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The pod discusses a decision that let employers pressure workers into signing away their rights to class action suits.

Epic Systems v. Lewis

The pod talks about campaign finance in Buckley v. Valeo. The decision established that, when it comes to elections, money is speech based on the First Amendment

Buckley v. Valeo

The pod is joined by a special guest Sam Bagenstos, professor at the University of Michigan Law School, to discuss a case that made it harder for unions to collect fees.

Janus v. AFSCME

The pod examines the doctrine of qualified immunity, which protects police and other officials from being sued for civil rights and other abuses.

Qualified Immunity

The pod discusses a decision that limited damages in the case of the Exxon Valdez oil spill, one of the worst environment disasters in US history. The ruling also capped damages that can be sought in all maritime law cases.

Exxon Shipping v. Baker

The pod talks about the Court’s surprise decision affirming that the Civil Rights Act prevents employers from discriminating against people on the basis of their gender identity or sexual orientation. The hosts pay special attention to Justice Alito’s special dissent.

Bostock v. Clayton County, Georgia


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.


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.


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."


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.


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.


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."


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...)


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.


0:30:07.1 Peter: You think he's innocent? No, you don't.


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...


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.


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.


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.


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.


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.


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+


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.


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.


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."


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.


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.


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...


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."


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.


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."


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?"


0:34:39.9 Rhiannon: "Who died and made you king?" and it was like, "Ah, literally Jesus."


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."


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?"


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.


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.


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.


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?


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.


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.


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.


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.


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".


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.


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.


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.


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]


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.


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.


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.


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.


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.


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+


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.


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.


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.


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?


05:02 Michael: I'm gonna call into the FBI with a hot tip about a plot against the president.


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?"


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.


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."


09:00 Peter: And it all hits you a once. I don't want that.


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."


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%.


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."


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.


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.


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.


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.


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.


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.


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.


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."


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?


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?


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


02:12 Rhiannon: Yeah.


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.


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...


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."


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?


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.


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.


05:26 Michael: She's fearless man.


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.


09:36 Michael: I think that's right.


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.


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.


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.


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.


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.


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.


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.


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.


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."


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.


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."


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."


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?


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.


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.


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.


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.


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.


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!


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."


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."


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?


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.


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.


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.


0:01:43 Peter: Alright, Leon, you can just do the intro, dude.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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?


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...


0:46:00 Michael: Right.

0:46:01 Peter: That woman makes $1.5 million a year.


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?"


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.


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.


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.


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?


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.


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.


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?


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?


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.


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.


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.


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."


05:16 Rhiannon: Awesome.

05:16 Michael: Thanks. Good email.

05:19 Peter: That's how I end all my emails as well.


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.


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.


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?


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?


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."


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.


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."


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.


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.


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.


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.


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+


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.


12:09 Peter: The doctor's like, "Just... Yeah, just walk into a beautiful field and enjoy the rest of your days."


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."


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 reflecting and we're robbed that. And the other thing I want to say to Rhiannon's point is also, fuck you, Stephen Breyer, fuck you too. And Ruth Bader Ginsburg died, obviously. And it's awful in general, it's awful on her level, on a personal level, because she was a wonderful icon and an important trailblazer, and everything we've said, and it's awful on a national and global level because of its implications, for literally the state of the world, and Stephen Breyer isn't dead, he's alive and kicking it on the Court, good for him. But he also should have retired in 2013 and 2014, he wasn't quite as old...

22:00 Peter: Yeah, he's about five years younger.

22:01 Rhiannon: Than Ruth.

22:01 Michael: And he didn't really have cancer twice, you can kind of see the calculation on his part, in him saying, "Well, I'm not as similarly situated." But you know what? Fuck you too, you're 75, it's time to like... At the time, right?

22:15 Rhiannon: Right, right. Back then.

22:16 Peter: If you're over 70 and there's a situation where you're basically nearing in on a potential six years of not having the Presidency or Senate, which is I think what you're looking at in 2013-2014, yeah, the correct thing to do is to retire.

22:31 Michael: You just gotta fucking go.

22:31 Rhiannon: Yeah, yeah.

22:31 Michael: You gotta go gracefully, that's it.

22:32 Peter: And I've heard people point out that it's sort of sexist that people talk about RBG's decision much more than Breyer's, I think there's probably something to that, but I also think like, A, yes, he was five years younger and didn't have cancer, but also there's no cult of personality around Breyer, he doesn't have a fan club. He's incredibly mediocre.

22:50 Rhiannon: Right, right. He doesn't have a rap nickname.

22:52 Peter: Right. And if you're us, you take the harsher position on RBG in large part because there doesn't seem to be an adequate public accounting of her failure, I don't think that's as likely to exist for Breyer, I guess we'll see when he dies. But part of the reason we sort of reflexively say, "Wait, she fucked up," and have to make an episode about how badly she fucked up, is because it's just not being discussed enough, at least in the legal academia, legal journalist circles that control the narrative on stuff like this.

23:21 Rhiannon: Exactly.

23:22 Michael: Yeah, a prominent law professor, Josh Chafetz, has been tweeting about it and getting a lot of heat for it. And fucking keep speaking truth to power, man. It's awesome. The other thing I want to say is Breyer owns responsibility for his decision not to retire, which was fucking stupid and selfish.

23:42 Rhiannon: He's publicly said he should have or?

23:44 Michael: No, I'm just saying in my perspective, Breyer owns responsibility for that.

23:48 Rhiannon: Oh, okay. Right.

23:49 Michael: Ginsburg owns responsibility for her stupid and selfish decision not to retire, but I think Breyer owns a little responsibility for Ginsburg's as well, I think there's a dynamic there where it's understandable if you're Ruth Bader Ginsburg to be like, "Look, Stephen Breyer's fucking 75, and people aren't calling for him to step down." And there were, there were a few.

24:11 Rhiannon: There were, yeah.

24:11 Michael: But it wasn't nearly as loud, it wasn't nearly as prominent.

24:14 Rhiannon: Sure.

24:14 Michael: And I can be like, "Well, fuck you, if he's staying, I'm staying." Like that, I get that. I don't think it's right, I think it's very self-involved, but I get it. And maybe her position would be a lot more tenuous in 2013 and 2014 if Breyer had done what was obviously necessary and correct and stepped down. So fuck you too, dude, I blame you as well. Jesus Christ! Fuck these people.

24:41 Peter: So I guess we should talk about what happens next. There are more knowledgeable people than us when it comes to the sort of prognosticating about Senate procedures and shit like that, but I think in broad terms, the next steps are fairly clear. Mitch McConnell has two options, one is to ram through a nominee before the election, and there's some risk that comes with that, right? There are bunch of close Senate races, and people might not like him ramming it through, and it might harm the Republicans in those races. I will say that I'm a little bit skeptical that they would care about that, mostly because they suffered zero electoral consequences from the Neil Gorsuch-Merrick Garland debacle, might be a little different this close to the election.

25:25 Peter: The other option is for them to wait out the election and risk having to ram through an appointment in a lame duck session if Biden wins. That sort of takes away the election risk, but then you definitely look a little bit slimier on the back end. Again, I don't know that they care about that either, so either way, all of the downsides are things that would matter much more to someone with shame, and they don't have that. So yeah.

25:49 Rhiannon: Exactly, exactly.

25:50 Michael: Right. I think the biggest disincentive for them right now is a credible threat to completely restructure the Supreme Court should Democrats gain power, right?

26:02 Rhiannon: Yeah, so in that lame duck session potentially, if Biden won the election, Biden could be threatening credibly, say, to pack the Court or do other things that would pressure the Senate.

26:15 Michael: Yeah.

26:16 Peter: When we say pack the Court, we mean expand its size via legislation, which is what it requires, it doesn't require a Constitutional amendment, just add four seats to the Supreme Court and Biden nominates, and the Democratic controlled Senate confirms all those four and all of a sudden there are 7 out of 13 Justices rather than 3 out of 9, who are appointed by Democrats and we have a majority. So that's the credible threat. Look, if you fucking do this, we're just gonna nuke the thing and rebuild it in a way that's not so profoundly unfair.

26:47 Michael: Yeah, which is why Republicans have to be really careful not to let everyone vote in this election.

26:52 Peter: That's right, that's right.

26:53 Rhiannon: That's right, that's right.

26:55 Michael: That's right, yeah.

26:56 Peter: We live in hell. Okay. So the question of who replaces Ginsburg is, it's tough to answer, but there does appear to be a clear frontrunner, and that is Amy Coney Barrett.

27:09 Rhiannon: Boo! Huge fucking boo!

27:11 Peter: She is a Court of Appeals judge on the Seventh Circuit, appointed to that position by Trump. She is 48-years-old, former...

27:17 Rhiannon: Ay-ay-ay.

27:18 Peter: Scalia clerk, a full-fledged fucking psycho. She's got those Michele Bachmann eyes. You guys, you know about that?


27:25 Rhiannon: Oh, yeah.

27:26 Peter: Her eyes at rest are like mine if someone jumped out of my closet at 3:00 AM.


27:36 Rhiannon: There's a dead person inside of Amy Coney Barrett and it's scaring her very much.

27:41 Peter: That's right. Yeah, there's gonna be a Karen on the Court. I think that's the best way to put it.

27:45 Rhiannon: Yes, that's right.


27:46 Michael: Yes. Yeah, that's right.

27:48 Rhiannon: A superlative first Karen on the Court.

27:50 Michael: Isn't she like a trad Karen, she's like a hardcore Catholic Karen.

27:54 Peter: So first of all, a huge darling of the Federalist Society. The reason that she's considered the frontrunner in large part, like yes, there's her age. There's the fact that she's a woman. But also a couple years ago, people wanted her appointed to the Court, and Trump reportedly said that he was saving her for the Ginsburg seat.

28:12 Michael: Which again, if you didn't think this was predictable, fucking eat shit. Obviously, even dumbass barely sentient Donald Trump...

28:19 Rhiannon: Yeah, he gets it.

28:20 Michael: Was like, "Yeah. She's probably not gonna make it through my term. I am definitely gonna get to replace her."

28:26 Rhiannon: "I got a girl lined up to replace the dumb old girl that's there right now."

28:32 Peter: So yeah, in 2017, the New York Times reported that Coney Barrett belongs to a Catholic-adjacent group that calls itself People of Praise, which has its members swear a lifetime loyalty oath to the group. It assigns each member a same-sex advisor, which until recently were for the women in the group called hand maidens. So...


28:54 Michael: Oh, fuck!

28:54 Peter: Get ready. Get fucking ready.

28:58 Rhiannon: I have no comment, really.

29:00 Peter: But she's gonna be the first person to ask for the Senate Judiciary Committee's manager during the appointment process, during the nomination process.

29:08 Michael: If there is a nomination process. There's actually already been calls in some little disturbed corners of right-wing Twitter, which is basically the mainstream of conservative policy...

29:17 Rhiannon: Yeah, that's right. Yeah, that's right.

29:19 Peter: Yeah, are you referring to the White House Press account?


29:21 Michael: That, like the Kavanaugh nomination process was so contentious that they should just skip all that and go straight to a vote. Trump should nominate someone, and they should just vote on it.

29:35 Peter: Okay, can we talk about what is easily the funniest right-wing reaction two years out from Kavanaugh? Which is like, "Look, they're just gonna accuse everyone of rape, so let's preliminarily just say we're not going to play that game." They believe that the Kavanaugh thing was just left-field like, "No, they're just making up rape accusations, and they're gonna do it again like this." It's like the most...

29:57 Michael: It's like a new playbook that we didn't even think of.

30:00 Rhiannon: Exactly, exactly.

30:00 Michael: Before Gorsuch. Right. Or we would have definitely accused Gorsuch of rape, and there's no way that the accusations against Kavanaugh, like fucking villain in every '80s movie about college. Like the biggest college douche in every movie you've ever seen.

30:21 Rhiannon: Exactly.

30:21 Michael: That the accusations that he raped someone would be like unfounded.

30:24 Rhiannon: No, that's left-wing radical strategy.

30:26 Peter: They also believe that it was like proven false, like that.

30:30 Rhiannon: God!

30:30 Peter: I don't understand where exactly that comes from, but that's definitely their position.

30:34 Rhiannon: Yeah, so those are the issues with a Kavanaugh-type nominee. The issues with a Coney Barrett-type nominee is that she would be calling 911 during confirmation hearings to report difficult questions.


30:49 Michael: Calling on...

30:49 Rhiannon: These people are attacking me.

30:51 Michael: Kamala Harris.


30:51 Peter: Calling on Kamala Harris for asking aggressive questions on the Judiciary.

30:55 Peter: There's a black woman talking very aggressively to me.

31:00 Michael: I feel very threatened!

31:00 Rhiannon: That's right.

31:01 Peter: Oh, my God!

31:02 Michael: The smart money's on Coney Barrett. Everybody says it. There's this report of Trump. But like I said this on Twitter and I want to say it here, that I don't think we should rule out Justin Walker. I think there are very good reasons that he's a dark horse.

31:17 Rhiannon: Tell us about him, Michael.

31:18 Michael: He's even younger than Coney Barrett. He's like in his 30s still, right? Or is he 40?

31:23 Peter: No, he's 14-years-old.


31:27 Michael: But this guy, he's made the news many times. Once because the American Bar Association was like, "This guy is just not qualified...

31:35 Peter: To be a federal judge?

31:36 Michael: At all to be a district judge, 'cause he's never heard a case," and it's like a joke. Within a year, he was, or maybe within 18 months or whatever, he's now up for the Circuit Court of Appeals. I think he actually just got confirmed for that in the last few months, so he moved up very quickly. We've talked about him on the podcast before for writing an absolutely insane opinion striking down some basic pandemic regulations that limited the ability for churches to have meetings on Sunday. That sounded like he was saying essentially that like, "God thinks churches should meet. [chuckle] And who the fuck is this Governor for thinking otherwise?"

32:22 Rhiannon: Exactly. If you don't know this guy, it's okay. Everybody actually knows him. Think back to seventh grade when there were rumors that one of the very disturbed children in your class spent the weekend trying to light his cat on fire. That's Justin, Justin Walker, yeah.


32:40 Michael: Yeah. The reason why I think we can't rule him out, is because we seem to live in a world where the worst possible scenario happens reliably, and I think he is the worst possible scenario. But also, there are a lot of other reasons, like for one, he was a Mitch McConnell aide, and Mitch McConnell loves him, and he's clearly been on McConnell's fast track. If Ginsburg didn't die and Trump won a second term, he was the next, like after a few years on the circuit court. McConnell loves him. Liberals hate him, which is a fucking...

33:12 Peter: That's their mandate, yeah.

33:14 Michael: End in itself for the conservatives. Yeah, right? It would drive people nuts.

33:16 Rhiannon: Absolutely. That's a win for them.

33:18 Michael: There are very good sort of... Like resentment, retributive, on that angle, it just makes so...

33:26 Rhiannon: Vindictive, yeah.

33:27 Michael: Vindictive, that's the word, yes.

33:29 Michael: Okay, I actually think you're wrong about this, about what the most vindictive thing is, and here's why. I don't know that it'll be Coney Barrett, but I think that it will be a woman because Republicans love to play that sort of identity politics gotcha, right?

33:43 Rhiannon: Yeah, yeah, yeah, yeah.

33:43 Peter: And so they did this with Thurgood Marshall's seat...

33:45 Michael: That's true, that's true.

33:46 Peter: First black Supreme Court Justice, famously liberal, famously centralized racial relations in his analysis and his experience of discrimination, and the GOP replaced him with Clarence Thomas, which I am positive they thought was hilarious, like...

34:02 Rhiannon: Yes, yes.

34:03 Peter: 'Cause they view identity politics purely like checking a box...

34:06 Rhiannon: Exactly.

34:07 Peter: And having no other value. And so they're like, "Look what we're doing, and we can do it too." And...

34:11 Michael: That's true. That's a fair point.

34:12 Peter: They're gonna appoint a woman who believes that uteruses are the exclusive jurisdiction of state governments, and they're gonna flaunt the fact that she's a female in front of you with the sole purpose of mocking any sincere desire that you have for inclusion and representation.

34:29 Rhiannon: Yeah.

34:29 Michael: Do we have a fair accounting of Coney Barrett's like voting rights jurisprudence? Because they were gonna have a woman speak at the RNC who literally wanted to eliminate one person, one vote, and felt like household voting was the way to go, which is essentially a way for letting husbands vote for their wives as well, right, well...

34:52 Rhiannon: Yikes, I hadn't heard that, Jesus.

34:54 Michael: Yeah, she's literally on record being like, "A household should only have one vote." So like, I don't know, Coney Barrett, who knows, but it's not out of the question for the modern Republican Party to weaken the ability of women to vote.

35:08 Peter: Yeah, we'll see what her handmaiden advisor tells her to do.

35:16 Rhiannon: Oh, God. Yeah.

35:22 Michael: Right.

35:22 Peter: Oh, God. Things are going down hill really fast.

35:22 Michael: I feel like this is a good point for me to say something that has been on my mind for the last 24 hours...

35:26 Rhiannon: Tell them.

35:27 Michael: Which is like, we talk about this in a 6-3 Court rather than a 5-4 is very scary. Neil Gorsuch being the median vote is very scary, for all the obvious reasons, but this just feels bigger to me than that, it feels bigger even than just like voting rights. This feels like fucking like a flashpoint in history, like the assassination of Franz Ferdinand, you know what I mean?

35:51 Rhiannon: Yeah.

35:52 Michael: It feels like there're gonna be massive repercussions for this one way or another. Either it's like literally Republicans have such a stranglehold on the Court that maybe they steal this presidential election, give up entirely on democracy, and our country slides very quickly into some sort of authoritarian regime, which obviously as the most powerful military and most powerful country in the world in the history of man, has massive implications, or there's a very remote, but still plausible possibility, that there's enough of a Democratic wave, right? That they can't fucking steal it. And Joe Biden is President, and they take over the Senate, and they grow some fucking balls, and make DC and Puerto Rico a state, and expand the Court, and whatever, blah, blah, blah, and we come back from the brink, right?

36:50 Michael: We're not quite yet at the point where this is irreversible, but it's like an increasingly distant possibility. Coming back from this is increasingly difficult, like the necessary conditions for undoing this are like a massive recession like in 2008, which delivered a massive electoral victory and 60 Senate votes, or possibly a pandemic with hundreds of thousands of dead, millions dead across the globe, which could possibly deliver Joe Biden and the Senate to the Democrats, but that's the scope here of Ruth Bader Ginsburg's decision not to retire.

37:35 Rhiannon: That's the scale, right.

37:36 Michael: At the end of the day, to undo this, we're talking about global level disasters. That's the balance, that's fucking it.

37:47 Rhiannon: Yeah.

37:47 Peter: Remember in the late '90s when we were all worried about asteroids, were you guys worried about an asteroid hitting the Earth in the late '90s?

37:54 Rhiannon: I was.

37:54 Michael: Yeah, there were two movies in the same year.

37:57 Peter: Yeah.

37:57 Rhiannon: Yeah, yeah, I definitely was.

37:57 Michael: Right? There was fucking Deep Impact and Armageddon.

38:00 Rhiannon: Volcanoes, asteroid, Dante's Peak, bugged me up.

38:02 Michael: There were two movies in the same year, yes.

38:04 Peter: Yeah, I feel like in retrospect, that's a good way to go, if scientists were like, "This one's coming for us, we've got four days." I'd be like, "Oh, that was close." We almost had to play out history.


38:19 Michael: You know, in Independence Day the people who were dancing and celebrating under the alien spaceship before it annihilates everyone, like if we knew they were gonna annihilate everyone...

38:28 Peter: That's what it would be like now, yeah.

38:28 Michael: I'd be out there under the spaceship.

38:30 Rhiannon: Oh, yeah.

38:31 Peter: "Thank you." Just like a...

38:33 Michael: Yay, let's fucking go, let's go. Here comes the end of human civilization, you fucking did it, guys.

38:40 Peter: Alright, we should turn back to Ruth. This podcast is generally speaking about the extent to which the Court is influenced by political ideology and the extent to which the practice of law serves to hide that reality.

38:55 Rhiannon: Yes.

38:55 Peter: Ruth Bader Ginsburg failed to reckon with the fact that the Court is an ideological institution and that the practice and interpretation of law is ideological, and if she understood that, truly, she would have understood the threat posed by someone like Donald Trump being able to name her successor. And if she admitted to herself that this is about ideology, then she would have to admit to herself what these stakes are, and that comes with the understanding that a massive burden rests on her shoulders.

39:23 Rhiannon: Yes.

39:23 Peter: She never acted like that was true, she made a bunch of public statements where her failure to grasp the stakes was very palpable. In a 2014 Reuters interview, she said that the issue of when she retired was "a question for her own good judgment." That statement just reflects like a complete abdication of the responsibility she had, right?

39:42 Rhiannon: Exactly.

39:42 Peter: The Supreme Court impacts millions of people, she doesn't get to hide from that. She doesn't get to frame it as if it's a personal matter. In the same interview, she was asked about the calls for her to step down and be replaced by Obama, her response was to ask rhetorically who could have been nominated that people would rather see on the Court than her. And putting aside how insanely narcissistic you'd have to be to think that you are literally unmatched across the legal field, the answer would be like any intelligent left liberal legal professional who's not in their 80s would be better.

40:15 Rhiannon: Exactly.

40:15 Peter: Not a hard rhetorical question, you know.

40:17 Rhiannon: Right, right.

40:17 Michael: There's a concept in sports that I feel like is worth mentioning here, which is called value over replacement.

40:22 Rhiannon: Yeah, yeah.

40:24 Michael: Which is, it's not just like your raw production. If we could replace you with the average player...

40:30 Peter: How much do we lose?

40:31 Rhiannon: Exactly.

40:32 Michael: And what's the difference? Right. And so what's Ruth Bader Ginsburg's value over a replacement player for the last seven years? And it's zero. It's zero. Like anyone who could replace her that Obama would have nominated and a Democratic Senate would have confirmed, would have voted roughly exactly the same.

40:51 Peter: Yeah.

40:51 Rhiannon: Exactly.

40:52 Michael: There's maybe, maybe five decisions that would have gone differently, and they probably would have gone differently in a way that would make liberals happy and her joining the conservatives. My point is, she risked a lot to gain nothing.

41:08 Rhiannon: Yes.

41:08 Michael: We've talked a lot about the risk and about the downside risk of like if she dies, well, you know, there's a Republican in power, like the risks of that. But what's the gain? What did we say the gain... The answer is nothing.

41:19 Rhiannon: Right, right. Exactly.

41:21 Michael: That's the answer. I'm sorry, but we have gained...

41:23 Peter: Absolutely.

41:24 Michael: Nothing over a generic liberal judge being in her place for the last seven years.

41:29 Rhiannon: Exactly, and I...

41:30 Michael: So I'm a little heated.

41:32 Rhiannon: I love it, Michael. You talk your shit, king. I think we get here because of a philosophy of sort of foundational politics of indispensability and of individualism. Ruth Bader Ginsburg believed she was the only one who could do that job. And she forgot that it was movements and organizations and colleagues and mentors and strategy that got her to where she was, including the wins that we give her as part of her legal career, right? It wasn't just Ruth Bader Ginsburg. And that's all in addition to her undeniable intelligence and drive and unique abilities as a lawyer. And I think that disconnect sort of becomes the foundation for a politics that puts you in the center rather than the people you got into the career to serve and it's a politics...

42:22 Michael: That's right.

42:22 Rhiannon: That use your own accomplishments as the end goal of history, as the end goal of fights for justice of legal reform of democracy.

42:30 Michael: Fuck, yeah.

42:31 Rhiannon: And in the end, that kind of framework means that her failing body was at the center of a really scary political moment, because now the autonomy and the politics of millions of bodies hang in the balance.

42:44 Peter: Yeah, absolutely. So let's wrap up, 'cause I've got... For the next seven hours, I've got it calendared it off to be screaming into a pillow.

42:51 Rhiannon: That's right. Yeah, yeah, we need to get to that.

42:54 Peter: And the response of legal journalists and academics to her death has been sort of predictably targeting the positives of her legacy and largely ignoring or even being outright dismissive of the impact of her choice to stay on the bench on that legacy. Many people have gone a step further and been openly hostile towards the idea that we could or should create criticize Ginsburg right now. So I think one thing that we probably have made clear, but let's just hammer home, there is no cogent and coherent defense of her decision to remain on the bench through 2014. None.

43:27 Rhiannon: Period.

43:27 Peter: You will not hear one.

43:28 Rhiannon: Period.

43:29 Peter: This was a seat that could have been filled with a liberal Justice for the next 20 to 30 years, and instead it will belong to a radical conservative for that time because of Ginsburg's decision.

43:37 Rhiannon: Yeah, exactly.

43:37 Peter: There's nothing more to it. So to everyone who asks that we show her more respect or deference or just give her her due credit and move on, like I want to ask those people, "What is it you think we should ask of the powerful? What obligations do you believe the most powerful people in the world should have to the rest of us?" You can applaud people who wield power responsibly if you'd like, but people who wield it irresponsibly need to be criticized, right? Power isn't a reward for doing or being good. It's a responsibility.

44:07 Rhiannon: Exactly.

44:07 Peter: It should be a burden. It should be uncomfortable to have. Ginsburg put herself in a position where the question of whether she lived or died weighed heavily on the lives of people in this country. I said this the last time we talked about Ginsburg, more or less. But the most influential people in the world don't get to use their deaths to insulate themselves from scrutiny. It was reported that she said on her deathbed that her "most fervent wish is that her replacement is not appointed until after the inauguration." I'll give her the benefit of the doubt and say that I don't think she's dumb enough to believe that anyone in the modern Republican Party, let alone Donald Trump or Mitch McConnell, would ever honor that wish. But it is a bit unfortunate, to say the least, that the first time RBG showed a glimmer of awareness of the significance and precariousness and political import of her position was right before her death. I mean, we maybe could have used that sort of foresight when it might have meant something, Ruth.

45:00 Michael: Right.

45:00 Rhiannon: That's it.


45:10 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.


45:42 Leon: From the Westwood One Podcast Network.

LA v. Lyons+

00:00 [Archival]: Thank you gentlemen. The case is submitted. We'll hear arguments next in The city of Los Angeles against Lyons.


00:07 Leon: Hey everyone. This is Leon Neyfakh from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon, and Michael are talking about LA v. Lyons, a 1983 case about the use of chokeholds by police and whether a person who had been subjected to one can sue to have the tactic barred altogether. The court rejected the case on the basis of standing, one reason chokeholds continue to be used today.

00:33 [Archival]: And what you're watching here is officer Daniel Pantaleo putting Garner in a chokehold, and with other offices on him, wrestling him to the ground. Garner died later that day as the medical examiner ruled his death, a homicide.

00:47 Leon: This is 5-4. A podcast about how much the Supreme Court sucks.

01:00 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have cut off America's circulation like Raynaud's disease. [laughter] I am Peter. I'm here with Michael.

01:13 Michael: Hey, everybody.

01:15 Peter: And Rhiannon.

01:19 Rhiannon: Hi everyone.

01:20 Peter: Today's case is City of Los Angeles v. Lyons. This is another case about cops, in addition to our...

01:26 Rhiannon: Blurg.

01:27 Peter: Long catalog of cop episodes, and specifically it is about their use of chokeholds. It's also about the court evading its responsibility to curtail police violence by denying injunctive or forward-looking relief in cases where the police are using tactics that will unjustly hurt people, most likely, poor people and people of color in the future. And it's about a standard that the court invents in this case that makes it incredibly difficult to get forward-looking remedies in general. In other words, the standard makes it extremely difficult to get courts to tell someone, in this case, the police to stop doing something that will almost certainly harm someone in the future.

02:08 Rhiannon: Right.

02:09 Peter: Chokeholds, of course, one of the many, mostly non-lethal methods, cops have at their disposal to subdue criminal suspects and/or their own wives. [laughter] And in this case, a guy gets put into a brutal and excessive chokehold by the LAPD after which he sues, and in his lawsuit, he requests that the practice of chokehold to be halted moving forward. But the court in a five to four decision says "No, we can't stop them from using chokeholds in the future. Because even though they already put you into a chokehold once you can't prove that they'll do it again." The year is 1982. So William Rehnquist is on the court, but he's not yet the Chief Justice. The chief is still our buddy Warren Burger. And you know this case, I think is a case study in how and why justice often lagged so far behind for so many people who are wrong in this country and in how the court has used procedural technicalities to allow police departments in this country to promulgate and utilize brutal and unconstitutional tactics against its citizens.

03:21 Rhiannon: Yeah.

03:22 Michael: Yep.

03:23 Peter: So, Rhi, tell us a story. What happened here?

03:26 Rhiannon: Sorry, it won't be a nice bedtime story, but it is a story, I guess.

03:30 Peter: Yeah. It's not our usual, really, enjoyable set of facts. [laughter]

03:34 Rhiannon: Right. If you listen to this falling asleep, seek help. [laughter] So yeah, I'm having a bad week. Worst day, I feel sick. I don't wanna tell this awful story, [laughter] but here we go!

