:34 Peter: So one important thing to realize is that the court is holding, in this case, that this is non-justiciable, meaning that it cannot constitutionally be addressed by courts. That means that all challenges to partisan gerrymandering in federal courts are non-justiciable, and courts across the country are forbidden from hearing them. So it's not just that the court is punting on this, it's taking it out of the realm of the judiciary entirely, taking one of the most prevalent anti-democratic practices in this country and basically saying, "There's nothing to be done about this legally."

51:07 Rhiannon: Right.

51:07 Michael: Right.

51:08 Peter: So the immediate implications of this are kind of obvious, gerrymandered states remain gerrymandered, which means their elections are just less democratic. But there's also indirect consequences. The biggest is, as we've discussed in the past, states set their own election laws for federal elections. So if Republicans gerrymander the state legislature, districts in North Carolina, which they do, then not only do they artificially maintain control of that legislature, they can use that control to engage in voter suppression at the federal level. So this stuff kind of piles up, and it's worth pointing out, not just to show how these sort of anti-democratic processes are intertwined, but also how stopping one can have this aggregating cumulative effect.

51:51 Rhiannon: Yes.

51:51 Peter: If the Supreme Court strikes down gerrymandering, you get rid of this bullshit practice, but you also get rid of all these downstream effects that start unraveling the GOP's voter suppression project.

52:02 Rhiannon: Exactly.

52:03 Peter: It cannot be stressed enough how many parallels there are between the current Republican Party's voter suppression strategy and the bus and speed. They need voter suppression to secure their election wins, they need those election wins to secure their control of the courts, and they need control of the courts to secure voter suppression. If any link in this daisy chain drops below 50 miles per hour, the whole thing blows up. This metaphor makes sense for the record. It's a good metaphor.

52:34 Rhiannon: Well, you know, while you were talking, Peter, I was thinking of the stupid onion. What did you describe as a stupid layered onion the other day?

52:41 Peter: The Electoral College is a stupid layered onion.

52:43 Rhiannon: Yeah, the Electoral College is a stupid layered onion. The conservative project of disenfranchising voters is a stupid, rotten, smelly-ass, ugly onion.

52:55 Peter: Yeah. And it's a bus. You guys are keeping track of this, right?

53:00 Rhiannon: It's an onion, it's a bus, it's a ball that's hit out of the park.

53:03 Michael: John Roberts is gonna hit that stinkin' onion 500 feet into the stands, baby. Home run.

53:09 Peter: Yeah. And if that ball ever goes below 50 miles per hour...

53:13 Michael: It's gonna explode. It's gonna explode.

53:16 Peter: Touch down, baby.

[laughter]

53:21 Michael: So if all these mixed metaphors are confusing you...

53:25 Peter: Which they shouldn't be, for the record.

53:26 Rhiannon: No way. How could that be...

53:27 Michael: I think they're very clear. Let's just think of this upcoming election, which, again, as we've mentioned many times in the past, has a lot of room for wrongdoing and malfeasance by state legislators that, as we've been saying here, are often heavily gerrymandered. If you remember in our Electoral College episode last week, we talked about how state legislatures can pick the electors who go to the Electoral College. And that means heavily gerrymandered legislatures, like the one in Wisconsin for example, could just ignore the voters in their states, and that wouldn't be that crazy. Democrats have outvoted Republicans in Wisconsin state legislature races several times in the last decade and yet the Republicans have super majorities in the state houses.

54:19 Rhiannon: Right.

54:21 Michael: And we mentioned that the election could be decided in the House of Representatives, which again, if you remember, has this ridiculous method where each state delegation gets one vote. And again, the make-up of those state delegations will be gerrymandered in a lot of cases. North Carolina is a purple state, it's regularly like a 51%, 49% vote, Democrats or Republicans nudging each other out. But Republicans control that state delegation with a commanding majority because it's heavily gerrymandered.

54:51 Rhiannon: Yes.

54:52 Peter: Right.

54:52 Michael: And look, we've said this many times, but this is a political party that has sort of abandoned assembling a majority coalition. They're not interested in having a popular mandate at all. So yeah, what you have is gerrymandered state legislatures who might ratfuck the election, and why not? That's just what they've been doing for a while now.

55:14 Rhiannon: Right.

[music]

55:21 Peter: Next week, we are doing an episode on court reform, and we will be talking to... This can't be right. Congressman Ro Khanna.

[laughter]

55:34 Rhiannon: Why is this happening?

55:35 Michael: No, we deserve this. I'm just surprised it took this long.

55:39 Peter: Someone at Ro... In Ro Khanna's communications office has made a horrific mistake, and...

55:45 Michael: Career misstep.

55:46 Peter: And we will be punishing him for it.

55:50 Rhiannon: Yeah.

55:50 Peter: That's a real thing, by the way. That's really...

55:52 Rhiannon: Yeah, yeah, we're not joking. Ro Khanna is going to be on 5-4.

55:56 Peter: Yeah.

55:57 Michael: We're talking court reform, it's gonna be great.

56:00 Rhiannon: Yeah.

56:00 Peter: Follow us on Twitter, @fivefourpod. I don't think we have an Instagram yet but...

56:05 Rhiannon: We do but we don't post nothing on it.

56:07 Peter: You can still follow.

56:10 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY and our theme song is by Spatial Relations.

56:28 Leon: From the Westwood One Podcast Network.

The Electoral College Coup is Coming+

00:02 Leon: Hey, everyone, this is Leon from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael discuss the Electoral College and its potential to wreak absolute havoc on elections, both this November and in the future.

00:16 [Archival]: Most people are aware that the present system is dangerous. It's outdated and it's archaic. It's one that needs to be revised and made responsive to the needs of today's electoral problems.

00:26 [Archival]: We can have national voting, and that means get rid of the Electoral College.

00:36 Leon: This is 5-4, the podcast about how much the Supreme Court and the Electoral College suck.

00:47 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have weakened America's immune system like a lifetime of poor nutrition. I am Peter, I'm here with Michael...

01:04 Michael: Hey, everybody.

01:04 Peter: And Rhiannon.

01:04 Rhiannon: Hiiii... Hi.

01:07 Peter: And this is a special episode, the first in a month-long pre-election series of episodes that dig into the rotten core of our ostensibly democratic institutions.

01:20 Rhiannon: Let's do it.

01:22 Peter: And today, we are looking at maybe the dumbest, most anti-democratic of our institutions, the Electoral College.

01:28 Rhiannon: That's right.

01:30 Peter: Before we jump in, we should talk about the fact that Amy Coney Barrett's confirmation hearings are ongoing as of Monday of this week. I think for now, our basic position is, A, she's probably going to get through and B, confirmation hearings are just sort of political theater and aren't really substantively very interesting. She might say something interesting and if she does, we'll be sure to talk about it, but that's sort of just how I feel about it.

02:02 Rhiannon: Yeah. I think it's not interesting, and I am just thinking about what a weak party the Democrats are right now. If you think about how immediately after Ruth Bader Ginsburg's death, people were like, oh, if they try to ram somebody through, we're going to burn it all down, right, and now it's just like, okay, well, it's happening. What are we doing? Nothing.

02:21 Michael: Feinstein's just carrying on like normal.

02:25 Rhiannon: Exactly.

02:26 Peter: The real big news is that no one is wearing masks except for Coney Barrett, and half of these people actively right now have COVID. It's not like it's risky or whatever, like they have it. They have it.

02:39 Rhiannon: This is true.

02:41 Peter: So this is Dianne's last confirmation hearing.

02:49 Rhiannon: Which if you're some people is good news.

02:54 Peter: Yeah, yeah, I think it is. It's a small silver lining.

03:00 Michael: I also, I just want to say I don't have an appetite for bullshit anymore, that's all it is.

03:05 Rhiannon: And that's what it is, exactly.

03:06 Michael: Nobody believes a word of what they're saying and they don't care, and it's all about jockeying for political advantage and just like, I don't know, fuck that. I don't need to get myself all angry about that on a Sunday night or whenever we're going to record this.

03:21 Peter: Yeah, so we'll talk a little bit more about Amy as things unfold. But for now, we will turn away from the political theater of the confirmation hearing, and we will turn towards the system that A, decides who wins the presidency and B, is ripe for abuse by Republicans in this upcoming election.

03:40 Michael: That's right.

03:42 Peter: The Electoral College. The Electoral College is a system so fucking stupid that it cannot withstand the first question that comes to everyone's mind when they hear about it: Why not just be a regular democracy?

03:54 Rhiannon: Get her ass, get that Electoral College.

03:56 Peter: No amount of historical context or analysis or abstruse arguments about the utility of the Electoral College will ever defeat that question.

04:06 Michael: Yeah, that's it.

04:06 Rhiannon: Right.

04:06 Peter: So we're going to dig a little bit into why we have the Electoral College, why it persists, what the legal rules surrounding it are and, most importantly, whether and how it might be used to stage a nice little American coup next month. We've talked a lot in recent episodes about voter suppression, which is and remains the GOP's primary electoral strategy these days, but there is a lingering question here of what their options are if that fails, right, what sort of anti-democratic shenanigans can they engage in? What can they do if they want to steal this election after the fact?

04:45 Peter: And to understand that, you have to understand the Electoral College. So first of all, we're going to assume that you have some understanding of what the Electoral College is, but it's a system for presidential elections where each state gets a number of electors based roughly on its population and a candidate who wins the state under the current rules wins all of that state's electors. So the reason why this exists is a little more complex, and we're not historians, so we're not going to go into too much detail here, but we want to give you a little bit of color. So like we've mentioned before, all the Constitution really says about voting in presidential elections is that states appoint their electors as they deem fit, and those electors cast their votes for President.

05:31 Peter: The original idea behind this was that people would vote for an elector in their district who would in turn vote in a way that reflects the will of those people to some degree, but also does not result in too much upheaval, 'cause of course, the electors would be fancy boys from high society who have a vested interest in sociopolitical stability.

05:52 Rhiannon: Right. And the fact that the outcome was meant to be controlled by elites, that really goes deep here. The system as it was originally designed would rarely produce a majority winner, which in turn results in the House of Representatives holding a vote on who wins. This all changed as political parties coalesced and in the mid-1800s we got to a point where most states were holding state-wide votes, where the winner takes all of the electors, and that's the system that reigns supreme today.

06:21 Michael: Right. And in the modern day, electors themselves are selected through processes that vary state by state, but largely speaking are people who are nominated by the state parties, Democratic and Republican parties, and they all get together to officially vote in mid to late December.

06:40 Peter: Right. So I don't want to turn this episode into pure bitching about the Electoral College, but I think it's important to understand the Electoral College, not as like some sort of stroke of genius by our Founding Fathers, because that's how everyone tries to color it when you're growing up. It's deeply connected to the fact that our country as founded was really not a democracy in any meaningful sense, and was a nation controlled quite directly by sociopolitical elites, and the Electoral College and all of the sort of inherently undemocratic components of American government are vestiges of these anti-democratic oligarchic roots. They're not like clever protections against the excesses of democracy or whatever, like nerdy apologists for the Founding Fathers want you to believe.

07:26 Rhiannon: Right.

07:27 Peter: They were designed to ensure that the average person, the average citizen, did not exercise too much control over government, so that power could remain in the hands of the most syphilis-ridden group of dandies in modern history.

[laughter]

07:41 Rhiannon: That's right, exactly.

07:44 Peter: And every defense of this system is incoherent. A popular vote would be the only system where everyone's vote matters equally. Everything else is just hand-waving bullshit. To me, that's sort of the bottom line.

07:58 Rhiannon: Exactly, yeah.

08:00 Michael: No, that's absolutely right. Another thing about the Electoral College, though, is that it's super racist, as if being really stupid and really elitist isn't enough. So just as a practical matter, the number of electoral votes each state gets is the sum of its total number of representatives in the House and the Senate. So small states that only have one member of the House of Representatives, they get three electoral votes, one for their House member and two for their two Senators. So if you go back to the Founding and you remember your social studies from when you were a kid, at the Founding, the small states were concerned about getting overrun by the big states, and that's why we have the Senate where each state has equal representation.

08:40 Rhiannon: Right.

08:40 Michael: And you might also remember that the slave states were worried about being overrun by the free states, and so what we had was the Three-Fifths Compromise, where slaves were counted as three-fifths of a person for the purposes of determining the population of the state, which gave slave states bigger representation in the House. Those compromises are reflected in the Electoral College, since it is the sum of your House and Senate members. It's just historical fact that the Three-Fifths Compromise gave slave states a bigger representation in the Electoral College than they otherwise would have.

09:20 Rhiannon: Right.

09:21 Michael: And then this gets worse after the Civil War, because the Three-Fifths Compromise disappears, and now freed slaves are full people, and all of a sudden the Confederate states have their populations increasing in their Congressional representation, increasing and by extension the number of electoral votes they get in Electoral College increasing, but thanks to Jim Crow, thanks to literacy tests, thanks to election day violence and just general campaigns of violence, blacks were effectively disenfranchised. And so what you had was Confederate states increasing in power in this way while still benefiting off the backs of disenfranchised minorities. So this is up through the '70s that this was an inherently white supremacist institution, and in the '70s, there was a movement to abolish it and surprise surprise, it was Southern states that were against that, and today you still see all this same shit. There's a direct through line here.

10:21 Peter: Yeah. Yeah.

10:24 Rhiannon: Yeah.

10:26 Peter: So where does this god-awful system leave us? There are some very obvious ways in which the Electoral College is undemocratic. It results in certain states being politically irrelevant in presidential politics. It essentially erases the will of minority voters in every state, and when I say minority voters, I mean whoever is not voting with the winning candidate in that state. So Wyoming has just over half a million people and has three electoral votes, California has 40 million people and has 55 electoral votes, so people in Wyoming just have vastly more influence per vote over the outcome of a presidential election.

11:06 Rhiannon: That's right.

11:07 Peter: It also makes certain undemocratic practices and tactics like voter suppression much simpler. If the election were decided by a nationwide popular vote, voter suppression on a scale necessary to change the outcome of an election would be almost impossible. The Electoral College makes it so that it can be incredibly effective. In swing states where voting margins can be in the tens of thousands, disenfranchising fairly small portions of the population can swing the entire state in one direction or the other. You couldn't have that if you didn't have the Electoral College. It should go without saying that this is pretty useful for a party whose entire electoral strategy is to ensure that the will of the majority of the people in the country is suppressed.

11:48 Peter: So even when it's being used "correctly," the Electoral College is only nominally democratic and is easily abused by bad faith actors. But the Trump administration's fairly open strategy of ensuring that they win this election, even if they lose, might have you asking some questions about what exactly they could do to take advantage of this system and stage something that looks less like electoral tactics and more like an outright coup. And the first thing we should talk about is maybe the simplest issue: Can't the electors who make up the Electoral College just cast their vote for whoever they want, even if they're supposed to cast it for whoever wins the state?

12:33 Peter: The Constitution doesn't say that electors have to vote for anyone in particular. It's state laws that say that they have to vote for someone in particular. So electors who cast their vote for someone other than the candidate who wins the state are called faithless electors, and this has been an issue in the past, because although most states have laws saying that electors have to cast their vote for the winner of the state, there's long been a strain of thought that this is unconstitutional. Many people believe that the Founders' intent was for electors to be able to exercise their own will in their vote, meaning that states actually can't require them to vote for whoever wins the state. The electors are sort of there as a bulwark against democracy gone wrong.

13:17 Rhiannon: Right. Right.

13:17 Peter: They're meant to protect us from the hordes of people who are trying to elect someone that the elites don't like.

13:23 Rhiannon: Exactly, and that actually became a bit of an issue in the last election. Despite there being no more than one faithless elector in any election since 1912, there were 10 in 2016.

13:35 Peter: Yeah, and we should note that was mostly due to an effort by Democrats. If you recall, they became obsessed with the idea of what they called Hamilton Electors, and this was... They were banking on a theory I just described that electors have this obligation to protect us from the Donald Trump presidency, and so they should vote their will, and they were trying to get electors to cast their votes for centrist Republicans. They were saying, Republican electors, stand up to Donald Trump and cast your vote for fucking John Kasich, whatever. And they had very moderate success with this, but certainly it was the first time in over 100 years that this sort of faithless elector thing had gone anywhere. There hadn't been since, I think it was maybe 1912, an election where there was more than a one faithless elector. And then this one again, there were 10.

14:31 Rhiannon: Right, exactly. So the Supreme Court ended up taking up this issue just this year in a case called Chiafalo versus Washington, and in that case, the Court unanimously held that states can essentially force electors to vote for whoever wins the popular vote in the state. So that sounds great. But if you look a little closer, it's not really clear how much this ruling actually matters, so only 33 states have these laws, and of those only 14 actually cancel the faithless elector's vote, which means that in 36 states, a faithless elector vote will still count.

15:09 Peter: And also, it means that these states are passing laws that say, no, you have to vote for whoever wins the state, but there's no penalty in many of these states if you violate the law, and in many of these states, the vote still counts, so... Is that even a law?

15:26 Rhiannon: Right, exactly.

15:27 Michael: A sternly worded warning. You'd better, you'd better.

15:33 Peter: Please do it.

15:36 Rhiannon: Exactly, so the next question, of course, is like, how much does this matter? The good news is the party of the candidate who wins the state chooses the electors, so the GOP may well be openly questioning election results in certain states, but they are not likely to convince Democratic electors to switch teams. So the concern with faithless electors is more kind of theoretical than real, in order to steal the election, what Republicans really need is a way to prevent Democratic electors from being appointed in the first place, and that brings us to the GOP's next option.

16:10 Peter: Yeah, yeah, and this is, I think, the meat of it, this is like where the coup might happen, I think. Again, the Constitution says that state legislatures shall direct "the manner in which electors are appointed," so that there's a possibility that Republican-controlled legislatures in states that Biden wins, where it seems like Biden has won, could say, okay, we don't trust the results in our state, so we're going to appoint our own electors, and they just appoint electors, Republican electors, who will vote for Trump.

16:44 Peter: And I think that's the threat that a lot of people are really concerned with this election. The problem with this strategy is that states already have laws on the books concerning how they appoint their electors, so it's unclear if they could actually change those laws after an election has already happened. And you also have the fact that Pennsylvania, Michigan and Wisconsin have Democratic Governors who may be able to veto these types of shenanigans if that's an option presented to them.

17:11 Michael: And there's also the possibility, I'll talk about this in detail later, that Democrats, if they control the House and the Senate, could essentially reject those electors.

17:20 Peter: Yeah, but again, the Constitution says very little about this, so there's a lot of room for interpretation that could be leveraged by Republicans if they needed it. Electors don't vote until well into December, so there's a real argument that the states have the option of changing how electors are appointed before then. The reason scholars have been saying, I think a lot of election law scholars have been saying it's unlikely, is that the state laws for each state provide that electors will go to the winner in that state. To change the rules after voting begins seems like it's sort of breaking what is essentially a compact with voters about how their votes are going to be tallied. But there are a couple of important things to remember here.

18:00 Peter: One is that it's not clear what the Supreme Court would think about this argument. In Bush v. Gore, the conservative majority reasserted for the first time in decades that state legislatures could change the rules and appoint whatever electors they want, but the Court didn't go so far as to explain whether they could do it after the election began, for example. The other thing to remember, and maybe the more important thing, is that this isn't really about constitutional interpretation. The Constitution says almost nothing about this. This is about power. Republican state legislators aren't reading the Constitution looking for the correct answer; the token state legislators aren't reading anything at all.

18:42 Michael: The take-out menu at Denny's.

18:46 Rhiannon: Easy lay up, but I'm glad you took it.

18:50 Peter: They just need some leeway to work with here, right. Like, to essentially treat the vote in your state as invalid and appoint your own electors after an election already happened is clearly a bit insane, but if it's the only thing standing between Republicans and power, sorry to the election law scholars, but fucking bank on it, dude, bank on it. This is state Republican politicians we're talking about, the lowest form of human life. Even Congressional Republicans wouldn't stop to these levels. They're barely sentient little parasites. The only question in my mind is whether the Court is willing to essentially toss out the remaining crumbs of our democracy entirely and substitute with what's basically rule by fiat. I think that is the real fundamental question.

19:42 Michael: Right. So there is another possibility, which is that this gets decided by the federal government and specifically the House of Representatives, and this happens in the case of a tie or no candidate gains the majority. Don't worry, if you're concerned, if it just sounds really uncertain, because our Founding Fathers have instituted the absolute dumbest fucking system imaginable to remedy the situation.

20:10 Rhiannon: James Madison's on the case, don't worry.

20:15 Michael: So if nobody has the majority, the House of Representatives will meet, and we should note, this is the newly elected House of Representatives, not the current one. And each state, not each Representative, but each state will get a single vote for President, and it's winner take all, baby.

20:35 Peter: That's the talley, yeah. That's what I'm talking about. This is so incredible, because how do you even come up with a system that ineffective. I mean, it's just fucking bizarre.

20:47 Michael: It is, it is.

20:49 Peter: California, who are you voting for? Okay, that's one vote. And what about you, Rhode Island? Yeah, that's also one vote.

20:54 Michael: There's like 50 legislators in California and there's one in Montana. And the guy Montana gets the same...

21:01 Peter: You don't even have to say Montana, it's just like, Steve, who you voting for?

21:05 Rhiannon: And another... This is kind of a remote possibility, but an interesting side note is that the Senate actually chooses the Vice President and there every Senator gets a vote.

21:17 Peter: Yeah, fuck it, why not just use a totally different system in the Senate.

21:22 Rhiannon: So it's actually not hard to imagine a scenario where you end up with an opposite party President and Vice President.

21:29 Peter: I smell a sitcom.

21:34 Michael: Well, I was going to say political assassinations would be way in vogue.

21:38 Peter: Just Biden and Trump just brawling like little siblings in the Oval Office.

21:42 Rhiannon: I was going to say, I'm just adding that to the long, long list of items that give me anxiety. It's a list that I read before bed every night.

21:53 Peter: Yes, like Arya's kill list in Game of Thrones, Rhiannon.

21:58 Michael: The Senate appoints Vice President Pence. So back to the practical realities of this. In the House, as it's currently constituted, the Republican Party, despite being a minority in the House, controls 26 state delegations, the Democrats control 22. Pennsylvania is tied, and Michigan is sort of tied. There are seven Democrats, six Republicans, and Justin Amash. Amash, Amash, who fucking...

22:29 Rhiannon: I don't know, and not to be my Palestinian dad real quick, but Amash sounds Arab, gotta say.

22:37 Michael: Fuck it. He's retiring, he's going to be replaced by a Republican anyway, so whatever. So look, Republicans right now, it's easy to see how they could retain control of 26 delegations. It's not outside the realm of possibility that Dems could flip that, although it seems unlikely, but like we said, Montana only has one representative, and that's like a lean Republican, Alaska only has when representive, and that's also lean Republican, but those are competitive races.

23:04 Peter: It's hard to do voter suppression in Alaska because there are no minorities. It doesn't work out there.

23:10 Rhiannon: Well, indigenous people.

23:13 Peter: Alright, cut that. Gotcha.

23:21 Michael: Florida and Kansas also have very narrow margins in their congressional delegations, so those could change hands. You might be thinking, reasonably, if there's a big enough Dem wave to flip these delegations and give Democrats control of 26 delegations, then wouldn't Joe Biden have enough electoral votes to just not make this an issue. But you know, again, it's a real possibility. The Pennsylvania State Republican Party, they have legislators there who've already floated this to the press, that they are considering trying to appoint their own electors. They have a Democratic Governor, it would be its own sort of constitutional mess, if they try to do that.

24:00 Michael: But it's like Peter described a minute ago, if Republicans try to steal the electoral votes of states Biden won, what Democrats can do is they can try to get those electoral votes thrown out. So if that happens, the Democrats aren't without options. So one thing they could do is contest the electoral votes that the GOP tried to steal and then have them thrown out. So this shit, we're getting very obscure here, I was like toiling through the US code reading really, really poorly written laws for this, so...

24:32 Rhiannon: Michael was in his zen place.

24:36 Michael: Apologies if there are any election experts who think that I'm getting something wrong here, but...

24:42 Peter: Who cares?

24:43 Michael: This is my own reading of the law, so the way this works is if the body that accepts and counts the Electoral College votes is Congress, both Houses get together, and you need a written objection and one Senator and one House member needs to sponsor the objection. And if you do, if you object to Pennsylvania's Electoral College votes, the Houses separate and they each meet and, as far as I can tell, after a period of debate, they vote by a majority vote. And so if you control both Houses, even if you only have 22 state delegations, if you have a majority of votes in the House and you have a majority of votes in the Senate, you can just say, no, fuck Pennsylvania. This isn't on the up and up. And in this process, you could essentially deny both candidates a majority of electoral votes and bring it to the House. That's my understanding of this.

25:33 Michael: Now, that might seem like a self-defeating thing if Democrats don't control 26 state delegations in the House, but there are things they could do with that too. One thing that they can do is they can just try to prevent certain Republicans from being seated long enough, which... The way this works is like... So let's say you want to flip the Florida delegation and it only takes two seats. You can have two people who lost to Republicans challenge that loss and they register their challenge with the House, and then the House will have to take up an investigation, and this can take time. It can take 30 days after the election certification, so you can be putting in your challenge in mid-December, just a few weeks before this all happens. And the House can, they can pre-textually investigate this and drag their feet and in the process they can say, well, we're not seating you while this investigation's on-going.

26:26 Rhiannon: We won't seat the Republican who supposedly won.

26:30 Michael: Right, who definitely won, but we're not going to recognize you. Republicans have done this before.

26:35 Rhiannon: Of course they have.

26:35 Michael: They did with Al Franken in the Senate, and in the process denied Democrats the ability to have like a 60 vote filibuster-breaking majority for several months. It's another form of hard ball. So you could drag these out for months, and in that time, it might be a temporary period, but for a temporary period, you could control 26 state delegations long enough to install the President. The big concern is, that it's a level of coordination and hard ball that I'm not sure the Democrats are capable of, and even if they are, if we got to this, I have no doubt that there would be violence in the streets, like the fucking Proud Boys and the... What are they? Gigalos? Jugalos?

27:24 Rhiannon: Whatever, those fucking clowns.

27:25 Michael: Those fuckers in the Hawaiian shirts with the guns, and cops, I'm sure.

27:31 Peter: I don't know, though, I don't know that conservatives know how to do violence in the streets in any real way, because they don't have targets, what they would do is use coordinated campaigns of violence against specific people. They don't like get out there and riot or anything.

27:46 Michael: Right, right, right, right. But there will be death threats against Congressmen, for sure. And there would be like, like when they shut down the state house in, where was it, Michigan. But, yeah, you'd see militia types protesting peacefully, but with enough guns that it would be extremely intimidating. It would be ugly, and it's why we want to avoid this sort of thing, like we want a clean victory.

28:11 Peter: I think it's time. I think it's time for an ad.

28:12 Peter: So enough about every avenue that we could possibly go down in the Electoral College shit show, although it is fun, the one thing I learned just doing a really casual afternoon research for this episode was that, as dumb as the Electoral College is just on its face, it only gets dumber, every layer you peel, like a stupid onion. You peel one layer back and underneath is something even dumber and you're like, holy shit, this goes all the way into the core. It's sort of crazy. Very impressive that these people, the Founding Fathers, have managed for 250 years to successfully engage in a propaganda campaign that they are smart. Like look at these incredible systems that balance each other out, and you're like, oh, what are the systems? And they're like, oh, if we don't know who the president is, that each state gets a vote, and then for the vice president, you do the same thing, and then you have... And then that's how it works. And you're like, wow. Wow. Alexander Hamilton. Incredible. You deserve all those cashews, all across the country.

29:36 Rhiannon: Yeah, you know what this episode has me thinking so much about is we talk a lot about demystifying the Court as an institution, it's not this objective, perfect scientific thing that you put in the variables and it spits out the correct result, and we should all be deferring to it and super respectful of it. Researching for this episode has reminded me, I think, about how much we need to demystify the work of the Founding Fathers, and how that propaganda campaign is absolutely weaponized by Republicans, right. The Founding Fathers are not perfect, they were a bunch of big dumb idiots, rich at the time, slave owners, all of the most terrible things, and... Look, they were making it up.

30:23 Peter: Yeah. The funniest thing about the American founding is that it's pretty widely accepted that none of them really anticipated the rise of political parties, which happened like 10 years later...

30:34 Michael: Immediately.

30:37 Peter: And then just became the primary concern in American politics for 220 years, right? And they were like, oh, shit, yeah. And then once that happens, all of the institutions steadily crumble and the sort of political calamity that you see now is in large part due to the fact that these systems are not built to account for two ideologically opposed parties who have really no interest in mutual cooperation.

31:11 Michael: Something I also... Like when we're talking about that's something that I've been thinking about a lot lately is like, we talk a lot about how fucking stupid Antonin Scalia is and what a dope Sam Alito is, and everybody knows what a dumb asshole like Donald Trump is or Mike Pence, or whoever, right? And there are idiots on the Democratic side of the aisle as well, and it's not hard to identify them, to realize that we don't live in a particularly special moment in American history, and that they were Sam Alitos and George Bushes and whatever in every single generation going back to the Founding, they were idiots who could barely string a sentence together, and who were evil to their core, who now we're like, wow.

31:56 Rhiannon: And they were powerful.

31:56 Peter: At least now, it's like the power has just being passed down from generation to generation. Back then it was just like that man has the most horses in town. You are a Senator, good sir.

32:11 Michael: That's not actually that different from how it is today.

32:15 Rhiannon: So turning to how we could reform this dog shit system that those Founders gave us...

32:21 Peter: Yeah, what do you guys think about passing a constitutional amendment?

32:26 Rhiannon: So okay, okay, okay, let's back up and like... Yeah, okay. So as it stands, the number of electors each state gets is equal to the total number of seats that that state has in the House of Representatives, plus two for their Senators. But James Madison himself said that the framers who wrote the rules in the Constitution about the Electoral College had written the rules under "the hurrying influence produced by fatigue and impatience."

32:54 Peter: Ooh. Oh, yes, the hurrying influence.

32:54 Rhiannon: So cool thanks... Yeah.

32:57 Peter: Thanks, James.

32:58 Michael: Who also produced this episode.

33:03 Peter: Yeah, no worries, though, James, I forgive you. You guys were in a rush and now our country is garbage. No problem, though.

33:09 Rhiannon: Thanks, bro. Thank you for your service. So doing away with the Electoral College altogether and just moving to a system of a straight popular vote for President and Vice President, that has enjoyed broad majority support, even in Congress. Michael mentioned this earlier. In 1969, for example, the House of Representatives did pass a constitutional amendment to establish a national popular vote for the White House, and even President Nixon was good with it. But a filibuster which was backed by segregationist Southerners in the Senate, killed it. So, racists. We've been like this all along.

33:47 Peter: And now... Look, 1969 was a long time ago in many ways. You wouldn't get even a little bit of support from Republicans for this now. Their entire project hinges on the Electoral College.

34:03 Rhiannon: Exactly.

34:04 Peter: Constitutional amendments, in case anyone is unaware, require two-thirds majorities in both Houses. Impossible. Impossible.

34:11 Rhiannon: Right. So a constitutional amendment right now is definitely very much a pie in the sky concept in terms of abolishing the Electoral College, but just want to make the point that it's not unheard of historically.

34:23 Michael: Oh, yeah, no, it's not. And I just want to say to that point, I think there was actually a moment, I think in 2004, John Kerry lost by I think three points nationally, but only like by one point in Ohio, which could have flipped the Electoral College, and we could have had back-to-back elections where the popular vote winner lost the Electoral College. It was pretty close. Basically, what won the election for Bush in 2004 was a gay marriage ban on the ballot in Ohio that drove evangelical turnout, and pushed him over the line there.

34:56 Peter: Right. If Kerry had won and not won the popular vote in 2004...

34:58 Michael: I think it would have been gone.

35:00 Peter: That would have been a real moment where the country could have said, "Let's get rid of this bullshit."

35:02 Michael: Two straight elections with both parties benefiting or not benefiting, as the case may be.

35:10 Peter: Unfortunately, that was 1000 years ago.

35:10 Michael: Yes!

[laughter]

35:15 Rhiannon: That's definitely what it feels like. So in terms of other possible options for reforming the Electoral College, a lot of people have looked at the system and said, look, a simpler solution that gets us closer to an Electoral College that's more reflective of the popular vote is to expand the number of seats in the House of Representatives, make Congress bigger.

35:34 Peter: Which then in turn makes the Electoral College bigger.

35:37 Rhiannon: Exactly, and that's not a crazy concept. Currently, the House, of course, is capped at 435 members, and that's because of the Reapportionment Act of 1929, but Congress could just pass new legislation if it wanted to change that number, 435 isn't a magic number that's in the Constitution or anything like that. Congress used to pass legislation to expand the House every decade, and it just for a variety of reasons just stopped doing it in 1929.

36:04 Peter: There's only so many people you can fit in that room. They were like, "This is it. We're at capacity."

[laughter]

36:08 Rhiannon: "That's it. We're not building another one of these."

36:09 Peter: There's like a fireman's coat on the door, and they're like, "That's it."

[laughter]

36:11 Rhiannon: That's how they wrote this statute. But in fact, old James Madison himself, his original First Amendment, which did not get ratified, it would have equipped us with a really precise formula for the number of representatives in the House, and according to that formula, if we had adopted it, we would today have a House of Representatives with over 6000 members. [chuckle]

36:38 Peter: I think it's great that Madison, his First Amendment idea was like, "I have this mathematical formula," and then everyone else was like, "You know, it should be you can say whatever you want. That's what I want." Everyone cheered, and that won the day.

36:54 Michael: One historical note I like about this is that Rhi said this was never ratified, and that's right, but there's actually some belief that maybe it was, that I think it was Connecticut, Connecticut actually ratified it in 1789 or something, and just people didn't notice, and so that in 1791, a final state ratified it, and it should have gone into effect, and it just didn't, and so I think in 2010 or 2012, somebody brought a case to the Supreme Court being like, "There should be 6000 people in the House." [chuckle] And the Court was like, "No." But they tried to get it recognized because they had this historical evidence that it had been ratified, which would have ruled.

37:32 Rhiannon: That would have been amazing.

37:33 Peter: That would have been actual judicial activism if they were like, "Yeah, it's 6000 members now."

37:37 Rhiannon: "Tomorrow, you guys need to have 6000 members showing up."

37:40 Michael: Good judicial activism.

37:41 Peter: Oh, hell, yeah, it would have been great.

37:44 Rhiannon: Okay, so there are obviously good reasons why a deliberative body that should be making laws and shit shouldn't be 6000 people big, but in terms of the Electoral College, by expanding the size of Congress by whatever measure, you end up with a state like California getting a lot more electorates. It could be 200 or 250, I don't know, while less populated states like Wyoming could remain about the same.

38:08 Michael: So what, so California's 80 times the population of Wyoming, so if its electoral votes were proportionate, instead of 55 electoral votes, it would have 240. That's how it's being disadvantaged here in the Electoral College compared to Wyoming.

38:24 Peter: Great system.

38:26 Rhiannon: And just want to give a really quick shout out to listener Casey, who wrote to us about this.

38:29 Peter: Yeah, marking the first genuinely intelligent communication we've received from a listener in the history of our podcast.

38:37 Michael: Not true, that's not true.

38:38 Peter: What's another one?

[laughter]

38:43 Michael: So yeah, I actually really like this idea. It makes, for one thing, my understanding, at least I'm not like a super expert in this area, but my understanding is it makes gerrymandering much more difficult, which would be great, not only for political purposes, but also just on more fundamental fairness purposes, and it would make the Electoral College itself more fair by making the number of votes each state get a little more tied to the actual population and more reflective of the relative size of each state, such that Wyoming residents aren't getting seven times the influence or whatever it is than California residents. It seems good on a number of levels.

39:26 Peter: Absolutely, and yeah, we're joking about a 6000 member Congress, but of course it doesn't need to go that high. Doubling the number of representatives in the House would be hugely significant in terms of exactly reducing the sort of unfairness, the inherent undemocratic nature of the Electoral College.

39:45 Michael: Doing that would likely, for Democrats, at least in the short term, increase their political power by giving them, I think, a stronger foothold in the House of Representatives and in the Electoral College, while at the same time decreasing the political power of any individual representative, since they're going to be 1 out of 900 instead of 1 out of 435, which is why it'll never happen, because they are too fucking stupid to think about that maybe in a more powerful party, my influence could be more meaningful.

40:22 Peter: Right. They'd be in the short-term sacrificing their own sort of immediate power, and that would take some sort of balls and foresight to do, and I don't think they have balls and foresight.

40:31 Michael: There's no evidence that any of them have that, or very few of them, so...

40:35 Peter: We should also talk about the national popular vote interstate compact, which is this idea that states would agree to give their electors to whoever wins the nationwide popular vote. Now, obviously, this only works if enough states agree to it and not enough states have, and of course, Republican-governed states don't have an interest in doing that. But we should mention it because it's a way of sort of mitigating or eliminating the effects of the Electoral College without having to pass a constitutional amendment.

41:05 Michael: Right, and they're always quirky or weird times when something happens, there's a scandal and there's a wave election or whatever, there's a recession or a plague, and you find yourself in charge of a state that you were not previously in charge of as a Democrat, and I maybe have an opportunity, like a rare but slim opportunity. Doesn't Kansas, have a Democratic Governor right now? And you'd be surprised, sometimes there are moments, right? And like all you need is 270 electoral votes in this and then the Electoral College is dead.