03:51 Michael: That's commitment. [laughter]

03:51 Rhiannon: That's right. Okay, so let's set the stage. The city is Los Angeles. The year is 1976. Just an aside, the three highest grossing films that year are Rocky, A Star is Born, and King Kong. And I think that's actually...

04:11 Peter: I forgot they remade King Kong in the '70s.

04:12 Rhiannon: Right. Wait, what was your question?

04:14 Peter: It wasn't a question, I just forgot that they remade King Kong in the '70s. [laughter]

04:20 Rhiannon: Oh.

04:20 Peter: It's crazy to me that in the '70s they were like, "You know, we have the technology to really make this pop." [laughter]

04:27 Rhiannon: Well, and so the three most popular films being Rocky, A Star is Born, and King Kong, that's really fitting to me for today's case, because all of those movies have sequels or remakes, and guess what we have here in this case that we're discussing today? It's a horrific story you've heard before.

04:44 Michael: Right.

04:46 Rhiannon: So a Black man named Adolph Lyons was driving his car one night.

04:50 Peter: And I'm gonna stop you right there because [laughter] I would like to have a discussion about a black man in the mid-70s named Adolph. That means in the early 50s, a woman gave birth to a young black boy, and was like, "We're gonna call him Adolph" and someone was probably like, "Isn't that a little too soon?" And she was like, "It's been like eight years." [laughter]

05:18 Rhiannon: Alright, well...

05:20 Peter: That's all I have to say about it.

05:22 Rhiannon: Okay, thank you. Thanks, Peter. [laughter] Mr. Lyons is driving his car one night around LA when he's pulled over for a broken tail light. He's 24 years old, he is unarmed, and look, like I'm no expert on de-escalation techniques or anything like that, but what happens next seems to be like putting it mildly, extremely fucked up on the part of the four officers involved.

05:49 Michael: Yes.

05:51 Rhiannon: So like I said, Mr. Lyons was pulled over for a broken tail light, but he's quickly asked to get out of his car. There's no allegation at any point that Mr. Lyons is not complying with orders or even that he had a weapon, none of that. When he's ordered out of the car, four police officers advance on him with their guns drawn, they tell Mr. Lyons to spread his legs and to put his hands above his head. Now the officers continue to get closer to him, and once he is frisked, he lowers his arms down from his head. At that point, an officer forces his arms back up again, but Mr. Lyons lowers his arm, saying that the keyring that he's holding, it's hurting his hand and he can't keep his arms up. At that point, an officer puts him in a chokehold until he loses consciousness, and when he wakes up, he is spitting blood and dirt, he's faced down in the street and his underwear are soiled. So the police give him a ticket for the busted tail light, and then they let him go.

06:54 Peter: Yeah. As soon as he comes to they're like, "Hey, that's gonna be $63." [laughter]

07:03 Michael: [laughter] Jesus Christ Peter.

07:11 Rhiannon: What the fuck is wrong with you? [laughter]

07:14 Peter: I didn't do it. [laughter] So don't blame me.

07:23 Rhiannon: Alright. So Mr. Lyons sues the LAPD, and in his lawsuit, he asks for two different remedies. First, he's asking for damages, which is the remedy you traditionally think of when someone files a lawsuit... I'm suing you because you harmed me in some way, and I should be compensated. I should be made whole. The second remedy that he's seeking, which is the subject of the case that eventually makes its way up to the Supreme Court, is injunctive relief. Now, Mr. Lyons wants the court to order an injunction against LAPD's use of chokeholds, meaning the judge would be issuing a court order that bans LAPD from using chokeholds on people in the future. So regarding the injunction, the city of Los Angeles moves to get the case thrown out. But actually, both the district court and the Court of Appeals on this case say, Yes, Mr. Lyons can sue for an injunction, and it's important to note that this is all before they get to the merits of the case. What's being fought over here is just whether Mr. Lyons has standing, which is the legal ability to sue for this kind of remedy.

08:28 Rhiannon: So the lower court says, Yes, you do have standing, and the case should proceed to the merits to see what evidence you, Mr. Lyons, can present, and the court will later decide if there's enough to issue the ban, the injunction that Mr. Lyons is seeking. And then the case makes its way up to the Supreme Court, and we're talking about it today 'cause the Supreme Court says "No."

08:48 Peter: Right. So you know Lyons is claiming that the use of excessive force by the police here violates his constitutional rights, but again, like Rhi said, what's important here is what he's asking for. He's saying that he wants money for the harm done, yes, but also he's asking for an injunction, and we've discussed injunctions in the past, it's just a court order to tell someone to stop doing something generally speaking. So he's asking that the Court issue an injunction that orders the LAPD to stop using chokeholds, but the court refuses to order the LAPD to stop. And the reason that they give is that they claim the court can only issue an injunction when it's necessary to prevent harm against the plaintiff, which in this case is Lyons.

09:29 Rhiannon: Right.

09:29 Peter: To use an example, let's say your neighbor is renovating, and you think the construction is going to damage your 38 square foot studio apartment. [laughter] I used demographic data on our listeners to target that. [laughter] So you ask the court to stop him, right? But the court's not just gonna stop him because you ask. They are going to ask that you show that the renovations are gonna cause some harm to come to you. So Lyons is saying, "Hey, make them stop using chokeholds in the future." And the court saying, "Well, even if they keep using chokeholds in the future, you can't prove that they'll use them on you. So we can't stop them from doing that." And like Rhi mentioned, this is a concept we've talked about before, often used by conservatives to impede the progress of litigation, called standing. You can only see if you've been hurt or in the case of injunctions if you can show that the injunction will prevent you from being hurt in the future. So since you can't prove he'll be hurt by police chokeholds in the future, the court tosses his request out.

10:32 Michael: Right.

10:33 Peter: And what the court does specifically is create a standard for whether they could issue an injunction called the realistic threat standard. So basically they say there's no realistic threat that Lyons will be put into a chokehold in the future so they can't force the police to stop using them.

10:47 Michael: Right, and this is, I think, really problematic. It's like this probabilistic model of standing.

10:54 Peter: Right.

10:54 Rhiannon: Yeah.

10:55 Michael: They're not saying there's no chance that he won't end up in another police chokehold, it's just... It's not a realistic chance on their judgment. But in this case, as is often the case with these, there's no real data, there's no like good objective answer. They can't say there's an actual probability. It's pretty much like a gut intuition or maybe a loosely supported conclusion.

11:20 Rhiannon: Right. They haven't even gone to trial yet, so there hasn't been evidence presented over this issue.

11:25 Michael: Right, and so what you get is their biases fill in the gaps. There is a similar case that you'll read in law school called Friends of the Earth v. Laidlaw, where this sort of realistic threat standard was met, and it was like property owners who were concerned that people were dumping pollution into their waterways. And it's like, well, yeah, everybody on the courts a fucking homeowner, right?

11:52 Leon: Right, Yep. [laughter]

11:53 Michael: And they can imagine their water getting polluted, they can't imagine getting put in a fucking chokehold by the cops, and so one of those harms seems real and one doesn't, and so the property owners get standing, but the poor Black guy doesn't.

12:07 Peter: Also though, if we're using a realistic threat standard, but people are getting choked out 'cause they have a broken tail light, seems to me like the threat's pretty realistic, you know?

12:19 Rhiannon: Yeah, yeah.

12:20 Michael: Yeah. I mean...

12:20 Peter: They're on a fucking choking spree guys.

12:20 Rhiannon: Really good point.

12:22 Peter: You gotta stop them.

12:23 Michael: I think one of the first lines in the dissent identifies Lyons as like a young Black male and I feel like that's standing. There you go. [laughter] Any police violence claim you have standing for if you're a young Black man... 100%.

12:38 Rhiannon: Absolutely.

12:40 Peter: So the court's reasoning presents what we think is a pretty obvious problem. No one can prove that they're gonna be choked out by some cop in the future, which means that no matter how blatantly excessive and unconstitutional a police practice is, no one can sue to have it halted. The court is openly acknowledging that it will allow an unconstitutional practice to continue because no one can be certain that the practice will be used against them.

13:06 Rhiannon: Yeah.

13:08 Peter: Even though everyone involved that knows the practice will be used one way or another.

13:10 Rhiannon: Exactly, Right!

13:11 Peter: It will be used against someone. This dude had a broken tail light and got choked out so bad that he shit his pants and the courts just like, "Damn, dude, that sucks, man, but I don't know what you want from us here." [laughter]

13:22 Rhiannon: Exactly. Exactly. It's ridiculous.

13:24 Peter: Is it super simple that chokeholds are unconstitutional? No, but is this case... Is this chokehold unconstitutional? Yeah, I think if you ever put it to the court directly, they would have said yes, even with the five conservatives.

13:37 Michael: Yeah, and the court's hands aren't tied. There is precedent for situations like this where a plaintiff may not have the best claim to standing, but there's an unconstitutional practice before the court that's at risk of evading review. And the court will grant standing when they want to, and literally the name of the doctrine is capable of repetition, yet evading review. And the court addresses this and they say, "Well, look, he still has a claim for damages, so it's not evading review, and he could get some money if it really is unconstitutional." But that's not...

14:10 Peter: Isn't that what we all want at the end of the day?

14:14 Rhiannon: Right.

14:15 Peter: To get choked out because you have a broken tail light, wake up, spitting blood, pay a ticket, and then get money in eight years?

14:22 Rhiannon: Right. Yeah, that's the American dream.

14:25 Michael: I think the whole point is precisely that this guy would rather just not be choked out.

14:29 Rhiannon: Exactly, exactly.

14:29 Michael: "You can sue later," is just not an adequate response to this sort of trauma, but the court says they're not really interested in having that discussion.

14:40 Peter: Right.

14:40 Rhiannon: Right. Yeah, so the court's decision not to address this, it's a conscious one. You have a plaintiff who says the LAPD put him in a terrible, horrific, violent chokehold for no clear reason, and he's asking the court to say like, "Look, that's unconstitutional and stop doing that." It doesn't get much simpler or clearer than that, so when we say that formalistic legal reasoning serves as a veil over the intentions of judges, this is exactly what we mean. All of the hand waving about procedure and standing and the proper remedy, that's all smoke and mirrors. It's obfuscation of what is, at the end of the day, a really simple issue. It's just a method for deflecting from a question that the court doesn't want to answer.

15:26 Peter: Right.

15:28 Rhiannon: I listened to the oral arguments for this case, and there's a really interesting part, which sort of makes this formalism point clear, I think. So Justice Blackmun asks a question of the government lawyer, the lawyer who's representing the City of Los Angeles. He asks a question that's about police training and about whether training policies can be improved or whether that's possible, and the government lawyer just responds, "The court's decision on this case needn't turn on police training. This is a legal question." So what Justice Blackmun is asking, he's saying, "Hey, we're talking about chokeholds, so I have a question about how the LAPD trains their cops to use chokeholds, and the lawyer for the City of Los Angeles just basically shuts that down, he says like, "We're not talking about that right now, what we're talking about here are just legal things, a legal question about standing."

16:18 Peter: Right.

16:22 Michael: Right.

16:22 Rhiannon: You know what else is a legal question, dude? Whether the police are violating people's constitutional rights in the street, like don't just say that standing is a legal question, but other questions aren't legal. That's just a choice. That's a preference.

16:34 Peter: A lot of conservative legal analysis prioritizes rules as if adhering to legal rules is sufficient in and of itself. So here you have this arbitrary rule about who can and cannot get an injunction against the police, but if you have a rule that results in no one being able to challenge an unconstitutional police practice, allowing that practice to continue unabated, to quote No Country for Old Men, "Of what use was the rule?"

17:04 Rhiannon: Exactly.

17:08 Peter: If your rule has brought you to a point where you cannot address the blatant constitutional violation that is before you, that is before the court, you need to decide which is more important, the rule or the violation of the rights of this man and the countless others who'll be affected by police chokeholds.

17:22 Rhiannon: Yes.

17:23 Michael: Right.

17:24 Peter: Call me a naive idealist, but I think that's a pretty simple decision.

17:26 Rhiannon: Yeah, no, I think that's right. And just to butt in with another thing that that brought up for me from the oral argument, I really like Brennan, Marshall, Blackmun, Stevens on the court at the same time, that feel and the vibe off of the liberal justices at this time is completely different than listening to oral arguments today, I can tell you that. They're actually interacting with each other a lot of the times, including across the...

17:53 Peter: They're kissing.


17:58 Rhiannon: No, they're clearly arguing with each other when they disagree with the conservatives and that kind of thing, and there's a back and forth at one point that's really interesting to me, and I'm not even sure if this will make sense the way I can read it because it is a back and forth, but Justice Brennan asks the lawyer for the City of LA, he says, "You want us to say that you're constitutionally permitted to have the same chokehold policy." Justice Burger, the conservative, pipes up and he says, "No, no. They're subject to being sued for damages." Justice Marshall says, "What recourse then does a man have who you've already killed?" Justice Burger, the conservative, says, "It's the same recourse as negligently being run over by a police car, that's a lawsuit." Justice Stevens, "Do you consider murder and negligence on the same level?"


18:44 Michael: Fuck, yeah, dude.

18:48 Peter: Kicking their asses, dude.

18:48 Rhiannon: Like Justice Stevens turning to Justice Burger, right?

18:51 Michael: They're like ignoring the dumb ass lawyer.

18:55 Rhiannon: Right, right, exactly.

18:56 Peter: This is why Burger has that line in his Wikipedia about not being smart. [laughter] Just getting torn up in oral argument.

19:01 Rhiannon: Right, by his own colleagues.

19:02 Michael: Just going back to a point Peter made, where he says it's an easy choice between vindicating someone's rights or following a stupid rule. Just highlighting how stupid the rule is here. The dissent, I think, does an excellent job of that. What Marshall in dissent says is like, "Look, Lyons undisputedly has standing to sue the city for money here." Like we're all on the same page with that. And further, part of that lawsuit, a big part of that lawsuit, will be about whether the city has policies or practices about chokeholds that are unconstitutional. And so it's absurd to say that the courts are constitutionally prohibited from adjudicating the request for an injunction in the very same lawsuit about the very same policy that they're hearing anyway. It's bizarre, and it's not that the trials would be exactly the same. There would be a few different questions related to the appropriateness of the remedy, but that's it. That's when you discuss the appropriateness of the remedy, at trial.

20:08 Rhiannon: Exactly. Right.

20:09 Michael: They say this is a standing decision, but really what they're just saying is like, injunctions just aren't available here. Right?

20:15 Rhiannon: Right. Yeah, that's the bottom line, and that's what I really appreciate about Justice Marshall's dissent here is pointing out exactly that absurdity so that we know what the court is doing, which is avoiding responsibility by using these rules about standing, and that has greater implications than just this case. So this use of standing as the bar to accessing remedies for people who have been harmed by the government. It becomes a trend at the Supreme Court and in the lower courts after this case. Pretty quickly after the Lyons decision is handed down, legal scholars start to point out that this is kind of the end of an era, an end to what's sort of broadly known as public law litigation, and that's because, at the time, a lot of the remedies you were seeking was an injunction. That you were getting an institution, a government body, a police department, whatever it was, to stop doing something unconstitutional. But with this case, that sort of shuts off and says a lot of litigants, a lot of plaintiffs do not have standing to even seek an injunction to even get into court to ask for one. And that's exactly in line with the post-Warren court trend that we've noted many times on the podcast, where distinctly ideologically conservative chief justices who were appointed by Republican presidents, they guide the Supreme Court in dismantling Civil Rights wins of the Earl Warren era on the supreme court and the civil rights movement.

21:43 Peter: Right. So this becomes like this big turning point in how civil liberties and civil rights litigation is conducted because for decades prior, you had the ability to go in the court and ask for these sort of affirmative remedies where you're asking like, stop them from doing this, or make them do this to protect my civil rights. And the Court is basically saying here, signaling, we're not going to be doing that anymore, and it becomes a huge impediment to actually protecting people's civil rights in this country.

22:15 Michael: Right, the court is saying, Look, we're not interested in reining in the government or the police at all, and if you're wrong, the best thing you can do is hope to get some money damages after the fact.

22:27 Peter: Right.

22:27 Rhiannon: Right, but we're not gonna change anything about how they actually conduct themselves.

22:31 Michael: That's right.

22:32 Peter: Right. That's for the suits in Washington. [laughter]

22:35 Michael: Not the robes.

22:37 Peter: Not the robes. Not the robes. [laughter] Alright. Let's do an ad.

0:22:46 Peter: So the realistic threat standard, it's not just applied to police brutality cases, it can be applied to any sort of public interest cases, right? Environmental cases... Is there a realistic threat that you're gonna be harmed by this pollution. It's something that has broader applicability and is a huge impediment to plaintiffs who want to sue over all sorts of wrongdoing, especially where that wrongdoing is sort of hard to pinpoint or if it's hard to know when and how it might occur. Another sort of thing lingering here is that due to all sorts of immunities, criminal prosecution against the police is basically impossible. So what you're effectively talking about here is a situation where you have nothing that can address the fact that police can do this on a forward-looking basis, like we have laws saying you can't murder, you'll get in trouble, right? And an injunction would be the same sort of thing, it's functionally a law against it, and because we don't have that sort of criminal law check on police conduct, injunctions are a huge weapon, a huge tool that institutions like the ACLU rely on to actually limit the sort of police conduct that they believe violates the Constitution. Without it, there's really nothing to do that.

24:02 Rhiannon: Exactly.

24:02 Peter: All you have is...

24:03 Rhiannon: There isn't another legal accountability mechanism.

24:07 Peter: Exactly.

24:08 Michael: Right. There are a number of ways you could, in theory, sue the cops. But all this leaves is like the hardest one in a sense, right? Because it's like suing individual cops they can get qualified immunity and injunctive relief would modify future behavior. So what you're talking about is damages against the city or the county or whatever itself, which requires this extra showing of a policy or a practice or a training that makes the city in the department liable and not just individual cops, and so there's this higher showing as opposed to just like, this shithead cop violated my rights.

24:47 Rhiannon: Yeah. Exactly.

24:49 Michael: So it makes the only avenue for suing the cops an uphill one. And then makes it impossible for you to get perspective relief on top of that, where you stop the practice. It's pretty ridiculous. It's like a fucking... Its Kafkaesque. It's like a labyrinth of dead ends.

25:05 Rhiannon: You wake up one day and you're a cockroach and you can't fucking... You can't fucking sue the cops. [laughter]

25:09 Peter: So this goes hand-in-hand with another tactic that the police used to avoid the courts addressing the constitutionality of their practices, which is big settlements.

25:26 Rhiannon: That's right.

25:27 Peter: If it feels like the court is about to rule a police practice unconstitutional in a case where they're being sued, they will settle that case so that the court doesn't ultimately decide it. They pay out so that they don't have to have bad precedent created that could result in far more payouts down the line. It's a very frequently used tactic by police unions across the country.

25:49 Rhiannon: That's right. And when we say they pay out, we have to think about who that really hurts. It's not money that comes...

25:53 Michael: We pay out.

25:55 Rhiannon: Exactly, we do as taxpayers. That's city money or county money or whatever that goes to paying those settlements.

26:01 Peter: It's a real tough decision, but at the end of the day, we're gonna give you two million dollars of your friends and family's money. [laughter]

26:10 Rhiannon: Yeah, exactly.

26:12 Michael: Yeah.

26:13 Peter: And this is a great example of how and why the actual operation of the law in this country undermines the goal of achieving justice. It's not just that the process of litigation is horribly slow, which it is... Keep in mind, the chokehold incident occurred six years before the Supreme Court hears the case. It's also that our legal system is designed in many ways to resolve issues that occurred in the past rather than prevent injustice from occurring in the future. In other words, the way the legal system functions is largely reactive rather than proactive. If you ask most conservatives and maybe most lawyers why that's the case, they'd probably say that it's because creating proactive solutions to problems is really the prerogative of the legislature, which is another way of saying that, it's too political. I think, I just think that's bullshit. A court being proactive is not necessarily more or less political than it being reactive, a court stepping in to stop an unconstitutional practice isn't less political than it not stepping in and letting it continue.

27:14 Rhiannon: That's right.

27:15 Peter: Both of these things are political decisions, they have a real impact on actual people. There's no non-political option, there's no neutral course. Allowing the police to continue applying unconstitutional chokeholds isn't less political than stopping it?

27:33 Michael: Correct.

27:33 Rhiannon: That's exactly it.

27:33 Peter: It's a clearly political decision. And it's a decision that's reflective of the political alignment of the court at the time. The 1970s, you have to sort of envision police power, this is a case where they don't even have an excuse for choking this guy, right?

27:51 Rhiannon: Right. Yeah.

27:51 Peter: These days, they would have been like, "Oh, we found a weapon on him" and they would have done a press release about how the guy had a, whatever, some domestic violence incident like eight years ago. This is when the cops were just running bat shit wild like they could do whatever they wanted. They choked this guy out, he sues and they're just like, "Yeah, no, we got his ass." [laughter]

28:11 Rhiannon: Right, right. Exactly.

28:13 Peter: He wouldn't put his hands up, so we choked him out.

28:15 Rhiannon: Right.

28:16 Peter: And the conservatives in the court are like, "Mm-hmm." [laughter]

28:17 Rhiannon: Yeah, yeah, it's as easy as that in the Burger court.

28:22 Peter: This is the all related to something you'll often hear and is often explicitly taught in law school, and that's that the law is inherently conservative, and that is horseshit. [laughter] The law is not inherently anything, right? It don't have to be slow moving.

28:40 Rhiannon: The law is words, that's what it is. [laughter]

28:43 Peter: There's nothing about how we practice and understand the law that prevents a court from ordering the cops to stop using chokeholds. The law is conservative because it's controlled by conservative institutions and promulgates conservative principles, that's why it's conservative in practice, but it's not inherently conservative. The only reason people say that is to explain and excuse the failure of the law to provide something that resembles actual justice.

29:09 Michael: Right. I just had a thought, and I think it's worth mentioning is that there's a sort of shining light example in my head right now of a case of the court not being reactive, and that's Miranda v. Arizona.

29:23 Rhiannon: Yeah.

29:23 Michael: That's where they said, look, you have to do this. It's not just that you can't do X. You have to do Y. When you arrest someone, if you wanna talk to them, you have to tell them they have the right to remain silent. You have to tell them they have a right to attorney. If they invoked those rights, you have to shut up, leave them alone, and get them an attorney. And this is a cherished thing, it's one of the most well-known rights that everybody knows, everybody thinks is important.

29:51 Rhiannon: Right.

29:53 Michael: It is vindicated entirely, that the court got very proactive about how the police have to behave. And everybody thinks it's a good thing.

30:00 Peter: Yeah, and not to mention that, although conservatives on the core have tried to hack at Miranda rights for many years, it has taken them half a century to get anywhere, they have made proactive taking them an unbelievable amount of time and effort.

30:12 Rhiannon: Right.

30:13 Peter: And I think we should talk a little more specifically about how police rely on the slow reactions by courts to their tactics to get away with brutalizing members of the community. It's very common that police will officially roll back certain techniques and tactics when public pressure starts accruing or when a court starts to question it, only to slowly begin to continue or re-introduce the practice over time.

30:38 Rhiannon: Yeah, exactly. I was reading some stuff in preparation for this case and found not only some really good commentary right after the Lyons decision comes down, but also information now, decades after the Lyons decision, about what effect this case had on police behavior. So, for example, like Peter said, chokeholds, they don't have a lot of popularity or approval in the public, and police departments get pressured to change their own policies. So in 1985 without a remedy from the courts in the form of an injunction in the Lyons case across the country, the New York Police Department agreed that chokeholds were potentially lethal and unnecessary, and so NYPD announced that it would no longer use them routinely. We all know that policy failed and the NYPD kept on using chokeholds, but after more deadly chokeholds and the NYPD killing people this way, the commissioner in 1993, Commissioner Raymond Kelly, banned their use altogether, but we know that the year Eric Garner was killed, for instance, the city received more than 200 allegations of police chokeholds. So chokeholds were deadly and unnecessary in the early '80s when the Lyons case went to the Supreme Court, they were deadly and unnecessary decades later when the NYPD murdered Eric Garner, and the Supreme Court has nothing to say about it because the Lyons decision stands for the proposition that there just isn't enough evidence to show a future realistic threat of chokeholds being deadly and unnecessary.

32:12 Peter: Amen.

32:13 Michael: Right.

32:15 Rhiannon: So this always brings me back to... I know I've said this before, but this always brings me back to the notion of who polices the police? There has to be institutional checks and accountability on the police, frankly. And the court purposely in these cases takes itself out of being the institutional, legal mechanism for accountability on the police, which is to say it makes itself a weaker institution, but, also it reminds me that we get mad a lot of the times at grand juries and prosecutors who don't vindicate people's rights, people who have been hurt by the police, but we should also be applying political pressure on the court.

32:55 Peter: Yeah, absolutely.

32:57 Michael: Agree 100%.

32:58 Rhiannon: Here's the thing that makes me so mad about this case, if you have two brain cells in 2020, you know that the police are a deeply rotten institution. You know that the practice of American policing is ineffective at fulfilling its stated purposes, it's expensive, and it's dangerous to large portions of the public, and it makes us less safe. But I think what people maybe don't know or don't widely talk about is that the police are like this because of the law, and in particular, in the case of the police, it's my opinion that it's exactly this kind of judge-made law that has institutionally upheld these kinds of practices. The Power wielded this way between the court and the police frankly, it's an institutional macro-aggression on people of color in this country, and Lyons is just one example. The police love to individualize harm, to explain away the mistakes that they make, they love to say something like, for example, it's not a department-wide practice or policy, maybe an individual officer made a mistake, maybe there's a bad apple, right?

34:00 Rhiannon: But the court is doing that too, we all know that police conduct themselves with an act first, justify it later mentality. We know now that they operate in a legal space where they can prioritize supposed officer safety over the safety of our communities. And that's because of the court and the way that the court has individualized the harm that's done by the police over and over and over again. Saying that a man who has been nearly killed by a police chokehold, who has permanent damage to his throat by a police chokehold. Can't challenge the use of a future chokehold because he can't individually prove that the police will put him in another potentially fatal chokehold is absurd. And it's absurd because it's individualizing harm that is racist and falls on an entire section of the community not just one man.

34:51 Michael: That's right.

34:51 Rhiannon: The court isn't acting like an institutional check on the police, it's acting in concert with the police to perpetuate racist violence.

34:58 Michael: That's right.

35:00 Peter: Yeah. And one consequence of how slowly courts move on this shit is that any efforts by civil rights organizations to use litigation against the police department essentially becomes a game of whack-a-mole where it takes years to strike down these practices while the police can just alter the practice in question, just enough to make it like potentially Constitutional or just move on to using a slightly different violent practice that has the same basic effect. And if courts were empowered to move more quickly and act more proactively, you could see an end to this sort of cycle. You can sort of see over time... I would love for one of our listeners who knows more about police tactics to weigh in on the evolution of some of these 'cause you can just see that people were like, "Well, why do you keep killing people in these situations?" And they were like, "Don't worry. We've invented a device that simply shoots them with electricity all throughout their body to the point where they will freeze up and collapse on the ground, so don't worry, we've created an incredibly humane solution." [laughter]

36:03 Rhiannon: Right, right. Problem solved.

36:03 Peter: It's like how the death penalty evolves, where they were like chopping off your head that is grotesque, hanging that is grotesque, we're gonna put you in a room and slowly fill it with gas... Just class it up in here, right? [laughter] And then they were like, No, that's awful. Let's do the electricity until they die thing, it's gonna take 10 minutes and they're gonna slowly succumb to the electricity. And then eventually someone was like, "No, no, no, that's insane. Let's do terrible poison in their body. Is this good?"

36:33 Rhiannon: Strap em down and inject it.

36:35 Peter: It's like, there's no good way motherfuckers. [laughter] And it's the same thing with cops. It's like, No, dude, as long as your goal is to violently accost and subdue people, it's gonna be horrific.

36:45 Rhiannon: Exactly '

36:48 Michael: Yes.

36:49 Peter: And this case struck me in particular because the court notes that the LAPD did in fact halt the use of chokeholds in the wake of this incident. And I thought that was interesting 'cause this was in late 70s, early 80s.

37:03 Rhiannon: Right.

37:03 Peter: But just about three months ago, I read an article about how the LAPD was gonna stop using chokeholds following the death of George Floyd.

37:11 Rhiannon: Hmm.

37:13 Michael: Interesting.

37:14 Peter: So in short, in the late 70s or so, the LAPD said they would stop using chokeholds, almost certainly so that they could look like they were acting in good faith while this case played out in the courts, but once the coast was clear they started using them again for 40 years.

37:27 Rhiannon: Yeah.

37:28 Peter: So the court's failure to address this led to 40 years of police abuses. That's the cost of a court that isn't proactive, right? That doesn't try to actively solve these problems. And to put this in a more concrete human terms, if in 1982 the Supreme Court holds that chokeholds are unconstitutional, Eric Garner is probably alive today, and not a lot of people believe me when I say Warren Burger killed Eric Garner, but it's true. He did it. He fucking did it. [laughter]

37:58 Rhiannon: Yeah. And that's how he should be remembered.