41:40 Peter: So that's right. So we should talk about where the Supreme Court is in all of this chaos. Like we said, the Constitution is pretty vague on a lot of this stuff, and the Supreme Court, of course, has the final say on constitutional issues. So it's possible that questions about how some of the ins and outs of the Electoral College work get elevated to the Court. Hard to predict what the issues would be and how things would shake out, but one thing you can be certain of is that the conservatives on the Court will give zero weight to whether or not the mechanisms of the Electoral College deprive the people of their democratic voice or something.

42:21 Peter: And this is also what makes the expansion of Congress such a powerful option here. It's done by legislation, and there's really no question that the Constitution allows for it, there's just not much the Supreme Court could do about it. What we want to convey here is not just the Electoral College is impossibly stupid, although of course it is, and every time you hear a defense of it, it is a stupid defense. They'll say that a popular vote would sort of minimize the influence of certain states, and it's like the impact of every state would be directly proportionate to their population, which seems like a pretty reasonable way to do it.

42:55 Peter: The reasons that the Electoral College is stupid are quite obvious. The ways in which it can be taken advantage of by Trump next month to kind of engage in an overt coup are a little less obvious and it's unclear if they would work, it's unclear exactly how they would work, and a lot of that is because it's just never happened before. All of these mechanisms are sitting in the Constitution waiting to be used, right? There was probably some thought that they would be used with more frequency, but they haven't been. So you do have election scholars that know a lot more about this stuff than us saying, oh, this seems unlikely. But frankly, they don't know that, because no one knows this, because no one has really tread in this territory before.

43:44 Peter: What do you do when you get to a point where there is a party that has no interest in actual democracy and tons of interest in retaining power. There's really no way to know exactly how this could play out. We've described some of the mechanisms of the Electoral College and how they could aid in a Trump administration effort to hold on to control of the Presidency, but this is a shit show, I mean, this is complete and total mess, and that is honestly the takeaway of this episode.

44:16 Michael: A very compelling argument for the popular vote, even if you think the Electoral College has many merits, is just everything we just described about what Republicans are talking openly about doing and what they might be able to do. That's just an intolerable risk, like maybe they try and they fail, but maybe not, or maybe they don't fail in 2024. Why might even leave this mechanism lying around, it's just a loaded gun.

44:45 Peter: Yeah, yeah, absolutely.

44:51 Peter: Alright, next week is a special episode on gerrymandering. We'll be talking primarily about the 2019 case, Rucho v. Common Cause. Follow us on Twitter @fivefourpod. Get well soon, President Trump.

[laughter]

45:12 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

45:31 Leon: From the Westwood One Podcast Network.

"What if Trump Dies?" And Other Questions+

0:00:00 Peter: Alright, everybody, we had a listener Q&A episode planned, but we have to put that on hold because we've just scored the interview of a lifetime, frankly.

0:00:08 Rhiannon: This is huge.

0:00:09 Michael: Very excited.

0:00:11 Peter: Amy Coney Barrett, Supreme Court nominee and likely the next Justice on the Court is on the line. Judge Barrett, welcome to the show.

0:00:18 Amy Coney Barrett: Thank you very much. I am so grateful for your kindness on this rather overwhelming occasion.

0:00:25 Peter: Yeah, sure. So first of all, congratulations. How are you doing?

0:00:31 Amy Coney Barrett: The President has nominated me to serve on the United States Supreme Court.

0:00:39 Peter: Yeah, okay. We wanted to start by getting a sense of what your philosophy on interpreting the Constitution is. How would you describe it?

0:00:45 Amy Coney Barrett: I love the United States and I love the United States Constitution.

0:00:51 Peter: Right, right. Okay, so you'll be replacing Justice Ruth Bader Ginsburg on the Court. Those are some pretty big shoes to fill. Are there any lessons that you take from her career?

0:01:03 Amy Coney Barrett: Particularly poignant to me was her long and deep friendship with Justice Antonin Scalia...

0:01:08 Peter: I'm sorry, I don't mean to cut you off, but did you just say "poy-gnant?"

0:01:13 Amy Coney Barrett: Poygnant.

0:01:13 Peter: Are you trying to say poignant?

0:01:15 Amy Coney Barrett: Poygnant.

0:01:17 Peter: Poignant. The g sound is sort of old French, so it's poignant.

0:01:22 Amy Coney Barrett: Poygnant.

[chuckle]

0:01:23 Peter: Okay, it feels like we're hitting a wall here. I think we should probably just end this interview, unless Rhi or Michael, do you have any questions?

0:01:31 Rhiannon: No.

0:01:33 Michael: No.

0:01:34 Peter: Okay, well, thanks. Thanks for coming on, Judge Barrett, and good luck at the hearings.

0:01:38 Amy Coney Barrett: Poignant.

[laughter]

0:01:43 Peter: Alright, Leon, you can just do the intro, dude.

[music]

0:01:48 Leon: Hey, everyone. This is Leon from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael talk about Donald Trump contracting COVID-19 and how the consequences might affect the Supreme Court. Also for the first time, the hosts are answering listener questions. This is 5-4, a podcast about how much the Supreme Court sucks.

[music]

0:02:16 Peter: Alright, folks, we're sorry about the interview falling apart there, we're just going to go with our scheduled programming, which is a special listener Q&A episode. So we've been taking questions for a few weeks and we're going to answer them to the best of our ability.

0:02:34 Michael: Not every one.

0:02:35 Rhiannon: Not all of them.

0:02:36 Peter: Not all of them. A lot of them were, I'm going to be honest, disappointing.

[laughter]

0:02:42 Rhiannon: I might even say disturbing, some of them.

0:02:45 Peter: Yeah, before we get to listener questions, I think we need to talk a little bit about current events.

0:02:54 Rhiannon: There are a couple happening.

0:02:57 Peter: Yeah. As a country, we have been for years in a storm. Our lives, our bodies, our minds battered and eroded by ceaseless wind and rain. We've grown to know only the storm, only the suffering. We've become weary and hardened, but early this past Friday morning, for the first time anyone can remember, sunlight crested on the distant horizon. And while clouds still hang overhead, we could feel the sunbeams dancing briefly across our faces. Donald Trump has COVID-19. How are you guys feeling?

0:03:46 Michael: Oh, I feel fucking great.

0:03:47 Rhiannon: I have never felt more alive, more high. I can feel the blood running through my veins, I feel my heart pounding in my face.

0:03:57 Peter: Yeah, I might stop drinking. I just, I don't really feel like I need anything anymore. Things are developing quickly, so by the time you listen to this, you will almost certainly know more than we do now. But following Hope Hicks testing positive for COVID, Trump and Melania tested positive, Kellyanne Conway tested positive, Ronna McDaniel, Head of the Republican National Committee, tested positive, Chris Christie tested positive, Mike Lee and Senator Tillis, both Senators on the Senate Judiciary Committee, tested positive, and from what we can tell, this all traces back to the Amy Coney Barrett nomination press conference, where Republican top brass ran a public victory lap about replacing RBG.

0:04:42 Rhiannon: Yeah, it's more beautiful than I thought was possible.

0:04:45 Michael: Yeah. Right.

0:04:46 Peter: It is. And apparently, God had had enough. That was it, because the disease that these just endlessly selfish, effervescently stupid pieces of shit have been ignoring and downplaying for months has come to feast on their flabby decrepit bodies. How anyone can pretend this is not pure poetry is beyond me.

0:05:15 Michael: Oh, yeah.

0:05:17 Rhiannon: Yeah, yeah.

0:05:18 Michael: Ron Johnson, by the way, also testing positive, who was not at the super-spreader event and not on the Judiciary Committee, which means this has definitely leaked into the broader Republican caucus, which is beautiful.

0:05:30 Peter: Yeah, the Republican strategy of pretending this is not happening and all going to regular parties where they kiss each other has backfired.

0:05:40 Rhiannon: Right, right, yeah. And Michael, I know you are about to tell us about how this will affect Senate hearings and the procedures and stuff to come, but I think that I want to make a point about compassion. The news came out and inevitably, you get these fucking hand- wringers, these pearl-clutchers, who say that, I don't know, I'm a bad person because I got excited. You know what I mean? I felt good hearing the news that Trump got COVID.

0:06:12 Michael: Right, "You should wish him well, a quick recovery."

0:06:15 Rhiannon: Right, and, "We need to wish him well, because if we don't, then that makes us just as bad as them," and I want to say, fuck you, eat my dick...

0:06:25 Michael: That's right, yeah.

0:06:27 Rhiannon: Because that's not true. These are the people who an hour after Ruth Bader Ginsburg was announced dead, were absolutely giddy to say, "We will be replacing her ASAP," these are the people who are putting kids in cages, these are the people who are in charge of the government response to COVID-19 that has led to 200,000 dead.

0:06:48 Peter: Yeah.

0:06:49 Michael: Right.

0:06:49 Rhiannon: The role of people in government is to care about the people, to have compassion for the people, and to be enacting policies that sort of effectuate that compassion for the people. They don't fucking do that. It is not on me to show compassion for Donald Trump or any of his ugly disgusting fellow party members.

0:07:11 Peter: Yeah.

0:07:12 Michael: That's right.

0:07:12 Peter: This is a better metaphor than I could ever even hope to conceptualize for how a boomerang works. These...

0:07:20 Rhiannon: [laughter] Yeah, for reaping what you sow, motherfuckers.

0:07:24 Peter: These people made it a central component of their career this year to downplay this disease.

0:07:29 Rhiannon: Right, yeah.

0:07:29 Michael: Right.

0:07:29 Peter: And they really began to think, I think, that they were all immune. They really spent their lives just like so blessed with dumb fucking luck that they thought that this could only happen to other people.

0:07:42 Rhiannon: Right.

0:07:42 Michael: Right. It's framed as empathy, like you should be an empathetic person, that this is what's decent and proper is to have... Think of like Trump is a human being and Melania is a human being, and we need to be decent. Here's the thing. I personally blame Trump for the death of my aunt. I know a lot of people blame Trump for the deaths of their parents, their children, their husbands and wives, to say nothing of businesses that folded, people who've gone bankrupt, their dreams fucking dashed. Telling them that they need to be wishing Trump well, telling me and framing that as empathy, no, that's fucking callous.

0:08:25 Rhiannon: Right, exactly.

0:08:26 Michael: Where's your have empathy for me? Fuck you.

0:08:29 Rhiannon: Right.

0:08:29 Michael: Absolutely fuck you.

0:08:30 Rhiannon: Exactly. Empathy and compassion don't get you into heaven, just thinking positive thoughts doesn't make you a good person. It's actions and what you do and your material harm or benefits that you give to other people, that's what makes you a good person.

0:08:47 Michael: Right.

0:08:48 Rhiannon: So tell us about the election, Michael.

[chuckle]

0:08:51 Peter: What does this mean, Michael, 'cause I don't know.

0:08:54 Michael: Okay, so there is a procedure for when a major party nominee dies, this is something that's been anticipated before. And the procedure is pretty what you'd expect. The party convenes, they have another convention and they nominate a new candidate, and the election essentially starts over. The issue here is that there just isn't enough time to do that, like printing ballots takes time, to say nothing of the fact that two million people, over two million people at the time of this recording have already voted. The train has left the station on this election, and the name on the ballot on November is going to be Donald Trump regardless of what happens.

0:09:34 Michael: So the question is, how do you go forward when one of the candidates on the ballot is dead, in this hypothetical. It's such a lovely thing just to contemplate. [chuckle] So the answer is it's going to vary state by state. As a preliminary point, we should assume that the Republican party is going to make Pence the new nominee, one way or another, maybe they have a convention, maybe it's sort of informal, but people understand that if you vote for Trump, you're voting for Pence.

0:10:06 Michael: The first thing to remember is that you don't vote for President, you vote for electors to the Electoral College. And so in states that zombie Trump wins, what the GOP is going to try to do is free up those electors to vote for Pence instead of Trump when the Electoral College convenes. Some states allow for this already, and that's like in their laws, others don't, and it would probably require getting courts involved. I don't think courts will actually be a hindrance to this. The Supreme Court recently had an Electoral College decision. They sort of left open this possibility. Here's the thing, though. Some state Republican Parties also might try to use the fact that it's a dead person on the ballot to invalidate Trump losing those states and trying to bypass the election results to directly appoint their electors to the Electoral College, and so Joe Biden wins Pennsylvania, but the Pennsylvania State Republican Party tries to pass a law or otherwise by legislative fiat to send Republican electors to the Electoral College.

0:11:21 Michael: That might sound crazy and dystopian, it's very much within the realm of possibility that they'll at least try it. We'll talk about this more on our Electoral College episode, which is next week, so get excited for that.

0:11:34 Rhiannon: Yay.

0:11:35 Michael: And the last point is that the body that counts the Electoral College votes, that accepts them, is Congress, and so there is a possibility that Congress could call into question or decline to accept the Electoral College votes of certain states if they get weird or funky with this. Or if they don't get weird or funky with it, right? If Pennsylvania does send Biden electors and then Republicans in Congress try to not get those electors counted and not accept them. So this could be a huge fucking mess. It'll be a disaster. It's a shit show that would be almost impossible to predict the precise contours of how it would turn out, but it would leave a lot of stuff up in the air.

0:12:23 Peter: Yeah. But there is one thing that we can be certain of, if Donald Trump dies of COVID-19, he cannot be President.

0:12:31 Michael: That's right.

0:12:32 Rhiannon: Right.

0:12:33 Michael: That's right.

0:12:33 Rhiannon: Yeah, that's a guarantee.

0:12:36 Peter: That's the 5-4 guarantee, baby.

[laughter]

0:12:45 Michael: All that stuff should make us concerned about the legitimacy of a Biden win in this scenario or a Pence win or whatever, but if he's dead, the likelihood that American democracy is smashed on the rocks of Donald Trump's ego and self-preservation gets significantly reduced. I think the far more likely scenario is that Republicans take their Amy Coney Barrett victory and lick their wounds and just move on to the next round of fights of obstructing President Biden. I don't think we're as likely to see the sorts of long-fought legal battles that Donald Trump has guaranteed us at this point, that he has promised are coming. I think there's an argument to be made, and not just an argument, I believe that Donald Trump living is a bigger threat to the legitimacy of this election than Donald Trump dying. I do. Despite the shit show I just described, there's a sense in which Donald Trump dying from COVID very well could save American democracy. I don't think that's an exaggeration to say. So yeah, setting aside the fact that I hate this piece of shit, there's a lot of reasons to celebrate this possibility, and American democracy is one of them.

0:14:01 Peter: Yeah. Well, we should certainly note that Amy Coney Barrett has tested negative, making her the only person who was at her press conference who will not die of COVID-19. The rumor is that she has had it before. If that's true, we don't yet know, but it seems like a possibility since she was open-mouth kissing everyone else there and doesn't have it now. But I think the implications for her confirmation hearing are less about her health right now, and more about the health of the senators on the Republican side of the Senate Judiciary Committee and whether or not it is safe to hold hearings, how exactly they would do it, it seems like they would be fine doing it remotely. Lindsey Graham has said that they will, but Republicans currently have a 12-10 advantage in the Judiciary Committee, so two of their senators being down is a big deal. Yeah, so we don't know what's going to happen, but certainly, the course of the confirmation hearings are potentially affected here.

0:15:03 Michael: Right. I think the best chance Democrats have for delaying her confirmation is if they are able to deny Republicans a quorum in the Senate, essentially...

0:15:13 Rhiannon: Right. In the Senate as a whole.

0:15:16 Michael: In the Senate as a whole. A quorum requires 51 members present from either party, the vice president does not count for that, so 50 senators from the Republican Party would not suffice. That being said, you need to make an objection if there's not a quorum present, which means a Democrat would need to be present, who would then create the 51st vote. So you need to be down to 49 Republicans present. There currently is not any provision for remote voting in the Senate or anything like that, so the quorum issue is real.

0:15:50 Rhiannon: Didn't McConnell say a couple of days ago, "No, no way. We're not doing virtual voting."

0:15:55 Michael: Yeah, I believe so. Yeah, so if there are enough Republicans, I think it would require four to be incapacitated and unable to attend, then Democrats by refusing to attend could deny them a quorum and delay the vote indefinitely. There are things the Republicans can do then, they can send the sergeant at arms to go round up the Democrats.

0:16:19 Peter: Who's the sergeant at arms?

0:16:20 Michael: Yeah, seriously.

0:16:21 Peter: It's like Stephen Miller.

0:16:22 Rhiannon: God.

0:16:23 Michael: The other thing is, if you're going to boycott this, don't just go to your townhouse in Bethesda or whatever, go back to Oregon, Ron Wyden, go back to California, Dianne Feinstein, just fucking leave.

0:16:35 Peter: Or be prepared to kill the sergeant at arms.

[laughter]

0:16:41 Rhiannon: Those are your choices.

0:16:43 Michael: Yeah. So yeah, there are avenues to make this, at the very least, a huge spectacle. Definitely, they could almost certainly delay it, at least for some period of time. And who knows how many more Republicans are going to end up with COVID at this point. It feels like we're just at the beginning of this.

0:17:03 Peter: Fingers crossed, baby.

0:17:04 Michael: That's right, that's right.

0:17:05 Rhiannon: Yeah, we can only hope now.

0:17:07 Peter: So let's take this celebratory mood and just... And the best way we know how, transition into answering some listener questions. So we've got some voicemails and we're going to play those questions, but we also have a lot of written questions, and for those, we're going to have our producer, Katya read them. So Katya, say hi.

0:17:31 Katya: Hey, guys.

0:17:32 Rhiannon: Katya.

0:17:33 Michael: Hey.

0:17:34 Rhiannon: KK is on the pod.

0:17:36 Michael: Our silent partner, our constant companion.

0:17:40 Peter: Alright, so Katya, do you want to hop right in here? Let's do it.

0:17:44 Katya: Yeah, let me just kick it off. I'm going to play this VM for you. We'll see where it goes.

0:17:50 Peter: Okay.

0:17:52 Speaker 7: Hi, 5-4 podcast, I'm a law student and I'm doing my law homework right now, and I know you guys are lawyers, and I'm just wondering, is it worth it? I'm sure you probably get asked this question all the time. Is it worth it? Thanks, guys. Love the podcast.

0:18:17 Peter: It is true that we get asked that question a lot, it's never quite that sad.

0:18:21 Rhiannon: [laughter] Oh, my God.

0:18:23 Amy Coney Barrett: That is so bleak.

0:18:24 Peter: I've also never heard anyone use the term law homework.

0:18:29 Rhiannon: This poor person, it's the first semester of 1L.

0:18:33 Peter: It's been like two weeks of law school and that girl sounds like she has been a lawyer for 50 years.

0:18:40 Michael: My heart goes out to you, seriously, it does.

0:18:44 Rhiannon: Yeah, no, really.

0:18:44 Michael: In the previous episode, I mentioned that I don't think our listeners should hurt themselves, and I want to reiterate that point to this caller in particular.