38:00 Peter: A moron who killed Eric Garner. [laughter] I'm joking, but I'm not, right? The conservatives on the court treat things like the right to sue or the right to an injunction as if they're abstractions, but they're not abstractions. Eric Garner's life isn't an abstraction, it's the natural consequence of a system that fails to empower people to protect their own civil liberties. So yes, when the court is purposefully ignoring the inevitable violence caused by its decisions, the blood is on their hands to some degree, and they shouldn't be allowed to hide behind the abstraction of the law.

38:37 Rhiannon: Yes.

38:37 Michael: Right.


38:43 Peter: So next week, we are taking a break, but week after that is Ashcroft v. Iqbal. A case about a man who was detained rather violently after 9/11 and how the Supreme Court used his case to transform litigation in this country into something a little more friendly to corporations and the government.

39:06 Rhiannon: Right. It's a deeply racist...

39:08 Michael: It's super awful.

39:11 Rhiannon: And we're also planning a Q&A episode to answer your questions. You can email or call us and leave a voicemail with your question. Email us at fivefourpod@gmail.com, or call us 512-222-8720. Hit us up, bitch.

39:34 Peter: No personal questions. [laughter]

39:38 Michael: Five four is spelled out in that email address.

39:41 Peter: Something we've never once clarified on this podcast. [laughter]

39:47 Rhiannon: If you followed us on Twitter, you would already know. 'cause that's our @fivefourpod.

39:53 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 our theme song is by Spatial Relations.


40:18 Leon: From the Westwood One Podcast Network.

Voting Rights+


00:05 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 voting rights and voter suppression.

00:14 [Archival]: It has been two months since President Trump installed a loyal supporter as Postmaster General.

00:19 [Archival]: The Trump campaign is suing Montana's Democratic Governor to try to stop expanded mail-in voting in the state.

00:27 [Archival]: And they're suing Nevada now for expanding this mail-in voting in the middle of a public health crisis.

00:32 Leon: It all goes back to the Constitution, which, believe it or not, does not provide an individual right to vote, something the modern Court pointed out in Bush v. Gore, despite voter protections in the 14th and 15th Amendments. This is 5-4, a podcast about how much the Supreme Court sucks.


00:55 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have toyed with American freedoms like a cat batting around a half-dead bird.


01:06 Peter: I am Peter, here with Michael.

01:11 Michael: Hey, everybody.

01:11 Peter: And Rhiannon.

01:15 Rhiannon: Hi.

01:15 Peter: And today, we are doing a special episode on voting rights in the United States. In recent months, there have been a lot of get out the vote efforts, and a lot of people have expressed a desire to vote by mail due to COVID, and in a fairly interesting development, the President, Donald Trump, has said, "No, you can't do that."


01:36 Michael: "Don't even think about it."

01:38 Peter: And people said, "Well, we want to vote, isn't this a democracy?" And he said, "No, absolutely not."


01:42 Peter: And he seems to maybe have ordered the postal service to start throwing out mailboxes and shit.


01:46 Rhiannon: Yeah.

01:47 Peter: And so, you may have borne witness to all of this and various other voter suppression efforts and asked, how can he do that? Isn't there a right to vote? Isn't that part of the Constitution? And the answer to that is, sort of. The reality is that the Constitution doesn't expressly provide for an individual's right to vote, and because of that, the right to vote in this country is incredibly fragile, and the Supreme Court has never taken the steps required to solidify it into something that could withstand attack.

02:15 Michael: Yeah.

02:15 Rhiannon: Yeah.

02:16 Peter: As a result, the last several decades have seen a steady increase in voter suppression efforts, from voter ID laws, to gerrymandering, to these newer efforts to attack mail-in voting, and the Court has been a major factor in the success of those efforts. So to contextualize why this can happen in a country that your elementary school teacher told you was a democracy, we want to walk you through what the Constitution actually says about voting, talk a little bit about the history of voting rights, and discuss the Supreme Court's failure to find a meaningful and reasonable interpretation of the Constitution that would actually protect those rights.

02:51 Rhiannon: Yes.

02:53 Peter: And to really understand this, you need to start with the Constitution, so I think we should go to the only one of us who's ever read it, Michael.


03:04 Michael: Okay, so let me take you back to 1789, when a bunch of white, male, professional managerial class types got together and wrote the United States Constitution.

03:16 Peter: Our fanciest boys all got together.


03:19 Michael: Yes, yes, exactly. I was looking... Sorry, this is an aside, but I was looking through some old cocktail notes, 'cause I like making drinks, and Benjamin Franklin, in his writings, he has cocktail recipes that people asked him about, so he was doing craft cocktails back before the phrase "cocktail" had even been invented. They are so very much like modern-day yuppies.

03:43 Peter: Right.

03:44 Rhiannon: Right, yeah.

03:46 Michael: So the Constitution kicks off with the phrase "We the People," which, in retrospect, meant the specific people in that room.


03:56 Peter: "It's us guys," that's what they really meant.

03:58 Rhiannon: Right. "It's just us boys."

04:00 Michael: "The fellas, here."


04:01 Michael: "We got some things to say." And obviously, the Declaration of Independence had a lot of nice language, but the Founding Fathers did not really trust the general public with any significant power. And so, all the original Constitution says about elections is that voting requirements for Congressional elections are determined by the states, and for presidential elections, each state appoints its own electors who vote for the President, which we call the Electoral College. Nowadays, those electors are pretty much symbolic, because the states pretty much all require that their electors vote for whoever wins the vote in their state, but that's not actually required by the Constitution, and that's it.

04:42 Michael: There's no explicit right to vote in the Constitution as it was originally written, and that's not that surprising, if you look at what elections were like back then, there were almost no direct elections for federal office. The voters could choose the House of Representatives, like we can now, and their state legislatures, but the state legislators chose the Senate, not the voters; the Electoral College chose the President, not the voters; and the President and Senate chose the Supreme Court. It was like the vast majority of the federal government was chosen indirectly by elites. And here we're talking about voters, but the voters were just white male landowners, at that, so most people couldn't even vote, and those who could vote had very little and only indirect influence on the make-up of the Federal Gov.

05:26 Rhiannon: Yeah, that's right. And so that's sort of the lay of the land on voting as the Constitution is originally written, but things change a bit after the Civil War. So the federal government is aiming to keep the South from re-establishing slavery after the Civil War ends, and the Civil War Amendments, the 13th, 14th and 15th Amendments to the Constitution, are passed in the late 1860s through 1870. So the Civil War Amendments, also known as the Reconstruction Amendments, we've talked about them before, but after the 13th Amendment constitutionally abolished slavery, the debate over ratification of the 14th and 15th Amendments was really bitterly divisive.

06:10 Rhiannon: Back in middle school and high school, we're taught about these Amendments as a group, but it's important to look at them as building on one another, they're not a three Amendment package deal, and I think it's also important to highlight that these really significant, massive upheavals in the legal foundation of this country were not the result of just the good guys winning the war, and they're nicer, so they know the good laws to do. It was the result of intense, targeted political pressure, of seeing how the South reacts, of thinking and debating really hard and pressuring bad actors to reform a better union, right?

06:51 Rhiannon: So the 13th Amendment abolished slavery, but then the Republicans... Remember, this is the party of Lincoln, the Republicans had an immediate problem on their hands. Because of the 13th Amendment, the full population of freed slaves in the South would now be counted for determining the number of Congressional representatives that the South got, but even though those freed slaves counted towards Southern states' Congressional representation, the South was determined not to let them vote. So because freed slaves would likely be voting Republican, and because Republicans didn't want to just hand over a huge advantage in Congressional control to Democrats, Republicans had to think of a way to encourage and ensure that black people in the South were going to be able to vote. And they had to do so without having to rely on just temporary political majorities in Congress, they weren't always going to be a Republican majority, and so they had to plan for that.

07:45 Rhiannon: So they pushed for a constitutional amendment, and once the 14th Amendment was drawn up and sent to the states for ratification, of course, the Southern states refused to ratify. And so, what did Congress do? Congress was like, "How does a little military government sound?"


08:07 Rhiannon: And Congress passed the Reconstruction Act, which literally imposed federal military government in place of state governments in the South, and it required that the Southern states ratify the 14th Amendment in order to lift that military control, and in order to fully re-enter the Union. That's how the 14th Amendment gets passed.

08:25 Michael: I gotta give them props.

08:27 Rhiannon: Yeah.

08:28 Michael: There's some constitutional amendments that I think could use that sort of political pressure these days.

08:32 Rhiannon: Right, yeah!

08:32 Peter: Yeah. Right, right.

08:33 Rhiannon: Like the 14th!

08:33 Michael: I can come up with four in my head that I could write tonight that would be worthy of that treatment.

08:39 Rhiannon: Yeah.

08:40 Peter: So the 14th Amendment is the first part of the Constitution to mention the right to vote, and what it does, is it says that states that deny or abridge the right to vote, with a couple of exceptions, will be penalized with a corresponding loss of Congressional representation. So this is the first part of the Constitution that seems to indicate that citizens have some sort of actual voting right. And the 14th Amendment also has the Equal Protection Clause, which we've covered a bunch on this podcast, which says that citizens must be given equal protection under the law, and is later used by courts to ensure that people's votes count equally.

09:18 Rhiannon: Yeah, but at the time the 14th Amendment is passed, not everyone thought, actually, that it was going to really adequately ensure the right to vote. The Radical Republicans in particular, they're worried that the 14th Amendment is, by itself, insufficient for forcing the South to recognize the political rights of freed slaves, so that's why we then follow up with the 15th Amendment. And the 15th Amendment, again, references a right to vote, saying that the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color or previous condition of servitude.

09:55 Peter: Right. So all of a sudden, you have these two Amendments that don't seem to be themselves creating an individual right to vote, but nonetheless are referencing and protecting the right to vote. And frankly, I think the only reasonable way to interpret these Amendments is as if they create a de facto right to vote for citizens in this country. The 14th Amendment says that states that deny or abridge the right to vote will lose Congressional representation, and that citizens must be guaranteed equal protection of the laws, the 15th Amendment says you can't discriminate on the basis of race in voting. If those don't functionally create a right to vote, then I don't really know what they do.

10:30 Rhiannon: Exactly, exactly. But despite what we think is pretty clear language there, the courts, over the following 100 years, never really seized on the 14th Amendment as the basis of a right to vote. So while courts did occasionally prevent states from discriminating in voting on the basis of race, other sorts of arbitrary denial of the right to vote are totally fair game, so Southern governments reacted to the 14th and 15th Amendments with new and creative laws designed purposely to disenfranchise black voters. Tons of examples, like complicated voter registration requirements, really burdensome residency requirements to qualify as a voter. Southern governments implemented, of course, literacy tests. These were always administered by white voter registration officials and they were administered subjectively. There were poll taxes, and a lot of Southern governments also did what are called white primaries, where the states would hold primary races, but only allow white people to vote in them.

11:38 Peter: Right. Which, by the way, is legal or was legal at the time, in large part because primaries are just governed under a different set of rules because they're run by the parties themselves.

11:48 Rhiannon: Exactly.

11:49 Peter: So there was this argument that this isn't actually discriminatory in a way that is covered by the Constitution.

11:54 Rhiannon: Right, right. Now, to remedy all of this, like in 1890, for example, President Benjamin Harrison endorsed the Lodge Bill, which was proposed by Republicans in Congress, and the bill would have allowed for federal regulation of Congressional elections, but it failed. So in the absence of strong federal legislation, in the absence of any sort of federal legislative remedy, lawsuits pop up, and the Supreme Court is asked to weigh in on the efforts of Southern governments to disenfranchise black voters in all of these ways. And so, the Supreme Court struck some of those efforts down in 1915. For example, the Court struck down certain grandfather clauses, those are laws that waived the requirement of a literacy test or a poll tax if your grandfather had been allowed to vote, meaning the descendants of slaves were required to fulfill those requirements, but they wouldn't be imposed on whites.

12:49 Rhiannon: So the Supreme Court struck some of those down, but the Supreme Court also upheld all sorts of limitations on voting rights. In 1903, for example, in a majority opinion written by Oliver Wendell Holmes, the Supreme Court dismissed a case asking that black voters be automatically registered to vote in Alabama the same way white voters were, poll taxes were held to be constitutional. In a 1937 case called Breedlove versus Suttles, literacy tests were also held to be constitutional by the Supreme Court in 1959. So as a result, the most basic and fundamental methods of voter disenfranchisement, those remained intact because the Supreme Court said they were okay.

13:29 Michael: Right, and it's worth noting that we're very focused right now, and I think throughout this episode, on race, and there's a lot of obvious reasons why, but it's worth noting also that women didn't get the right to vote till 1920.

13:44 Rhiannon: Exactly.

13:44 Michael: And that wasn't as a result of a Supreme Court case, that was a popular social movement leading to amending the Constitution.

13:51 Rhiannon: That's right.

13:51 Peter: Right. So it was only in the 1960s, when both Congress and the Supreme Court under Chief Justice Earl Warren started more actively protecting voting rights, the 24th Amendment passes in 1964 and it bans literacy tests. In 1965, the Voting Rights Act is passed, further protecting the minority vote. At the same time, the Court is handing down seminal decisions protecting voting rights, using the 14th Amendment to apply a principle of one man one vote, saying that the Equal Protection Clause mandates that each vote be treated equally.

14:28 Rhiannon: Right.

14:28 Peter: So in 1966, the Court strikes down certain racist redistricting practices, they strike down poll taxes the same year, so in general, there appeared to be an appetite on the Court to use the Equal Protection Clause of the 14th Amendment to see the vote protected, with a focus on protecting minorities from the disenfranchisement that they'd been subject to since Reconstruction began, really.

14:51 Rhiannon: Yeah.

14:51 Michael: Right, but as we've noted many times in the course of doing this podcast, that the Court after the Warren era, the last 40 years or 50 years, really, was and is deeply reactionary, and that's not a fluke, it's deeply embedded in the conservative judicial bench. Just for a couple of examples, we've talked about what an all-time piece of shit Bill Rehnquist was, but something I don't think we've mentioned before, is that in the early '60s, he almost certainly personally engaged in a campaign of voter intimidation and harassment aimed at black people in Phoenix. Four witnesses testified, under oath, in front of Congress, about seeing him do this, and he denied it under oath, probably perjuring himself.

15:37 Rhiannon: Love that.

15:38 Michael: This was a guy who, as a reminder, was the Chief Justice of the Supreme Court just 15 years ago. Another all-time piece of shit we've mentioned before is Robert Bork, who was nominated to the Supreme Court in the late '80s, but ultimately didn't get 50 votes, and his loss is still like... Makes him a martyr for conservatives.

15:56 Peter: Right.

15:57 Rhiannon: Yeah.

15:57 Leon: Some things about him is he thought poll taxes and literacy tests were constitutional, but that the Voting Rights Act was not constitutional, so...

16:06 Rhiannon: Great.

16:07 Michael: These are the intellectual leaders in conservative legal circles, so it's not a surprise that the Court spent the last few decades punching holes in the right to vote. In 1980, for example, the Court upheld at-large elections in Mobile, Alabama, despite evidence that they disenfranchised black voters. Generally speaking, what the Court starts to do is focus a little less on the rights of voters and a little more on the rights of states to administer their own elections, which gives them a lot of leeway.

16:38 Rhiannon: Yeah, it's like it becomes a state's rights thing.

16:40 Peter: Yeah. And so you have that sort of change after the Warren Court, where the Court starts shifting the other direction, but what really changes the way that the law and voting rights intersect is Bush v. Gore, the subject of our first episode. What changed after Bush v. Gore was less about the law and more about how political institutions began to view the courts and the law as a weapon to help them win elections. So I think the lesson for the GOP was that the scale of what you can achieve through the courts is infinite. If you can use the Supreme Court to essentially steal a Presidential election while everyone is watching, then you can use it for anything.

17:22 Rhiannon: Exactly, and there's a really telling line from Bush v. Gore, which is the Court's pronouncement that, "The individual citizen has no federal constitutional right to vote for electors for President of the United States." So yeah, that's true in the most literal sense, but the reality is that just about everything you need to protect the right to vote is right there in the 14th Amendment, like we said.

17:46 Peter: I agree.

17:47 Rhiannon: The 14th Amendment, first of all, penalizes states that deny or abridge the right to vote, and secondly, it guarantees citizens the equal protection of the law, so yeah, states don't have to let their citizens vote, but in a world where every state does, the 14th Amendment is right there to be used to make sure that the states do that fairly.

18:06 Peter: Right.

18:06 Rhiannon: And conservatives don't want to recognize this obvious truth for the very simple reason that they won't hold political power if that truth is actualized in the world.

18:18 Rhiannon: Exactly, yeah.

18:19 Michael: Just 10 years ago, the big narrative was that Republicans would have to court non-white voters if they wanted to compete with Democrats politically. Hispanic and other non-white populations were growing, and the right would have to speak to their interests. I was re-reading this stuff in prep for this episode, and there were multiple political science papers in 2008 and 2009 discussing what they called the permanent Democratic majority, which is just fucking wild to think about it in retrospect.

18:48 Rhiannon: In 2020, that just... That seems so far away.

18:52 Michael: Good call, John Judis, you nailed it.

18:53 Peter: Yeah, yeah.


18:55 Michael: So what they said was like, the combination of minority populations growing as a share of the electorate, shifts in educated white voter behavior, and the migration of left-leaning voters into Sun Belt cities were all supposed to lock in decades of progressive dominance, and you can kind of see this dynamic now with Georgia and Arizona and Texas becoming sort of battlegrounds. It's like what they were talking about, but the idea that the only chance Republicans had to blunt this would be to make inroads with minorities just turned out to be totally false.

19:29 Peter: Right.

19:30 Michael: Because Republicans saw another path, which was just making sure that their white voter base, their votes counted for more.

19:36 Peter: Right.

19:36 Rhiannon: Yep.

19:36 Michael: And that's nothing new, like Irish immigration in the 1850s led to the xenophobic Know Nothing party. Chinese immigration in the 1880s led to, among other things, the Chinese Exclusion Act, which we've talked about on this pod before. The Civil War and Southern reconstruction led to the Southern redemption and Jim Crow, which included campaigns of racial violence and all the disenfranchisement stuff we've been talking about. And in the modern day, large scale demographic shifts in the last 40 years has led to the Republicans' current sustained project of voter suppression. It's precisely like those things in every possible jurisdiction, at every level of government.

20:19 Rhiannon: Exactly.

20:19 Michael: They're trying to prevent minorities from voting. Voter roll purges, gerrymandering, voter ID laws, attacks on the Voting Rights Act, the elimination of polling places, curtailing or eliminating early voting, delaying or even canceling elections, impediments to mail-in voting. These strategies are crucial to the continued power of the Republican party, and they are possible only because the Supreme Court has refused to recognize a strong right to vote in the Constitution.

20:50 Peter: Right.

20:51 Rhiannon: Exactly.

20:51 Michael: The Court isn't a passive observer here. John Roberts and Sam Alito and all them are not just watching history unfold, it's central to this strategy. And we've told you a lot about that in this podcast, in Bush v. Gore, when we talk about Citizens United, about campaign finance, Shelby County, which was about the Voting Rights Act, RNC v. DNC, which was about absentee voting deadlines in the primaries during COVID this year, our term wrap-up when we discussed how they've effectively disenfranchised 800,000 Floridians for this presidential election. And there are more cases to come. That's just the start.

21:29 Rhiannon: They're coming.

21:30 Michael: Yeah.

21:31 Rhiannon: They're coming down the pipeline.

21:32 Michael: We got more for you. Yeah.

21:34 Peter: Yeah, we're going to have some great episodes this fall, that's for sure. And you know, we should note that voter suppression isn't like a phenomenon that appears sporadically here and there. It is a centrally planned strategy that is developed by Republican operatives and disseminated throughout the ranks of the Republican party for execution. Trump's Justice Department has systematically targeted non-existent voter fraud in order to suppress the vote. A few years ago, they hired Hans von Spakovsky, some Heritage Foundation freak and long-time Republican operative who has been a proponent of election reform, which is a term that when used by Republicans, it usually means the elimination of elections.

22:20 Rhiannon: That's right. That's right.

22:23 Peter: Hans von Spakovsky... You know those villains in movies who have a facial deformity and it's central to their character?

22:30 Rhiannon: Yes, absolutely.

22:32 Peter: And, you know, halfway through the movie, he tells you how it happened and you're like, "Oh, man, this guy... "

22:37 Rhiannon: Right, right. "This guy has the motivation to be bad."

22:40 Michael: Yeah. The screenwriters wanted him to look as ugly on the outside as he is on the inside.


22:45 Rhiannon: Yeah, yeah, yeah, this is absolutely right. This guy Hans looks like a kindergartener drawing a villain monster, and then you just poke two holes for eyes and you draw one straight line for upper lip. That's it.


23:02 Peter: So this guy Spakovsky, he's a long-time Republican official who has been at the forefront of efforts by Republicans to perpetuate the myth of widespread voter fraud in order to implement voter suppression techniques. And he is, without question, an extremist. He is literally building a career out of a lie, the lie that there is widespread voter fraud, almost certainly knowingly, at least to some degree. And in a normal world would be relegated to some garbage think tank, right? But for several years, he has been working in the Trump administration on Trump's Advisory Commission on Election Integrity, which is the functional heart of the administration's voter suppression efforts. And again, these are people who have been around Republican circles, but have never had this level of power, have never been given this much responsibility, and this guy has a huge amount of influence flowing through him right now. And he's a fucking nut job.

24:04 Michael: Yep.

24:05 Rhiannon: Right. Kris Kobach is another one of those nut jobs.

24:09 Michael: Yep.

24:09 Peter: Cretins like this, they don't exist and they don't work without a cooperative Supreme Court. And we should clarify what their exact role is here.

24:18 Rhiannon: Yeah.

24:18 Peter: Almost all of these large-scale voter suppression efforts touch on the same issue, which we've hinted at a bit, weighing the right of citizens to vote against the rights of states to control their own elections. And what conservatives have done, and what the Roberts Court in particular has done, is shift the balance towards states' rights and away from individual voters' rights. In all of the cases that Michael mentioned, from the voter ID cases to Voting Rights Act cases, like Shelby County, to gerrymandering cases and COVID-related election cases, the Court has taken the general position that, under the Constitution, states have freedom to run their elections as they deem fit, even if that means that they do a little bit of disenfranchisement here and there.

25:04 Rhiannon: Right, right. Yeah.

25:05 Peter: And the GOP cannot do this without the Supreme Court. They've won the popular vote in presidential elections once in the last 30 years, their voter base consists increasingly of older, white, non-college educated males, that's a demographic that's shrinking. Meanwhile, Democratic-leaning voter bases like Hispanics are growing substantially. The GOP's electoral disadvantage is huge, and so it needs laws and procedures that disenfranchise people en masse. And those are likely to get challenged in court and make their way up to the Supreme Court. If the Supreme Court were not playing ball, there wouldn't be any realistic pathway to this sort of large-scale voter suppression.

25:48 Rhiannon: Yeah, I think that's right. And the Supreme Court, the nine Justices up there, they're not only sort of playing ball and the conservative Justices are helping with this voter suppression tactic politically, it's also, I think, we've talked about on the pod, how there is no objective administration of the law, so that comes into play when the Supreme Court Justices are interpreting disenfranchisement efforts today. The nine Justices are well-educated, rich, mostly white folks who, frankly, can't relate to the people who are being targeted by voter suppression efforts. It's hard for somebody like a Gorsuch to imagine the difficulty of getting, say, a valid ID when he's never had to do that, or the difficulty of planning a bus route during the work day to get to a polling location that's far away because there are only a few now left in your precinct. I think it's very easy for them to brush off these disenfranchisement efforts as something that probably only affects people who they don't think about much, and it's just a nominal effect on a small percentage.

27:03 Peter: When your fucking secretary handles your voter registration...

27:06 Rhiannon: Exactly!

27:07 Peter: How can you relate to someone who doesn't even have an ID?

27:10 Rhiannon: Right.

27:10 Peter: You're so far. You're so distant from them.

27:13 Rhiannon: Exactly.

27:13 Michael: They don't have a hyphenated last name, where the presence or absence of the hyphen could lead to a challenge for their provisional ballot that they have to cast because they've moved three times in the last four years and aren't at the same polling location as they used to be.

27:29 Peter: Yeah. And I do you want to make a quick point as we talk about this, we're not going to talk about the fact that fucking elections are on a Tuesday, and it's just one day... You can easily envision a world where voting is a week-long process or at least on a day when fewer people are working, and that's not like a function of the Supreme Court, really, but it is a function of reactionary institutions who have no interest in trying to figure out the best way to turn this country into something that looks like an actual democracy.

28:00 Rhiannon: Exactly. I'm just looking at Wikipedia and this says that Sundays, internationally, is the most common day for elections.

28:07 Peter: I love that it's fucking Tuesday here. Is there a worse day? Is there a day where you more obviously have to be at work than a Tuesday?

28:14 Rhiannon: Right, exactly.

28:15 Michael: Yeah.

28:16 Peter: Every fucking normal country has a national holiday for voting, with us it's like, "Good luck, bro!"

28:22 Rhiannon: Right, exactly. Elections in India and the Czech Republic are held over multiple days.

28:27 Peter: That's what I'm fucking talking about, dude. It should be a year long.

28:30 Rhiannon: Sure.

28:30 Michael: Okay, guys, one sec. Let's go to an ad.

28:33 Peter: So before we move on, I want to make a quick point. Given that the Supreme Court has literally held that there is no constitutional right to vote for the President, is there anything more brazen than the propaganda this country feeds itself about our democracy? When you're a kid, you don't learn that we are a democracy, you learn that we are the democracy.


28:55 Peter: The free-est, most democratic country on earth, eagles in the classroom... I had a bunch of classrooms that just had like, just had an eagle like in the corner.

29:07 Rhiannon: Did you guys grow up saying the Pledge of Allegiance every day?

29:09 Peter: Yeah, of course.

29:11 Rhiannon: Oh, yeah, Pledge of Allegiance, every day. We also have the Texas Pledge of Allegiance down here.

29:16 Peter: I would like to hear more about that. And what do you say?

29:19 Rhiannon: Honor the Texas flag. I pledge allegiance to thee, Texas one and indivisible. That's it.

29:24 Peter: That's barely a sentence. That's exactly what I expect out of the Texas Pledge.


29:30 Peter: All of this for a country where there's no fucking right to vote.

29:34 Rhiannon: Right, right, exactly.

29:35 Peter: And it goes deeper than just that sort of soft cultural propaganda. Citizenship tests for immigrants applying to be citizens used to include the question, what's the most important right for American citizens. And the answer was the right to vote. So on top of the fact that our citizenship test apparently includes opinion questions, answers are right that we don't even have. Literally just like ensuring that anyone who wants to become a citizen has to consume, and digest, and spit out the same brazen propaganda that all of our elementary school children do too.

30:13 Rhiannon: Right.

30:13 Michael: Right. And this is also reflected in our foreign policy. Following World War II, when we imposed a constitution on Japan that required universal suffrage for adults. We did the same thing in Germany. When we overthrew the governments of Afghanistan and Iraq, we insisted that they include a right to vote in their new constitutions. This country is so steeped in its own bullshit, so far up its own ass, that we're insisting that these countries give their citizens rights that our citizens don't even have. I just want to note as an aside, other things that we're told that are great about our country, all the veto points, and separations of power, and bicameralism and all that shit, we don't do that either.

30:58 Peter: So we should talk about the election crisis to come. We all know we're heading for one.

31:04 Rhiannon: The one that's on the calendar already.

31:06 Michael: Yes, yes.

31:06 Peter: It's clear that the Republican Party is gearing up for two-phase attack on the election this November. The first phase is what we mentioned, you have these active efforts to suppress the vote, suppress turnout, but the second phase is challenging election results. Very likely, by contesting the validity of ballots. It'll likely be done in multiple states or as many states is needed, and if the election looks like it will hinge on it, it'll end up before the Supreme Court. Trump v. Biden. God help us.


31:42 Rhiannon: Yeah, and like, "No, thank you."

31:46 Michael: The sound of that just put me on edge, man.

31:51 Rhiannon: And we're not going to speculate on what exactly a Trump v. Biden case will look like, but definitely we can already tell you what the considerations are likely to be, and it's going to likely be weighing the Constitution's protections of the right to vote against the rights of the states to control their own elections, just like they've been weighing since the 14th Amendment was passed. And one way or another, where the Court falls on that will be dictated more by politics than the law, just like it always has been.

32:20 Michael: Right. And this battle is like... It's already underway.

32:23 Peter: Yeah.

32:24 Michael: So obviously, there's a big difference between the parties right now, where substantial majorities of Democrats want to vote absentee, where substantial majorities of Republicans want to vote on Election Day in person, and this creates like a very clear avenue for the Republicans to engage in voter suppression that largely hits Democrats, without having to specifically target their approach, right?

32:47 Rhiannon: Yeah.

32:47 Michael: They just go after vote by mail. And so, an example of this currently being underway is in Iowa, where, if you want to request an absentee ballot, you need to have your voter ID number, which nobody knows, and it's a common problem, is that the forms get turned in without this. And so, a bunch of clerks were like, "Well, we're going to send people pre-filled-out forms, so all they have to do is sign it and return it." And so, of course, Republicans and the state legislators passed a law saying, "You can't do that." And then, a bunch of clerks were like, "Well, fuck that. We're doing it anyway." And they did, and then the Trump campaign challenged that in court, and this just happened, where 50,000 absentee ballot requests got thrown out because of this, and there are like another 20,000 in contention in other counties. So the war on absentee voting is underway, right now.

33:39 Rhiannon: Yeah.

33:39 Peter: Absolutely, yeah.

33:40 Michael: It's not just the postal service, it's in the courts, it's in the State Houses right now.

33:45 Rhiannon: Yeah, and can I just add an example in Texas, Harris County, massive, massive district, where Houston is, right? Tons of voters. The Secretary of State's office just threatened this week, threatened legal action against Harris County, if it goes ahead with its plan to send applications for mail-in ballots to more than 2 million registered voters. So this is already happening, Harris County, not only huge, urban, but very diverse...

34:12 Peter: Do it anyway.


34:14 Rhiannon: Yeah, do it!


34:16 Peter: The Trump administration has also sued both Nevada and Montana, because those states automatically sent voters mail-in ballots, and the administration is claiming that sending voters those ballots undermines election integrity.


34:31 Peter: This is the federal government stepping in to interfere with states trying to increase their own turnout, which should dispose of any notion you might have that what conservatives are actually concerned with is the states' rights to run their own elections.

34:43 Rhiannon: Exactly.

34:44 Michael: Right. So one thing I'll say that's like a positive development is the NBA work stoppage, the Bucks' wildcat strike that turned into something a little broader very briefly. One policy change that came out of that was the use of arenas as polling locations, and maybe some of our listeners who are a little more skeptical of electoralism as a means of social change won't really care. But as we're talking about voting rights, it's worth noting, that's a big win, because all of these are in urban areas that have a lot of minority voters, who are often the targets of disenfranchising efforts. Poll closures, attacks on absentee voting and challenges to signatures and all that shit, and so having a large, easily accessed polling location is a big win.

35:37 Peter: Right.

35:37 Rhiannon: Yeah, and not just that, but my understanding is that the plan also includes using some of those facilities for voter registration and ballot receiving boards, especially if the deadline to establish a polling place has already passed. Again, that's really needed, and can have a really big impact.

35:53 Peter: Yeah.

35:54 Michael: Yeah.

35:54 Peter: So one final point I want to make about these elections, 2020, is that the Democrat strategy is to get as many votes as possible and get them counted, right?

36:05 Rhiannon: Yes.

36:05 Peter: The GOP will be trying to get as many of those votes tossed out after the fact as possible. But a lot of the things the GOP does to suppress the vote can't really be challenged after the fact. Let's say Trump engages in what I think is the nightmare scenario and creates a police presence at the polls that is designed to discourage votes. Biden can argue that it's illegal, but what could a court even do?

36:28 Rhiannon: Right.

36:29 Peter: You can try to get an emergency injunction to stop it at the time, which would take hours, hours in which people are being turned away from the polls. Biden can't prove it would have changed the outcome after the fact, and no one will be able to measure the exact number of votes lost. When a strategy is designed to prevent people from voting, it's almost impossible to challenge in the courts after the election actually occurs, because the damage is already done.

36:53 Rhiannon: Exactly.

36:53 Peter: All that to say, the Republicans' path here is easier. It's easier to suppress the vote than it is to fight against it. It's just a massive built-in advantage, and that should be something that's very disconcerting, because if the GOP decides to go all-out on November 3rd, I'm not entirely sure how much could actually be done to stop it.

37:15 Rhiannon: Yeah, yeah, there just isn't a legal framework for this kind of thing, and that's part of the reason why the Republicans have chosen that strategy, frankly.

37:22 Michael: Another reason why having multiple election days, an election week would be beneficial.

37:28 Rhiannon: Exactly. So to speak a little normatively here, to talk about the future and what a legal framework that adequately protects voting rights might look like, the most obvious step the courts would take in a fair world, in a just world, is to return to the Warren Court-era framework of a 14th Amendment. That framework uses the Equal Protection Clause to protect voters, and that kind of court would be returning to using an analysis that weighs the rights of voters more heavily than the rights of states to control their elections.

38:01 Peter: Right.

38:01 Rhiannon: Another obvious step is to undo the gutting of the Voting Rights Act that took place in Shelby County v. Holder back in 2013. We didn't cover that case much here today, but that's because we have an entire episode on it.

38:14 Peter: Right.

38:14 Michael: Yeah. [chuckle]

38:16 Peter: And yeah, if I can talk my nerd shit for a second.

38:18 Rhiannon: Please do.

38:19 Peter: There's also a less obvious step to be taken. We mentioned earlier, that there's a clause in the 14th Amendment that penalizes states that deny or abridge their citizens right to vote, and it penalizes them by lowering their congressional representation proportionately. In other words, states are apportioned Congressmen based on their population, so if you deny ex-citizens their right to vote, your share of congressional representatives would decrease accordingly. And believe it or not, this clause has really never been enforced, for a bunch of reasons. It's logistically difficult to implement, and there's a lot of political pressure by Southern states, frankly, to not enforce it, and as a result, courts have more or less given up on it and impact litigation attorneys at the ACLU, for example, have also more or less given up on it as a reasonable path here.

39:12 Peter: So in other words, states are running wild with disenfranchisement, while there's a massive constitutional weapon for fighting against it that sits dormant and mostly unused, and if you want states to take voting rights seriously, that clause needs to be given teeth and liberal and left judges and academics should be working on doing that.

39:34 Rhiannon: Exactly.

39:35 Michael: So yeah, look, it's up to judges and academics to do that sort of groundwork, but what really drives change is popular pressure on political institutions, and I think history shows that. And so, yeah, the Warren Court had liberal-minded Justices, but that Court was more than anything, responsive to the social and political upheaval of the '60s. It's not a coincidence that the Court's greatest period of social change over the last century was also a period of great civil unrest, when people were out in the streets demanding justice.

40:08 Peter: Yeah, like we said, it wasn't long ago that many Republicans were eyeing a future where they were courting Hispanic voters, but in a post-Trump world, that's not a real option, they've fully embraced reactionary white nationalist politics, to a point where it doesn't really feel like they can turn back, at least not in the short term. They can no longer realistically think about expanding their coalition, all they can do is ensure that they weaken the political power of their opponents. So the preservation of the modern GOP relies on the idea of permanent minority rule, and you cannot have permanent minority rule in this country with a Constitution that actually protects against the denial or abridgment of voting rights.

40:57 Peter: The conservatives on the Court know and understand this deeply, they were groomed by conservative academia and the Federalist Society and appointed by Republican presidents with this specifically in mind. This isn't a one-off issue that the conservative Justices can be flexible on. If they back down on this, the conservative political project in this country will be teetering on collapse. So we can explain to you why the right to vote as it is written in the Constitution is a little flimsy, but that doesn't explain why voting rights in this country are weak. As we mentioned, everything you need to protect voting rights is right there in the 14th and 15th Amendments of the Constitution.

41:38 Peter: I think we've said this numerous times, rights are as strong or as weak as our political institutions allow them to be, and conservative institutions have a vested interest in keeping this one weak. You won't convince them using constitutional arguments to give up their own power. That has never worked in the past, and it won't work now. One way or another, it has to be taken from them. Because what the Constitution actually means is determined by powerful people, not by podcasters who read the Constitution.

42:12 Rhiannon: Yeah, Michael, you mentioned earlier, that some people on the left might sort of be just really skeptical of electoralism, of the power of the vote, of whether or not elections really matter. And I fully admit that I think about that stuff too. Especially in a state like Texas, where it's really easy to just be like, "My vote does not fucking matter in this state, in the current system."

42:35 Michael: Or right now, with the protests related to police violence. I'm tweeting how much I'm angry at Bill de Blasio all the time. It doesn't matter that it's all Democrats running New York City, it's still a massive uphill battle to get them to do basic democratically popular reforms.

42:55 Rhiannon: Right, right. But what I'm... In prepping for this episode, what I've been thinking a lot about, is how it's easy for us on the left to just throw up our hands and say, "You know, elections just don't fucking matter, we will have power through other methods," that kind of thing. And I actually think that that thinking is a result of exactly these voter suppression tactics. And in preparing for this episode, I ran across a quote from a Senator, a US Senator, he was the former Governor of South Carolina, actually, and this was when Southern disenfranchisement efforts were being debated and were being discussed in Congress, around the turn of the century.

43:38 Rhiannon: And so in the year 1900, former South Carolina Governor Benjamin Tillman said this about voter disenfranchisement in South Carolina, he said, "In my state, there were 135,000 Negro voters or Negroes of voting age, and some 90,000 or 95,000 white voters. Now, I want to ask you, with a free vote and a fair count, how are you going to beat 135,000 by 95,000? How are you going to do it? You had set us an impossible task. We did not disenfranchise the Negroes until 1895, then we had a constitutional convention, which took the matter up calmly, deliberately and avowedly, with the purpose of disenfranchising as many of them as we could, underneath the 14th and 15th Amendments. We adopted the educational qualification as the only means left to us and the Negro is as contented and as prosperous and as well-protected in South Carolina today, as in any state of the Union south of the Potomac, he is not meddling with politics, for he found...

44:38 Peter: High bar there.


44:41 Rhiannon: He is not meddling with politics for he found that the more he meddled with them, the worst off he got. As to his rights, I will not discuss them now. We of the South have never recognized the right of the Negro to govern white men, and we never will. I would to God, the last one of them was in Africa, and that none of them had ever been brought to our shores." This is 1900.

45:00 Peter: Yeah, but Tom Cotton said the same thing at the 2020 RNC.


45:04 Rhiannon: That's right. That's exactly the point I want to make. Beautifully put, Peter, is like 1900, people's parents alive today were alive at this time. History is now, and just because Republicans and the GOP don't talk quite so explicitly as this, that's the same exact thing that's happening.

45:23 Michael: Right. And it's important to note that bullshitty elections where conservatives are suppressing or outright disenfranchising their opposition is how they keep up this faux legitimacy, but the way minoritarian rule actually consistently maintains power is through violence, and so the longer conservatives are committed to this minoritarian path, they're going to be invested in using political violence, and the longer it goes the more invested they'll be. That's not five or 10 years down the road, it's here. There are endless examples of right-wing paramilitary types getting a pass from cops for the violence they're enacting on protesters. A kid who murdered two people in Kenosha was able to leave the scene and leave the state without being arrested. He had to turn himself in in Illinois to get arrested.

46:17 Peter: That's a great point. And it's important to recognize it. Whatever you think about voter suppression, if it's not something that resonates with you, it's step one. This isn't like the end game here. It's the first step in a process of subjugating the majority of people in the country.

46:33 Michael: I mean, we just spent an hour telling you about a decades-long project to suppress the vote. Republicans, they're not doing this 'cause they're idiots. They know what they're doing and they're doing it because it's important. It's politically important.

46:49 Peter: It's necessary.

46:50 Michael: It's necessary, and I think people on the left need to see that as well, how important it is to expand and protect voting rights.

46:58 Peter: Yeah, like I lean heavily left. I've never been a big fan of Joe Biden, to say the least. And the one thing I'll say is this, this is an interesting election, in large part because if Joe Biden wins and the Supreme Court flips, which isn't a guarantee if Biden wins, but if the Supreme Court flips on voting rights, the conservative project in this country will be relegated to the margins to a degree that you have never seen in your lifetime. I'm not going to vote for him, 'cause I'm in New York and it doesn't fucking matter.

47:31 Rhiannon: Peter!

47:33 Peter: Oh, yeah, I'm sorry. I'll just take three hours on my Tuesday morning that I was otherwise going to be sleeping and go vote.

47:41 Rhiannon: Goddamn it, Peter.

47:42 Peter: Yeah.


47:44 Michael: It took me 15 minutes last time I voted.


47:55 Peter: Okay. Next week is City of Los Angeles v. Lyons, a case about whether the Court can or will stop the LAPD from using chokeholds. You can guess where they ended up on that one.

48:15 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.


48:48 Leon: From the Westwood One Podcast Network.

Flood v. Kuhn+

00:00 [Archival]: So the first this morning in the number 7132, Curtis C. Flood against Kuhn and others.


00:13 Leon: Hey everyone, this is Leon from Fiasco and Slow Burn. On today's episode of 5-4, Peter and Rhiannon are joined by their pal, Adam, a tenant's rights lawyer, to talk about baseball, specifically a 1972 case called Flood v. Kuhn, in which the Supreme Court found that Major League Baseball is exempt from antitrust laws.

00:32 [Archival]: The Supreme Court today rejected a suit by exiled fielder Curt Flood.

00:37 [Archival]: What I really want out of this is to give every ball player the chance to be a human being and to take advantage of the fact that we live in a free and democratic society.

00:47 [Archival]: A well-paid slave is nonetheless a slave.

00:52 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.


01:01 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have brought American civil rights to the brink of extinction, much like poachers have to the leatherback sea turtle.


01:16 Rhiannon: Are turtles poached?

01:18 Peter: Sea turtles are very much near extinction, yeah.

01:22 Rhiannon: Yeah, but I just thought that was like the shitty environment.

01:25 Peter: No, there's poachers.

01:27 Rhiannon: Goddamnit.

01:28 Peter: Probably the environment too, if that makes you feel better.


01:31 Adam: Well, you can poach them if you just have some nice hot liquid.


01:34 Rhiannon: Hey, whose voice is that?

01:37 Peter: Well yeah, let's back up.


01:40 Peter: I am Peter, Twitter's @thelawboy. I'm here with Rhiannon.

01:46 Rhiannon: Hey, everybody. Hello.

01:47 Peter: And a special guest, our buddy, Adam. Adam, welcome.

01:51 Adam: Hello.

01:52 Peter: Adam is a tenant's rights lawyer, but most importantly, this is a case about baseball, and because I don't know a lot about baseball and don't consider baseball to be a sport because you play it while wearing leather belts, we've brought on Adam who is a baseball nerd, the likes of which Rhiannon and I frankly have never seen. So...

02:13 Rhiannon: Yeah, this is, this is...

02:14 Peter: Adam's about to wow you, I think, with his baseball knowledge.

02:18 Adam: That's right, folks. Thanks for the endorsement.


02:22 Peter: The scope of this case goes beyond just baseball, into sports that I consider a little more real, like basketball, and I think that we'll talk about the wildcat strike from last week at the bottom of this episode, and how that ties into the broader conceptions of players' rights and labor rights in sports.

02:43 Rhiannon: Yeah.

02:43 Peter: Michael, once again, not participating, he was out a few weeks ago, and he saw how much people wanted him back and that made him feel powerful, and now he's doing it again, just to flex on you.


02:57 Peter: And to keep up our White male minimum, we had to bring Adam on.


03:02 Peter: That's the way it goes. Today's case is Flood v. Kuhn. Like I said, this case is about major league baseball, but it's also a case about players' rights, about labor rights, about antitrust law, about racism, and about how the Supreme Court is and always has been, just a bunch of old rich weirdos making shit up as they go along.

03:25 Rhiannon: Yup.

03:26 Peter: In this case, a baseball player, Curt Flood, was traded from the St. Louis Cardinals to the Philadelphia Phillies. But there is a twist. He didn't wanna go. The Phillies were awful, and Flood is a Black guy, who is concerned that Philadelphians are racist. Rightfully concerned, I should say.

03:45 Rhiannon: Yeah. [laughter]

03:47 Peter: But the League says "Tough luck. The team owns the rights to you as a player, so you're contractually obligated to go play for the Phillies." And Flood sues, claiming that this is a violation of antitrust law. Antitrust law, if you're not familiar, regulate what's called anti-competitive behavior, monopolies, collusion, things like that. So Curt says, "Look, this is essentially anti-competitive. They're using these contracts to prevent me from going and playing for whoever I wanna play with, and that's a violation of antitrust laws."

04:19 Rhiannon: Right.

04:19 Peter: But the Supreme Court, in one of the most notoriously dumb opinions of all time says that when it comes to antitrust law, baseball does not count. So, Rhiannon, tell us a little bit about Curt Flood. And by the way, Rhiannon, you agree with me that baseball is not a sport, right?

04:41 Rhiannon: Absolutely. It's not a sport.

04:42 Peter: I believe it's a game, but not a sport. Okay, we'll debate this at the bottom of the show.

04:46 Adam: I will see you both at the bottom of the show.


04:52 Rhiannon: Okay, so yeah, Flood v. Kuhn, this is an interesting and important story, like in sports law and sports history. Everybody knows Jackie Robinson, of course, that was the first Black player in major league baseball, back in 1947. But Curt Flood is a lesser-known Black figure in baseball, and he played a key role in baseball labor history. So Curt Flood was a center fielder. I already have questions right there, which is like, "What is that?"

05:25 Peter: It's the center of the field.

05:25 Rhiannon: Yeah, you stand at the center of the field, right?

05:29 Peter: It's not... No, it's actually not the center of the field.

05:29 Rhiannon: You stand at the center of the field and you try to catch it.

05:31 Peter: It's the center of the outfield, yeah.

05:32 Rhiannon: Adam, am I doing good so far, Adam?

05:33 Adam: Pretty good.

05:34 Rhiannon: Okay, thank you. He was a center fielder who played for 15 seasons in the majors with the Cincinnati Redlegs -- sounds racist -- and most of his career with the St. Louis Cardinals, like Peter said. By the end of his baseball career, which was apparently successful, this guy is a really good player. He was a three-time All-Star, a Gold Glove winner for seven consecutive seasons. In 1964, Curt Flood led the National League in hits, and he led the League in singles for the 1963, '64 and '68 seasons. Now, I'm told that these are significant statistics, and so yeah, like all told, Flood was a super, very good baseball player.

06:18 Peter: Right.

06:19 Rhiannon: Now, in October of 1969, the St. Louis Cardinals traded Flood along with three other players to the Philadelphia Phillies. Like Peter said, Flood was upset with this move by his team. The Phillies had a shitty record, they played in a shitty stadium, and Phillies fans were racist and belligerent. Probably not were racist and belligerent, but are.

06:42 Peter: No.

06:42 Rhiannon: I don't know anything about baseball, certainly... [laughter] And so, aside from all of the problems with going to Philly, in Curt Flood's mind, he was also offended that he only heard about the trade by mid-level Cardinals management, not the general manager. He expected for the news to be delivered to him in a more professional way. And despite a sizeable $100,000 contract with the Phillies, Flood refused to report to the team, but at the time, it's not up to players who they play for. Their talent is restricted to the team that they sign with, and then that team can reserve the right to keep them or trade them. And the player does not have a say. So Curt Flood wrote to the commissioner of baseball, Bowie Kuhn, and asked that he be declared a free agent.

07:31 Rhiannon: And this is a little bit of what he wrote. He says, "After 12 years in the Major Leagues, I do not feel I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several states." He says, "It is my desire to play baseball in 1970. I am capable of playing. I have received a contract offer, but I believe I have the right to consider offers from other clubs before making any decision."

08:04 Rhiannon: So he sends that letter off to the commissioner of baseball, but Kuhn denies Flood's request. And in January 1970, Flood, with the backing of the Players' Union, files a lawsuit against Kuhn and against the MLB. Just an interesting note about the trial, Players' Union representatives had voted unanimously to support Curt Flood in the lawsuit, but he didn't really have overwhelming support from ranking file players. So no active players, for example, testified on Flood's behalf. And no active players attended the trial, but there were some interesting figures who did testify for Flood, including Jackie Robinson himself and Hank Greenberg, as well as former owner, Bill Veeck. And Adam, maybe you're the person to go to for what those names mean, who those people are?

08:57 Adam: Thanks, Rhi. So I think Rhi outlined one of the issues pretty well, which is that a lot of the players at the time were, I think understandably, pretty afraid of testifying. They had no idea what the likelihood of success would be of this lawsuit, and they had their own careers to consider. So the players and former players and owners who testified at the trial are as the Head of the Players' Union, Marvin Miller, noted in his biography, they share a sort of background as baseball outsiders. Jackie Robinson, of course, broke the MLB's color barrier in 1947. And he in fact, retired after the 1956 season rather than be traded. Hank Greenberg was a baseball executive at the time, but before that he was probably the highest profile Jewish American athlete in the country. Bill Veeck, which is the correct pronunciation of his name...

09:51 Rhiannon: Thank you. [chuckle]

09:52 Adam: Was a baseball owner with a wooden leg, he used as an ashtray, and he was famous for signing the American League's first Black player, Larry Doby. And also famous for a series of unorthodox promotions, such as letting fans make managerial decisions from the stands with placards and signing a 3'7 pinch hitter to draw a walk with a small strike zone.


10:13 Peter: Okay, I would like to talk about the 3'7 pinch hitter.

10:17 Adam: His name was Eddie Gaedel.

10:20 Peter: And this is an adult with dwarfism or something?

10:24 Adam: This an adult man with, I believe, dwarfism, who Bill Veeck had hired as a pinch hitter. And the other owners, after he drew his walk in his one major league at bat threatened Veeck with expulsion from the game if he ever used him again.

10:38 Peter: Got it. But there's an alternate timeline where people start imitating it. And it's sort of, I guess what is best described as a literal race to the bottom, where players just get increasingly smaller until baseball is nothing but our tiniest citizens.

10:55 Adam: That's right. I mean, I dare even the best pitcher of all time to throw a strike to a literal infant.

11:00 Peter: That's right, that's right.


11:02 Rhiannon: And then just a couple of other weird character notes in this story. So once the case goes up to the Supreme Court, the lawyer who argued the case for Curt Flood was Arthur Goldberg. And just a biographical note, this guy had already been a Justice on the Supreme Court. I guess the '60s and '70s were just a different time, but he did the Supreme Court thing for three years, and then he was the US ambassador to the UN for a few years. And then it appears that resume just allowed him to do whatever the fuck he wanted for the rest of his life, including arguing in front of the Supreme Court. I don't know, I don't have any other justice that has retired and then argued at SCOTUS.

11:50 Adam: And I think, as just an additional note, with respect to Goldberg, so his oral arguments before the Supreme Court for this case were notorious as some of the worst oral arguments ever on record, because he had actually started to shirk his prep duty, in part because he was running for governor of New York.

12:13 Peter: This is the career trajectory of Donald Trump Jr, by the way. [laughter] I don't know if you guys know this. This is the next seven or eight years of his life.

12:20 Rhiannon: The foreshadowing. [laughter]

12:21 Adam: Well, Arthur Goldberg lost his run for governor and Trump Junior is gonna win so it's little bit different.


12:25 Peter: That's right. That's true.

12:28 Rhiannon: Very good point. And then finally, we should know as we transition into discussing the law here, that this opinion is actually a five-three decision. Only eight of the justices took part in deciding the case, and that's because Justice Lewis Powell recused himself because he owned stock in Anheuser-Busch, which at the time, owned the St. Louis Cardinals.

12:51 Peter: Alright, so let's talk about the law. At this time, every baseball player's contract, as we've discussed, has a clause called a Reserve Clause that essentially said that, "After a player's contract expires, teams had the right to reserve the player for another season," so the player couldn't sign with another team. You can compare that with professional sports now, where after a contract expires, the player is a free agent who can go wherever he or she pleases. And it's worth noting that Flood's original lawsuit included allegations that these contracts violated the 13th Amendment, which prohibits slavery and indentured servitude. Those allegations were tossed out before we get to the Supreme Court, but they provide an interesting lens here, not just because it's clear there is a racial component to this case, but also because it's interesting to me how scared the courts are of digging into how many types of employment in this country are fairly similar to indentured servitude when you look a little closely. And they'd rather not address that. So what's being addressed here is whether this might be a violation of antitrust laws, and what the court holds in a decision written by Justice Blackmun is that, no joke, "Baseball is exempt from antitrust laws."

14:09 Rhiannon: Fun.

14:10 Adam: And as a quick note, this opinion gets assigned by Chief Justice Warren Burger to Blackmun, who's pretty new to the court at the time, and if you believe the sources in the Bob Woodward book, The Brethren, the reason it gets assigned to Blackmun, is that Blackmun has been chomping at the bit to get a higher profile and opinion for a while, and Burger knows how much he loves baseball. In particular, Burger feels like he owes Blackmun, because he's assigned Blackmun to write the court's opinion, and what Burger feels is a real hot-potato case that no one wants to touch from the same term, Roe v. Wade.

14:44 Rhiannon: Little, maybe you've heard of it.

14:46 Peter: Look, you gotta do the abortion case, but I got good news too. You get the Baseball case, bro.


14:56 Peter: Okay, so let's talk about what the majority actually says here. The opening section of this opinion is one of the most maligned parts of any Supreme Court decision in history. The section is titled, "The Game," [chuckle] and it's literally four uninterrupted pages of Justice Blackmun describing why he loves baseball, but he talks about the history of the game, and he tries to lay the ground work for making the case that baseball is of some unique historical and cultural importance, rather than just a popular sport. And you can tell that he thinks it's so poignant and beautifully written, but the whole thing is just like, "Back in 1887, the Kentucky Hoot Nannies won the World Series, even though their star shortstop, Big Al Frinkley, came down with the mean case of the rickets."


15:46 Peter: At the end of the decision, he literally just lists 83 baseball players that just... Just list their names.

15:55 Adam: Let's remember some guys.

15:57 Rhiannon: Let's remember some dudes.

15:58 Peter: We're naming some dudes. And to give you a taste, some of the listed names are Wee Willy Keeler, Iron Man Mcginnity, Scrappy Sammy Brockton, Three Finger Brown, and Whistling Wally Herc. And believe it or not, I only made up two of those, okay. The other three are real.


16:19 Peter: Rhiannon I know Adam knows which ones are... Adam is like... Immediately knew which ones were fake? But Rhiannon, just give me a stab here, which one of those seems the fakest to you?

16:29 Rhiannon: Instinctively, I wanna say that Three-Finger Brown is sounds the fakest.

16:36 Peter: But you don't think that I would go that far.

16:38 Rhiannon: Right, I think that you're a more subtle joke maker. [laughter]

16:41 Peter: That's correct. That's correct.

16:43 Adam: He's a real player.


16:46 Rhiannon: Okay, I'm gonna go with Scrappy Sammy. I think that's fake.

16:48 Peter: Correct, you nailed it. That's fake. That's fake.

16:51 Rhiannon: Yes, I know you. I know you, Peter. [laughter]

16:56 Peter: Iron Man Mcginnity, I can't get over this fucking name.


17:01 Adam: That's not a real one.

17:03 Peter: Oh, God. By the way, I chose three real names out of the 83. When I tell you there are like 40 of those have just absurd names. It's not real people. Alright, go ahead Adam.

17:15 Adam: Blackmun spent weeks and weeks actually drafting and editing this part of the decision, "The Game," and at first it was a list composed, for some reason, of entirely White players.

17:29 Peter: How do you not get Jackie Robinson? He got Wee Willy Keeler.


17:36 Adam: So Blackmun finally added Jackie Robinson, Roy Campanella and Satchel Paige, after Thurgood Marshall pointed out that his list was entirely White players. Thurgood Marshall, is the first Black Justice at the Supreme Court, of course, still dissented from this ruling. But years later, when Blackmun was asked if he regretted any part of the decision, he said that his biggest regret was admitting New York Giants player, Mel Ott.

18:03 Rhiannon: Great. Took that lesson to heart. I'm assuming Mel Ott is a White man.

18:10 Adam: He is.


18:14 Peter: So the footnotes of this section contain excerpts from multiple poems about baseball, including one poem about baseball that is about another poem about baseball. I'm like, I realize people romanticize the sport a little bit, but come on dude. You're reading multiple baseball poems as you go through this opinion, in the back of your mind you're like, "This is about antitrust law? That's what's happening here?" The entire section of this opinion, The Game, that section of the opinion is so embarrassing that Chief Justice Burger, he joined the majority except for this section of the opinion.

18:54 Rhiannon: Made that note, "I join everything except this part, which... " Right.

19:01 Adam: And this is the same Warren Burger who, I think it was Rhi that had discovered his Wikipedia page said he was not too bright.

19:07 Rhiannon: Right, yeah, yeah, yeah... It said he was... He did not emerge as a strong intellectual force on the court...


19:13 Rhiannon: You know, all of this just goes to show, I think, that I'm right about baseball, when I say that baseball is...

19:21 Peter: Yeah, go off...

19:23 Adam: If you're gonna call it a sport... If you're gonna call it a sport, it's a sport for grandpas, okay? Grandpas are the only people on the planet who talk about things like this, and who get misty-eyed over a sport where you can chew gum and eat peanuts the whole time that you're playing. And frankly, that's because grandpas are the only people on the planet who have the time for a game that's this boring. And I don't wanna take away from the fact that baseball... It's not just an American pastime, it's a Latin American pastime, it's an East Asian pastime... But in the US, this sport is for old white dudes... Sorry, Adam.