0:18:51 Rhiannon: Yeah, we'll get into law school and the law and all of that stuff, but take care of yourself, and honestly, if you get to law school and don't want to do it, then fucking quit.

0:19:03 Michael: Yes, I know a lot of people who struggled their first semester, like 1L fall, and then were fine for the rest of the way. But you should probably get a pretty good idea within the first few months if this is or isn't for you. And if you are two months in and you're like, "This doesn't feel right," then trust yourself, you know yourself better than we do, and if that's what your heart is telling you, listen to it before you go 150 grand into debt.

0:19:32 Peter: Yeah. I do want to provide one caveat here, which is that there aren't a lot of good jobs, law can be pretty miserable, but, like what are you going to go into accounting, it's all really rough. There's like six good jobs and they're very competitive.

0:19:45 Rhiannon: Yeah.

0:19:46 Michael: I'll say this, if you are struggling that much emotionally, you're not absolutely killing it, if it's not like A's and 150 grand payout within a couple of years in exchange for that sort of misery, like I think you gotta go find something that works better for you.

0:20:02 Peter: And either way, keep listening to the podcast, baby. Alright, here we go. Listener questions.

0:20:08 Speaker 8: Hello, I am calling to ask if you guys can reflect on the Judicial Procedures Reform Bill of 1937, and what were the problems they were dealing with then, as far as getting that bill passed. I'd also like to say thank you for making this wonderful podcast. I'm not a lawyer, but my partner is, and it gives us something to talk about in her career field. And it's always nice to hear Law Boy's clinking whiskey glass in the background.

0:20:40 Michael: What?

0:20:40 Peter: Wow. [laughter] Huge mistake.

0:20:41 Michael: What?

0:20:43 Rhiannon: Number one, huge mistake. Number two, I love that the podcast gives you something to talk about with your wife.

0:20:48 Peter: Yeah, that sounds like things are going great over there.

0:20:50 Rhiannon: Yeah. [laughter]

0:20:54 Michael: I am the clinking glass guy, let's be clear. [laughter]

0:20:56 Rhiannon: That's Michael.

0:20:57 Peter: That's right. So, this question is an extremely nerdy way of asking about FDR's court-packing plan.

0:21:02 Rhiannon: That's right.

0:21:03 Peter: First of all, I don't believe that there's a lot to be learned from history. So I'm just going to keep this one short.

[laughter]

0:21:10 Peter: But one of the big lessons of FDR's court-packing plan, even though it failed, was that you could leverage the threat of court-packing, which he did successfully in several cases, to sort of ensure that the Supreme Court upheld New Deal legislation, right? So he was sort of dangling, at various points, the threat of court-packing over the Court's head and saying, "If you don't uphold these laws, I'm going to move forward with this." And even though the court-packing plan failed, the threat of it was actually, in some ways, a success.

0:21:44 Michael: Right. And I do want to say, maybe there are some political lessons to be learned there. That's not really the focus of this podcast, but you're thinking the right thing, right now, if you're looking at a 6-3 Court and thinking, "Well, how can we change this?" That's where the mindset needs to be, but the question is, how do we put pressure on the government as it's currently constituted, or hopefully how it's constituted in a month from now, two months from now, to effect that change.

0:22:13 Rhiannon: Yeah, one big lesson to be learned is that we can and should exert political pressure on the Supreme Court to act the way a federal court should act. There are mechanisms already built into the system to do this. We can reform the Court by legislation through statutes if we want to, and we should have all those options on the table.

0:22:40 Leon: Okay, cool, let's stick with this court reform stuff. Maddie is asking, "I was hoping you could talk about proposed Supreme Court reforms like term limits, set number of appointees per President, court-packing, removing the Justices, and having federal circuit court judges preside on a rotation."

0:23:02 Peter: Yeah. So Michael, I'll let you go off in a second, but I do want to say one thing about this, which is, there's no reform that is going to separate out politics and the Court.

0:23:11 Rhiannon: Exactly.

0:23:12 Peter: That's not something that's actually a plausible or even really desirable goal. That's sort of meaningless, right? You can't separate out ideology and the practice of law. So when you're talking about Court reform, what you're really talking about is just shifting power. Right now, there is disproportionate conservative power in the Supreme Court and the federal courts, generally. If you are coming at this either from the perspective of us on the left, or if someone who wants to see more balance, then reform should be geared towards increasing the power of the liberal and left justices, liberal and left legal academics, etcetera, within these institutions. You can't create a framework under which politics and the law are somehow 100% separate. It's just not possible. So yes, there are tons of court reform options. There aren't any court reform options that are going to sort of create this platonic ideal court that is separate from ideology, somehow.

0:24:10 Rhiannon: Right. An objective court. That's not how it works.

0:24:13 Michael: I think some reforms are sort of geared towards this idea that maybe we could lower the stakes of any particular nomination, and in the course of doing so it would sort of... It would let some of the heat out of this and make everything just feel a little calmer. So these would be like, for example, term limits. The idea with term limits and a fixed number of Justices being appointed by every President, the idea would be like, "Look, if you didn't win this round, you just win the next round." And then you get to appoint Justices. And so there's less at stake. You know that the next election cycle, you have a chance to appoint two Justices yourself. Maybe that's true in the abstract, same with the idea of a popular proposal.

0:24:56 Michael: Bernie Sanders talked about this, where you wouldn't have a Supreme Court, you'd have a rotating panel of Justices pulled from the appellate circuits to hear those cases. Same idea that, like, "Well, now you're talking about hundreds of appellate judges, instead of one out of nine Supreme Court Justices." I don't think that's right, to be frank. For example, we've already seen the overt politicization of the appellate circuit and district circuit nominating process. The last 12 years is an object lesson in the Republican party showing how easy it is to obstruct the opposite party from appointing district and federal appellate judges. And then when you have power, appointing them yourselves en masse and taking a stranglehold control of several federal circuits, which really changes the inflection of the federal courts as a whole. That's something you can do.

0:25:55 Michael: So I don't think those are necessarily the answer. We have to be clear-eyed about what our goals are here, which is, we want more political power so we can do things we think will improve people's lives and make the country more fair and more just. And there's a very simple and clear answer to that, which is just expand the size of the court and appoint four or six Justices who are our allies. That's it.

0:26:23 Peter: A lot of the concern is people are like, "Well, when the Republicans get power again, they're going to do the same thing." And yes, of course. That's sort of a given. They already kind of leverage their power to the best of their ability, so we could expect them to meet the Democrats there. The challenge for them is that if we had a Democratic-led Supreme Court, they might have trouble winning elections without completely reforming their political strategy for the next 50 years. I mean...

0:26:48 Michael: Exactly.

0:26:49 Peter: Like we've mentioned many times in the past month or two on this podcast, free and fair elections in America would lead to the decimation of Republican party as it stands right now. And so, would they be able to turn the tables theoretically? Yes, absolutely. And I think they'd be willing to.

0:27:03 Rhiannon: Sure.

0:27:04 Peter: Will they even really get the chance? I don't know.

0:27:06 Rhiannon: Yeah, that's what I was just going to say is the sort of tit for tat argument that like, "Oh, well, Republicans, once they get to be the president again or whatever, will just do court-packing their way." The power built in the meantime is worth it, though. In the short term, the options are pack the court or do nothing. I don't think there's a realistic choice between those two. I think like Democrats, liberal, left of center, whatever, we have to expand the Court, pack the Court, do this, because in the short term, we need to be gaining and building as much power as possible. And maybe when things like progressive legislation is passed, like a Green New Deal, like Medicare for All, all of those things, we need as soon as possible a Court that's going to uphold that stuff for us. And then, what flows out of that is a more secure and just society and democracy where the people have more power. And then we can ask ourselves about strategies down the line with like, "Oh, well, now Republicans are even more of a minority and they want to be doing tricks on the federal bench."

0:28:16 Michael: Right. I want to just talk really quickly about actual legislation. Ro Khanna, who I greatly admire, introduced a Term Limits Bill in the House.

0:28:24 Rhiannon: Yeah, yeah.

0:28:25 Michael: Obviously, that's not going to get any support in the Senate. Who knows if it's even going to get majority support in the House right now, but it's interesting. One thing that's interesting about it is that it doesn't impose term limits on the current Justices, which creates a scenario where it's not clear who, if anyone, would even be able to constitutionally challenge this law. But I don't think this is the ultimate avenue to go here, because even in the ideal scenario, we're talking about five to seven years, assuming no untimely deaths, before Democrats would have a majority on the Court. That means winning re-election in 2024, which is no given.

0:29:05 Rhiannon: Exactly.

0:29:06 Michael: If you have an opportunity to exercise power in January 2021, you have to give yourself a win. You can't give yourself something that looks good and you might benefit from in five to seven years.

0:29:18 Rhiannon: Exactly.

0:29:18 Michael: Things are too close right now.

0:29:20 Rhiannon: Yeah. We need it now.

0:29:23 Michael: We're too much on the precipice. We need this fixed now.

0:29:28 Rhiannon: Yeah.

0:29:29 Katya: Alright. Andrew asks, and he's referencing a few articles here published recently in late September, and he says, "All of these people have proposed some variant of Dems are too concerned with court-packing. The real issue is constitutional review, and the next president should just declare that the rulings of the Supreme Court do not have constitutional weight."

0:29:53 Peter: Yeah, so for everyone who doesn't know, the argument here is that instead of packing the court, Democrats could simply ignore Supreme Court rulings. And the basic concept is that there's nothing in the Constitution itself that says the Supreme Court is the final say on constitutional issues. The Supreme Court essentially granted itself that power over 200 years ago in Marbury v. Madison. So you could treat what the Court says as basically being advisory rather than binding and just say, "Look, thanks for weighing in but we disagree."

0:30:23 Peter: I think that people are drawn to that idea, because the idea of simply ignoring the Court is appealing in its simplicity. And it's something we should think about and maybe in certain situations might be more useful than in others. In a general sense, it seems like the appeal here is that you avoid the sort of political calamity of attempting to pack the Court, for example. But I'm not sure that flatly stating you will not abide by the Court is much better on that front or sort of creating a stand-off between two branches of government can be done without significant political consequence. The Court can direct members of government to obey their orders, and if they refuse, could order their imprisonment, for example, for contempt.

0:31:04 Peter: So is the Court ordering some poor bureaucrat to take action against sitting members of the government because they ignored a court order the simple solution here? I don't really think so. Not to mention every Republican jurisdiction in this country will immediately start violating the Equal Protection Clause, and you'd have to figure out how to handle that. So are there situations where this seems useful? Sure. If there were Green New Deal legislation being proposed by the Democrats that the court found unconstitutional, there is some merit to being like, "No, no, thanks. We're going to keep going." But absent a really specific discrete situation like that where it'd be beneficial, I don't think it's the best option available. I think that court-packing gives you all the advantages with fewer downsides.

0:31:49 Michael: Right, I agree. Packing the court is a simple matter of passing a law and signing it. It's a basic function of government that is in every sense of the word legitimate. Do you know what's illegitimate, though, is when, for example, this month, a federal court ordered that the Trump administration continue the census till the end of October, and the Trump administration said "No." And everybody understands that this is done purposefully to disadvantage minorities, disadvantage urban areas, and ultimately disadvantage Democrats, Democratic districts, Democratic states in their representation in Congress. And they're just going to do it, and there's not much redress. And that's a problem, and it's not a problem that we necessarily want to make routine.

0:32:36 Rhiannon: Exactly.

0:32:36 Michael: If Republicans are going to keep doing stuff like that, they're going to keep doing it. There's not much we can do about it, but at the very least, we can say, "Well, look, this is bullshit." And not like, "Well, yeah. Well, we do that too."

0:32:49 Rhiannon: Exactly.

0:32:50 Katya: Okay, guys, that was really smart, but I gotta pay my rent, so we're going to go to an ad now.

[laughter]

0:33:00 Katya: Alright, this is going to be a hard-hitting one from the voicemails.

0:33:05 Elson: Hi, my name is Elson, I am a recent college grad, thinking about a career in law. So I just have a very important question, which is, do you guys think that being lawyers has helped or hurt your chances of getting laid?

0:33:19 Peter: Okay. Yeah, hurt.

0:33:21 Rhiannon: Definitely hurt.

0:33:23 Michael: Hurt.

0:33:23 Jacob: Hey, guys, my name is Jacob, I'm a listener from the great state of Iowa. Against your advice and my better judgment, I have decided to enroll in law school on the 1L this fall. I don't take con law until the spring, but I'm a big fan of the pod and listening since the first episode. So I just wanted to see whether you guys have any advice about how to make FEDSOC people cry during class discussions.

0:33:56 Michael: Right attitude.

0:33:58 Jacob: I'm really hoping to make that happen and looking forward to your insights. Thanks.

0:34:03 Rhiannon: Okay, first of all, you have the right idea, if you are going to go to law school, which is fucking dumb, you should be doing it with this attitude, at least.

0:34:11 Peter: We should make clear that the question is, "How to make Federalist Society members cry during class?" Not everyone knows the term FEDSOC, so I just want to make that clear.

0:34:20 Michael: Not everybody knows what the Federal Society is. It's a Republican organization churning out robot judges, who want to take all your rights away.

0:34:28 Peter: Yeah, and it has a huge student outreach branch. It's a big presence on just about every law school campus. In terms of how to make them cry during class discussions, I would say it depends on the individual weaknesses of the person you're dealing with. But I would say that a good reliable go-to, just physical violence. You could also use logic, I guess, if you're good at that.

0:34:52 Michael: In terms of classroom topics, say that you think Antonin Scalia is stupid and racist. Originalism is stupid. Textualism is stupid and a lie.

0:35:02 Rhiannon: The point of this is that making these FEDSOC losers cry, is actually pretty easy. My first day of law school orientation 1L, there was a book discussion, and the book that my small group chose to discuss was The New Jim Crow, and a man came to that discussion to argue that criminal justice reform and over-police of Black and Brown people is not a racial justice issue. So these people are fucking idiots, dude, and you can make them cry really easily.

0:35:39 Michael: Also, every 1L Crim class has at least one awkward day, where you discuss rape, and there's going to be somebody who says something stupid and really offensive, it happens every year, in every section, and if you want to make a FEDSOC guy cry, all you gotta do is make sure that you think consent is necessary to avoid rape. You raise your hand and be like, "Look, I just want to be on record, that consent is like an element of not raping someone." They'll be pissed.

0:36:13 Peter: If you start losing a debate to a Federalist Society person, the key is to turn the tables by asking them how their Title IX investigation is going.

0:36:24 Katya: Alright, this is a good segue, because the next question is, "Do we really want a leftist version of the Federalist Society? If the Supreme Court isn't actually some deliberative club of legal scholars, analytically solving complicated issues and is instead just dudes being guys trying to keep suburbs segregated, what would a liberal Federalist Society accomplish?"

0:36:50 Peter: Yeah, well, so first things first, the Federalist Society is about promoting a specific view of the law, which then gets taught to students, which it then uses to promote and get conservative judges installed in the judiciary. They have a complicated and vast network of people and institutions that are designed to do this. So should the left be engaging in that? Absolutely, of course, there needs to be a response. And we can see what happens without an adequate response to the Federalist Society, the judiciary is vastly disproportionately conservative, they have the ear of every major Republican politician, Republican presidents speak at their events, they're deeply connected to the party. So does the left need a response to that? Of course, it's separate and apart from just how they interpret the law.

0:37:42 Michael: Right, and I think we all say, but I know specifically that I say a lot, that talking about formalistic reasoning, this shit doesn't matter. What I mean is, we're a very outcome-focused podcast and we care about the output of judicial decisions, "Will this woman have her rights vindicated after the cops let her ex-husband kill her kids?" And in that sense, those things don't matter, originalism and textualism doesn't matter, but it doesn't mean they don't matter at all. It's propaganda, and propaganda exists and is used by both political parties and by political actors, throughout time and history and across the world, because it's effective, it's important, it adds legitimacy to everything you're trying to do.

0:38:31 Michael: The Supreme Court is engaged in a massive project of social engineering right now, where they are fundamentally reshaping the way power is distributed in our country, and part of that is doing it in a way where people aren't in the fucking streets rioting, and keeping people placated in thinking that all this change is legitimate and like an output of democracy, that's a part of it. And so, yeah, we need academics and we need activists who are coming up with arguments that will give legitimacy to whatever sort of social engineering a progressive Court would do. And what we want is a progressive Court that would engage in a lot of social engineering and create a society that is far more fair and just and equal. And that's where it gets legitimacy.

0:39:25 Peter: Yeah, look, we critique formalistic reasoning, but the legal profession operates on that framework, so you can reject its usefulness as a matter of theory, but if you want to be able to effectively fight for people's rights within the legal system as it exists, you need to understand it and be able to utilize it. You can't build a sort of legal response to the right by simply operating outside of the system.

0:39:46 Rhiannon: Yeah, as a public defender, somebody who defends people in court, my strategy, the way I practice the law is not going to court and begging a judge for mercy or being in a fit of tears because what's happening is sad.

0:40:00 Peter: Please don't be mean to my client, your Honor.

0:40:01 Rhiannon: Right, right, right. I make arguments that are based in laws, I read and research the law, I look to case law for winning arguments, there's legal strategy that we have to use as lawyers to fight for our causes, it's not all just bullshit.

0:40:18 Michael: And I do think there are a lot of these issues where like reasonable minds could disagree. And it's important to have an answer, like it is, it's important to persuade people, and there are a lot of true believers in the Federalist Society. I don't think any of them hold any positions of note, and I don't think any of them actually end up as judges, to be honest, but I think a lot of the rank and file believe in the principles, and I think it's important to have a similar rank and file who believe in a living Constitution and the values professed by a legal left, whatever that might look like.

0:40:57 Katya: Alright, let's go to the next one. This seems really important.

0:41:00 Rhiannon: Okay.

0:41:01 Olivia: Hey, 5-4 pod, this is Olivia, I'm a leftist and I'm interested in organizing and making the world slightly less shitty than it is. Do you think law would be an outlet for someone with those interests? Tell Rhiannon I love her. Thank you.

[laughter]

0:41:23 Rhiannon: That was very sweet.

0:41:25 Michael: We all love Rhiannon, yeah.

0:41:27 Rhiannon: Thank you. Olivia, I love you too, number one, little baby angel. Number two, I did get a look at some of the questions, and I know that a lot of people asked about like, "If you want to make the world a better place, if you want to do organizing, if you want to do social justice, should I go to law school?" And I think if you have a really specific idea of what you want to do and law school gets you there, then I think going to law school is fine. A lot of people ask me, "As a public defender, how do you feel? Because at the end of the day, being a public defender means that you end up helping a lot of people plead guilty, you're just a cog in the system, right? You're just moving cases the way the court system moves them, they come in, you spit them out, all of that." And I have a couple of things to say in response to that. One is, I don't know of another job to have, where you are like the perfect, most ethical, social justice, anti-capitalist, like maybe teaching, teaching high school social studies, maybe?

0:42:27 Peter: No way, doesn't count.

[laughter]

0:42:29 Rhiannon: I don't know what the other thing is. In the current system we have, which is unjust, every job you're going to have is going to be fucked up.

0:42:36 Peter: Yeah, there's no job where you're not a cog in a system, by the way.

0:42:39 Rhiannon: Exactly, exactly. Like that's just not...

0:42:40 Peter: That's like just a dumb fucking critique.

0:42:42 Rhiannon: That's not attainable. So if you want to make a difference and the law is an area where you want to make a difference, then yeah. The only other thing that I will say is the debt burden of going to law school is fucking insane, and so I do think that either you have a plan for dealing with the debt burden or you get a scholarship somewhere, or those kinds of things. I mean, just taking on $200,000 in debt to go to law school, I don't just advise to do that.

0:43:10 Peter: Yeah, my advice to you, Olivia, is you've got a few years before you graduate, try to come up with a quarter million dollars in that time.

[laughter]

0:43:19 Rhiannon: No, Olivia, you sound super smart, you're going to get a scholarship somewhere, like...

0:43:23 Peter: No, you want to get the money, if you can, just in case you don't get a scholarship, so just try to get the quarter million, Olivia, that's priority number one.

[laughter]

0:43:31 Michael: Right. Okay, I'd like to seriously weigh in here.

0:43:34 Peter: You have a plan on how to get that money?

[laughter]

0:43:38 Michael: I think it's natural that the output of politics is law, and our society is structured by law, and so if you are interested in restructuring our society, there's a degree to which interest in the law makes sense.

0:43:53 Rhiannon: Yeah.

0:43:54 Michael: I don't think legal careers, for the most part, are good avenues for effecting that sort of change. They're like within that structure that you want to change and they're not geared towards that. There are maybe a few, impact litigation and things like that, which can be big enough and affect the government or affect a company's bottom line enough that it could lead to some sort of incentive change or a regulatory change or something, but those jobs are very few, very far between, and highly competitive.

0:44:28 Peter: Yeah.

0:44:28 Michael: That doesn't mean legal fluency is unimportant, but going into 200 grand worth of debt for legal fluency is a questionable decision if that's your goal, and so you need to be realistic about what your monetary situation is, what your future career could look like and what you want to do, because if your career is going to be a legal career, changing the system is very likely not something you're going to be able to do.

0:44:58 Rhiannon: Yeah.

0:45:00 Michael: At least not on your company time, maybe in your free time.

0:45:02 Peter: Right, right.

0:45:02 Rhiannon: I think that's right, and I think there's also something to be said about the practice of environmental law.

0:45:07 Michael: Yes.

0:45:07 Peter: Yeah, something to be said would be, "Don't go into it."

0:45:09 Rhiannon: Right, exactly. I will never forget being in 1L, and I don't remember where this woman worked, but she had gone to my law school and she was coming back to talk to students about her work, and she kept talking about how she practices environmental law and how great that is, right? And somebody asked like, "Okay, so what do you do every day?" And it turns out actually, she works for a big law firm, so she actually represents big corporations in environmental law and stuff like that. I will never forget, somebody asked her like, "What do you do, what issues do you work on?" And she literally said, "Well, like sometimes they'll just say that the company killed a thousand dolphins, and you have to step in and be like, 'Okay, it wasn't a thousand, it was like 400 dolphins.'" Like that's what the practice of environmental law...

[laughter]

0:46:00 Michael: Right.

0:46:01 Peter: That woman makes $1.5 million a year.

[laughter]

0:46:03 Rhiannon: And that woman makes a lot of money. So yeah, I think what Michael said is spot on. You first want to think about what role do you want to have in social justice and all of that. And then think about the limitations of what law jobs are going to give you. One last thing is, who you want to serve. For me as a public defender, I directly represent individual clients. So yeah, it doesn't matter in the system necessarily that in a conservative Texas jurisdiction, I helped ten people on a Monday morning plead guilty to something and get probation or whatever. It means a fuck of a lot to each of my individual clients, that somebody was there who fought for them, who screamed at the cops or made an argument in court on their behalf, when otherwise a person other than me or no lawyer at all would have helped them. And so if you're talking about change, if you're talking about influence and putting progressive values in practice, then to my clients and their families, this practice of law means a fuck of a lot, even if I'm not overturning the system every day.

0:47:15 Michael: Right, yeah, I think that's an important point. There's good work you can do in the law. There is. I think there are very few jobs that are without qualifier.

0:47:26 Rhiannon: Yeah, absolutely.

0:47:27 Katya: Alright, guys, let's do a couple of factual questions. Okay, what happens if a SCOTUS case is 4-4? And what happens if there is no majority?

0:47:38 Peter: Yeah, so when there's a tie on the Supreme Court, the lower court ruling stands. So I imagine that any question about a 4-4 tie is anticipating an election case where Amy Coney Barrett has not been confirmed and what happens. So yeah, the answer is that whatever the court below held would remain, so it could be either a federal circuit court or a state supreme court, but that's all that happens. So it depends what happens below, and let's say that there's a lower court that rules in favor of Trump, a lot of people have floated the idea that maybe Roberts would really enjoy a tie that kind of deflects blame off the Supreme Court.

0:48:19 Rhiannon: Right, yeah.

0:48:19 Peter: It's like, "We didn't really do anything."

0:48:21 Rhiannon: Yeah.

0:48:22 Katya: Okay. Ben asks, "I read a lot about the shadow docket. Can you explain what that is and how it works?"

[laughter]

0:48:34 Michael: I fucking hate the shadow docket.

0:48:37 Peter: Yeah, alright. So the shadow docket is what refers to any cases that the Supreme Court gets that are not on its official docket. So it has an official docket going into the term, but then cases can be brought to the Supreme Court outside of those constraints. Again, in the case of an election case, right? There's not an election case literally on the Supreme Court's docket, but one might get elevated to the Supreme Court essentially because it's an emergency and so the Supreme Court hears it.

0:49:09 Michael: Right. And the vast majority of them in a regular year are cases that the Supreme Court decides without oral argument or necessarily even much briefing. And a lot of it will be like, are they going to stay a ruling below. Which means, are they going to put a ruling on hold or are they just going to summarily reverse it or summarily uphold it. Things like that. You don't read three sentence orders in law school, right?

0:49:34 Rhiannon: Right. Exactly. Yeah.

0:49:35 Michael: That say, reconsider in light of X case or whatever. Or you don't read an opinion staying a judgment until the court gets to hear it more fully but they have massive implications for how courts behave. That's sort of the way the shadow docket works and that's why it's called the shadow docket. It is because you don't read the decisions, you don't hear about them but they cast a long shadow.

[laughter]

0:50:04 Peter: Are we sure that's why? I thought it was in the shadows.

0:50:06 Michael: No, it's in the shadows. It is in the shadows but I found myself committed to the improper metaphor there. I was very embarrassed about it.

[laughter]

0:50:15 Rhiannon: Go, talk your shit, king.

0:50:18 Peter: I think that one reason the shadow docket's been written about a bunch recently is because the Roberts Court in particular seems to be utilizing it to make a lot of important decisions that sort of fly under the PR radar. It's hard for legal journalists and regular journalists especially to understand what's happening on the shadow docket because there's just a lot of procedural stuff for the most part. So the Court is using that sort of inherent secrecy to push a lot of what's frankly fairly conservative agenda and get it done without it hitting the headlines.

0:50:56 Rhiannon: Right.

0:50:57 Michael: Absolutely.

0:50:58 Katya: This is from Kent, what is in your opinion the most harmful SCOTUS decision in practice to the American people? I'm going to open that up. And you also get to talk about what is the best decision.

0:51:13 Rhiannon: Okay.

0:51:13 Peter: Alright.

0:51:13 Rhiannon: So we talk a lot about bad decisions on this podcast. So there are a lot of them that are terrible, but maybe I would like to talk about my favorite decision, which it's not going to be a surprise, is Gideon versus Wainwright. Gideon versus Wainwright is a 1963 decision of the Warren Court era that made it so that if you are poor, you must be provided an attorney if you are at risk of going to jail or being incarcerated for a crime. What I really like about Gideon versus Wainwright is that it is a recognition, which I think is rare from the Supreme Court, especially today, about how powerful the state can be in a person's life and how laws operate in real people's lives. I don't take it as, lawyers are so important. It's not like an ego boost or anything, it's just I like the realism of it, right? It's a decision that looks at how the law operates in people's lives and can ruin a person's life and says you need a lawyer before the state tries to do this to you. Peter, what's your least favorite?

0:52:29 Peter: Yeah, okay. I guess it depends on how you define the worst decision and how abstract you want to be. In terms of direct impact, Dred Scott allowed for the expansion of slavery across the country. Plessy v. Ferguson legalized segregation. I feel like most people go for those as one and two as the worst decisions. If you want to get a little more abstract, without Bush v. Gore putting Bush in office, you don't get a million dead in the Iraq War, without which you don't get ISIS, and so on and so on. So I think my dark horse candidate for a worst case would be Bush v. Gore because it sort of created ISIS.

[chuckle]

0:53:05 Rhiannon: When you think about it. Yeah. [chuckle]

0:53:07 Michael: No, I think that's fair. I think not just ISIS, but also maybe the modern security state, right? It's hard to say.

0:53:13 Rhiannon: Oh, yeah. Oh, absolutely.

0:53:15 Michael: Under a Gore presidency, we might not have this awful tech Panopticon that we live in.

0:53:21 Peter: There also might be... 'Cause Gore did talk about climate change and stuff, and I doubt he would have enacted something sufficient, but there is a possible reality where the ball is rolling in a more substantial way on climate change issues because of Gore, so Bush v. Gore might have completely destroyed the Earth.

0:53:40 Michael: Right. Right, and the other thing is, there's sort of an assumption that Gore loses after 2004, but maybe 9/11 has a rally round the flag effect regardless, and he wins and Rehnquist dies and we have a progressive Supreme Court. I don't know. There is a possible world out there where it's just like this compounding, bountiful...

0:54:01 Peter: Yeah. The best-case scenario of a Gore win because of no Bush v. Gore is very, very good, but we probably wouldn't have a podcast, so is that really the future you want to be living in?

[laughter]

0:54:10 Rhiannon: Yeah. Yeah. Wait a minute. Not worth it. [chuckle]

0:54:15 Peter: And if the planet has to die for us to have a medium successful legal podcast, then so be it.

0:54:24 Michael: In terms of... I do think we do talk a lot about Supreme Court cases we despise, so I want to take this opportunity to discuss a Supreme Court case I like. One I've mentioned in a recent previous episode, which is Miranda v. Arizona. And I like it because it is an instance where the Court sort of did something a little different, which is where it said like, "We shouldn't have to wait until your rights are violated." The whole decision is infused with this idea where it says like, "Look, cops have this deep institutional knowledge on how to coerce confessions from people. They know how to isolate you, how to get you in a compliant mindset, and they know how to draw something out of you. Something that's illegitimate, something that's unconstitutional, something that's unreliable, that's something that shouldn't be admitted to court, and they were like, "We shouldn't have to wait until they do that, and then litigate it after the fact. It's intolerable that too much injustice will be let through, and so we're just going to say, 'This is what you have to fucking do to avoid that.'"

0:55:33 Michael: It's a perfect example of how this sort of restrained idea of what courts can and should do is inherently conservative and, honestly, stupidly and artificially limited, right? In a lot of senses, Miranda is the most ambitious decision the Supreme Court has ever held where it said, "Perspectively, the agents of the state have to do X, Y and Z. We're giving them a prescription on what they have to do, and otherwise, whatever they do doesn't matter. Their testimony's thrown out of court. They have to do this, or you're essentially free to go."

0:56:11 Rhiannon: I love that, and I think that's related to Gideon. We are affirmatively saying, "It's future looking. This is how we can protect people's rights."

0:56:20 Michael: Right. It's the court flexing its muscle in a way that was so controversial that there was 30-plus years of debate about whether or not this was even a constitutional ruling, whether it could be overruled by legislation. Congress tried to overrule it, and it wasn't until the late '90s when it was before the Supreme Court in issue where the Court finally had to say, "Look, this was a constitutional ruling. It binds everyone. It binds the Feds. It binds the states. This is it. You have to fucking do this. You have to give Miranda warnings, and if you don't, we're just going to presume that any admissions you get are coerced and inadmissible."

0:57:01 Rhiannon: Exactly.

0:57:01 Michael: It's fantastic, and it's like the Court should be more creatively along these lines. I don't think it's a surprise that this is one of the most easily recognizable to the layperson. A decision, the name itself, then what it says and what it means.

0:57:15 Rhiannon: And a symbol internationally of American democracy, right? People know what a Miranda warning is, and it's distinctly American in the sort of way that it's supposed to be protecting people's individual rights.

0:57:28 Michael: Right, and it is an example of the Court saying, "We're not bound by all this bullshit that you say we're bound by. We can do what we fucking want and we don't think you should be able to draw confessions out of people, and we're going to tell cops you can't." It's awesome. It rules. It's the height, I think, of Supreme Court jurisprudence.

0:57:46 Rhiannon: It rules.

0:57:47 Michael: It does. It's the fucking...

0:57:48 Rhiannon: It does.

0:57:50 Michael: It's the best.

0:57:50 Rhiannon: No. It's great.

0:57:50 Michael: I love Miranda. I do. I do. I love it.

0:57:53 Peter: What's the last one?

0:57:54 Leon: A lot of people do want to know what you guys are drinking. We got a lot of queries about the ice cubes. People want to know.

0:58:03 Peter: The ice cubes are all Michael. That's...

0:58:05 Michael: They're all me.

0:58:06 Peter: Across the board, it's Michael.

0:58:06 Rhiannon: Yeah. The ice cubes are Michael...

0:58:08 Michael: Yeah. Rhiannon is a teetotaler.

0:58:10 Rhiannon: Yeah. The absolute sober perfection is Rhiannon.

0:58:15 Peter: That's right.

0:58:15 Rhiannon: 'Cause I don't drink, but I mean, sometimes I'm drinking Gatorade or something out of a straw. It's not sober, what I am. [laughter] But...

0:58:27 Michael: Rhiannon has her own ways of getting in the mood.

0:58:32 Peter: Rhiannon is blowing lines all during recording. [laughter]

0:58:36 Michael: If you hear sniffing.

[laughter]

0:58:39 Peter: Yeah, and I mix it up. Sometimes I'll have a beer, sometimes a cocktail. During the summer, I've been known to have an albariño, an increasingly popular Spanish white wine varietal known for its bitterness and hint of peach, its minerality. [laughter]

0:59:00 Michael: I am the ice cube guy, mainly because my drinks of choice are usually either Buffalo Trace on the rocks or tequila on the rocks. A nice tequila, usually Casamigos but maybe Chamucos if I'm feeling especially fancy.

0:59:13 Rhiannon: Doo-doo-doo.

0:59:14 Michael: Yeah, that's right.

[music]

0:59:22 Peter: Next episode, special Electoral College explainer. Specifically, how does it work and why is it about to be directly responsible for fascism in this country for the next half-century?

[laughter]

0:59:40 Rhiannon: Tune in.

0:59:41 Peter: Follow us on Twitter @fivefourpod. Tell your friends, etcetera. We're actually really popular now. You can stop telling your friends.

0:59:48 Rhiannon: No, keep telling your friends.

0:59:50 Michael: Do not. Tell all your friends.

0:59:53 Peter: I don't need them. [laughter]

0:59:57 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

1:00:15 Leon: From the Westwood One Podcast Network.

Amy Coney Barrett is a Right Wing Freak+

00:03 Leon: Hey, everyone, this is Leon from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about Amy Coney Barrett, who was nominated this past weekend to replace Ruth Bader Ginsburg on the Supreme Court.

00:17 Amy Coney Barrett: I fully understand that this is a momentous decision for a President, and if the Senate does me the honor of confirming me, I pledge to discharge the responsibilities of this job to the very best of my ability. I love the United States, and I love the United States' Constitution.

00:39 Peter: This is 5-4, a podcast about how much the Supreme Court sucks. Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have rained down hell fire upon us like God unto Sodom, leaving nothing but ashes where our hopes once were.

01:01 Rhiannon: You listening, Amy?

[laughter]

01:07 Peter: Hi, I'm Peter. I'm here with Rhiannon...

01:08 Rhiannon: Hey.

01:09 Peter: And Michael.

01:10 Michael: Hey, everybody.

01:12 Peter: And today we are doing a special episode on Trump's shiny new nominee to the Supreme Court, Amy Coney Barrett. And it's probably a good time to mention we had some regular cases scheduled for October and late September, but we're gonna abandon that and sort of just do an election-based Supreme Court extravaganza, so...

01:35 Michael: Yeah, buckle up.

01:37 Peter: We're doing Amy today. We're gonna do some gerrymandering, some campaign finance, stuff like the Electoral College, and really explain to you why this is all happening, so you can really fully comprehend it right before it happens and your life ends on November 3rd.

01:56 Rhiannon: Stay tuned. You're welcome.

02:00 Michael: I do wanna say to our listeners, don't hurt yourselves.

[laughter]

02:08 Peter: Yeah.

02:09 Michael: This stuff can be bleak, and it's more bleak than ever, but just like...

02:12 Peter: Oh, no.

02:13 Michael: The fight goes on.

02:14 Peter: Yeah, and the podcast gets better, the worse things go.

02:19 Michael: So don't deprive yourself of the fucking gold 5-4 content that's coming your way.

02:25 Rhiannon: Right. That's right.

02:25 Peter: So Trump over the weekend, officially nominated Amy Coney Barrett to the Supreme Court, and that left everyone asking the same question which is like, what's this fucking lady's deal? You know, what's going on with her?

02:39 Rhiannon: Yeah. What's up with her?

02:40 Peter: So we're here to talk a little bit about her past, about her politics and religion, about her jurisprudence and what to expect in the fight for her confirmation.

02:52 Rhiannon: Let's do it.

02:54 Peter: Just a little 30,000 foot overview of Amy Coney Barrett, currently a judge on the Seventh Circuit Court of Appeals, which is the federal appeals circuit that covers Illinois, Wisconsin and Indiana. And she's only been there since Trump appointed her there in 2017. She is almost without question, one of the more conservative members of the federal judiciary.

03:15 Rhiannon: Yeah.

03:17 Peter: So... Let's walk it back a little bit. Talk about how she got here.

03:20 Rhiannon: Yeah. And you know, I just wanna highlight something that Peter already has said, and I think we need to keep in mind when we're learning anything about Coney Barrett, she has been on the federal bench as a judge since 2017, that is... If you're not a lawyer and can do math, three years, you guys.

03:41 Michael: If you considered our progenitor podcast. It's about as long as we have been podcasting.

[laughter]

03:48 Peter: Yeah.

03:48 Rhiannon: That's right. Okay, so Coney Barrett was born in 1972. A little bit more math required here, but that's pretty recent. Her dad was an attorney for Shell Oil.