19:58 Peter: Absolutely this is... When you're watching baseball, you have time to turn to your grandson after something happens and be like, "Well, what just happened there?" And he's like, "Oh, he got a hit, grandpa... He got a hit."


20:11 Rhiannon: Right. You have to be aloof as hell to enjoy this game. You know those frogs that... Because of evolution or whatever, they hibernate by just like choosing a leaf that looks comfortable and then they just sit still for three months? That's what's happening when an old rich man watches baseball. There's a reel of black and white film playing in his head while he watches the game, and it's his most cherished memory from back in the day, and it's like, it's that time they loaded up the boys in a station wagon the size of a tank and they drove down to the creek so they could practice shooting rifles at bugs... That's what's happening when an old man watches baseball. [laughter]

20:54 Peter: They... If you watch... Anyone over the age of 65 who's watching a baseball game, will just turn to you and start talking about other baseball games, that they were at.

21:02 Rhiannon: Right, yes. [laughter]

21:03 Adam: Guilty as charged.


21:08 Peter: Alright, I think it's time for an ad.

0:21:09 Peter: So the next section of the opinion actually starts talking about law. And Blackmun goes through the procedural history, and then he gets to some of the court's prior cases. In 1922, there was a case called Federal Baseball Club v. National League, which held that federal antitrust laws, specifically the Sherman Act, which is the primary federal antitrust statute, did not apply to baseball, because baseball was not an interstate business that would fall under Congress's authority.

21:40 Adam: And I should say that Federal Baseball itself was a pretty embarrassing decision. It's a short decision, about three paragraphs, by Oliver Wendell Holmes, whom 5-4 listeners might remember as the author of the Eugenics Decision, Buck v. Bell.

21:55 Rhiannon: Yes.

21:56 Adam: And it's very much a feature of the Lochner era, in terms of limiting the scope of government regulation. So, in Federal Baseball, Holmes writes that, "The business of baseball is giving exhibitions of baseball, which are purely state affairs." He ends up analogizing it to legal lecturers who happen to travel across state lines to give speeches. The idea that baseball was not a business was obviously absurd, even in 1922. But I do appreciate though that Holmes did recognize that lawyers were akin to professional athletes.


22:31 Peter: That's right.

22:31 Adam: Shoutout Holmes.

22:33 Peter: I love that that was the only analogy he could think of.

22:35 Rhiannon: Right. [laughter]

22:35 Peter: He was like, "I'm gonna think of the closest analogy I have for baseball, which is lawyers giving speeches."


22:44 Peter: So, in the 1950s, the court had held that other sports, including football and boxing, are covered by antitrust laws, and so this presents this interesting question. You have this, what is at the time, a 50-year-old case saying baseball is not covered, but then recently, they've been saying other sports are covered. And what Blackmun says is like, "Well, look, there's no question that baseball is an interstate business, like Holmes was wrong about that, back in the Federal Baseball case in 1922. But baseball is nonetheless exempt from antitrust laws." This is particularly bizarre because he's saying, "Look, the reasoning in the Federal Baseball case was wrong, but we still have to respect the conclusion and treat it as if it's binding precedent." It doesn't really make sense. His main reason is that he says, "Congress hasn't passed a law that would overrule the court's decision in Federal Baseball... " Which is just... The courts do this sometimes, where they say like, "Well, Congress could have over... Have made a law that overruled our case." The court makes some terrible ruling, and if Congress doesn't go through the process of drafting and passing legislation that overturns it, then the court is doing the Regina George, like "So you agree?"


23:57 Peter: And it's just... It's just fucking, it's just so stupid. And the real reason that Blackmun arrived at this conclusion, if you take a step back, is clearly that he just thinks baseball is special, right?

24:10 Rhiannon: Right, yeah.

24:10 Peter: And he doesn't wanna risk... He doesn't wanna risk a ruling that would be to disruptive to the league. If that's not the reason, then why start your opinion with an embarrassing soliloquy about the magic of the sport, right?

24:22 Rhiannon: Exactly, yeah.

24:22 Peter: The idea you're supposed to take away from the entire opening section of the case is something like, "When you hear the crack of the bat ring across the ballpark, you will know in your heart that antitrust laws don't apply." And that's really it. That's the holding here. That's all there is to it. The precedent, the 1922 case, Federal Baseball is relevant to a degree, but not really. What he's really saying is just, "Baseball is special and deserves special treatment." That's what the fundamental holding of the case is.

24:54 Rhiannon: Yes.

24:55 Peter: There's a couple dissents here... The best one in my view, written by Justice William Douglas. Douglas, we should [chuckle] talk about for a second for sure, 'cause we haven't talked about him on 5-4, but he's an incredible person, notoriously sort of a curmudgeon who dissented far more than your average Justice, often just asserted his position without providing much reasoning, which, of course, bothered all of his colleagues and legal academics. He once wrote that trees should have standing to sue in environmental cases, which was pretty cool.

25:28 Rhiannon: Love it.

25:29 Adam: Hell, yeah.

25:29 Peter: Another quick note, he claimed he served in the military, but some of his more prominent biographers, like more than one, believe that this was a lie.


25:38 Adam: Stolen valor. Stolen valor.


25:41 Peter: And he's also... He was also famously rude, especially to his clerks, who he described as, "the lowest form of human life."

25:49 Rhiannon: Oh my god. [laughter]

25:53 Peter: All that to say... It should go without saying here, I love this dude with all my heart, I think he really embodies the spirit of the podcast...


26:01 Rhiannon: It's... Peter's role model.

26:03 Adam: Yeah, and speaking of him being Peter's role model, I do think it's interesting that Peter should omit perhaps the most interesting biographical detail about Douglas, which is that he was married four times, and his second two marriages were with women he met as college students.

26:18 Rhiannon: Oh boy.

26:19 Adam: One of those women was actually writing her college thesis on his Supreme Court jurisprudence at the time that they met.

26:27 Rhiannon: I'm grossed out.

26:28 Adam: So I think that that means that Douglas was probably one of the earlier participants in American history in what we might call age gap discourse.

26:36 Peter: That's right. [chuckle] So here... Douglas is dissenting here saying, "Look, you're waxing poetic about baseball, but this isn't really about baseball, this is about business, and this business isn't run by any of the 83 players whose names you listed, it's run by rich owners." So Douglas is explicitly pointing out the twisted irony of Blackmun's majority opinion, he lists these players as if to sort of highlight the long and storied history of the game, but the players listed by Blackmun are the victims of the collusive schemes of the league and the teams that have kept their pay down for what is at this point, basically a century.

27:12 Rhiannon: Exactly... Right.

27:15 Peter: And it's easy to be dismissive of this case as sort of the complaint of a highly paid athlete. One thing to note is that Curt Flood just wasn't that highly paid... In his highest paid year, he made about 100 grand which we mentioned... Great money at the time, worth about 700 grand today. But first of all, most of his time as a pro, he made substantially less than that, in fact, prior to this case, averaged about 40,000 a year over the prior nine years. And, also, it's nothing near what athletes now actually make. And this case was like an early turning point in the movement for players' rights that eventually saw them making much more substantial shares of the revenue that they were generating.

27:57 Rhiannon: Yeah, and to be a little bit more specific, this case was part of what kicked off a revolution really, in how players viewed their own contracts. Very few of Curt Flood's fellow players openly supported Flood during his case, but in the years immediately following this decision, the issue became really the focal point of negotiations between Major League Baseball and the players' union.

28:21 Adam: Yeah, that's right Rhi, and if you've followed sports in the last, I don't know, 40 years or so, you've probably realized that while Curt Flood lost his Supreme Court case, the Reserve Clause as we've described it in this episode is dead.

28:35 Rhiannon: Right, exactly.

28:36 Adam: And not only that, but Major League Baseball has some of the highest paid players in American professional sports. So how did this happen? Well, the postscript to Flood v. Kuhn is really a vindication of the American labor movement. And this is where Marvin Miller comes in, who like some podcast hosts on this episode, was a not particularly good second baseman in high school.


29:01 Adam: That's the extent of his baseball career. And Marvin Miller was really one of the great labor leaders in American history. Before he served as the first president of the Major League Baseball Players Association, he was an in-house economist for the Steel Workers Union, and he was actually hand-picked by a committee of players to serve as, what was basically the first head of the players' union at the time. And as the head of the players' union, he ultimately led the players through the Flood v. Kuhn case, he led them through the creation of these first bargaining agreements, the first collective bargain agreements.

29:44 Adam: He led them through several successful strikes. After the players ultimately won free agency, the owners tried to short-circuit it and collude, but the players successfully struck in the '80s. Then about two decades after the MLBPA had killed the reserve clause, and almost eight decades after Federal Baseball, Congress finally did step in to legislate the now non-existent reserve clause out of existence. Thank you congress. [chuckle] So to sum up, the players had tried to get rid of the reserve clause using the courts, and that had ultimately not worked, but what did work was collective action.

30:25 Rhiannon: Right.

30:25 Adam: And it's a short baseball postscript, Marvin Miller, who was one of the great American labor leaders of the 20th century, he was finally inducted into the Baseball Hall of Fame in 2020, which is eight years after his death and it was almost immediately after the Hall of Fame changed its selection rules to take away voting power from executives. Curt Flood who died in 1997, is still waiting for his day in the Hall of Fame.

30:47 Rhiannon: Yes.

30:48 Adam: And I would say that right now, the MLBPA is, or at least probably has been the most powerful of any of the players' unions in American professional sports. Notably, the MLBPA is the only players' union in American professional sports that has staved off the introduction of a salary cap to its respective sport.

31:12 Peter: Sports is such an interesting microcosm of labor and the labor movement to me in a large part because, it's the one field where everyone admits that players are underpaid relative to their actual value, you have salary caps and all of these other artificial constraints on players' salary. And the result is you have guys like LeBron James who are 100%, no questions asked, making just a fraction of the revenue that they generate.

31:37 Rhiannon: Right.

31:38 Peter: And the conservative position has always been like, no matter what the context, that these people have no room to complain. But that fundamentally misunderstands the position of the labor movement, which is not merely that workers deserve pay sufficient to survive, but that they deserve to be paid what they produce.

31:55 Rhiannon: Exactly.

31:56 Peter: And it's just remarkable to me that even in the context of these highly paid athletes who are complete outliers reactionaries will reliably defend the interest of management. And the Douglas dissent here is so spot on in my view, because he identifies that baseball is a business, and that Blackmun's position in the majority opinion is not one that supports baseball as a sport, but one that supports the extremely wealthy people who control it.

32:19 Rhiannon: If you just think about the structure of the sports industry writ large, you can see that sports, as much as people might wanna say, "It's just a game... " It generates so much money for the people who are in power, the people who are in charge, and the workers, the athletes, the players get a bad deal out of it.

32:36 Peter: Right. So I think we should... Seeing as the reserve clause that this case was about no longer exists, you might wonder whether the antitrust exemption for baseball even matters anymore. And it shouldn't surprise you to learn that Major League Baseball has moved past using the exemption for minor contract clauses, and moved on to using it for something more closely resembling large-scale, multi-billion dollar fraud on the public.

33:01 Adam: Oh, good for them.


33:04 Peter: So you have these teams that are competing with one another, right? In a normal business, antitrust laws would prevent them from colluding to do something that would help all of them or some of them, but hinder one of the teams, one of the businesses. So if you're in software, Microsoft and Apple or whatever, cannot collude to try to box out someone who's trying to enter the industry. That's what antitrust law is for, to prevent that sort of anti-competitive behavior. So this allows teams to collude with one another to box out cities that might want to participate in the league, to box out owners who might wanna do certain things with their teams that other owners don't agree with, all sorts of situations are impacted by this.

33:50 Peter: Most significantly, the exemption has fostered the already deeply corrupt environment in which owners decide whether and how a franchise relocates. So owners of teams, teams that are, again, technically in competition with one another, have often had closed-door meetings to discuss whether, where and under what circumstance a team would relocate... And it's an unwritten rule that you can't relocate without broad consensus from the other owners. That would be, in any other business a conspiracy and violation of antitrust laws, but...

34:23 Rhiannon: Right. Is it... That's collusive, right?

34:25 Peter: Right.

34:25 Adam: You'd call it a cartel.

34:26 Peter: Yes.

34:26 Adam: It would be a cartel in any other occurrence.


34:28 Peter: Yes, absolutely. But according to the supreme court, baseball is magic, so it's fine. And the consequences of that are fairly numerous, and maybe the most significant is that it allows the league to drive and influence bidding by cities on baseball franchises, which can result in anywhere from hundreds of millions to billions of dollars of public money being handed over to these billionaire franchise owners. For example, in 1997, the Minnesota Twins told the City of Minneapolis that they would relocate if they did not receive public financing for a new stadium. The League stepped in to tell the city that they'd approve the relocation if the financing didn't come through and that they would not allow any other team to play in the existing stadium in the future. And that's the sort of open corruption that antitrust laws are designed to fight against.

35:19 Rhiannon: Yeah.

35:19 Peter: But it's just allowed to flourish here because Justice Blackmun enjoyed a nice afternoon at the ballpark. Right?

35:25 Rhiannon: Yeah, those hot dogs, they really hit different. You know?

35:28 Peter: Well, they do.

35:29 Adam: And to be fair...


35:30 Adam: Yes, however, I do wanna just add another point of clarification here, which is that... I mean, you might be used to using the terms baseball and the MLB interchangeably, but the antitrust exemption as it exists, applies to baseball, and to the extent that the reserve clause does not exist and to the extent that Congress has struck the reserve clause, that does not apply to any other form of baseball in the country except for the MLB. So to...

35:57 Rhiannon: This is a really good point, yeah.

36:00 Peter: Right.

36:00 Adam: To this day, minor league baseball players are some of the most exploited athletes in the entire country.

36:05 Rhiannon: Yeah.

36:05 Adam: In many cases, they make well below the federal poverty line in terms of their wage, and they lack any legal recourse to change that. The MLB and minor league baseball have also been considering, recently, a contraction plan, they would disaffiliate some minor league teams from their MLB counterparts and entirely eliminate other minor league teams. But with the antitrust exemption, there's really no way for cities that are facing the loss of their minor league teams to challenge that as anti-competitive.

36:34 Peter: Yeah.

36:34 Rhiannon: Yeah.

36:34 Peter: Bad news for Trenton.


36:39 Peter: Those are the types of cities that have minor league teams, right? Just like... The trends of the world, your...

36:45 Rhiannon: I know that Savannah, Georgia's...

36:46 Peter: Your Hudson, New Yorks...

36:47 Rhiannon: Minor League Team is the Savannah Bananas.

36:50 Adam: Well, that's a great name.

36:50 Peter: I love that. That's phenomenal. What are other cities that might have minor league teams? I'm just trying to think of... You gotta go to fourth tier cities, right? [chuckle] That's when you start getting the minor...

37:01 Rhiannon: Not necessarily.

37:01 Adam: Not necessarily.

37:02 Rhiannon: Like New Orleans, I think they're the Zephyrs.

37:05 Adam: Yeah. Chattanooga has a team... Chattanooga...

37:10 Peter: Oh, I didn't mean to cast aspersions against Chattanooga...


37:12 Adam: Columbus... Columbus, Ohio. Columbus, Ohio has a triple-A team.

37:16 Peter: Oh, okay, never mind then, if Columbus...


37:18 Peter: And Chattanooga have teams, then I shouldn't have said anything at all...

37:21 Rhiannon: Come correct, Peter. [laughter]

37:24 Peter: And look, without getting into too many details. The antitrust exemption has other implications... Broadcasting agreements are implicated.

37:32 Rhiannon: Yeah.

37:33 Peter: The employment of umpires, right? And other people who are affiliated with baseball, but who are not players are impacted. And so... It goes well beyond just player contracts, it even goes well beyond public financing of stadiums and franchise relocation. The last thing we wanna say about this case is that it's hard not to view this case and the conversations about labor rights in the sports context generally through the lens of racial inequity, right?

38:01 Rhiannon: Absolutely.

38:02 Peter: Curt Flood was a black man demanding power as a baseball player at a time when the Civil Rights Movement is experiencing sustained pushback within American politics and society, right? Richard Nixon has been elected on the back of the reactionary push against civil rights.

38:19 Adam: And everyone knows, right? That Jackie Robinson had integrated major league baseball, but Curt Flood, I think deserves recognition, among a lot of other players, for integrating the minor league teams that he played with. So Jackie Robinson went to the MLB, played for Brooklyn Dodgers, but aside from the Major Leagues, there were also all these minor leagues that all needed to be integrated one by one.

38:45 Rhiannon: Yeah.

38:45 Adam: And Flood did that.

38:46 Rhiannon: Yeah.

38:46 Peter: So yes, Blackmun's opinion is awful because he frames a real issue as if it was about the magic of baseball, but it's also awful because it treats a class of people as if their ability to control their lives and livelihoods is less important than his own desire to enjoy watching them play a game.

39:02 Rhiannon: Yes.

39:03 Peter: So the bargaining power of professional athletes as we mentioned up top was again in the spotlight last week when NBA players went on a brief wildcat strike as a protest for the police-involved shooting of Jacob Blake in Kenosha, Wisconsin.

39:21 Rhiannon: Yeah. You could say that.

39:22 Peter: As they call it... And you all saw the usual reactionary forces aligning against the players, spouting their usual lines. If a professional athlete spends his money on cars and partying and women, they'll call him a degenerate, but if the same athlete takes his time and energy and applies it to effecting social change, they fight against that too, because at the end of the day, conservatives believe that the amount of money made by professional athletes is a disturbance in the natural order. That's why social media is full of fucking middle management losers, who have never done an impressive thing in their life, complaining about how these guys are... "They're making so much money for just playing a game", right?

40:08 Rhiannon: Right, right, yeah.

40:08 Peter: It's fundamentally disconcerting to the reactionary mind, not just what these players are doing with the large amounts of social and economic influence they have, but that they have it at all. And now we should talk about whether baseball is a sport.

40:24 Rhiannon: Okay. Peter, you have the stage, Peter... Yeah. [chuckle]

40:29 Peter: Yeah. Opening arguments against baseball. Like I mentioned, you are wearing a leather belt when you play, which... That's business casual, right? That's not...

40:39 Adam: There is nothing wrong with leather belts.

40:41 Peter: These are opening arguments, objection [chuckle] I am entitled to state my position in full without interruption here.


40:51 Peter: You're also wearing, what's best described as a jump suit that was meant to dress children in 1887 or something, they have unbelievably high socks, again, very business casual, they can chew tobacco while... Just while they're playing, these guys will roll up to the plate, and that's the main thing you do, right, you go to the plate and you try to hit, and they'll just be chewing shit, you could have a sandwich in your pocket out there and no one would say anything. That's not a sport, okay? It's an activity. They... [chuckle] What else have we got? I feel that it's worth noting that, for many years, the greatest player in baseball history was considered to be Babe Ruth, who's like 5'5 foot, just... Like... Has like... He's constantly smoking, he seems to be smoking while he plays the game.

41:44 Rhiannon: He's not so much in shape, but he's in a shape which is round. [laughter]

41:49 Peter: Yeah. I mean, look, the guy was a bit chunky, which like... No real judgment, but, is that the greatest athlete your sport has ever produced? It doesn't really make any sense to me. It's a leisure activity, it's something you do to occupy your time, it's a game, for sure, I concede that, but it's not a sport.

42:07 Rhiannon: Look, it takes... I can even concede, like it takes skill, I would not be able to hit a pitch or whatever the fuck, [chuckle] a ball coming at me... But yeah, not a sport. Adam, you may rebut.

42:20 Peter: Yeah, absolutely. Adam, go ahead.

42:22 Adam: I think, in baseball's defense, I would just say that if the man who's self-described as Twitter's daintiest lawyer would like to step into the batter's box and take a few swings, he should help himself.

42:32 Rhiannon: [laughter] Get his ass. [laughter]

42:34 Peter: Well, since you've resorted to personal attacks rather than substantive argument...

42:40 Adam: At par, at par...

42:41 Peter: I think we know that I have come out on top here, no one can defend baseball which is a fake sport. [chuckle]


42:55 Peter: Alright, next week is a special episode on voting rights. Given that the republican party is steadily making voting illegal in this country, we thought that maybe we should talk about it a little bit. Explain why it's definitely gonna work and there will never be free and fair elections again. Follow us on Twitter @fivefourpod, tell your friends and family. Michael will be back, and special thanks to Adam our baseball guy, thanks for coming on.

43:26 Adam: Appreciate being on.

43:30 Rhiannon: Bye.


43:31 Michael: 5-4 is presented by Westwood One and Prolog 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.


43:53 Leon: From the Westwood One Podcast Network.


Nielsen v. Preap+

00:00 [Archival]: We'll hear argument first this morning in case 161363, Nielsen, Secretary of Homeland Security v. Preap.


00:08 Leon Neyfakh: Hey, everyone. This is Leon Neyfakh from Fiasco & Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about Nielsen v. Preap, a 2019 case that allows the Department of Homeland Security to detain undocumented immigrants who have committed certain crimes for months or even years without ever allowing them a bond hearing.

00:32 [Archival]: I mean, they were arrested 14 years after being released, one for taking bus transfers. To me, that isn't the parade of possible future horribles, those are the horribles.

00:44 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

00:54 Rhiannon: Do you have your metaphor?

00:57 Peter: Yeah, I just wrote it a second ago. [laughter]

01:02 Rhiannon: Great.


01:03 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have slowly ravaged America like the Mongol invasions of Central Asia. I am Peter, Twitter's the law boy, I'm here with Michael.

01:17 Michael: Hey, everybody.

01:19 Peter: And Rhiannon.

01:20 Rhiannon: Hello, my friends.

01:22 Michael: Was the Mongol invasion slow? I'm not really familiar with the...

01:25 Rhiannon: Is that Genghis Khan?

01:26 Peter: They were over time. Genghis and Kublai.

01:27 Michael: Yeah, he's like a creepy...

01:29 Peter: I've been playing a lot of Ghost of Tsushima.

01:32 Michael: Oh, that's what... [chuckle] That's what it is. The only thing I know about the Mongol invasion was that they had horses, right?

01:37 Rhiannon: Oh, yeah, that's their big thing.

01:40 Michael: Yeah, their innovation back then.

01:41 Peter: Yeah, that's what I remember from when I used to read about them in Encarta.

01:46 Michael: Yeah, I do...

01:46 Rhiannon: The encyclopedia, yes. I used to look up animals, I read about blue-footed boobies.

01:52 Peter: You could only look up the basics, it was like Mount Everest? Yeah, you can learn about that. Kilimanjaro? Maybe. Alright, hold on. Okay, alright. Today's episode is Nielsen v. Preap, this is a case about whether the government can indefinitely detain immigrants who committed a crime, even if that crime occurred decades in the past, and they already served their time. This was a 5-4 decision from last year, 2019, with the majority written by our little buddy, Sam Alito. And I gotta say, reading this opinion, absolute torture.

02:37 Rhiannon: It's bad.

02:39 Michael: It's so bad.

02:41 Peter: Not only is it the cause of much needless cruelty, but Alito spins the opinion with his head alternately buried in a dictionary and up his own ass. It's truly an insufferable read where the court engages in pedantic and tortured explorations of, for example, the definition of the word "the" and remedial level explanations of the function of adverbs. When you're reading it, you wonder whether you are reading a supreme court decision or if in fact you are in some sort of purgatory lost to the world and cursed to eternal tedium. You wonder whether you've been reading the opinion for a few minutes or if perhaps it has been weeks. You wonder whether you are staring at the pages of the Supreme Court court reporter, or if you are staring directly into the eyes of a cruel and unforgiving God who has laid out in front of you a horizon-less field of your own suffering. So it's bad.

03:39 Michael: It's bad.

03:40 Rhiannon: It's so bad.

03:43 Michael: It's so bad.

03:43 Rhiannon: I can't believe I read this shit for this stupid shit.

03:46 Peter: Of all the cases we've read, this was the most difficult just to get through I think.

03:50 Michael: Yeah, absolutely.

03:51 Rhiannon: Yeah. No, no, no, no, absolute mental torture.

03:53 Peter: So yeah, this is about an immigration law, and there's actually a ton going on in this decision. There are a bunch of different legal questions, there are a bunch of different opinions, there's a huge amount of very convoluted analysis of different parts of the law, but we're gonna keep it nice and simple for you and we should give you a run down up top. There's a law called the we hate immigrants act of 1996. No, my mistake, it's the Apprehension and Detention of Aliens Act, and part of it deals with what to do with aliens, both documented and undocumented who commit certain crimes. And by the way, alien is sort of the widely used legal term for non-citizens, so we're gonna end up using it a bunch here, the court uses it throughout. And we fully recognize that it's more than a bit othering mostly because it literally means other, so we just wanna give our listeners a heads up here. The language the law uses is often pretty disconnected from how normal human beings speak, and we're currently using it in the same word to describe Independence Day-style, alien invaders and people who come here from Guatemala.


05:05 Rhiannon: Great, love that.

05:08 Peter: So if you are a non-citizen, aka an alien, and you commit a certain type of crime and you are imprisoned for that crime, the law states that, "When the alien is released" from criminal custody, he or she can be indefinitely detained pending their deportation hearing. And the central issue here is what "when the alien is released" actually means. Does it mean right after they're released, or does it mean any time after they're released, so that the government can swoop in 10 or 15 years later after they've served their time and have built themselves a life and a family and detain them indefinitely? If one of those sounds drastically less humane than the other, you can figure out which way the court went here. The real lesson of this case isn't really about how wrong the court got it for once, it's about the futility of assuming that you can, in an objective sense, correctly interpret the law and what the human cost of that assumption is, and what we should be doing instead. So Rhiannon, teach us a little bit about immigration law and the poor folks who got caught up in it.

06:20 Rhiannon: Yeah, sorry to bring you guys more bad news this week, but it's another shitty case with a lot of terribly hurt people. Welcome back to the show, everybody. [laughter]

06:35 Michael: Are we ever gonna do a good case? One week we should change it up.

06:38 Rhiannon: Maybe.

06:39 Peter: We did Bostock.

06:39 Michael: That's true. We did Bostock.

06:42 Rhiannon: Yeah, yeah, yeah. You're right.

06:42 Michael: We don't wanna spoil our listeners too much.

06:43 Peter: One out of every 30 episodes.

06:50 Rhiannon: Alright. So for purposes of this case, I think we have to talk about the immigration law background a little bit. Like Peter said, it's super, super complicated, but just kind of looking at this case, we are talking about two groups of immigrants who are facing removal proceedings. In immigration law, the term "removal proceedings" means that you're facing deportation, and so there are two groups of non-citizens who are facing deportation. So the first group, the standard removable aliens, those people are non-citizens, immigrants who are facing deportation because of a variety of the typical reasons that you might automatically or easily think of, like say, if you were caught coming into the US and you don't have the necessary documentation to make your entry legal, like ICE has information that you're undocumented, they can pick you up, they will put you in ICE detention, which is jail, and then court proceedings start regarding whether you really are here unlawfully and whether you will be deported. And in that case, while your removal proceedings are ongoing in court, you're in jail, but you are entitled to a bond hearing in which a judge can decide that you can be released if you pay a certain bail amount or something like that, that you can be released while you wait for the final decision on whether you will be deported, you'd be out on bond, just like you were if you were awaiting trial on a criminal charge and you were out on bond.

08:16 Michael: Right.

08:17 Rhiannon: Now, for the other group, the so-called criminal aliens, the circumstances around this immigration detention are different according to this law. Criminal aliens are non-citizens who have been convicted of certain crimes while they were in the US, and what this law establishes is that those people are subject to what's called a mandatory detention, which means that you will get picked up by ICE, you're put in immigration detention, but while your deportation proceedings are happening in court, you are not entitled to a bond hearing, you're gonna wait in jail until the court decides if you're gonna be deported or not. And so a quick example, this might be like... You're a lawful permanent resident, a lot of times, we refer to this as somebody who has their green card, you get arrested one night for possession of marijuana, say, and you end up being found guilty of possession of marijuana in criminal court, you go to jail, that makes you a criminal alien, which means you are now subject to losing your permanent resident status and being deported. So ICE can come pick you up after you've done your time on the marijuana charge but in this category, you are in mandatory detention, so you do not have a bond hearing. Now, waiting in ICE detention during removal proceedings is significant, I think for two broad reasons. Number one, almost every person locked up by the government in the US is entitled by the Constitution to a bond hearing.