04:01 Peter: Okay. Well, there has been some reporting. And her parents confirmed that as a child, she would often appear behind them in bathroom mirrors only to disappear when they turned around.

[laughter]

04:16 Rhiannon: Yeah. So she graduated from Rhodes College in 1994, and she went straight to Notre Dame for law school, where she graduated first in her class. Amy Coney Barrett can read a book. She clerked for Judge Laurence Silberman on the prestigious DC Circuit for a couple of years, and Silberman himself is a bit of a right-wing freak, part of the Nixon administration and Reagan's campaign in 1980.

04:49 Peter: Yeah. And you may remember him from just a few months ago when he wrote a barely coherent typo-ridden email to all court staff in which he called the removal of Confederate monuments, the "desecration of Confederate graves" and said, "My great-great-grandfather never owned slaves as best I can tell."

[laughter]

05:16 Rhiannon: Awesome.

05:16 Michael: Thanks. Good email.

05:19 Peter: That's how I end all my emails as well.

[laughter]

05:24 Rhiannon: Yeah, so moving on, Amy Coney Barrett then clerked after she clerked for Silberman for Justice Scalia himself on...

05:32 Michael: My favorite.

05:34 Rhiannon: That's right on the Supreme Court. She clerked for him for a year from 1998 to '99, and then she went into private practice for a little bit, but pretty quickly thereafter, she doesn't spend a lot of time in private practice, she entered academia, she was a law professor at George Washington for a couple of years before returning to her law school alma mater, Notre Dame, where she taught until Trump put her on the federal bench, like we said, in 2017.

06:03 Rhiannon: Oh, and real quick note, those few years she was in private practice, that was like '99, 2000, that year. If that sounds familiar, that is the year of Bush v. Gore, which in private practice, she worked on, I believe, for Jeb Bush, not the Bush campaign...

06:21 Rhiannon: Well, well, well.

06:22 Michael: But defending him in court, so just a little historical color about Judge Coney Barrett.

06:29 Rhiannon: Yep.

06:30 Peter: Well, I'm sure that doesn't forebode anything at all.

06:34 Michael: Yeah, no. No omen there.

06:35 Rhiannon: That's not relevant, Michael.

[laughter]

06:38 Peter: So we reviewed some of the scholarship she published while she was a professor, and to me, there's one clear take away, and it's that Amy Coney Barrett thinks about the law like we do, right, she understands that the law is about power and ideology. It's just that her ideology is far right religious zealotry.

06:58 Rhiannon: Yes.

07:00 Peter: So in 2013, she published a law review article titled Precedent and Jurisprudential Disagreement, where the thesis is essentially that the idea that the Court should be bound by its prior precedent is incorrect. This is something we've talked about, the idea that precedent is essentially an artificial constraint on the Court, that is not particularly useful or consistently applied. So in this broad conceptual way, we agree with her, but what she really means when she says this is like she does not feel the Court should be bound by the liberal wins of the '50s and '60s and early '70s, right.

07:29 Rhiannon: Exactly, exactly.

07:30 Peter: In the article, she specifically uses Roe v. Wade as an example of why relying on precedent too heavily can be a mistake. She essentially says that the public reaction to Roe was so strong that it shows a public rejection of the idea that the Court should be forced to adhere to precedent in the future. And in case that's all a bit abstract for you, the same year she described Roe as "creating through judicial fiat a framework for abortions on demand." So...

08:00 Rhiannon: Amy, what?

08:02 Peter: She's on record saying that, one, we do not need to respect the precedent of Roe v. Wade and two, she personally strongly disagrees with the decision.

08:09 Rhiannon: Yeah.

08:10 Peter: So yeah, I think you can see where this is going.

[laughter]

08:14 Rhiannon: Right, right. Exactly, and there's this long-standing tradition with conservative Supreme Court nominees where they're asked about whether they agree with Roe v. Wade, and they do this little dance where they imply that while they don't really agree with it, they're going to respect the precedent. So for example, in 2016, during the Kavanaugh confirmation hearings, Brett Kavanaugh said, "As a general proposition, I understand the importance of the precedent set forth in Roe v. Wade," but this is also a guy who in his jurisprudence right before his confirmation hearings, he was using that same abortions on demand language to talk about cases upholding Roe v. Wade and protecting the abortion right, so this is...

09:01 Peter: They love saying abortions on demand, by the way, like when else would you get an abortion other than when you want it?

[laughter]

09:09 Peter: They make it seem like that's the worst option when... The alternative is abortions out of nowhere, like just left-field abortions.

09:16 Rhiannon: Yeah, exactly.

09:17 Peter: So yeah, look, this is a new era to some degree, like Amy Coney Barrett is not a John Roberts conservative who really aggressively pretends to adhere to an objective interpretation of the law and claims her role is to call balls and strikes, at least that's not what she's held herself out to be as an academic.

09:35 Rhiannon: Right. Right.

09:36 Peter: She's an ideologue, right, and she and every Republican Senator and the Executive Branch are all engaged in an open play to seize power, and so I think this is the first time where there's an actual chance we might see the nominee outright say she disagrees with Roe v. Wade.

09:53 Rhiannon: Yeah.

09:53 Peter: I don't think it's super likely, but I think it's more likely than it's ever been, we're certainly getting to that point.

10:00 Rhiannon: Right.

10:00 Michael: Yeah.

10:00 Peter: And the question of what happens with Roe is an interesting one. In the '80s, people thought the conservative Court was going to overturn it, but an alliance of moderate conservatives, Souter, Kennedy, O'Connor, they sort of held it together. And since then, rather than overturn it, the conservative strategy has been death by a thousand cuts, right? Just weaken the right until it barely exists in practice.

10:22 Rhiannon: Exactly.

10:24 Peter: So that strategy has been very successful, so much that a lot of people are unsure as to whether the conservatives would actually overturn Roe. As it stands, they have abortion rights so weak that many states have just a couple of clinics. Plus, they get the benefit of having single issue voters who just want Roe overturned, right, showing out to the polls. But at some point those voters want action, right. At some point you have to pay the piper. And is that the term... What's a piper?

10:48 Michael: Yeah, yeah.

10:49 Rhiannon: I don't fucking know.

10:50 Peter: Okay, I just said it... It just came out and I was like, is that...

10:55 Michael: Piper... That plays a, I think, a flute.

10:56 Rhiannon: And you gotta pay them, they can't work for free.

10:57 Peter: You can't just have them play the pipe and just sit there watching, you eventually... You have to...

11:02 Rhiannon: Yeah, that's fucking rude.

11:04 Peter: Right. I get it. The conservative base doesn't want like a functional victory, right, they want total victory. They want symbolic victory. They want it all, right. And I think that Coney Barrett will give it to them.

11:17 Rhiannon: Yeah.

11:17 Michael: Right. What I do think might happen is you might end up with weird sort of political alliances here where there's plurality opinions with Roberts and Gorsuch and Kagan and Breyer or something, like narrowing the right with Kavanaugh, Barrett, Alito concurring in judgment and saying they would overturn it entirely if they had their druthers, but they don't quite have their votes for that yet. Something like that, where you essentially have liberal signing on to the very extreme erosion of it in order to stave off the straight elimination of it or something. I don't know, I see something like that. Brave new world.

12:01 Peter: Yeah. Yeah.

12:02 Rhiannon: Yeah. No, totally. And you know what I'm thinking, what I kind of think might be plausible in the confirmation hearings is you know how they use... Democrats, especially this time around, are going to be using Roe v. Wade as a litmus test, and I think Amy Coney Barrett, she might actually be the first person to be like, no, I think Roe v. Wade was wrongly decided. And I fully expect Senate Democrats to be like, oh, like almost like turn to the cameras like, did you hear that? But yeah, that's the point, girl, the Republicans are not going to think that's as big a deal, and I don't think Democrats have done a good enough job at setting up the public to be like, wait a second, that's a huge red flag.

12:44 Michael: I mean, in terms of effective litmus tests for weakening Republican base support for this nominee, Roe v. Wade isn't gonna be it, right. Maybe the Affordable Care Act and this case that's bubbling up right now, where they might kill guaranteed issue and to let insurance companies deny you coverage for pre-existing conditions again. That's something that could shake the base, that's something that they haven't been able to get rid of legislatively because their own voters like it too much.

13:17 Rhiannon: Right. Yeah.

13:20 Peter: Yeah. So obviously, Roe v. Wade is on everyone's mind, but her impact on the Court is gonna be much bigger than abortion rights, so we should talk about her record on the bench so far. Like we said, she's only been there a few years, so not a huge amount to look at, but I think there's enough that you can see some pretty clear trends.

13:35 Rhiannon: Yeah.

13:36 Peter: Probably the single biggest trend is something we've talked about before, her continued deference to the Executive Branch. Modern conservatives have taken the position that the Executive Branch should have effectively unfettered discretion in enforcing, for example, immigration laws, and what that means on the ground is that the Court doesn't act as a check on ICE and other anti-immigration efforts, but then also on military issues, on environmental issues, on countless other issues within the Executive Branch's general prerogative. Coney Barrett has in several cases taken the stance that executive discretion is in those areas near absolute.

14:12 Rhiannon: Yeah.

14:12 Peter: So a case from earlier this year, Cook County v. Wolf, the Seventh Circuit halted a Trump administration policy that instituted a wealth test for green card carriers, and Coney Barrett filed a 40-page dissent, arguing that the Executive Branch had broad authority to regulate immigration. Similar case, Yafai v. Pompeo, Barrett upheld the denial of a visa to an American citizen's Yemeni wife. The interesting thing here is that she questioned whether courts are even allowed to inquire into whether the Executive Branch is acting in good faith, and this is something we've talked about before too, because it's increasingly common that the Trump administration is just flatly lying to the Court about their motivations for various policies, the most famous example being the Muslim ban, which we talked about in our Trump v. Hawaii episode.

15:02 Rhiannon: Right.

15:05 Peter: Because the Trump administration is so frequently lying to courts and because its actual motivations are often plainly illegal, the administration's allies on the Court have steadily coalesced around the idea that it's like, it's just not their job to look at the administration's motives here, and Barrett appears to be a champion of this idea, and obviously that's very convenient for our big dumb racist President.

15:28 Rhiannon: Exactly. Yeah, and the Affordable Care Act is also on the chopping block. There's the decision out of the Fifth Circuit, a terrible one with a lot of complicated issues. Amy Coney Barrett is also a staunch gun rights supporter. She wrote a lengthy dissent in one case stating that she didn't believe non-violent felons could be prevented from having guns, but in the same dissent, she specifically mentioned that voting rights were not protected in the same way.

15:56 Peter: And I think that brings us to a pretty important point. Coney Barrett does not believe in any meaningful right to vote in this country, and will absolutely be complicit in whatever heist the Republicans are about to pull on the democratic institutions of this country. Like we've said many times before, the conservative project in this country relies on voter suppression. There is no question about where she stands on this.

16:19 Michael: Right, right. And this episode is about Coney Barrett, and I wanna stay focused on her, but we're talking about her because she's Donald Trump's nominee. And the fact that he's nominating her in this context at this time, it has implications, 'cause he doesn't really have a re-election strategy. What Donald Trump has is a political strategy to retain power despite losing the election, that's what he's doing. He says it, we know this because he's open about it, he knows mail-in voting could hurt him, so they are attacking mail-in voting, they're sending 50,000 goons to swing states on election day to intimidate black and brown voters at the polls, they're going to challenge bad results in court after the election, which we know 'cause he's told us that, right? And he wants to install a friendly Justice in case those court challenges make it up to the Supreme Court, which they've openly said.

17:12 Rhiannon: Right.

17:12 Michael: This isn't subtle. He doesn't disguises intentions, there aren't secret plans within plans, right, it's happening out in the open, this plan to subvert American democracy and Coney Barrett is a big part of it. She's the friendly Justice, and it's the single biggest consideration for him in who to choose the nominee. Will they be a friendly vote when his ability to retain power is on the line?

17:37 Rhiannon: Right, right.

17:38 Michael: So she's aware of that. There's no way she's not. And even if she somehow was, like he definitely fucking brought it up to her. Right, this is the guy who asked James Comey for a loyalty oath. This is the guy who doesn't try to seduce women, he grabs them by the pussy.

17:55 Rhiannon: Yep. That's our President.

17:57 Michael: Yeah. This guy sat her down, and was like, look when push comes to shove, are you my fucking Justice?

18:03 Rhiannon: Exactly.

18:03 Michael: And it doesn't really matter how she answered, whether she was coy about it or she straight up told him, because he left confident enough to nominate her, that's the important thing here to understand is she is a part of this, right. Maybe Biden wins big enough that they can't steal it and this never gets put to the test, but you should always remember, no matter what some sort of fucking loser tries to tell you that she's a brilliant jurist or she's very fair-minded or a good person. No, she's not. She fucking sold out our country and willingly signed on to this plan to subvert our democracy so she could get a Supreme Court seat. That's who she fucking is.

18:42 Peter: Yeah.

18:43 Rhiannon: Exactly.

18:47 Peter: Yeah. Okay, so yeah, we're a little bit into this episode, and I think it's time to talk about the weird religious shit that this lady is up to.

18:54 Rhiannon: Yes.

18:55 Peter: One of the biggest discussion points of Coney Barrett's nomination, and something we mentioned last week, is her involvement with a religious group called People of Praise.

19:04 Rhiannon: Yeah, this group is super, super far right. They believe that husbands are the head of the household, and they assign people advisors. Peter, I think you mentioned in our last episode, that until recently, the People of Praise called these advisors, the advisors for women, they called them handmaids. And that terminology, by the way, it was disposed of fairly shortly after the New York Times wrote about it, so obviously it's safe to say all they're doing is covering their asses.

19:38 Peter: They're nominally Catholic, right? They're...

19:41 Michael: They're nominally ecumenical.

19:41 Peter: Oh, sorry, yeah.

19:44 Michael: So they're basically Catholic. The vast majority of their membership is Catholic.

19:48 Rhiannon: Yes.

19:48 Peter: Yeah.

19:49 Michael: And according to Reuters, the group shares a preference for charismatic worship, which can involve speaking in tongues.

19:57 Peter: Nice.

19:58 Rhiannon: Love that.

19:58 Peter: Yeah, I like that they wanna stay Catholic, but just start adding in all the most insane things from American Protestantism.

20:05 Rhiannon: Right, let's do Catholicism, but at the circus.

20:09 Peter: Yeah. We love the top-down institutionalized pedophilia of the church, but we'd love to throw in some river baptisms if we could. Can we get that?

[laughter]

20:19 Rhiannon: That's right.

20:21 Peter: So look, the bottom line on this stuff is very simple, she is a religious zealot, she will be asked about whether her religion will influence her rulings and she will say no, and that will, for all intents and purposes, be a lie. Of course, she is influenced by her religion. If you think that someone can have a religion that shapes every single aspect of their life to the point where they are like pledging loyalty to a religious group, but then not let it influence how they view the law, you're delusional, you are a sucker.

20:49 Rhiannon: Right. Right.

20:50 Peter: Coney Barrett wrote articles in the late '90s about how devout Catholic judges could not enforce the death penalty and should recuse themselves from those cases, with a footnote that cited to similar articles about abortion. So even though in the case of the death penalty, I'd agree with her, she has openly argued that religion should influence judges.

21:08 Michael: Right.

21:09 Rhiannon: Maybe the one thing that's more important to her is the conservative political project, so she has said before that, for example, even though she doesn't religiously agree with the death penalty, she helped Justice Scalia when she was a clerk...

21:25 Peter: Kill a man.

21:27 Rhiannon: Right. She helped Justice Scalia kill a man by execution by writing opinions that argued that somebody should get the death penalty.

21:32 Peter: I love that I was just making a joke there, and then because you're a defense lawyer, you were like, exactly.

21:38 Michael: Peter was talking about them doing the most dangerous game. She wrote an article saying that Catholic judges should recuse themselves from death penalty cases, but then when her confirmation was up was like, I'll do my duty as a jurist, right, as a judge.

21:53 Rhiannon: Right.

21:54 Peter: Yeah, so there's a quote being thrown around from a 2006 speech she gave, a commencement speech, where she said, "our legal career is but a means to an end, and that end is building the Kingdom of God." That would seem to indicate that she understands the law as being part of a religious mission. USA Today wrote an entire article claiming that this quote is taken out of context. I was pretty fascinated by how that could possibly be true, given how that quote reads.

22:21 Michael: It's a pretty blunt quote.

22:22 Peter: Yeah.

22:22 Michael: It sorta speaks for itself.

22:24 Rhiannon: Exactly.

22:25 Peter: Yeah, so she was giving a commencement speech at Notre Dame Law, so USA Today argues that it's taken out of context because she wasn't really talking about the separation of church and state, she was just giving students advice, but that's not what taken out of context means.

22:38 Michael: Right. My advice is, go forth and do God's will in your career as jurists.

22:44 Rhiannon: Right.

22:45 Peter: Right. The entire point is that she's framing the practice of law as a means to an end, and that end is the fulfillment of their religious virtues.

22:53 Rhiannon: Exactly.

22:54 Peter: That's the context. Fucking USA Today.

22:55 Rhiannon: The context is she's talking about the law, and she's talking about people in the future who will work in the law, and she says, do God's will.

23:02 Peter: Also, imagine you're at the Notre Dame law commencement, and it was just like the highest ranked school you could get into so you're stuck there and this fucking insane woman is like, "You will do God's work." And you're like, "Jesus Christ."

[laughter]

23:19 Rhiannon: Yep.

23:20 Peter: Okay, so I wanna talk briefly about the contours of this discourse, because the primary reaction on the right to criticism of her belonging to this pseudo-cult is that it's anti-Catholic discrimination, and that will be the narrative you hear from the GOP on this. Not in small part because they need to win over Catholic voters in Pennsylvania and the Midwest, and I won't even get into the fact that every fucking American Protestant thinks that Catholicism is like a demon cult.

23:48 Rhiannon: Right.

23:48 Peter: And the Pope is literally the antichrist, whatever. This shit is simple. If your religion influences how you interpret the law, it's fair game, and I'm well past my teenage atheist phase, but I do find it a little frustrating how we're not allowed to talk about how bizarre these people are. Sorry, but the people who are in some little cult where you swear a loyalty oath and have advisors called handmaidens... freaks, freaks, right?

24:12 Rhiannon: Right.

24:14 Peter: I don't care how smart you are, I don't care how high your IQ is, if you get caught up in this stuff and build your life around it for decades on end, sorry, but your brain is not doing great, like something's wrong with it, and if these people didn't come from fucking high society money, they'd be getting Waco'd by the ATF, but instead, for some reason they are feeding into our country's most powerful institutions. It's fucking absurd.

24:38 Rhiannon: Yeah.

24:41 Michael: Right. And like the idea that this shit is off-limits is so ridiculous, because every other political office, religion is an issue.

24:48 Rhiannon: Yes.