09:42 Rhiannon: Constitutionally, if you're an accused triple-ax murderer, you still get a hearing in court when you're arrested on whether you're gonna get a bond or not, whether you can be released while you wait for the court proceedings to finish up. And the other reason why waiting in ICE detention is significant here is that the removal proceedings, immigration court, these are not quick proceedings. Immigration courts are notoriously and violently and inhumanely inefficient. These courts, they process millions of cases, there aren't enough immigration court judges, court dates are sometimes set years in the future, literal years. So if you are a criminal alien under this law, you are literally caged for months or years while you wait for the deportation decision and you're never entitled to a bond hearing. So to better explain, we can talk about the specific cases of the people involved in Nielsen v. Preap. This is a class action lawsuit actually, it was originally brought by a few lead plaintiffs, but the argument they're making is for all of the criminal aliens subject to this mandatory detention scheme in California. One of the lead plaintiffs is Mony Preap. Mr. Preap was born to Cambodian parents in a refugee camp, and he had lived in the US lawfully since 1981.

11:05 Rhiannon: Now, in 2006, he was convicted of just misdemeanor possession of marijuana, which is one of the crimes that's on this list of crimes that for immigration purposes makes you a criminal alien. So he finished his sentence on the marijuana charge, but as it turns out, immigration authorities didn't arrest him right then when he was released, they arrested him in 2013, seven years later, and they held him without bail until his deportation proceedings were finished. Now, an important note here is that Mr. Preap was eligible for cancellation of removal, which means that he was not deported, he was allowed to stay in the US at the end of those removal proceedings.

11:42 Peter: Wow. That monster still lives here?

11:46 Rhiannon: Right, yeah. [laughter] That monster who in 2006 was convicted of having marijuana and then wasn't arrested by ICE until 2013? Yeah.

11:54 Peter: This is why we needed Trump to come in here and clean this mess up.

12:01 Rhiannon: Another one of the lead plaintiffs, Eduardo Vega Padilla, he arrived in the US as a toddler and had been a lawful permanent resident for 52 years. I mean, this entire man's life, he's in the US, right? He has six grandchildren, all of them US citizens, but back in 1997, he was convicted of a couple of drug charges, and then after being convicted of possessing an unloaded gun, he was released finally from jail and prison and all of that stuff in 2002. He served his time. He moved on with his life. Well, in 2013, ICE showed up at his house and arrested him, saying he's one of these criminal aliens now who has one of these criminal convictions on his record, and under the law he's subject to mandatory detention. So he was also held without bond initially while he was waiting for the final decision on his removal proceedings.

12:53 Peter: Yeah, but when he gets back to his home country, he'll be able to find a job by using some of the connections he established when he was a toddler.

13:00 Rhiannon: Right, right. When it's like a two-year-old, more than 50 years ago. Yeah.

13:04 Peter: This all just makes me think that the actual law should be that if you've been in America for two weeks, you're a citizen now. That's it. If you're here on a long vacation...

13:18 Rhiannon: Right.

13:19 Peter: That's cool. You're a citizen now. You're one of us. Congrats.

13:19 Rhiannon: Why not? You're here, yeah.

13:20 Peter: You get the little flag and a sticker or whatever they give you when you become a citizen and that's it now.

13:24 Michael: The Cuban treatment, man, you get your foot on American soil and you're good.

13:28 Rhiannon: There you go.

13:29 Peter: That's right.

13:31 Rhiannon: If it's good enough for the Cubans, why not for everybody else? So yeah, this law applies to thousands of people who are in immigration custody at any given point in the United States, and these are people who by and large have been here lawfully, they've had some sort of run-in with the criminal law, but they've finished their sentences on those criminal charges. At that point, sometime after their release, they're picked up by ICE. And they might be deported, or they might not be, but unlike all other kinds of non-citizens who might be facing removal and unlike every other criminally accused person in the country, this group is subject to this mandatory detention scheme where there's no chance of bail while they wait for their case to be resolved.

14:12 Michael: Right. So they're separated from their family and their friends and their jobs. And if they are bread winners, that means their family's without income, etcetera, etcetera, etcetera, right?

14:24 Rhiannon: Yeah, so this case is not about deportation or how immigrants get deported or why legally. It's just about the government holding you indefinitely while you wait for your deportation decision.

14:38 Michael: Right.

14:38 Peter: Right. Alright, let's go to a fucking ad...

0:14:4 Peter: So let's talk about the law. Again, this is a law about the apprehension and detention of so-called aliens, and it says that if an alien commits certain crimes, which we didn't get into it too much, but these crimes range from terrorism to misdemeanor possession of marijuana, like the plaintiff. Then after the alien is released from custody, once they finish their prison sentence, the government can detain them without bond. And the point of this is pretty simple, the government wants to be able to deport immigrants who are engaged in criminal activity. So after you serve your time, the government will detain you while you await the outcome of your immigration proceeding.

15:21 Rhiannon: Yeah.

15:23 Peter: Like we said, this is about whether or not these people get a bond hearing, and the law says the alien doesn't get a bond hearing if the government picks them up, "when the alien is released" from prison. So the question of what that phrase means is important because it dictates whether or not they actually get that hearing.

15:41 Rhiannon: Yeah.

15:42 Peter: And the opinion accordingly, ends up revolving in large part around what exactly it means to arrest an alien "when the alien is released."

15:50 Michael: Right.

15:51 Peter: Does that mean that it has to do so fairly quickly or can it be done any time after? So that detaining Mr. Padilla without bond, 15 years after he was released is okay.

16:01 Michael: Right.

16:02 Peter: And the court says it can be any time after, meaning that ICE does nothing wrong when it swoops in years after the fact and holds them without a bail hearing. Keep in mind, there is no question here that ICE can detain these people and they can be deported, the only question is whether they can do so without giving them a bail hearing, forcing them to remain in custody indefinitely, which in practice as Rhi mentioned can be months or years.

16:32 Rhiannon: Right.

16:32 Michael: Right. The way I think about it is like, how humanely do we have to treat these people?

16:35 Rhiannon: Exactly, right.

16:37 Michael: How shittily can we treat people who were convicted of a crime?

16:42 Peter: Yeah, like we said, there's a lot going on in this opinion, but the heart of it is the court's analysis of this language we've mentioned saying that these people can be detained without bond "when the alien is released." And so the court embarks upon an incredibly painful analysis of the meaning of this phrase. Alito talks about whether adverbs can modify nouns and cracks open the dictionary to define the word "the" in "when the alien is released." [laughter]

17:10 Rhiannon: I hate him. I hate him with my life.

17:14 Michael: [laughter] It's so bad.

17:14 Peter: It's so technical yet like sloppily articulated.

17:17 Rhiannon: Yeah.

17:18 Peter: I mean, it's just ungodly painful to read.

17:20 Michael: It is.

17:21 Rhiannon: Yeah. It's horrible.

17:23 Peter: Interestingly, Alito throws away the dictionary when it comes to defining the word "when." Asserting that, quote, "when the alien is released" was intended to mean any time after the alien was released.

17:33 Rhiannon: Well, isn't that convenient.

17:36 Peter: I don't wanna get too deep into the reasoning used here because it's very convoluted, it cross-references across this statutes, like multiple different clauses, but he basically talks about the structure of the statute and says that because an adverb cannot modify a noun, the term "when released," cannot modify the type of aliens identified by the law... Phew. I mean...

18:08 Rhiannon: Can someone Venmo me for fucking reading this. [laughter]

18:14 Michael: It's so awful.

18:14 Peter: Oh man. It's truly bad. So the law says, when you read it through, "The Attorney General shall take into custody any alien who commits certain crimes when the alien is released." That is not a confusing sentence.

18:32 Michael: No.

18:32 Peter: The phrase, "when released" is a description of the time at which the government can take aliens who commit those crimes into custody under the statute.

18:41 Rhiannon: Right.

18:42 Michael: Right.

18:43 Peter: As the dissent written by Breyer points out, almost all definitions of the word "when" suggest some immediacy, if you say, "Lock the door when you come inside" and I come inside and you're like, "Did you lock the door?" And I say, "Oh no, but I was gonna do it in 15 years." You'd be like, "Well that doesn't... " That's not what I was asking for."

19:04 Rhiannon: Right, exactly. Yeah.

19:05 Michael: It doesn't really address my concerns.

19:08 Peter: So Alito's in a bind, right? He has to explain this phrase away. And what he says is that based on the structure of the law, the phrase "when the alien is released" isn't really relevant to whether or not they are eligible for a bail hearing.

19:21 Michael: Right, and the dissent makes this point, and it's sort of intuitively obvious, which is like, if it's not relevant, then why is the phrase "when the alien is released" in the statute at all?

19:33 Rhiannon: Right, Peter, I think your example was really good about lock the door when you come inside and the word when implying some sort of immediacy there and it not making sense otherwise. What Alito's argument is, is that "when" means something more like, you'll be good at this when you get older.

19:50 Michael: Right.

19:51 Rhiannon: Right? And that doesn't make so much sense, that interpretation of the word when. When you're talking about congress writing a statute that's about picking up people and putting them into custody, right? It doesn't make so much logical sense to interpret it as just sort of amorphous whenever some future date.

20:09 Peter: And you might notice that we're not digging super deep into what Alito's actually saying here, and that's for a couple of reasons, one, it's super technical and complex, we don't think that our listeners are smart enough to get it. No, it's genuinely too complex to explain in podcast format, but the second part is that frankly, we don't think that the majority's reasoning here is super off base. I think that Alito's interpretation is awkward, and it's worse than the dissent's interpretation, but it's not outrageous or anything. It's not one of those cases where you're like, "this is just offensive."

20:49 Rhiannon: Right, right.

20:50 Peter: It's a poorly written law, it's confusing and disorganized, and again, I think the dissent is more correct, but reasonable minds I think can differ here.

21:00 Rhiannon: Sure.

21:01 Peter: And that brings us to a problem that frankly, much of the legal profession is happy to pretend doesn't exist.

21:07 Rhiannon: Ooo, say it.

21:09 Peter: The task of the court is ostensibly to determine the "correct interpretation" of the law, but what if there is no objectively correct answer? Where does that leave the court?

21:21 Rhiannon: Yeah.

21:21 Peter: If you are intellectually honest enough to admit to yourself that there is no objectively correct interpretation here, then you have to acknowledge that the only way to approach the question of how to interpret this law is by applying some sort of purposivistic, common sense driven approach.

21:36 Rhiannon: Yeah.

21:38 Peter: You need to think about what the law is intended to, what its impact on people is, and maybe if you can see that there's no objectively correct interpretation of the law, you might try to find one that respects the human dignity of the people affected by it.

21:50 Rhiannon: Yeah, just try it. [laughter]

21:53 Peter: Basically, all that Alito says about the purpose of the law is that Congress wanted to be tougher on immigrants who committed certain crimes, which I think is more or less true, but it's interesting how readily conservatives are willing to refer to the intent of a law when that intent is just some racist bullshit.

22:13 Rhiannon: Yes, yes.

22:15 Peter: So let's talk a bit about the purpose of this law. Like we said, this isn't about whether the government can detain immigrants before their deportation hearings, they absolutely can be. What this is about is whether an immigrant who is convicted of a crime, serves their time, is released, and then years later is picked up by ICE... Whether that person is owed a bail hearing or whether he can be detained indefinitely in some fucking ICE run concentration camp.

22:46 Rhiannon: Exactly.

22:47 Peter: So the main purpose of a bail hearing is to allow a judge to analyze whether or not someone is either one, too dangerous to be out in society or two, a flight risk. And that's really it. And if someone like in this case, served their time for a crime, settled down, started a family, and then led a peaceful and law-abiding life for over a decade, there's as close to a zero risk of danger or flight as you'll ever get. And that, when you're talking about what outcome here makes sense, is the bottom line, right? Give that guy a fucking bail hearing.

23:20 Rhiannon: Right.

23:21 Michael: Exactly.

23:21 Rhiannon: Let a judge determine it.

23:22 Peter: The point of bail hearings is to give people who aren't a danger to society, their freedom before they face trial. And that's the moral difference here, the choice between holding these people indefinitely, possibly for years, despite the fact that they pose no threat to society and letting them go back to their lives until their deportation hearing can actually happen.

23:43 Michael: Yeah, and so in that sense, what they say is like, Look, the reason why this is a mandatory detention is we don't think bail hearings are adequate for determining who is and isn't safe to re-release into the community here. And look, that's maybe a fair reading, maybe that's the "right reading" like Peter said, but again, like if you have 10 years of information of somebody re-entering society and setting down their roots and making a life, then that situation is different. Now you have more information available. And that sort of goes to the indeterminacy of this, like Peter's saying, there's no right or wrong answer, this situation suggest that that purpose isn't really served by denying these people bond hearings because it's different picking them up 15 years later than it is picking them up 15 minutes after they leave prison.

24:35 Rhiannon: Exactly.

24:35 Michael: It's just a different scenario.

24:38 Rhiannon: Yeah.

24:39 Peter: So if the text of the law is uncertain or convoluted, you're allowed to use your common sense, you're allowed to look at the circumstances of these people and decide what the most reasonable outcome is, the only people who don't want you to do that are people who insist on believing that the law is a means for finding objective truth. And those people deluded, you're morally obligated to contextualize these cases because anything else divorces the application of the law from the ways in which it weighs upon human beings.

25:10 Rhiannon: Yeah, exactly. And that's what we're saying, like every episode of this...

25:15 Peter: Every goddamn episode people!

25:16 Rhiannon: Every fucking episode of this goddamn podcast.

25:20 Michael: Get it through your fucking heads. [laughter]

25:22 Rhiannon: We say that there's a moral imperative actually to interpret and use the law in a way that at least takes into account it's effect on people, the material harm or good that it does on people, right? And there's actually a part in the oral argument that highlights the point that you and Michael are making, Peter, and it's a nice kind of like little example, I think of legal realism, which is what we're talking about always. The lawyer for the government, which is to say like a heartless ghoul, an extremely ugly person inside and out, he says during oral argument that like, "We have to interpret the law this way, we have to interpret the law to mean that DHS and ICE... They can come pick up these people any time after release and whenever we pick them up, they're going to be in this mandatory detention." And one reason he says we have to interpret the law this way is because Congress wanted to protect the community from criminals.

26:19 Rhiannon: And Justice Breyer actually asks a really good question, which is like, well, hold up, the community is protected by providing bail hearings, judges consider all of these factors, they consider potentially dangerous-ness in the community, that's what they're considering during a bail hearing, and they do it all the time. But if we are reading the statute the way you government want us to read it, you heartless ghoul, Breyer says "What you're doing to the individual is many who are no danger to the community, you're depriving them of a hearing that could mean their release, and what you're doing to the community reading it your way is nothing. You'll have the bail hearing, the dangerous people won't get out. You see, in terms of the purposes of the bail statute, or this statute or any other statute, if we read it technically your way, we hurt everybody in terms of the purposes, but if we read it the opposite way, we hurt virtually nobody." And so like he's saying, "why?" You're asking us to read it in this weird technical way, and the result of reading it that way is harm, people get hurt, and the purpose of the statute isn't harmed because if the purpose of the statute is to prevent dangerous people from being free in the community, well a bail hearing satisfies that purpose. But big surprise, the heartless ghoul does not have a good answer, 'cause spoiler alert, the purpose to them is harm and hurting people.

27:45 Michael: That's right. The cruelty is the point.

27:47 Peter: That's right. And I wanna make a note about government lawyers who are making these arguments.

27:51 Rhiannon: Fuck you to hell, I hope you fucking suffer, that's my point. [laughter]

27:54 Peter: If you're a government lawyer, and you're in front of the Supreme Court arguing in favor of ICE tactics, you easily could be at worst, a top tier associate at a big law firm, but more likely a partner bagging between 400 grand and like two mil a year. Government lawyers on the other hand, are making tops like 150, which means that that delta... That's how much they hate people from Mexico and Central America, right?

28:29 Rhiannon: Right, right. Your soul is trash.

28:32 Peter: They will take that pay cut so that they can just inflict harm upon immigrants. [laughter]

28:36 Rhiannon: Awful.

28:36 Peter: These people are fucking vile.

28:39 Rhiannon: Yeah, yeah.

28:41 Michael: Okay.

28:43 Rhiannon: Pigs. Pigs!

28:44 Peter: Have you ever seen a government lawyer who was wearing a decently tailored suit? 'Cause I fucking haven't, not once.

28:48 Rhiannon: Never, no. God, no.

28:52 Peter: Alright, let's put a hold on this and go to a quick ad...

0:28:56 Peter: Okay, Breyer goes on in his dissent about the correct interpretation of the statute, and like I said, I think it's fairly convincing, but then he gets to what is, in my view, a much more important point, which is that the majority's interpretation seems a lot like it might violate the due process rights of these immigrants.

29:16 Rhiannon: Yeah.

29:17 Peter: So for the record, between the majority and the concurrences, and the dissent, this entire decision is 59 pages long. And we get to page 50 before there's a real substantive discussion about whether these people are being treated fairly under the Constitution.

29:34 Rhiannon: Love that.

29:35 Peter: So Breyer points out that while it's not certain, this opinion may well violate the rights of these individuals to due process under the fifth amendment.

29:42 Rhiannon: Yeah. There's a constitutional question. Yeah.

29:44 Peter: Right, it is, after all, allowing the government to detain people indefinitely, possibly for months or years at a time without a hearing, and only because they committed a minor crime at some point in the distant past. So not only is this unjust on its face, it's less due process, like Rhi mentioned earlier, than is afforded to a mass murderer in this country.

30:09 Rhiannon: Right.

30:09 Michael: Right. And I think it's worth talking about indefinite detention a little bit because it's like a bedrock constitutional principle that the government can't indefinitely detain someone without any judicial process. That's like the writ of Habeas Corpus was originally for an English common law, like people detained extra-judicially could petition the courts for the writ and make the government show that their detention was legal.

30:33 Rhiannon: Right.

30:34 Michael: That's in the Constitution that Habeas Corpus can't be suspended except in "extraordinary circumstances" such as civil war and invasion. And you see it in the Bill of Rights with a speedy trial right. You can't just be held for years awaiting trial, at least in theory, you can't be held and indefinitely awaiting trial, but it's also in the protections against double jeopardy, right? Because if you can keep re-trying people, you could keep them in jail pending trial over and over and over without real process, the warrant requirements for arrest, so it's like built in.

31:11 Rhiannon: Yeah. Exactly.

31:12 Michael: And even in the height of the war on terror panic 2003-2004, the Supreme Court was not at all receptive to the Bush Administration saying that they could hold enemy combatants indefinitely.

31:24 Rhiannon: Yeah.

31:24 Michael: They extended Habeas Corpus protections to Guantanamo Bay, they said that people accused of being enemy combatants had to have process to challenge that designation. And so this whole idea that indefinitely detaining people without judicial processes is like disfavored strongly should be the background against which we're reading this law.

31:46 Rhiannon: Exactly.

31:48 Michael: That feels right. The government snatching people up, throwing them in a hole and throwing away the key is so fucking obviously fascist that it just seems obvious on its face that the US can't do that. But there are two big issues which is that the conservatives on the court are all fucking fascists and...

32:06 Peter: That is a major one.

32:07 Rhiannon: Right. That's a big one.

32:08 Michael: That's a big problem here.

32:12 Rhiannon: Totally anathema to democracy, having the fascists on the court.

32:15 Michael: And the other is that immigration law is where the government has the most leeway to detain people for extended periods even indefinitely with limited or no judicial process.

32:26 Rhiannon: Right.

32:27 Michael: We've talked about this before in our Trump v. Hawaii episode, going back to the 1880s, when the segregationists were on the court, and at the supreme court directions in the 1880s since then, courts have basically taken a hands-off approach to immigration and said Congress and President can run wild with this shit and they can be as racist and as fascist as they want. And so there're scenarios where the government is allowed constitutionally to indefinitely detain people, like if a lawful permanent resident goes abroad and is checking out historical sites in Petra or something, and on their way back, the government's like, "Oh, we think you were hanging out with Hezbollah. Sorry, we're not letting you back in anymore." But their home country says "We don't want 'em, we can't take 'em, they're not our citizen" or whatever, if the government doesn't have anywhere to send them, but also won't admit them, can keep them indefinitely forever without trial, without hearing, without bond, without anything, that's constitutionally okay. If you're in the United States, you have some more due process protections, which is what Breyer's sort of getting at here, which is that due process clause applies to everyone in the United States.

33:37 Michael: So there's some limits, and I don't wanna start slicing and dicing this really fine. I'm not an immigration specialist, all the different permutations. It's not super relevant. The point I wanna make is that this is an area in need of reform and not just legislative reform. Obviously, they've tried to do immigration reform in the past, Bush tried to do it, Obama tried to do it. It's a big activist push right now, but it's also on left academics, it's also on left legal types, it's also on liberal judges. We need a Federal Society coming up with bullshit arguments like they do, they come up with bullshit arguments about how the Takings Clause means that all federal regulations are illegal.

34:21 Rhiannon: Right. Yeah.

34:22 Michael: And we need like academics coming up with crazy arguments, like, the Constitution applies to Mexicans too. That's something that we need and is undeveloped. There is a law review article I read in college by Hiroshi Motomura saying basically this point, that there isn't really a good answer to the current state of constitutional law and immigration. And that article was written in 1990, and it's like 30 years later, we're at a good 130 years now of the court's abdicating their responsibility here. And it's worth saying, "What has that wrought?"

34:58 Rhiannon: Yeah, I was thinking When prepping this case, I was thinking so much about what it means for our society, what it means for our world, what it means for human beings, that ICE can act like this, that DHS can act like this, that we could hold people indefinitely like this, just because it's immigration law and immigration law is different. And you just think about what good society excluded people like this, and on this scale? That's not what makes a good society, taking people out. Do you all not get yet? Borders are fucking fake. Like, what are we doing? You know what I mean? They're not fucking real. And what makes a good society is like people feel safe, people have their needs met, people have resources, that's what makes a good society.

35:38 Peter: Yeah but Sam Alito would ask, define people.

35:44 Rhiannon: I know it's the same intellectual obstacle...

35:47 Peter: It really is.

35:48 Rhiannon: Every time.

35:50 Peter: And I think speaking of the damage that immigration law has wrought, we should talk about the elephant in the room here, which is ICE. It should go without saying that searching out these people who haven't committed crimes in many years, is part of ICE's strategy generally and ICE's strategy under the Trump administration more specifically. And the goal of it is to foster an environment where non-citizens are made to live in a constant state of fear and vulnerability, where their lives and jobs and families are always precarious, always shrouded in doubt. And the end goal, of course, is to make being an immigrant in this country so unpleasant that people stop coming here, so that the conservative White culturist blob that makes up the plurality of this country can go to Arby's without having to see a Spanish translation of the bathroom "Out of Order" sign. We see ICE employ these sorts of tactics everyday. They've targeted immigrants who are leaving hospitals or dropping their kids off at school. ICE agents in El Paso told a family that they had to deport either the mother or the father and made their three-year-old daughter choose.

37:12 Michael: Jesus Christ.

37:13 Peter: They fucking made a whole movie about that. That's a Sophie's Choice, right? Jesus Christ. These people are fucking monstrous and their tactics are designed to create chaos, and so uncertainty. And I'm not speculating about that strategy here, a Trump administration official on the National Security Council said in an email, in 2019, "My mantra has persistently been presenting aliens with multiple unsolvable dilemmas to impact their calculus for choosing to make the arduous journey to begin with."

37:47 Rhiannon: Right. They're upfront about it.

37:49 Peter: Right.

37:50 Michael: Yeah. Fucking Mitt Romney talked about this shit, making them self-deport.

37:53 Rhiannon: Right.

37:54 Michael: That's the whole idea, it's ethnic cleansing. That's what it is.

37:58 Peter: The ability of ICE to show up years after an immigrant has served his or her time for a crime and put them into indefinite detention is part of this broader strategy of filling their lives with chaos and uncertainty and a judge evaluating this law, someone in the Supreme Court's position here is not obligated to disregard that, it's obligated to actually consider it. It needs consideration in determining whether this practice is fair or sensible. And the only reason you could think that this is fair or sensible is if you believe that being a non-citizen in this country makes you less worthy of human dignity and more deserving of suffering than citizens. There's no other conclusion you can draw.

38:39 Rhiannon: Yeah, exactly, that's it. That's all there is to it. And Peter alluded to and give some examples of tactics that ICE use, it's basically the fucking SS. It is a secret police coming through communities, raiding and kidnapping people. Like Peter said, they're at hospitals, there was a report out of Michigan that an Iraqi immigrant was threatened with deportation by ICE while he was at the hospital, even though what he was doing at the hospital was being a bone marrow transplant for his niece.

39:10 Michael: Jesus!

39:12 Rhiannon: A Salvadoran immigrant, Sara Beltrán Hernández, she was removed from a hospital where she was undergoing treatment for a brain tumor. In another report two undocumented parents in Texas were only allowed to take their infant to the hospital for treatment of a really dangerous stomach issue, if they agreed to turn themselves in to ICE afterwards. I have driven by or been at hospitals in South Texas where ICE and Border Patrol are just set up, and you have to start thinking about what this means for actual public safety and public health. If people are afraid that they're gonna be picked up by fucking ICE, by the police at the hospital, then people don't go to the hospital. You're discouraging people from going to the hospital, when they need treatment, when they're sick and when they're hurt. ICE hangs out at the courthouse. They're waiting for people to come to do what they lawfully should be doing and are ordered to do by showing up on criminal cases, family cases, civil cases, cases that are completely not tied to immigration law, ICE agents will often be hanging out in plain clothes at courthouses to pick people up.

40:17 Rhiannon: I have been in the position of being a lawyer representing people on criminal charges who are undocumented, and being in a position of having to tell those people what to do because ICE is at the courthouse that day. ICE, they'll raid apartment complexes, they will raid neighborhoods, they'll raid places where immigrants work, they will place families and communities under prolonged targeted surveillance. ICE agents are known for loitering outside homes or outside apartment complexes watching families, and they very commonly, very often use kind of ruses and undercover activity to trick people. They will pose as employers who are looking to hire workers.

41:01 Michael: Jesus.

41:02 Rhiannon: They will come knock on the door of a family, they will present a photo of somebody who doesn't really exist, they know that the family doesn't know this person. And they'll make up a name knowing that the family will say like, "I don't know this person and this person doesn't live here." But they'll use that to get into the house to say, "Okay, well, if this person that we're looking for doesn't live here then we can come into your house." And then they just arrest the whole family.

41:25 Rhiannon: And the way that ICE picks people up, oftentimes, family members, loved ones, they sometimes have no idea where their loved one is. I had a case where I represented a client on a criminal charge, now I don't remember what the criminal charge was, but it was for sure a misdemeanor. And when I was appointed to represent him and when I met him, he was at the county jail after he had just been arrested on the criminal charge, and somehow ICE finds out that he is in jail. All of the sudden, my client and the father in this family is no longer at the jail, and it was like a missing person, nobody can say where this guy is, nobody can say where he's been taken. I went to border patrol stations looking for him, we did not know where this person was until he called his wife the next day from Mexico. It's incredibly violent, it's incredibly pervasive the way they act.

42:25 Peter: And look, we mention these because these are tactics designed to create chaos, and so is ICE's interpretation of this law and the government's interpretation of this law. In this case, it is designed to create uncertainty in the minds of immigrants. I was arrested and served time for a minor crime 12 years ago, might I get picked up at any point in the future and indefinitely detained without bond? Maybe. It's something that always weighs on your mind. And there are ways to fight back. You can call up ICE and tell them that you know where an illegal immigrant is, and you give them the location, but right in front of the location, there's a hole and you cover it with sticks and leaves and when they walk over it, they will fall into the hole and now they're trapped.

43:16 Rhiannon: Yeah. Lead them to the edge of a cliff, but then in front of the cliff, you put a screen that looks like the road still continues.

43:23 Michael: Right, you paint the road.

43:24 Rhiannon: Yeah, yeah, yeah. Exactly. Perfect.

43:29 Peter: Alright, the central premise of our podcast is that the courts' decisions are driven by ideology. So don't mistake us. Whatever you think the most reasonable interpretation of this statutory language might be, it's not a coincidence that Sam Alito doesn't give a shit about the lives and well-being of immigrants. His disregard for their dignity is front and center here.

43:51 Rhiannon: Exactly.

43:52 Peter: That's what legal formalism is, it's about creating a network of rules, and when those rules tread on the lives of human beings, you just shrug and point back at the rules as if your hands were tied. If you take the formalistic reasoning away, Alito would still land in the same place because he is an ideologue.

44:09 Rhiannon: Yeah.

44:10 Peter: But what formalism offers him is a place to hide, it allows him to say that the language of the statute rather than his preferences about how immigrants are treated, compelled him to rule the way that he did. Without it, at the very least, his real motivations would be laid bare. He is at the very least forced to defend the cruelty of his position for what it is. Legal analysis as it exists right now, serves primarily as a shroud over the reality that the practice of law is the manifestation of existing power structures, and that disagreements over laws are actually ideological disagreements about where power should and should not sit. Peeling that away, won't fix the problem of reactionary little cockroaches like Justice Alito but it would shine a light on them, and maybe send them scuttling back into the floor boards where they belong.

45:05 Rhiannon: Oh, tell 'em.

45:05 Michael: Fuck yeah dude.

45:06 Rhiannon: Little extended metaphor for you.

45:07 Peter: That's right.


45:19 Peter: Alright, next week is Flood v. Kuhn. A case about baseball, labor rights and racism all wrapped up in one.


45:29 Rhiannon: Perfect.

45:32 Peter: And maybe a strong contender for the dumbest Supreme Court opinion of all time.


45:41 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.


46:04 Leon Neyfakh: From the Westwood One Podcast Network.

Boy Scouts of America v. Dale+

00:01 [Archival]: We'll hear argument now on number 99-699, Boy Scouts of America and Monmouth Council versus James Dale.

00:13 Leon: Hey, everyone, this is Leon Nayfakh from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about Boy Scouts of America v. Dale. This case from 2000 allowed the Boy Scouts organization to discriminate against gay scoutmasters, even though the relevant state law at the time prohibited it.

00:31 [Archival]: This case is about whether an organization which includes 50% of the boys in this country from age 7 to 11 has the constitutional right to ignore the civil rights laws of this country.

00:45 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

00:56 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have unraveled the fabric of American society, like a nail caught in a sweater. I am Peter, Twitter's The_Law_Boy. I am here with Michael.

01:12 Michael: Hey, everybody.

01:13 Peter: And Rhiannon.

01:14 Rhiannon: Hello, hi.

01:16 Peter: Michael, welcome back, by the way.

01:18 Rhiannon: Michael's here.

01:19 Michael: Thank you. It's good to be back.

01:19 Peter: Fresh off a break, mentally acute. Just sharp as hell.

01:24 Rhiannon: Ready to go.

01:25 Peter: I imagine.


01:26 Michael: Yeah, spent the time off honing my intellect.


01:31 Rhiannon: That's right.

01:31 Peter: Like a blade on a stone, right, just...


01:34 Michael: That's right. That's right.

01:37 Peter: Today's case is Boy Scouts v. Dale. As we all know, the Boy Scouts are a youth organization for boys that specializes in teaching wilderness and other practical skills. They're distinct from the Girl Scouts who, from what I can tell, are a front for some sort of money laundering operation.


01:58 Peter: It's like, "Timmy, you're gonna learn how to make a fire. Sally, you're gonna need to sell as many of these fucking cookies you can."


02:07 Rhiannon: Or you're out.

02:08 Peter: This is a case from the year 2000 about a Boy Scouts scoutmaster who was forced to sever his ties with the Scouts because he is openly gay. That scoutmaster sued under his state's discrimination laws, but the Supreme Court held in a 5-4 that the Boy Scouts had a constitutional right to sever their ties with gay members under the First Amendment's right to free association.

02:34 Rhiannon: Boo.

02:36 Peter: We've talked a bit on this podcast about how conservatives use the First Amendment to justify discrimination, and today we're gonna explore the contours of that. And what I really wanna get at is how, no matter how much fancy legal jargon the Court uses to dress it up, the question of whether or not discrimination against gay people or anyone else is protected somehow under the Constitution is entirely a matter of how acceptable the Justices on the Court think discrimination against gays or whoever else actually is.

03:05 Rhiannon: Yes.

03:06 Michael: Right.

03:07 Peter: This decision is written by then Chief Justice William Rehnquist, joined by the other four conservatives on the Court at the time, Sandra Day O'Connor, Scalia, Clarence Thomas and Anthony Kennedy. We've noted several times that Rehnquist was a segregationist early in his career, probably late in his career too, so it shouldn't come as a surprise that by the year 2000, he was maybe not the most open-minded towards gays. And to contextualize this culturally a little bit, it's the year 2000, it's a turning point, I think, in the culture war over gay rights.

03:42 Rhiannon: Yeah.

03:43 Peter: At this point, gay marriage is not widely considered to be on the table, so most of the gay rights culture war took place in back and forth letters to the editor about whether or not Will and Grace deserved a slot on prime-time television.


04:00 Peter: I don't know if you guys remember this era, but I do, and it was intolerable. In the courts, though, anti-gay groups were hoping to be found legally exempt from discrimination laws that protected gay people, a strategy that has in recent years actually found a bit of a foothold again.

04:16 Rhiannon: Yeah.

04:17 Peter: So Rhi, tell us about scoutmaster James Dale.

04:22 Rhiannon: Yeah, the story is about a guy named James Dale and honestly, like James, he sounds like a freaking square, you know.

04:30 Peter: That's weird, a lame scoutmaster?


04:34 Rhiannon: Yeah. I think the theme running through all this, it's like, this is a bunch of dorks in a dork organization, and they're being really dramatic. So Dale is involved in the Boy Scouts organization for most of his life. He enters scouting at the age of eight and officially becomes a boy scout a few years later in 1981. And in the majority opinion here, Dale is described as being an exceptional scout throughout his childhood and adolescence, and at the age of 18, he becomes an Eagle Scout, my understanding is that is meaningful to dorks in the...

05:07 Peter: That's the best one.

05:08 Rhiannon: Dorky organization. Yes, that's right. [laughter]

05:12 Michael: Top of the dork scale.

05:13 Rhiannon: Way to go, James.

05:15 Peter: The only thing better than being an Eagle Scout is having a friend.


05:21 Rhiannon: Well, you know, that's the point of this organization, right. It's for being a boy and wearing your cute uniform and hanging out with your cool boy friends.

05:31 Michael: Yeah, throwing on some culottes.


05:33 Rhiannon: Pulling up those socks.

05:35 Michael: High socks.

05:35 Rhiannon: That's right.

05:38 Michael: And having a good time.

05:39 Rhiannon: After he becomes an Eagle Scout, about a year later, he applies for adult membership to the Boy Scouts organization and is approved for the position of Assistant Scoutmaster of Troop 73. About the same time, Dale starts his freshman year at Rutgers University, and he becomes the co-president of the Lesbian Gay Alliance on campus, just an affinity group for students. And this would probably be totally cool and there would be no issues and no Supreme Court case, except for the snitch ass local media. In 1990, Dale attended a seminar about the mental health needs of gay and lesbian teenagers, and a local newspaper covering that event interviewed him.

06:22 Rhiannon: And he was just like discussing kids needing queer role models, etcetera. The paper ran that interview and included a photo of James Dale, and it identified him as a leader in the on-campus gay and lesbian alliance. So a month later, around late July 1990, Dale gets a letter from local Boy Scout officials informing him that he has been expelled from his position as assistant scoutmaster and they are revoking his membership to Boy Scouts of America. So Dale writes back to ask what reason there is for his expulsion from the organization, and they respond that Boy Scouts, "specifically forbid membership to homosexuals."

07:04 Rhiannon: So at the time, like Peter said, New Jersey, which is where this is taking place, New Jersey, had a state law that prohibited discrimination on the basis of sexual orientation in places of public accommodation. So James Dale filed a complaint under that state law saying he had been illegally expelled from public accommodation based on his sexual orientation, they explicitly said this in the letter, "This is a violation of New Jersey law." So James Dale's complaint goes up to the New Jersey Supreme Court, which agreed with him, they said that the Boy Scouts was an organization of public accommodation rather than just a private entity, and as such, they couldn't discriminate on the basis of sexual orientation. And in response to the argument that this violated the Boy Scouts' Freedom of Association, the New Jersey Supreme Court said that while the Boy Scouts do express beliefs and moral values as an organization, the Boy Scouts do not have a shared goal of association in order to promote the view that homosexuality is immoral.

08:09 Rhiannon: Just a little note here about the Boy Scouts as an organization and their history, they're not like an explicitly religious organization, religion isn't really in their mission statement. Back in 1910, when the Boy Scouts was founded, their mission statement was "To teach patriotism, courage, self-reliance and kindred values." That's it. Like I said, just dudes rock kind of organization.

08:37 Peter: Did Teddy Roosevelt have something to do with this, 'cause it feels very Teddy Roosevelt.

08:41 Rhiannon: He was really excited when the Boy Scouts Organization was founded, 'cause he's a dudes rock kind of guy, and so... Yeah, it's in that vein. Today, their mission statement is a little bit different. It is, "To prepare young people to make ethical and moral choices over their lifetimes by instilling in them the values of the Scout oath and law." They do sort of purport to have a general like what's called a duty to God principle and some sort of by-law that requires that members agree with a declaration of religious principle, but again, there's nothing explicitly as an organization that says like you gotta adhere to specifically like Christian values.

09:20 Michael: Right, right. And they were originally explicitly ecumenical?

09:25 Rhiannon: What the fuck does that mean, Michael?

09:28 Peter: Ecumenical?

09:29 Rhiannon: Sorry, I'm a dumb girl, Peter.

09:31 Peter: Cross-denominational.


09:33 Michael: Yeah, cross-denominational. They don't differentiate between religious faiths.

09:37 Rhiannon: Thank you, we can pick up on context clues, but sometimes a girl just wants to interrupt.

09:41 Michael: But so they got caught up in the religious right shit in the early '70s, seemingly in response to the birth of the gay rights movement, which started with the Stonewall riots in '69, and this was around the time they cancelled the availability of religious medals for Unitarian Universalists. So I think this story is really not that they're a religious organization and their religion was driving some anti-gay stance, so much as the opposite, their anti-gay attitude drove them into the hands of the religious right for a few decades and it's just sort of now fading.

10:16 Rhiannon: And they now allow girls to participate in the Scouts program, which officially is not the Boy Scouts anymore, it's just Scouts, they also allow trans scouts, but side note, they have a major sex abuse scandal, which Boy Scouts of America National has said has bankrupted their organization. So, so much for keeping the gays out, doesn't look like that did you much good on the moral high ground front.

10:43 Peter: I wanna flip the implication of the... So much for keeping the gays out, they're obviously wreaking havoc in place.

10:52 Rhiannon: No, no, no, that's not what I meant.


10:55 Peter: Look. If you can't run an organization where a single adult takes 25 children into the woods for a week at a time without pedophiles getting involved, then what can you do anymore? Look, I was looking into the Scouts a little bit as part of my research here, and if you don't mind, I'd like to take the next three to four hours to talk about merit badges. So I assume most people know that merit badges are awards that Boy Scouts get for completing certain tasks or areas of study. And I looked over all of the badges and I have to say it is completely bizarre. Some of them are for very basic stuff, like there's one for archery and one for fishing. Okay, sure. There's one for bugling, which we were discussing this earlier this week, it's like before trumpets had buttons, that's a bugle.

11:49 Rhiannon: Just a dumb horn.

11:52 Peter: Yeah, but then also there's one for nuclear science...


11:56 Peter: It's like a fucking PhD. What's going on here? And I was also very unsettled to see a crime prevention merit badge.

12:04 Rhiannon: Oh, God.

12:04 Peter: Yeah. A lot of red flags. Absolutely nothing good can come from teaching these little fucking dorks about crime prevention. This is the George Zimmerman merit badge.


12:16 Leon: Oh, no. That's bad.

12:20 Peter: And also, I was looking at what you need to do to get the badge. And one of the tasks is to identify the signs of child abuse, and I'm sort of wondering whether this is like the organization outsourcing their child abuse problems to the scouts themselves, they're like, "Okay, kids, let us know if you see any indications of sexual trauma." And the kids are like, "Why?" And they're like, "Oh, it's a merit badge."


12:44 Rhiannon: That's what all upstanding citizens do.

12:49 Peter: Yeah. Another disturbing one is that there's a merit badge called Indian Lore.

12:55 Rhiannon: Oh, God.

12:56 Peter: Maybe I'm off base, but it seems a bit odd to use the word "lore" to describe people that still live in this country as if they're mythological creations.

13:05 Rhiannon: Right, right, right. We don't need to switch up the genres, just history is fine.

13:09 Peter: Like the Indians and Dragons merit badge.


13:14 Peter: I will tell you one thing the Indian Lore merit badge doesn't require, and that's talking to a Native American.

13:23 Rhiannon: Do they have the requirements for each badge?

13:25 Peter: Yeah, you can look 'em all up. To be fair, one of 10 or so optional things you can do to get the badge is, "attend a contemporary American Indian gathering." But then it says, "discuss with your counselor what you learned and observed. Include in your discussion any singing, dancing, drumming, and the various men's and women's dance styles you saw."

13:47 Rhiannon: No, no, no, no.

13:50 Peter: Do they know that native Americans are regular people too? Instead of like, "Make a native American friend and ask them about their culture," they're like, "Attend a powwow."

14:02 Michael: Go to a sun dance.

14:04 Rhiannon: Exactly. Go around like the Jehovah's Witnesses, knock on a door, they're gonna be dancing inside, take some notes.

14:11 Peter: Smoke a peace pipe in a tipi.


14:14 Peter: This is the most offensive shit I've ever fucking seen, dude. How's that a merit badge? I will never let my kid go in the fucking Boy Scouts after going through these merit badges. I'm gonna teach my kid about nuclear science myself. Alright.

14:27 Rhiannon: Did you guys do Scouts when you were little?

14:29 Peter: No.

14:30 Michael: No.

14:31 Peter: This whole case is weird to me because I thought they were all gay.


14:38 Rhiannon: You do Boy Scouts when you're little, and then you join the gay and lesbian alliance when you go to college.

14:45 Michael: Your progression seems totally natural. Yeah.

14:47 Rhiannon: Right.


14:51 Peter: Alright, so our producer, Katya, is without this podcast, completely homeless. So in the spirit of supporting her, let's go to an ad.

14:58 Peter: Alright, let's talk about the law here. So Dale is simply claiming that he was discriminated against for being gay, which is a violation of New Jersey discrimination laws. The Boy Scouts are claiming that this violates their freedom of association. The First Amendment protects your freedom of speech. And the Court has held in the past that part of that is your freedom to associate with who you want, because some speech is only effective if it's done in conjunction with others. So the Scouts are saying, "Look, our decision not to associate with gays is an expression of our ideals, and that's protected by the First Amendment." And of course, we wouldn't be here if the Court did not side with the Scouts, stating that forcing them to associate with Dale would significantly impact their ability to advocate their viewpoints. So the first thing that jumps out to me about this is just how tenuous the connection between the right to association and any actual speech is.

16:00 Michael: Right.

16:00 Peter: Like I mentioned, there's no actual literal right to association in the First Amendment. Courts have just held that the right to associate must be protected in order to adequately protect speech. And when you're talking about protecting the rights of people who are organizing for a boycott or a protest, that makes sense, right?

16:17 Michael: Or a political party, right, like that's...

16:20 Peter: Right. But this is just an organization saying they don't like gays and don't wanna associate with them. That's not the same thing.

16:25 Michael: Right.

16:27 Rhiannon: Right, exactly. And to put the freedom of association into context, the Supreme Court first recognized the right to free association in 1958. The state of Alabama was trying to prevent the NAACP from doing business in the state and had subpoenaed the NAACP's membership list. And back then in that case, the Supreme Court said no, the NAACP members have the right to associate with one another and to do so privately. So the Court was stepping in and saying, look, Alabama is literally trying to shut the NAACP's viewpoint out of their state, that's a textbook violation of the First Amendment.

17:02 Peter: Right. And you can contrast that with this, where the Boy Scouts, as an organization, aren't being threatened at all, nor is their ability to speak either publicly or privately. This has no connection to speech or expression, it's just a pure manifestation of the Boy Scouts' desire to discriminate against gays.

17:18 Rhiannon: Exactly. Yeah.

17:19 Peter: And I think that brings us to the next point, which is that the Boy Scouts are claiming that their anti-gay stance is important to their message. The Boy Scouts isn't about gay stuff. Okay, this is about hyper masculinity, this is about heading into the woods with a dozen other dudes wearing matching uniforms with short shorts and little park ranger hats and perfectly tied neckerchiefs, and doing activities like basket weaving. And if you become good enough at an activity, you get a little award and you put it on your sash...

17:52 Rhiannon: That's right.

17:53 Peter: Okay.

17:53 Rhiannon: Yeah. No gay stuff just... This is about khakis.

17:55 Peter: Again, not gay stuff.

18:00 Michael: We don't want any sissies.


18:04 Peter: So the Boy Scouts are arguing that homosexuality goes against some of their core tenets. Specifically, they require scouts to be "morally straight" and "clean." Justice Stevens points out in his very competent dissent here, what the fuck does that have to do with anything? We know these little straight-laced freaks think that being gay is gross, but like, who cares? Who gives a shit? Why is the Court obligated to humor that at all?

18:32 Rhiannon: Exactly.

18:33 Peter: And that's sort of the fundamental rub here, like the Court is not actually obligated to place any weight at all on an organization's desire to discriminate against gays. Justice Blackmun in his excellent dissent in Bowers v. Hardwick in 1986, a case about the constitutionality of sodomy laws, wrote that, "The mere knowledge that other individuals do not adhere to one's value system cannot be a legally cognizable interest." I think that puts it perfectly. If the Boy Scouts were saying they didn't want to associate with black people, the Court would have tossed their case out in a second. The reason they didn't here is that the conservatives are much, much more comfortable with anti-gay discrimination than they are with racial discrimination. And Rehnquist does this thing that conservatives always do in these cases. He's like, we're not ruling on whether or not homosexuality is wrong, but like, yes, you are. Yes, you are.

19:26 Rhiannon: Exactly. Right.

19:28 Peter: Because New Jersey passed a law saying you can't discriminate against gays. And the Court is basically saying, well, unless your organization thinks gays are really gross, then you can.

19:42 Rhiannon: And Stevens points out in the dissent that the Boy Scouts claim that this is a violation of their central tenets and that that doesn't really seem to make sense. The Scouts themselves instruct scoutmasters not to talk about sexual matters with scouts, sex stuff is not supposed to be part of this organization. So how can it be that their organizational position on certain sexual matters is so important to them that it's protected by the Constitution? The ACLU's brief in this case also points out that the Boy Scouts market themselves to all boys, but here they're clearly contradicting that position.

20:18 Peter: Right. And I think sort of like the real bottom line is that Scouts are such a generic organization that their mission can't be summed up as anything other than just a place for boys to learn some life skills, right, they go camping, learn some practical stuff, put that shit on your college resume, and that's that. The claim that somewhere in between canoeing and starting fires, you're supposed to infer that you can only fuck girls. I think that seems like a little tenuous...


20:46 Peter: Then again, they're not even a Christian organization, so they can't claim that this is about freedom of religion, which is why this is a big freedom of association, right?

20:53 Rhiannon: Yeah, yeah.

20:54 Peter: And also the Boy Scouts ended up officially letting gays in in 2012, so how central to their mission could it have really been if 12 years after this case, they changed their position entirely?

21:06 Rhiannon: Right, this is clearly just about bigots being bigoted, yeah.

21:10 Michael: Right. I do wanna dig a little deeper on this idea of their mission, because I think from a gender theory perspective, this all kind of makes sense.

21:17 Rhiannon: Come on, Michael, hit us with the gender theory, baby.

21:22 Michael: The Boy Scouts are not just about boys playing in the woods, right, it's about this construction of masculinity and about boys growing up to be like capital M, men. Getting all your merit badges and ascending in the ranks and maybe even becoming an Eagle Scout is a literal right of passage through adolescence into adulthood. And so all the things they do, all the things included in the merit badge catalog can be considered acceptable aspects of manhood, whereas things that are excluded could be considered more feminine. Masculinity is defined in opposition to no girls allowed, right, no women, definitely no gays, that sort of thing.

22:04 Michael: And Rhi mentioned they were founded in 1910, which was like the tail end of a period of big social upheaval after the Civil War and Southern reconstruction, size and structures of families was changing, there were no more slave servants. The country was urbanizing, men were spending more time at work outside the home, and their wives were taking on a larger role in raising and shaping their sons, and so the Boy Scouts are a social response to that, creating a space for boys to be boys and learn to be men.

22:37 Michael: And literally, one of their original documents, which I don't know in the 1910s, how you find workers, maybe you hand out pamphlets on the corner like looking for a job or whatever, but there is this document saying that in scoutmasters, they were looking for, all caps, real live men, red-blooded and right-hearted men, big men. And to be clear, it says, "No Miss Nancy need apply." So they had a very clear ethos.

23:07 Rhiannon: They had to say "No Miss Nancy," because big men is not gay at all.


23:14 Michael: Right, not clear enough.

23:14 Peter: Yeah, no pussies here, we need people who are gonna babysit these 12 children the entire weekend, alright, so you'd better be able to bench press three plates.

23:24 Rhiannon: Big juicy men.


23:30 Michael: So yeah, look, excluding gay men from the organization, it's like a classic heteronormative institutional approach, right. Essentializing gender, reinforcing gender hierarchies and as an ethos, this is like it isn't really far removed from conversion therapy, right. About molding people into their idea of men and so, yeah, maybe you could get a little sissy boy who's eight and you can turn him into a real man, but we don't need any of those as like scoutmasters. We don't need any of them teaching these kids. So yeah, that doesn't mean they should win, right?

24:03 Rhiannon: Right.

24:03 Michael: Their position is something like, "Boy Scouts, we make men and these fucking sissies aren't real men." The question of whether or not the First Amendment protects them and overrides New Jersey law protecting queer people, I think that's not a hard question, it has to be no, the first Amendment does not protect that.

24:22 Peter: I also wanna add, it was mentioned earlier that the Scouts now accept girls and they've become flexible on a bunch of these things, but it was great watching them scramble for a decade there when it was incredibly untenable, like when some girls like, "Why can't I go camping with you?" And they're like, "Ahh, because this is for boys." And that was the end of it.

24:44 Rhiannon: Right.


24:46 Peter: There was just like no actual reason for that sort of status quo in this day and age, and watching the discourse on it and watching conservatives get mad. If you ever just feel like getting a conservative angry, just bring up the fact that the Scouts now allow girls and just watch their heads just grow incredibly large until they explode like a tomato.


25:09 Peter: So it's important to note, circling back to the law here, that the reasoning used by the Court could essentially just exempt any organization from having to hire or otherwise work with gay people. If an organization that is not religious, has nothing in its mission statement about homosexuality and, in fact, instructs its workers not to talk about sexuality at all, can claim that they need to be exempt from anti-discrimination laws, then anyone can. This is 20 years ago, and it's been sort of a minor miracle that the reasoning employed by the Court here hasn't been used to forge massive loopholes in these laws. On the other hand, Anthony Kennedy, this case aside, was very sympathetic to gay rights and his replacement by Kavanaugh has left the door open for organizations interested in leveraging the First Amendment to facilitate their desire to discriminate against LGBT people moving forward.

26:04 Rhiannon: Yes.

26:06 Peter: This case is one of many where the analysis done by the Court is what's called a balancing test. The Court is just balancing the interests on both sides, they're weighing them. So they're saying, okay, the state of New Jersey has an interest in wanting to limit discrimination and the Boy Scouts have an interest in wanting to associate with whoever they like. And so which one's more important? Maybe the single central theme of our podcast is that interpretation of the law is generally driven by the preferences of judges rather than some sort of coherence or objective legal framework. That is especially true in these balancing test cases.

26:43 Peter: All the court is doing, no matter how much they dress it up, is saying, okay, which of these things is more important. It doesn't get more nakedly ideological than that. So you might be thinking, why can the Boy Scouts do this to gays, but not black people, for example? And yes, some law student might be raising his hand right now, technically they would be applying a different analytical framework if this was race discrimination, but the only reason they apply a different framework is because the Court treats race discrimination as if it's more serious, as if it's worse.

27:14 Rhiannon: Right.

27:14 Peter: It's pure policy preference.

27:17 Michael: Right, and I think the comparison to racial discrimination is important, and it's a good one. Preparing for this I was reading an article by a friend of the pod, Sam Bagenstos.

27:25 Rhiannon: Shout out.

27:26 Michael: From 2014, and he sort of situates this case in the long struggle since the Civil War over the breadth of the Civil Rights project, and the ability of the government to intrude on so-called private decisions with right-wing libertarians trying to carve out as big a space for private discrimination as they can. Back in the '50s, for example, someone who owned a diner would argue that it was his private decision about his own business in his own property whether to allow black people to eat there. And one of the big gains of the Civil Rights Movement was to say things like restaurants, clothing stores, railroads and airlines are actually public accommodations, and it doesn't matter if you're a private business owner, if your business is open to the public, then anti-discrimination laws can reach you. And so, like this article's worth reading in general, if you're into reading law review articles, which I imagine not a lot of you are, but...

28:20 Peter: I am also not... That's a Michael thing.

28:22 Rhiannon: Michael's the only one on the podcast.

28:23 Michael: Yeah, that's my role here. The article notes that literally freedom of association was a rallying cry for opponents of desegregation in schools and in public accommodations, and so there's this intellectual through line from Rehnquist himself in the Civil Rights era opposing desegregation to this opinion that he wrote, right, like in 1952, he infamously wrote a memo as a Supreme Court clerk in favor of segregation. I read it. It's shit, but he argues specifically that the Court is ill-suited to police the relationship between individuals and the state. So it's like a very expansive sphere of this private discrimination that the government cannot touch, in his mind. It's hard to read this case and not see that thinking embedded here.

29:13 Rhiannon: Yeah, absolutely.

29:14 Michael: And if all this sounds familiar, then it's because Peter, Rhiannon and Leon discussed this last week...

29:19 Rhiannon: Doesn't count, 'cause you weren't there.

29:20 Michael: Milliken v. Bradley. I wouldn't know, I don't listen to episodes that I'm not on, so, but they must have covered it, I imagine, so.

29:31 Rhiannon: Yeah, and to your point, Michael, like this is in a broader conservative trend around conceptions of rights and freedoms to be pulling back on these more expansive views or weaponizing an expansive framework, an expansive view against people, and you see it in more recent Supreme Court cases, like Hobby Lobby, corporations having beliefs that have to be protected, just this past term, the Our Lady of Guadalupe case, which said that anti-discrimination laws don't apply with hiring at religious schools, and in general, the trend in 14th Amendment equal protection jurisprudence. We talked last week already about how the Supreme Court just kind of put a stop on desegregation efforts, and we've talked before on the podcast about how affirmative action jurisprudence under the 14th Amendment is basically used now to protect white people.

30:19 Peter: Yeah.

30:20 Michael: Right.

30:21 Peter: And we've talked a lot about how through the '50s and '60s, the Court led by Chief Justice Earl Warren made major strides for racial and socioeconomic justice, and how the conservative courts that followed steadily rolled those gains back. This case is part of a separate related phenomenon, where not only do conservative courts roll those gains back, but they take the reasoning of those cases and turn them against marginalized groups. As we mentioned, the freedom of association relied on in this case originated in NAACP v. Alabama, where it was used to protect the NAACP against aggressive racist encroachment by government officials in the South. That same case actually forms a large part of the basis for what is now expansive corporate speech rights. Alabama argued that the First Amendment didn't protect the NAACP because the NAACP is not an individual person, and the Court disagreed. And it has been cited to explain why like fucking AT&T is now the co-sponsor of the House Judiciary Committee.

31:32 Rhiannon: [laughter] Yeah, yeah, exactly.

31:33 Peter: It's not just that conservatives have rolled back rights established in the Warren Court era, in some cases, they have taken those rights, twisted them around and actively used them to protect the interests of the reactionary movement.

31:44 Rhiannon: Exactly, and it's such a depressing conception of America and the law to me. This opinion, the Boy Scouts v. Dale, it's not like explicitly originalist opinion or anything like that. Like Peter said, they're just doing a balancing test here and coming out on the side that they like. But just the conservative thought process around the law and what the law is supposed to do, if you look at the 14th Amendment, if you look at the First Amendment, these things are clearly designed to protect people in a way that... I don't know, it's exactly what you said, Peter, it's just so clearly that they don't want the Bill of Rights to mean anything more than protecting freedoms for their own, right, for their small group that already has established hegemony.

32:35 Michael: It's like the conception of liberty, where the old adage, I think Lincoln talked about this in one of his addresses, when the shepherd saves the sheep from the wolf, the sheep thank him for protecting them, but the wolf curses him as like tyrannical.

32:51 Rhiannon: Right.

32:52 Michael: Right? And it's like it's the wolf's conception of liberty there, right, where he's being oppressed because he can't go and he can't keep black people out of his diner, he can't keep gay people out of his boys' club.

33:04 Rhiannon: Michael, never be gone again, we need you.

33:09 Peter: I think it's just especially visceral in this case, 'cause you have the Boy Scouts, they're all fucking wearing these uniforms that are like a perfect blend of The Village People and the SS, and they're sitting there telling you that their institutional position is that they should not have to associate with gay people, citing moral straightness and cleanliness, while at the same time, suppressing via what I assume was various high-powered PR firms, what is undoubtedly one of the largest sexual abuse scandals in American history.

33:43 Rhiannon: Yeah, yeah, absolutely.

33:46 Peter: I sort of wonder whether or not the Scouts at the time when they're fighting this case through the '90s, were just sort of backwards enough to think that gays were part of the problem with the sexual abuse scandal, and sort of not recognizing it for what it was, and using these antiquated ideas about gay men, thinking that we have to keep gays out because we have this huge sexual abuse problem, not realizing that a fucking job where you are isolated with children in the goddamn woods is just like pedophile's fucking gold mine.