24:50 Michael: Candidates for President, Senate, House, whatever, they regularly get asked about their religious beliefs at debates for public scrutiny all the time.

24:57 Rhiannon: Sure. Yeah. Right.

24:57 Peter: Right. You gotta kiss Jesus on the cheek to fucking get any public office in this country.

25:04 Michael: Right. And separately, one of the points we make on this podcast all the time is that things like textualism or originalism or purposivism or whatever don't actually matter, that when push comes to shove, those are no obstacles for conservative judges enacting conservative policy goals. Nor are they obstacles for liberal judges to enact liberal policy goals, like you can construct an originalist argument for pretty much whatever you want. But those things are of course in bounds, right, these are the okay things to be interrogating about. Amy Coney Barrett, what's her preferred method of statutory interpretation and what's her approach to interpreting the Constitution?

25:44 Michael: It's such bullshit. So we're supposed to look into this stuff that doesn't matter, but we're supposed to ignore the actual world view and beliefs that shape how she will decide these cases.

25:57 Rhiannon: The stuff that she's explicitly saying matters to her in doing her job.

26:02 Michael: I'm not saying she shouldn't be a judge or a justice because she's Catholic. I'm saying that if her Catholicism shapes her beliefs, then that's worth interrogating what those beliefs are and how that will impact her judgment.

26:16 Peter: Yeah. Also worth noting, though, Catholics have had a majority on the Supreme Court for 30 years. I don't really know what this is, but for some reason, there is some sect of Catholics that are just geared towards legal academia and dominate it, just they are filling the top ranks of our courts in a way that is wildly disproportionate. The idea that the Supreme Court is discriminating against Catholics is absurd. It's majority Catholic right now.

26:45 Michael: Yeah.

26:45 Rhiannon: Yeah. Who else is Catholic, Peter?

26:47 Peter: Roberts is Catholic, Thomas is Catholic. Alito is Catholic, Sotomayor is Catholic, Gorsuch, Episcopalian raised Catholic, so he probably just couldn't find a church nearby or something and just went... Found an Episcopalian, and Kavanaugh is Catholic. The fact that the Court is majority Catholic should be plenty of evidence that there is not some like system of discrimination that is operating to exclude Catholics here.

27:11 Michael: People who are opposed to her nomination want a devout Catholic Joe Biden to nominate someone in her stead.

27:20 Rhiannon: Right, right. There you go. Yeah.

27:22 Michael: Come on! But look, like you bring this up, the idea that the way her Catholicism might like shape her view of the law should be fair game, you literally get called a bigot and not just by the right. This was happening from liberal law professors within the last week of recording this. Some professor in North Carolina, I think, said that people who wanna bring up her Catholicism need to take a look in the mirror and think about when you decided that religious discrimination is okay.

27:49 Peter: Dipshit.

27:50 Michael: First of all, Professor Hessick, and I mean this with all my heart, eat shit. And more generally speaking, this is just another example of how refusal to accept that judging is political, that judges wield political power and shape policy, and in fact, liberal participation in hiding that fact just serves as an obstacle to gaining power ourselves.

28:14 Peter: Yeah.

28:14 Michael: And given who the opposition is, that means it leaves us unequipped to oppose literal fascists.

28:21 Peter: Yeah.

28:21 Michael: And you know what, if this makes me a bigot, so be it, but if Amy Coney Barrett is gonna be deciding my rights for the next 30 years, I think it's fair for me to ask whether she's ever spoken in tongues.

28:34 Peter: Yeah.

28:35 Rhiannon: Yeah, that's right.

28:36 Michael: I think I have the right to know.

28:36 Rhiannon: That's absolutely right. If a fascist leader says, God wants me to do fascism, it is not religious discrimination for me to question those religious beliefs and how they play into this fascist leader's political views.

28:51 Peter: And fucking brace yourselves for the Republicans' indignance about all of this, it's gonna be absolutely fucking insufferable. They would nominate David Koresh if he was still alive, but they can't.

29:05 Michael: Guys, I need to get some ice for my drink, so if we could just pause for an ad, I'd appreciate it.

29:12 Rhiannon: Roll that ad.

29:13 Peter: So one thing that might have popped out when we read Coney Barrett's biography out to you is, why her. She's got an impressive track record, sure, but it's not that impressive by Supreme Court nominee standards. Notre Dame would, I think, make her the only non-Ivy League, non-Harvard, Yale Justice on the Court. She had some prestigious clerkships and was a professor for 15 years, but there are plenty of young conservative judges out there. So you might have asked why was she the clear front runner? And the answer to that is fairly simple. In 2017, during her confirmation hearings for her appointment to the Court of Appeals, Dianne Feinstein asked some aggressive questions that seemed to attack Coney Barrett's religion directly. She famously said, "the dogma lives loudly within you," which I'm sure that she thought was a very powerful line, but it backfired.

30:05 Peter: She was trying to portray Barrett as being too heavily influenced by her religion, but it came across as sort of casting aspersions against religion itself. As a result, the right rallied around Coney Barrett and she became like a bit of a hero in their circles. Just like with Brett Kavanaugh, there's nothing they love more than this completely manufactured martyrdom.

30:26 Rhiannon: Exactly, that's their favorite kind of ammo.

30:28 Peter: If they perceive the left to be attacking someone, they rally around them by default, it doesn't matter what you fucking did. So there are 50 more qualified judges getting passed over because American conservatism consists almost entirely of a politics of completely imagined grievance. Like, are they being mean to her? Guess what, we're gonna make her a fucking Supreme Court Justice, that is literally the thought process of the Republican Party.

30:53 Rhiannon: Yes.

30:53 Michael: Yeah.

30:54 Peter: And I guess maybe that brings us to what the confirmation process actually is and what you can expect in the coming weeks. Michael, I'll leave this to you, 'cause you're the smart one.

31:07 Michael: Well, in brief, there really isn't any set way for the nomination process to go. Under the Constitution, the Senate has to give advice and consent, but it can do that however it wants, and so they could just take it to a straight vote, if they want to. The way it's been done traditionally has been that the Senate Judiciary Committee takes care of pretty much everything. They do a background investigation, which includes getting a lot, a lot of documents, financial records, work stuff, whatever, closed door hearings with the nominee. While this is ongoing, the nominee will then have one-on-one meetings with Senators, both in the Judiciary Committee and outside of the Judiciary Committee. I think Sotomayor met with 80 or 90 Senators one-on-one. And then there will be like public hearings before the Judiciary Committee, which can be tame, like Gorsuch, or they can be more like Kavanaugh's, right, and then the Committee votes to send the nominee forward or not.

32:03 Rhiannon: And when you say send them forward, you mean to the whole Senate...

32:06 Michael: To the full Senate.

32:07 Rhiannon: For a final vote.

32:08 Michael: And so if that goes along party lines, it will be like 11 to 9 Republican in favor and the nominee will go forward, and then within a few days, the full Senate will vote.

32:21 Peter: Yeah.

32:22 Rhiannon: Right.

32:23 Michael: That's it. That process usually takes like six to eight weeks, which is not enough time. In this case, I think if they wanna get it done before the election... To hear a case about the election, you wouldn't have to get it done before the election, but maybe they just wanna have it in their back pocket. So they're gonna have to rush it.

32:37 Rhiannon: Yeah, and in fact, it'll be the shortest timeline for confirming a Supreme Court nominee kind of in the modern era. And I just wanna break down a little bit like what that expedited timeline means for the confirmation process. Outside of Coney Barrett as a jurist, this confirmation process kind of like Kavanaugh's will be about breaking norms, and I think we should be looking out for during her confirmation the extent to which norms are broken. The timeline to get Coney Barrett confirmed before the election is one way that norms are being broken to the conservative advantage, but then a whole bunch of norm-breaking kind of flows from that too. What typically happens during the confirmation process for a Supreme Court nominee is that a nominee fills out this really lengthy questionnaire, it's sort of a comprehensive background investigation into who the nominee is as a person and as a judge, and these documents, the final kind of completed questionnaire, this ends up being hundreds and hundreds of pages long, you can look up Brett Kavanaugh's on the Judiciary website.

33:43 Rhiannon: The hearing in the Senate Judiciary Committee, in many aspects, they sort of flow out of that questionnaire. Staffers comb through the answers that the nominee provides, they do fact-checking, they craft questions for the Senators to ask during the hearing, so it's so much work that typically there is a 28-day minimum period between receipt of the completed questionnaire responses and any hearing, but with Republicans saying that they want Coney Barrett confirmed before the election, there's no way that that happens here.

34:15 Rhiannon: Michael mentioned a background investigation, it's literally the FBI. The FBI typically does their own fully detailed look into a nominee's background.

34:24 Peter: Yeah. They have to put all of their assassinations of civil rights leaders on hold.

[laughter]

34:31 Rhiannon: And they privately share those confidential findings, but they share them with the Senate Judiciary Committee, and that's just not going to happen here in the Amy Coney Barrett case, because it's not going to happen qualitatively or on the scale that it usually would if there's this crazy condensed timeline, it's just not possible. And the last thing I wanna say about the confirmation process and how norms will be broken is just a word about the preparedness of Senate Democrats on the Judiciary Committee. News came out last week that Senators, not just staffers, but Senators themselves were raising red flags about the competence of Dianne Feinstein to lead Democrats in the Judiciary Committee during this confirmation process.

35:15 Rhiannon: Twelve Senators have anonymously sounded this alarm, and while they're anonymous, this is a big deal. Dianne Feinstein is the ranking member of the Senate Judiciary Committee. And the people working for her and with her do not think she is fit for the job or equipped to lead in the way that she needs to in this moment. And just like having that distrust in leadership means that the party then goes into the confirmation hearings, which are already chaotic, and particularly so in this case because of the timeline crunch, but they're going into that without as unified and strong a front as they could, if everyone was on the same page.

35:52 Peter: Although we should add, though, that there aren't any real procedural mechanisms for the Democrats to stop this. This is all about whether or not they could put on a strong enough case that the Republicans would have to be like, oh, shit. Is this worth it? Do we need someone else, etcetera. It's gonna be tough to do, like Amy Coney Barrett's record's gonna be squeaky fucking clean.

36:12 Michael: Like if Kavanaugh didn't do it, then, like...

36:14 Rhiannon: Right.

36:14 Peter: Right, exactly. But this is interesting because in large part, Kavanaugh, Clarence Thomas, those confirmation hearings that were about allegations of wrong-doing, this one's gonna be about ideology, like Robert Bork was in the late '80s.

36:28 Rhiannon: Yes.

36:30 Peter: The Republicans folded with Bork, they won't fucking fold here. They are ready to fight.

36:35 Michael: Can I give a contrarian position on that Feinstein article?

36:40 Peter: Yeah.

36:40 Rhiannon: Sure.

36:41 Michael: The article talks about the confirmation hearing and her fitness for that, but it also talks about replacing her as head of Judiciary next term, especially if Democrats take the majority. And I read this whole thing as, in part, a response to her talking about opposing filibuster reform, opposing court reform. Chuck Schumer's talking about this stuff like leadership is behind it, and Feinstein, all of a sudden saying she's gonna be an obstacle to that, and then within 48 hours, there's a brutal hit piece calling her senile. I think that's a good sign that Democrats are like, fuck this, if you're not on board, we're gonna drag you through the mud and replace you and get people who are with the fucking program.

37:24 Peter: That's a good point.

37:24 Michael: To do what needs to be done.

37:26 Rhiannon: No, no, I agree, and I think distrust in Dianne Feinstein as an obstacle to sort of progressive gains in Congress and that kind of thing, that's a good thing, but specifically in terms of going into this confirmation hearing, I think it's really...

37:40 Peter: Prepare to watch an incredibly senile woman with a barely functioning brain go up against a very, very smart person in her prime. It is gonna be...

37:52 Rhiannon: Right, exactly. And just to finish the point, the members of the party who are trying to oppose this nomination or at least call into question a nominee's record, a nominee's ideology, they typically work together to present cohesive thematic lines of questioning and arguments that build on one another, and they build a narrative that the public can follow, right. Dianne Feinstein is flat out not able to lead the Democratic members of the Judiciary Committee in a way that unifies and strengthens that presentation, and if you don't think that's a big deal, and this is just how it's always done, and Dianne Feinstein earned that position or whatever the fuck, then ask yourself why Republicans made Lindsey Graham the chairman of the Judiciary Committee over Chuck Grassley, right. Lindsey Graham knows how to play for TV viewers, he knows how to ask a question, he knows how to craft a narrative.

38:40 Michael: Damn right. 100% on point.

38:43 Peter: Yeah, so finally, we should talk a little bit about some of the press Coney Barrett has gotten. There's been plenty of skeptical and critical media coverage, but alongside it, I've seen a trend that we've seen before, with Gorsuch and Kavanaugh, ostensible liberals writing about how actually she won't be that bad.

39:00 Peter: The first is a Bloomberg piece from Noah Feldman who clerked at the Supreme Court alongside Coney Barrett, and that's important, because every time you see an op-ed like this, it will be from one of their personal friends...

39:13 Michael: Yes.

39:14 Peter: Without fail.

39:16 Rhiannon: Right, yes.

39:17 Peter: The piece is titled "Amy Coney Barrett Deserves to be on the Supreme Court." Already mad. Literally, no one deserves to be on the Supreme Court, but whatever. The gist of his piece is nothing more than one, Amy Coney Barrett was nice to me, and two, she's really smart, so she should be on the Court. That's it, right?

39:32 Michael: Yes, yes.

39:33 Rhiannon: Cool.

39:33 Peter: The most telling line to me is when he says, "I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed," which leads to a fairly obvious question in my mind, what are those principles, dude?

39:48 Rhiannon: Exactly. I have questions about the principles, motherfucker.

39:52 Michael: That's my objection.

39:54 Peter: That's the speaking in tongues part or whatever her handmaiden tells her? [chuckle] Just being committed to principles and sticking to them isn't like a good thing, like wow, that guy is really committed to his principles. That's not always good. Frequently bad. Yes, I agree that she's committed to her principles, and those principles are steeped in batshit crazy reactionary ideology.

40:13 Rhiannon: Exactly.

40:14 Peter: He ends his piece with, "I'm going to be confident that Barrett is going to be a good Justice, maybe even a great one, even if I disagree with her all the way." Like Jesus...

40:24 Rhiannon: God...

40:24 Peter: What the fuck are you talking about?

40:24 Rhiannon: Dammit, dude.

40:25 Peter: Like Jesus Christ, we talk about this sort of thing all the time, but I'm gonna lose my fucking mind, like, reading this. These people view the law as completely detached from human existence, such that he can disagree with everything she does and still thinks she's doing a good job. What does that even mean? You could never say that about any other profession in the world, like, "Oh, I think he'll be a great basketball player, although I do not believe that he is competent at playing basketball in any specific way."

[laughter]

40:55 Peter: If you think that everything someone is saying is wrong, but you still think they're doing a good job, you need to take a step back and contemplate what the fuck you think the law even is.

41:04 Michael: Yes.

41:05 Rhiannon: Right, the person who can say something like that is a person who lives a life that law never touches them, right? Law doesn't hurt you, law doesn't have the power to ruin your life, to hurt the people that you love, and so that's the kind of person who can say something as absolutely inane and disconnected as "I disagree with a judge on literally every issue, but she's a good judge."

41:27 Peter: Right, yeah, I don't know much about Noah Feldman, but he's writing this from some fucking town house, right? Go fuck yourself, dude.

41:34 Rhiannon: Exactly, exactly.

41:35 Peter: Like that's the bottom line. To these people like this is all intellectual games, they're rich and comfortable, and the outcomes of these cases have no material impact on their lives unless they are about fucking shareholder value.

41:46 Michael: I was gonna say, which is why I said on Twitter that you should make this op-ed impact his material life, Harvard law students. [chuckle]

41:54 Rhiannon: Yeah, right.

41:56 Michael: Make him think twice next time he wants to go publicly to bat for a fascist. [chuckle]

42:02 Peter: Yeah, like this guy just thinks that the Court is like a place for a spirited debate. In 2029, he's gonna be reading a decision where the Court upholds the concentration camps in Central Ohio, and he's gonna be like, "Well, this logic is impeccable, great work, Amy." [chuckle]

42:17 Rhiannon: Right, exactly.

42:19 Peter: The other piece that jumped out and it's a Washington Post piece from again, one of Coney Barrett's colleagues at Notre Dame, O Carter Snead, is that a real name? What's the O stand for, bro? I bet it's embarrassing. He doesn't like it. The piece is titled, "I've Known Amy Coney Barrett for 15 Years. Liberals Have Nothing to Fear."

42:40 Rhiannon: Michael. Michael, teeing up.

[chuckle]

42:46 Michael: We've looked into O Carter Snead. You might think from that headline that this is another in the genre of liberals going to bat for conservatives, but no, it turns out he clerked for a conservative judge, he worked for George W. Bush as general counsel to his Bioethics Committee or something, where he focused on abortion issues. As a bioethics expert, he spends a fair amount of time and energy engaging in pro-life advocacy, legal work, coming up with clever arguments as to why abortion should not be legal. He wrote an article in 2016 saying that it's a dubious proposition that the Constitution protects a right to abortion.

43:29 Peter: Right. Yeah, that's the guy telling you not to worry, go fuck yourself, you disingenuous piece of shit. We were talking about this yesterday. It's not like don't worry. It's like, shh, shh, shh, it'll all be over soon.

43:41 Rhiannon: Right.

43:42 Michael: Yes, exactly.

43:43 Rhiannon: Right, right, right.

43:44 Michael: Exactly.

43:44 Rhiannon: Yeah, yeah, yeah, exactly.

43:45 Michael: This fucking dead-eyed piece of shit.

43:48 Peter: We're gonna find out in 10 years if this is not a real person.

43:50 Michael: Yeah.

43:51 Rhiannon: Right?

43:52 Michael: It looks like that is like bots that generate fake images. Yes, that's exactly right.

43:56 Rhiannon: Yeah.

43:57 Michael: But look, it's not an editorial offered in good faith. This is some asshole taking a victory lap, he's frigging smugly telling us, "Don't worry, this won't hurt a bit," while oiling up a fucking four-foot metal rod he's gonna shove up our ass.

[laughter]

44:15 Michael: That's what this editorial is, and so if you subscribe to The Washington Post, I want you to reconsider that, like seriously? If you're listening to this podcast, I assume you're angry and distraught about this, and you should just think about what type of person thinks this is what you need to be reading right now, like how much disdain they have for you. In the meantime, I'm gonna get one of my college buddies to pitch the Washington Post on an op-ed titled, I've Known Michael for 20 Years, and O Carter Snead Has Nothing to Fear, about how I'm absolutely not going to travel to Indiana and beat the living shit out of him.

44:52 Peter: Yeah, I will vouch for Michael. He is not going to beat O Carter Snead within an inch of his life.

44:57 Rhiannon: I personally have known Michael for a long time. I've never seen him beat someone's ass and put them in the ER, you know?

45:04 Michael: So sleep easy, O Carter. [laughter]

45:09 Peter: Oh, yeah, so look, there are gonna be people like this who try to convince you that she's a reasonable person or that she's smart, we should wait and see how she rules, and that'll be a fun little thought experiment for people who care about the minutiae of statutory interpretation, but for everyone else, we know what's coming. Reproductive rights are in peril, healthcare is in peril, voting rights are in peril, LGBT rights are in peril, workers' rights, immigrants' rights, all in danger, unless and until the Democrats engage in systemic reform of the Court.

45:39 Michael: Right.

45:39 Peter: This isn't about Amy Coney Barrett. If it wasn't her, it would be someone else and we would have an episode about how all of their beliefs are exactly like hers, whatever, they would be in a different cult. This is about a political party that is fairly openly engaged in a transition to outright fascism and its desire to seize power over American courts to aid that transition. The Federalist Society is an ideological organization that is designed from the bottom up to ensure that conservatives have control over the judiciary, over legal academia in this country, that they have undue, unearned influence. And she's part of that, that's why you have someone who rises from just being a professor at a second tier law school to all of a sudden, bang, Supreme Court within four years. We want you to know who this woman is, yes, but she is not unique, the rot is deep and systemic. Yes.

46:34 Rhiannon: Exactly.

46:35 Peter: Yes, Amy Coney Barrett is a demon from hell, but hell is full of demons, and they're all in the fucking Federalist Society. [laughter]

46:45 Michael: Yeah.

46:45 Rhiannon: That's right, that's right.

46:46 Michael: That's right.

[music]

46:54 Peter: Alright, next week is a listener Q&A episode. All of these events have given our listeners a bunch of questions and we will be answering them with 100% accuracy, [chuckle] a lot of questions about the elections, about court reform, just about the law generally, law school, etcetera. A lot of should I go to law school? Which I can answer right now, if you'd like me to.

[laughter]

47:18 Peter: And then we will be commencing our month-long election extravaganza, starting with the Electoral College.

47:27 Rhiannon: Yay!

47:27 Michael: Yay! [chuckle]

47:29 Peter: Follow us on Twitter at @5-4pod. [chuckle]

47:39 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

47:58 Leon: From the Westwood One Podcast Network.

What RGB Didn't Understand+

[music]

00:09 Peter: Welcome to an emergency broadcast of 5-4. [chuckle] We are in hell. [chuckle]

00:21 Rhiannon: It's bad, guys, it's bad.

00:24 Peter: Today we are discussing the death of Ruth Bader Ginsburg, and the political chaos that is currently consuming us all. This is probably the most hopeless I've felt since Trump got elected, where you were just like, "Okay, here we go."

00:48 Michael: But I feel even less...

00:51 Peter: Objectively, there is less hope because Trump also was elected. Right?

00:54 Michael: Yes, right.

00:55 Rhiannon: Right, right, right. We're already in that context of a shit storm.

01:01 Michael: How I'm feeling is I've been up for about an hour, I haven't eaten anything and I am drinking a very large glass of... This is mostly tequila [laughter] with a little bit of Kahlua, a little bit of coffee and a little bit of soy milk. That's my breakfast, don't worry, I have a second waiting in the wings. [laughter] That's where I'm at emotionally.

01:30 Rhiannon: Right. I'm on the West Coast which means it's even earlier for me right now in the morning, and yeah, everything hurts, that's all.

01:39 Peter: So we want to talk a little bit about RBG's body of work, and a little bit more about the implications of her death and her failure to retire when she could have been replaced by a Barack Obama appointee. And I think we should give just a little bit of historical color here. So, in 2009, shortly after Barack Obama was inaugurated, the liberal Supreme Court Justice David Souter retired from the Court. In 2010, several months before the midterm elections, liberal Justice John Paul Stevens stepped down from his position on the Court. In 2018, shortly before that year's midterm elections, conservative Justice Anthony Kennedy did the same thing. And each of these Justices was doing something fairly obvious, they were choosing to retire when their political party had control of both the Presidency and the Senate, ensuring that their successor would be an ideological ally of theirs.

02:46 Peter: But in 2013 or so, when Ruth Bader Ginsburg was 80 years old and the Democrats controlled both the Senate and the Presidency, she chose to remain on the bench and publicly stated that she intended to do the job until she couldn't anymore. At the time, she was a two-time cancer survivor, having been diagnosed with colon cancer in 1999 and pancreatic cancer in 2009, and on September 18, 2020 at the age of 87, that pancreatic cancer killed her. And now, her spot on the Court will almost certainly go to a far right wing psycho appointed by Donald Trump.

03:27 Peter: Ruth Bader Ginsburg did a huge amount of good in her life, she was a trailblazer in her field, she is as close to single-handedly responsible for building up gender discrimination laws to where they are, as any one person could be, her jurisprudence on the Court was very strong, certainly one of the maybe most liberal two or three Justices of all time. But her decision to stay on the Court was devastating to the perseverance of left and liberal values in American politics and policy. That decision will likely eventually erode whatever legacy she has impressed upon American law, and it is the consequence of someone who, for whatever reason, failed to understand that the power she wielded should come with some affirmative obligation to the people that she wielded it over.

04:22 Rhiannon: Yeah. When I look back, obviously when all of us are looking back on Ruth Bader Ginsburg's life, it's a life of superlatives, right? Everyone I'm sure who is listening to this, has heard or read already various obituaries and news segments that are memorializing her life and legacy over the course of the past couple of days since she died, and so we don't want to spend too much time here with the sort of end-of-life tributes when I think other people are doing that much better than we can. But I do think...

04:53 Michael: Or want to.

04:54 Rhiannon: [chuckle] Right. But I do think that, nevertheless, a conversation about the end of her life and where we're left without RBG is incomplete if we don't at least go through some highlights of the amazing contributions that she did make. So just to start off, she was one of less than 10 women in a class of 500 men at Harvard Law, the first woman to be on two major law reviews after she transferred to Columbia Law School and joined the Law Review there. She was a mother in law school, I think that she had her first child the year before she went to law school, and while she was in law school her husband, Marty Ginsburg, was also in law school at the same time and she cared for him when he was diagnosed with testicular cancer. Now, in all of that, and she still graduated at the top of her class. So these are the accomplishments of an undeniably intelligent person, and that was before she even did anything in the law, before she even started her career. And then we get to her career. As a lawyer, she argued in front of the Supreme Court multiple times, she crafted the arguments, like Peter said, that became the basis for sex discrimination laws in this country.

06:03 Peter: Right. To give some color there, she struggled to find work in New York, just by being first in her class out of Columbia, but she landed a job with the ACLU, which is where she made her mark.

06:13 Rhiannon: Yeah, exactly. And she did, she made that mark using really a shrewd legal mind on cases in which she was insisting that laws that held women back were also damaging to men. She's well known for quoting the abolitionist, Sarah Grimké, in front of the Supreme Court. She said, quote, "I ask no favor for my sex, all I ask of my brethren is that they take their feet off our necks." And at the end of her oral argument for the last case that she argued in front of the Supreme Court, so before she was a Justice, a case in which she was challenging a law that made jury duty voluntary for women but not men, then Associate Justice William Rehnquist asked her, "So, you won't settle for putting Susan B. Anthony on the dollar then?"

07:00 Rhiannon: She would, of course, later be William Rehnquist's colleague when she became the Supreme Court Justice, and she famously would say years later that she would be happy only when there were nine women on the Court. So look, all that to say like Ruth Bader Ginsburg was an icon. She inspired generations of attorneys, she paved the way for women in this profession, and look, a woman or man, you can't point to a more successful and influential and powerful lawyer, she's up there with a tiny handful of people.

07:29 Peter: Yeah.

07:30 Rhiannon: So turning to her legacy, I'm feeling confused right now about why criticizing the choices that Ginsberg made towards the end of her life takes away from any of those accomplishments. We keep hearing that we need to give props, and I guess I don't understand how criticism of a very public choice that she made takes away from those accomplishments, I'm not dismantling sex discrimination law. So what does giving credit for the accomplishments do for us without the necessary criticism? Who does it serve if we don't talk about a grave mistake that she made. And by the same token, we don't do this criticism because it's fun for us to say bad stuff about a sweet old lady, it's because maybe if we're talking about these aspects of her public service, the areas in which she failed, maybe we can fucking learn from history for once. RBG, undeniably a big part of the reason women have sex discrimination laws they can rely on in this country, a big part of the reason why we have any abortion right to speak of anymore, she's a monumental figure, and she died in the most precarious and alarming political context possible, and that was by her own design.

08:44 Michael: Yes.

08:44 Rhiannon: And so if you want people to say that you are perfect when you die, you should let that go, 'cause no one's perfect. If you would like people to say that you served the public righteously and justly till the very end, then do that and that will be your legacy. Ruth didn't do that. So her legacy is tainted. And so I just think we need to unpack what bothers us so much about saying that. She held an immense responsibility because she lived a life where her job was public service, and in the end, she made a decision that didn't serve us well.

09:17 Peter: Right.

09:17 Rhiannon: She was a titan, she was a hero to many, and among her many incredible accomplishments, there was a big mistake. And I just want to emphasize that that failure doesn't mean that we despair forever. When we criticize someone, it doesn't mean like my point or my politics is about nihilism and nothing will ever be good, what's the fucking point? It's a criticism of choices, it's a recognition that where we are is the result of political and personal choices, particularly by those in power, and when we criticize, it's because there's a better way. People could have done different things and things would be better now, so actually, I think that's like a recognition about possibility and potential.

09:54 Michael: Absolutely. There's a very predictable response to what Rhiannon just said, and it's predictable because we've seen the response a number of times, and it's something like, "How could you have known?" or conversely, "What about fucking Merrick Garland? He's not on the Court. What about Mitch McConnell?" And so I just want to lay out a few things that are just facts. Yes, two Justices, liberal Justices retired in 2009, 2010 when the Democrats had 60 or 59 Senators after Scott Brown's election and the Presidency. They lost seats in 2010 in the Senate. Barack Obama won re-election in 2012, but they lost more seats in the Senate in 2012. They lost control of the House in 2010, and did not have control of the House after 2012. It was very obvious in 2013 that their hold in the Senate was precarious. They had lost seats in two straight elections, they had just lost control of another House of Congress in the last few years. Everybody knew Republicans could gain control of the Senate in any of the coming elections. And that Barack Obama was in his last term because he's term limited. As a result, there was very public pressure on her to retire.

11:17 Rhiannon: Yeah.

11:18 Michael: There were articles written about it, people asked her about it. She publicly commented on it. This was predictable at a point in time when she could have retired and a Democrat could have replaced her. That's just a fact. It is a historical fact.

11:34 Rhiannon: Yeah, and it's predictable... What I think is really important, it's predictable in sort of both aspects, the system and the political majority was about to be lost.

11:44 Michael: That's right.

11:44 Rhiannon: And everybody could tell that that was happening. And then also personally, she was 80 years old in 2013. Like Peter said, she had had cancer twice. What is...

11:54 Peter: Colon and pancreatic cancer. Those are like two of the worst.

11:58 Rhiannon: Yeah, it's awful, right?

12:00 Peter: I don't even know how she's like... She survived like 11 years of the pancreatic cancer at that age, which man, it must be nice to be rich.

12:05 Rhiannon: Yeah. [laughter] Great healthcare.

12:06 Peter: If I get pancreatic cancer, I'm gone in like six months.

[laughter]

12:09 Peter: The doctor's like, "Just... Yeah, just walk into a beautiful field and enjoy the rest of your days."

[laughter]

12:16 Rhiannon: Right. Right.

12:17 Michael: So when I say this was predictable, I mean, the current moment where she's being replaced by a Republican President with some right-wing goon. Obviously, Barack Obama wouldn't be President forever, obviously Democrats wouldn't hold the House forever. But even beyond that, our institutions are on the brink right now, like this... Sorry. [laughter] It's hard not to sound melodramatic when you talk about this stuff, but this might be the last free election in the country.

12:53 Rhiannon: Right.

12:53 Peter: Yeah.

12:54 Michael: I don't think that's an exaggeration. I think we are very clearly down like a path that a country like Turkey is on, and we're like a decade behind them and they are... It's a fucking joke. And that was predictable. And like, look, I think if you are upper-middle class or middle class or working class or whatever, and you work 50 hours a week and you're just trying to pay your rent and make your mortgage, I don't think it's incumbent on you to read Marx or Rawls or Dworkin or whatever, and keep up with every in and out of the ongoings of the legislature and the state Republican parties and all that shit. But do you know who that is fucking incumbent on? The most powerful people in the country who happen to be political activists like the Supreme Court Justices.

13:44 Michael: And do you know who is very well-positioned to see the direction of the country, are the Justices who were in dissent on Citizens United, talking about how this opened up our elections to purchase by corporations. It's Justices who were in dissent on Crawford v. Marion County, talking about how the Republican Party was disenfranchising voters on the basis of made-up laws that don't exist and voter ID laws. It's the Justice who was in dissent... Who wrote a powerful dissent in Shelby County v. Holder in 2013, of all years, about how the Republican Supreme Court Justices were gutting the Voting Rights Act and setting back our democracy decades.

14:26 Michael: There is nobody better positioned in this country to understand the risk that our democratic institutions faced at the time. The direction Republicans were going, gerrymandering was already ongoing, those cases were already in the courts, people were already talking about it eventually coming up to the Supreme Court. This was on their fucking radar and they were talking about it publicly in their decisions. And she still, understanding that, was like, "I'm gonna risk it. This is what's on the line, but I am so fucking important."

15:00 Peter: Yeah, and that is what she thought. This was being sort of debated on Twitter and such over the weekend, the extent to which this is just an ego thing. And she made comments that basically implied that she didn't feel like she was readily replaceable. There wasn't the talent to replace her, that is ego. And bullshit, absolute bullshit. There is no one in this country...

15:21 Michael: That is insanely insulting to Kagan and Sotomayor, I'm sorry. Deeply insulting. She's looking at the two people that the current President had just... At that time, the current President had nominated in the last few years and being like, "They don't measure up to me."

[laughter]

15:35 Peter: And just objectively, you could program a robot to get the right decisions in these fucking cases 98% of the time.

15:43 Rhiannon: Right, exactly.

15:43 Michael: I was gonna say they agree with her over 90% of the time.

15:46 Rhiannon: Right, right, right, exactly.

15:48 Peter: And the same thing is true of dozens of lower court federal judges.

15:51 Rhiannon: Exactly, exactly.

15:53 Peter: One thing I want to mention is there's this common refrain that, "This isn't really RBG's fault, this is a systemic issue." We shouldn't have a system that is reliant on whether or not a cancer-ridden, 87-year-old lives or dies. And that's true to a degree, but it is also the responsibility of people in her position to mitigate that problem by retiring when they are younger and when it is politically reasonable to do so. That's why so many Justices do it, that's why most Supreme Court Justices in the past 20 years have stepped down rather than died on the Court. I would never argue that this isn't a systemic problem, of course it is, of course it's bigger than RBG, but everything she needed to know to mitigate that problem, she knew in 2013 and 2014, and she didn't take advantage of it, she didn't do anything with it. She let her ego and her desire to remain on the Court for whatever reason carry the day. And now, Trump is poised to replace her with someone who will erase her legacy on the Supreme Court, erase.

17:02 Rhiannon: Yeah, exactly.

17:03 Peter: Every fucking thing that we managed to scrape out of the Supreme Court in the past 30 years, and there isn't much, because it's been a conservative-dominated institution, but everything we have managed to scrape out of the Court is at risk.

17:17 Rhiannon: Exactly.

17:18 Peter: Whatever tattered remains of abortion rights are there, God knows what they're gonna do on abortion, but it's not gonna be good, it's gonna be a fucking nightmare. Voting rights, already extremely tenuous, now basically doomed, it's endless. Another big thing is the Executive Branch discretion, the extent to which the Court is just deferring to the Executive Branch on what it wants to do, whether it be militarily, anti-terrorism efforts, anti-immigration efforts...

17:48 Rhiannon: Environmental efforts.

17:50 Peter: Right, environmental issues, you're going to see a functionally unchecked Executive Branch.

17:56 Michael: And if you think it's bad in Trump's first term, just imagine it in his third and fourth term.

18:01 Peter: Yeah, and the corollary is you will see a much more restrained congressional branch because conservatives don't believe that Congress should have that much power. They believe that the Executive Branch has also its discretion and that Congress doesn't.

18:12 Michael: I saw somebody say that the Supreme Court was basically becoming the legislative branch and Congress was becoming a reality TV show. And that's maybe an exaggeration...

18:21 Rhiannon: That's good.

18:22 Michael: But the dynamic is pretty spot on.

18:24 Peter: That sounds right, yeah.

18:26 Michael: Republicans are outsourcing all their unpopular policy goals to the Supreme Court.

18:33 Rhiannon: Yeah, yeah, and I want to make a point, I'm glad, Peter, that you brought up the systemic issues. We do not approach the death of RBG from a criticize this-person-only perspective. We criticize this system on the podcast every single episode. And it's a problem and we are constantly criticizing the problem of our system that results in two Presidents who lost the popular vote having appointed five out of nine Supreme Court Justices. That's a problem that our system can spit out that result for us.

19:09 Michael: Really quick, confirmed by Senators who collectively won fewer votes than they'll vote Senators.

19:15 Rhiannon: Yes. Extremely important, right, right. And so we're calling that out all the time, and so I don't want to seem like this is "only Ruth fucked up and it would be perfect otherwise." But that's not our point at all. And I feel really compelled to respond to those who are saying that criticism of RBG purely comes out of sexism, that it's because she's a woman and that male justices wouldn't be getting the same criticism at the end of their lives or whatever. I just want to say personally, I actually have learned a lot about a public accounting of a Supreme Court Justice's life and career from John Paul Stevens, from Thurgood Marshall, from Justice Blackmun, from Justices who were on the Court for a long time, and then at the end of their careers looked back and publicly talked about mistakes that they made, challenges that they faced.

20:10 Rhiannon: To me, it's more dehumanizing and it's more sexist to say, "She was a lady Supreme Court Justice, she was a bad bitch, she was HBIC, and so let her rest in peace." Rather than say, "No, the titans of our legal world, the powerful people who took part in shaping these decisions and making these calls for all of us, we hold their feet to the fire even at the end of their careers," and they do it too, because they recognize that their careers were part of this process and part of a political reality for all of us.

20:48 Michael: Yeah, and that she had a lot to offer post-retirement.

20:51 Rhiannon: Yes, yes.

20:52 Michael: And that we are robbed of, right?

20:54 Rhiannon: Yup.

20:54 Michael: That we do not get now. I mean, maybe she has papers, Felix Frankfurter has all these papers that we can read and we can... And he took copious notes and you can read about the decision-making process from judicial conferences and stuff, and that's awesome, but... And for the most part, it relies on Justices in their retirement phase talking and writing and ref