34:19 Rhiannon: Right, right. It's just, it's scapegoating a minority group that is acceptable for a large part of the population to be discriminated against. And I wanna highlight too the role of the Supreme Court in all of this and in this culture war stuff. We said a couple of times that the Boy Scouts organization now accepts girls, they now accept gay members, they now accept trans members, and that happened because the Boy Scouts organization changed, and it was pretty quick, like within 30 years or whatever. But this Supreme Court case, this precedent, is now law. And so whether the Boy Scouts organization sort of changed for the better, just because social movements and people progress together, we now still have this huge case on the books, and it just shows that the Supreme Court is really slow to respond to social progress, is very rarely going to be driving social progress, if at all, it's just not an institution that's equipped to do that and often actually holds us back.

35:19 Michael: Yeah, that's right.

35:26 Peter: Alright, next week is Nielsen v. Preap, a case about ICE, an organization that we are opposed to.

35:36 Rhiannon: It's another fuck the police episode, y'all.

35:39 Peter: Follow us @fivefourpod on Twitter. Tell your friends and family. And it seems like we have a little bit of time, so I'm just gonna read off some merit badges as we exit. American business.

35:57 Rhiannon: What does that mean?

35:58 Peter: I think it's quite clear. Chemistry, Chess, Citizenship in the Nation.

36:08 Michael: I like that.

36:08 Leon: Coin collecting. Collections, separate. Dentistry.

36:19 Rhiannon: It's just like a creepy 12-year-old who's really into teeth. I don't want you getting a badge for that.

36:26 Michael: No, thank you.

36:30 Peter: Entrepreneurship.

36:31 Rhiannon: It sounds like American Business.

36:31 Peter: Genealogy. Probably used to be phrenology and they had to change that. Landscape architecture.

36:39 Rhiannon: Oh...

36:41 Peter: Law.

36:42 Michael: Nice.

36:42 Peter: Oh, my God.

36:43 Rhiannon: You got a merit badge, guys.

36:45 Peter: Well, not yet. Ask five people about the role of law enforcement officers in our society.

36:53 Rhiannon: No... Oh, my God, so the law merit badge is fucking cop shit.

36:58 Peter: Arrange a visit with a lawyer who works for a business, bank, titled company or government agency. Find out his or her duties and responsibilities and report what you have learned. Why wouldn't they just say any lawyer? Discuss with your counselor the importance in our society of two of the following areas of law: Environmental law, computers and the internet, copyright and the internet. Those are separate. Immigration, patents, biotechnology, privacy law, international law. Famously, the only kinds of law.

37:33 Peter: Back to general merit badges. Medicine, Mining in Society, not just mining. Motor Boating. I can do that.

37:40 Rhiannon: Shut up. Shut up!


37:48 Leon: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova, with editorial oversight by Leon Nayfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

38:10 S?: From the Westwood One Podcast Network.

Milliken v. Bradley+

00:00 [Archival]: We'll hear arguments next in number 73-434, Milliken against Bradley.

00:08 Leon: Hey, everyone, this is Leon Neyfakh from Fiasco and Slow Burn. On today's episode of 5-4, Peter and Rhiannon are talking about Milliken v. Bradley, the Supreme Court case from 1974 about school segregation.

00:22 [Archival]: Winding up a prolonged and historic term, a divided Supreme Court ruled today on one of the touchiest issues in the nation, busing school children for racial balance.

00:31 Leon: In Milliken, the Court found that school districts in the suburbs didn't have to participate in desegregation plans involving city schools, a ruling that kneecapped the cause of integration.

00:42 [Archival]: Chief Justice Warren Burger declared for the majority that lower courts acted unconstitutionally by ordering busing between predominantly black Detroit and 53 of its predominantly white suburbs.

00:54 Leon: Michael is off this week, but joining Peter and Rhiannon is a special guest. Me, Leon Neyfakh, from Fiasco and Slow Burn. This is 5-4, a podcast about how much the Supreme Court sucks.

01:12 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have spread like rabies through the American nervous system. I am Peter, Twitter's The_Law_Boy. I'm here with Rhiannon.

01:26 Rhiannon: Hi, everyone.

01:28 Peter: And our special guest, Leon Neyfakh.

01:31 Leon: Hi, everybody.

01:33 Peter: Leon is, he told me, an expert in racism, and that's why we're having him.

01:42 Rhiannon: Peter, you said before on the podcast that you are not a professor of racism.

01:46 Peter: That's right.

01:46 Rhiannon: But so one of the things that we brought to our listeners today, is a professor of racism, Leon Neyfakh.

01:52 Leon: A podcaster of racism.

01:54 Peter: Yeah, Michael is taking the week off. Had some personal items to attend to. And also, we keep a strict white male quota on this podcast. That's how it goes. Leon on, Michael off. Sorry, Michael fans.

02:12 Rhiannon: Miss you, Michael.

02:14 Peter: Today, we are talking about Milliken v. Bradley, a 1974 case about desegregation. This case is in many ways the story of the promise and the failure of school desegregation during the last century.

02:26 Leon: Wait, Peter, can I say why I'm actually here?

02:29 Peter: Yeah.

02:30 Rhiannon: Sure.

02:31 Leon: I'm not in fact, a professor racism, lest anyone get the wrong idea. So as you've heard me say, how many times now, 26? How many episodes have we made of 5-4?

02:39 Peter: Something like that, yeah.

02:40 Leon: As you've heard me say that many times, I am the host of the podcast, Fiasco, which is a history podcast that's available on Luminary, and we tell stories about the recent past, and we've done...

02:52 Peter: Alright, let's just wrap this up, Leon.

02:54 Leon: Alright, so look, it's a pretty elaborate concept. We make podcasts about history.

03:00 Peter: Leon's podcast is about events, if I understand it correctly, things that have happened.

03:04 Leon: That's right. And the event that we're covering in our upcoming season, is the desegregation of Boston's public schools, which took place in the mid-70s and is very relevant to the case we're talking about on this episode.

03:15 Peter: Alright.

03:15 Rhiannon: Yeah, and as part of that season, you interviewed a bunch of people, right?

03:19 Leon: Yeah, so it's a narrative documentary, it's a mix of me telling the story, as well as a lot of archival footage from TV coverage and radio coverage at the time, and as you said, dozens of original interviews with people who were there. So in our case, this was key black activists from Boston, who put segregation, school segregation on the agenda in Boston, starting in 1963. And it was because of the pressure they created, that what became known popularly as the Boston Busing Crisis happened in '74, '75, '76.

03:51 Peter: Well, hey, welcome to the podcasting game, dude.

03:53 Leon: Thank you. Thanks for letting me on.

03:58 Peter: Again, the case we're looking at today, is Milliken v. Bradley. In 1974, this case effectively dashed all hopes of ending school segregation in America. But to understand what all of this means, we have to dig into some history. In 1954, the Court in Brown v. Board of Education held that segregation in public schools was unconstitutional, but what exactly it meant for states and school districts to desegregate in concrete terms was never entirely clear, and for years, both courts and public officials fought over the obligations of the states to take affirmative actions to remedy the issue.

04:35 Peter: At the same time, redlining and other forms of economic discrimination boomed, funneling black Americans into cities, while whites fled to the suburbs. By the 1970s, not only did segregation persist in the South, but that white flight to the suburbs had intensified the separation of black and white communities in the North. So the NAACP took action, filing a lawsuit against the state of Michigan about public school segregation in Detroit, arguing that although segregation was not official government policy in Michigan, various government policies worked to make the region segregated by default. And in Milliken v. Bradley, the Supreme Court rejects this argument, essentially holding that school districts only had to desegregate if there was proof that the segregation was intentional in those districts. In other words, the segregation in Detroit, according to the Court, was coincidental and not a constitutional concern.

05:30 Leon: And nobody's fault. The point was that no one did it, no one made a rule that said it had to be like this. This is how it was.

05:37 Rhiannon: Exactly.

05:38 Peter: The opinion is a showcase for just how hollow the promise of equal protection under the law can be when the Court is committed to impeding it. The majority here, written by Chief Justice Warren Burger. We've talked a bit about him in the past, he was the first Chief Justice after Earl Warren. Earl Warren, we've discussed many times, famously moved the Court left, especially on issues of racial justice. Burger on the other hand, a standard-bearer conservative and became a spearhead of the conservative effort to fight back the gains of the Warren Court.

06:13 Rhiannon: A quick note about Chief Justice Burger. His own Wikipedia page says that the Chief Justice "did not emerge as a strong intellectual force on the Court." And for Wikipedia to be that fucking shady, means that you were dumb as rocks.

06:33 Peter: That's incredible. Wikipedia'd be like, "Look, his guy is a bit of a moron, let's be honest. Not your smartest lawyer, okay." Incredible. You know conservatives are trying to edit that back, but someone at Wikipedia is like, "Absolutely not."

06:50 Rhiannon: No, that is accurate and it stays.

06:54 Peter: Alright. So a slight change of pace. Rhiannon and Leon, share the burden of telling us some of the background.

07:01 Rhiannon: Yeah, it'll be a duet today.

07:03 Leon: Beautiful. Four hands, right? Isn't that when you're duetting on a piano, four hands?

07:08 Rhiannon: Okay. [laughter]

07:11 Peter: Gonna be a long episode, folks.

07:12 Rhiannon: Leon, I told you before this, no nerd shit on 5-4. [chuckle] Alright, folks, so the Fourteenth Amendment, that's what we're talking about today, we talk about her a lot on this podcast 'cause she's messy. And the drama on what the Fourteenth Amendment means in terms of ensuring an equal society on the basis of race. It starts way before Milliken, it starts way before this story, but a good place to start, I think, is with Brown v. Board of Education. Everybody knows this case, and it's one of the most important decisions made by the Supreme Court in US history, it's regarded as one of the best decisions made by the Supreme Court in US history. And like Peter said, it was in 1954, the Supreme Court under Chief Justice Earl Warren ruled in a unanimous decision that segregation in public schools was unconstitutional under the Fourteenth Amendment. And they said that, "In the field of public education, the doctrine of separate but equal has no place." Great, very good, very strong. Thanks, boys.

08:21 Rhiannon: But as it turns out, the Brown decision, it didn't say much about how public schools should desegregate and what desegregation would really look like, what states and local governments would really be required to do to desegregate, and that's for a few different reasons, I think. At the time, a unanimous decision in Brown v. Board was seen as a priority. There was a lot of fear that the South would simply refuse to comply with a decision that indicated any sort of debate or ambiguity about what the Constitution said about segregation in public schools. And if the Court ruled that segregation was unconstitutional, but there were a couple of Justices writing in dissent, there was a real fear at the time that the South in particular is insolent enough that it would weaponize any sort of official legal arguments against desegregation and just straight up not follow the ruling.

09:13 Leon: That's how that would have worked if it had been a more aggressive ruling, but one that was not unanimous 'cause that's the trade-off. He basically wanted it to be unanimous, and therefore it was perhaps more of a compromise.

09:25 Rhiannon: Less strong.

09:26 Leon: Yeah. If there had been dissents, how would those dissents have been actually weaponized by legislators or whoever?

09:30 Rhiannon: I think it just gives... Peter, you can jump in, but I think it just gives an opening. Today, we talk about decisions where Justices in concurring or dissenting opinions are signaling what type of legal arguments might be convincing or should come up next, that kind of thing. And I think it just allows that legal wiggle room to say, "This isn't 100%, we're not all convinced of this. There's room for interpretation."

09:55 Peter: Yeah, and I think you really can't overestimate the extent to which the public institutions of the South were willing to defy the public institutions of the North. And a lot of Southern states viewed the Court with suspicion and the Court's authority over them on these matters with suspicion, and I think there was a fear that the Southern governments would be willing to undermine the legitimacy of the Court by just flat out ignoring a ruling.

10:23 Rhiannon: Yeah, we talked about this a little bit in the Terry v. Ohio episode, which is about stop and frisk. But at this time, particularly after Brown v. Board in the mid-50s, late '50s, especially in the South, but across the United States, people are really criticizing the institution of the Supreme Court. There are Impeach Earl Warren campaigns, there's a lot of anger about what's happening. And so that fear is...

10:46 Leon: There was a podcast about how much the Supreme Court sucks.


10:48 Rhiannon: Right, exactly. So like we're saying, the legitimacy and the power of the Supreme Court itself was seen as really hanging in the balance. So Chief Justice Warren makes it kind of his mission, really, to get all nine Justices on board with the decision in Brown. That way when it comes out, it's like there's no ifs, ands or buts, segregation in public schools is unconstitutional, period, exclamation point.

[foreign language]

11:13 Rhiannon: That's it.

11:15 Peter: Wait. One comment I wanna make, Rhi, and we've mentioned this before, but I wanna bring it up again while we're talking about Brown v. Board. Brown v. Board was unanimous, but Justice Jackson had a law clerk at the time, young William Rehnquist, future Chief Justice...

11:30 Rhiannon: A-ha.

11:30 Peter: Who wrote a memo about how Justice Jackson should dissent in Brown v. Board and support upholding separate but equal, the Plessy v. Ferguson doctrine. Plessy v. Ferguson, one of the worst Supreme Court decisions of all time. Rehnquist denied that he actually felt that way, but almost everything we know about that time, about Justice Jackson, about what he said to his fellow clerks, indicates that he was lying and he actually supported maintaining segregation in the South.

12:01 Rhiannon: Right, right. And that's important because Rehnquist later is a Justice and later Chief Justice on the Supreme Court, and is involved in Milliken, obviously. So after Brown v. Board is decided, the Supreme Court, Chief Justice Warren, they know that they aren't giving much direction to the states on how to actually desegregate. In fact, they're deliberately not laying it out what segregated schools need to do to comply with the Constitution. So as the Brown decision comes down, the Supreme Court decides to convene on the same case, Brown v. Board of Education, but in the next year's term, in 1955, so that they can actually issue directives to help implement the Brown ruling. Basically, they want Brown I to come down to announce the principle that segregation is unconstitutional, and then in the next year, they're going to come out with the second Brown v. Board of Education, which will lay out the policy requirements of implementing desegregation.

12:58 Peter: Right, let them know what they need to do.

12:58 Rhiannon: Exactly.

12:58 Leon: And that's called Brown II, right? I learned about Brown II when we were researching Fiasco, and I wonder if I'm right to think that most people don't know about Brown II.

13:07 Rhiannon: Yeah, I think it's way less known and yes, it's just sort of colloquially known as Brown II.

13:11 Leon: I didn't know they could have sequels, I thought that was...


13:16 Rhiannon: They can do whatever they want, Leon. That's, again, the point of the podcast.

13:18 Leon: And it wasn't good, so...


13:22 Rhiannon: So in Brown II, the holding that the Supreme Court reaches ends up being kind of a mess, frankly, because all they say is that school districts and local governments should desegregate public schools "with all deliberate speed." So you can see how in the Brown II ruling, again, this one is handed down unanimously, the Justices under Chief Justice Earl Warren are trying to do this huge thing that they know is about to blow up something that's so central to the way American society is built, on racial segregation, but at the same time, they're not trying to make anyone super mad about it. So the Brown II ruling just says, "Look, local authorities and district courts below us, y'all are gonna have to use a lot of different tools to get this done to implement the ruling of Brown I. So we're just gonna say it should be done with all deliberate speed, get on it."

14:13 Leon: The thing with that phrase, though, is that it sounds like you gotta do it fast, but in fact, the key word is deliberate, and like, "You have to deliberate on how you're gonna do this and do it at that speed."

14:22 Rhiannon: Exactly.

14:23 Peter: It's not like, "do it quickly."

14:24 Rhiannon: Right, that's a really good point. And there's no specific direction, there's no specific requirements in the Brown II ruling, there's no tools for what to do, there's no deadlines importantly, nada. So, "with all deliberate speed," whatever that means, the process of desegregation ostensibly sort of gets started, but it's kind of like everyone is on their own to figure out how and to what extent they really are gonna take this on. So...

14:48 Leon: And nothing happens basically, right?

14:50 Rhiannon: Exactly. Basically nothing happens because, of course, there are politicians and judges and local authority figures all over the country who are publicly and strongly still opposed to desegregation. We know the famous quote by George Wallace, then the Governor of Alabama, "Segregation now, segregation tomorrow, segregation forever." That quote's from 1963, that's nine years after Brown v. Board. He's not saying that being afraid of a Brown v. Board ruling coming down, that's nine years after. So straight up, most of the country, especially the South, they're just not complying with the Brown ruling.

15:25 Leon: Is there any truth... Can I ask real quick?

15:26 Rhiannon: Of course.

15:27 Leon: One of the people we talked to for Fiasco is Justin Driver, who wrote a book about public education and the Supreme Court, and one thing he said was that they didn't wanna make too big of a demand because they thought that if they did, as you said, Southern states just wouldn't do it and that would make the Court look powerless. And I had never thought before about the degree to which the Court is trying to maintain its authority. Is that a common way of seeing what happened with Brown II?

15:52 Rhiannon: I think so. I think Brown I and Brown II are seen together and they're seen as a compromised position where the unanimity of the Court was prioritized, so that it could be seen as this strong consensus, but there weren't a lot of strong directives.

16:11 Peter: Yeah, the way that Brown and Brown II were taught is that in a lot of ways, the Court was tiptoeing around the South, giving them these generalized ideas, yes, you should desegregate, but very concerned that the South would simply ignore it, and that the Supreme Court would look weak.

16:30 Rhiannon: Exactly.

16:30 Peter: Not just look weak, but prove to have no impact on the state and local governments in the South.

16:37 Rhiannon: Yeah, right. And so while the states and local governments are totally dragging their feet, in many places like the Fourth Circuit, even federal judges are helping them do that. They start interpreting the ruling in Brown v. Board just as an order to not segregate, but it's not a mandate to actually integrate. Brown v. Board just stands for the proposition according to these conservative interpretations, that it's just a prohibition on officially saying, "This is a school district in which we segregate based on student race rather than in order to proactively put children of different races in schools together." And one tool a lot of school districts used at the time to do this non-segregation, but also non-integration thing, is so-called freedom of choice plans, where families can just decide which school they send their kids to. So in New Kent County, Virginia, for example, the district there had given black families the option of transferring to a white school and vice versa, but no one did that, of course.

17:41 Leon: I think some black kids did, but very few, because they were rightfully afraid of being harassed and terrorized.

17:49 Rhiannon: Right, exactly. And the white kids don't go to black schools because they don't want to, because they're racist.

17:57 Leon: And 'cause the schools are worse, right?

17:58 Rhiannon: And they don't wanna go to worse schools, exactly.

17:58 Leon: That's the whole problem, is that the white schools are better.

18:00 Rhiannon: Yes, their parents don't want them to go to black schools either. Alright, so let's take a second to get to an ad.

18:07 Rhiannon: So in 1968, which like Leon said, is fully 14 years after the ruling in Brown, affirmatively desegregate. You have to do something about de facto segregation on the ground, and you have to do it now.

18:22 Leon: Root and branch.

18:23 Rhiannon: Root and branch, yes.

18:23 Leon: Root and branch.

18:25 Rhiannon: Yes. And in a lot of places, that was going to mean busing, busing students of different races to different schools or different districts so that integration was sort of effectuated. Green v. New Kent County, that's another strong ruling from another unanimous court. And then, a few years later, in 1971, the Supreme Court gets even more specific, again, unanimously, in a case called Swann v. Charlotte-Mecklenburg, saying that busing is a constitutionally permissible method to achieve integration. "All things being equal, it might well be desirable to assign pupils to schools nearest their homes," but all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. And so while especially Southern localities and school districts are doing everything they can not to integrate, through the early '70s, the Supreme Court is responding with force and repeatedly saying, "No, you actually have to do this, you actually have to integrate, and there are a lot of tools at your disposal, including busing, so do it."

19:30 Leon: And busing had become this incredibly hot issue where politicians would make entire careers off being the most against busing. In Boston, there was a series of local leaders who worked for the school committee, people who were... Who became powerful because they were able to sort of channel the fury of working class whites mostly in the city who didn't want busing, busing became like the code word for desegregation. And one that conveniently takes race out of the equation, "Oh, this is about busing." And one thing that is worth noting is that, the series of decisions that we just went through, people in the North, legislators and officials in the North, didn't really think that these rulings really had anything to do with them. They considered this series of decisions as being about undoing the Jim Crow South, but the reality was that there was segregation all over the North. In Northern cities, there was real segregation, but not because there was a law in the books, right? And for that reason, there is a sense of innocence, right? Like, "Well, the Supreme Court is fixing the South, we're good up here."

20:31 Rhiannon: Exactly.

20:32 Leon: We're not passing a law saying, "No Black People allowed." But that didn't make the segregation any less pernicious, in a way, it made it harder to undo. And so there had been lawyers for the NAACP arguing for a long time that in a lot of these Northern cities like Boston, like Detroit, school administrators and local officials were deliberately keeping white and black kids separate. Instead of doing it overtly by passing laws, they were doing it covertly through more fine-grain policies having to do with approving transfers, when like a family would apply to transfer schools, all these little ways in which they would advance their goal of segregation, but not do so with a blunt instrument, such as a law.

21:08 Rhiannon: Right.

21:09 Peter: Right.

21:09 Leon: And so it was in 1973 that the Court heard its first case about Northern-style segregation, and that was Keyes v. School District No. 1 in Denver. And so what happened in this case was the Supreme Court found that you didn't need racist laws to sort of enforce segregation, you could do it through other means. It's an interesting case because it takes the distinction between de jure segregation and de facto segregation, and de facto segregation is the kind that comes from where people live, right? You have black neighborhoods and white neighborhoods, then you have community schools that attract people from those neighborhoods.

21:44 Rhiannon: Right.

21:44 Leon: So a place like Denver, the school district there would say, "We don't segregate our children, we just have neighborhood schools." And Boston would say the same thing, "We have neighborhood schools and people who live in those neighborhoods go there, there's nothing pernicious here."

21:56 Peter: How dare you accuse working class Boston of racism? How can I be racist when I can't even pronounce the hard R?

22:07 Leon: Wow.


22:08 Leon: The distinction between de jure and de facto is like, is there a law? And so the decision in Keyes kind of blurred the line between de facto and de jure because it said that you can get real segregation by other means, you don't need a law, and in order for it to be unconstitutional, all you need to show is segregative intent. If there were policies pursued by local school officials that had segregative intent, that's unconstitutional. So on the one hand, it makes this jurisprudence stronger because it blurs the line between de facto and de jure and opens up possibility of finding Northern-style segregation unconstitutional, but at the same time, it holds on to the premise that it needs to be on purpose, at some level, right. Does that make sense?

22:48 Rhiannon: Right, yes. And of course, while all of this is going on and happening at the Supreme Court, political forces are mobilizing around race relations and racial equality, and you see that start to have an influence in changing the trajectory of what the Supreme Court had been doing up until that point on desegregation. So importantly, President Nixon takes office in 1969, and he has explicit opposition to busing and expansive integration efforts in his platform.

23:17 Peter: Yeah, was he a bit of a racist?

23:19 Rhiannon: Right, right.

23:20 Peter: Not the first president to say the N-word in the Oval Office, but the first to record himself doing it.

23:25 Rhiannon: Right, right, that's right.

23:26 Leon: Did he really say the N-word on that tape?

23:27 Rhiannon: Oh, yeah.

23:27 Peter: Leon, I swear to God.

23:28 Rhiannon: Come on...

23:28 Leon: I should know this, but...

23:30 Peter: Yeah, no, the Nixon tapes have just about every racial slur.

23:34 Rhiannon: Yeah.

23:34 Peter: Name your favorite, it's there.

23:35 Rhiannon: Yeah, exactly. Yeah, he runs on openly opposing busing, he gets elected on that and other reactionary political impulses, and meanwhile, there continues to be loud, ongoing public debate about what the ruling in Brown v. Board really meant, and what states need to do to comply, along with continued aggressive, often violent opposition by whites to efforts to integrate.

24:00 Peter: Right, and we should note, George Wallace, the segregationist former Governor of Alabama, has a moderately successful Democratic primary campaign in the early '70s...

24:10 Rhiannon: For President.

24:11 Peter: Yeah, for President. His campaign essentially rejuvenated by the busing crisis.

24:16 Rhiannon: That's right.

24:16 Leon: We should also note that aside from Richard Nixon, another person who was very anti-busing was Biden. He, in many ways, made it okay for Democrats to be against desegregation, by coming out sort of against busing and saying that integration is good, busing is bad.

24:34 Rhiannon: Yeah.

24:34 Leon: The problem with that statement is that it's like having Brown v. Board of Education, but none of the shit that followed.

24:39 Rhiannon: Exactly.

24:39 Leon: You stand for the principle, but you're against the one way that we have to actually bring this about now.

24:45 Rhiannon: Yeah, and I think that's exactly what sort of Milliken represents in the line of this kind of Fourteenth Amendment jurisprudence. So all of this is happening, and finally, we get to Milliken. The case, like Peter said up top, it comes out of Detroit, where the NAACP in 1970 sued Michigan officials for enacting policies that kept Detroit and surrounding schools functionally segregated even though segregation wasn't the official policy. And the case went to trial, and the District Court judge there ruled in favor of the NAACP, saying that school officials and the State of Michigan had been implementing segregationist policies sort of by another name, and the judge ordered them to implement a desegregation plan that included busing.

25:29 Peter: Yeah, and worth noting, the trial judge was a conservative guy who originally tried to toss the case out and was forced to have a trial by the appellate court, who sent it back to him and said, "No, you have to hear this." And was convinced by the NAACP lawyers that segregation existed in Detroit.

25:46 Rhiannon: Right. A lot of evidence presented...


25:50 Peter: Yeah.

25:50 Rhiannon: Just fucking forgot a word.

25:53 Peter: Who has never been before a jury now, huh?

25:56 Peter: Well, I was gonna say, admitted, 'cause I'm thinking about admitting evidence. The school officials obviously appealed that ruling, and by the time Milliken has made its way to the Supreme Court in 1973, the scumbag Nixon has already gotten to nominate a few Justices to the Supreme Court. So, this is really important that Justices Harlan, who was an Eisenhower appointee, and Black, who was appointed by FDR, they're now no longer on the Supreme Court, and when Milliken is before the Court, Nixon has nominated Justice Powell, who is a lifelong conservative, and our boy William Rehnquist, literally a segregationist who wrote a memo in opposition to the ruling in Brown versus Board of Education.

26:45 Peter: So, like Rhi said, the lower court finds and after a trial that the Detroit Board of Education, as well as the state itself, had engaged in and sanctioned discriminatory policies that perpetuated segregation. The Court orders the state to implement a desegregation plan, and it's important to note that while the case was not brought against the wider suburban school districts themselves, the Court ordered the defendants to implement a desegregation plan that included those districts. A big part of that plan is busing, busing children from predominantly black areas to predominantly white schools, vice versa. So, the Supreme Court holds that because the only proven purposeful discrimination was within Detroit proper, the suburban school districts could not be held responsible and thus could not be part of any solution to the problem. Basically saying, the ruling would be unfair to those suburban school districts.

27:42 Rhiannon: Right.

27:43 Leon: Yeah, and it's like the reason that's a legally relevant point would be if you're saying that only de jure segregation, the kind that is on purpose and enshrined in law, or at least in policy, is the kind of segregation that is deserving of a remedy.

27:58 Peter: Yeah, so the Court's reasoning is resting on this distinction between purposeful and coincidental segregation, so the Court is saying, yes, these suburban school districts are segregated, but that's just a coincidence. And this reasoning, it's fundamentally contradictory. What the Court is saying is, yes, Detroit proper has segregated schools because of intentional discrimination, but the suburban school districts are innocent, which deeply misconstrues how segregation actually works.

28:29 Rhiannon: Exactly.

28:29 Peter: The entire purpose of segregation is to produce segregated white school districts. So even if those districts aren't involved in the planning of it, they are the direct output of a process that is designed from the ground up to effect segregation. So, to argue that they are somehow detached from the segregation itself is absurd, they are the purpose of and the end product of the segregation project.

28:54 Rhiannon: Exactly, yeah.

28:56 Leon: Right. And the reason it's constitutional, right, is that no one person made it that way, but everyone made it that way, the reason these suburban schools are all white is that all these white people moved away to the suburbs where, incidentally, black people have a hard time getting rentals and leases. This idea of innocence, we've said that that's the subject of the season of Fiasco, it's like you can't view the suburbs of Detroit as being innocent of racial discrimination. The housing discrimination, both public and private, made it so those Detroit suburbs would exclude black people, and therefore the schools there would exclude black kids, to bring up Justin Driver again, who I mentioned earlier. As Driver put it to me, viewing public schools in hermetic isolation from the housing market is nonsensical, and I think that's exactly right.

29:37 Rhiannon: Yeah, exactly. This is happening at the same time as redlining and economic discrimination against black people is happening, there's rampant racial discrimination in housing, like you said, including literally exclusionary clauses in property deeds that exclude black people from coming into ownership of property. And then, of course, there's straight up actual literal violence against black people who try to move to white neighborhoods. Arson, vandalism, literal assault. All of it.

30:06 Leon: There was an insane bombing, a bunch of school buses got blown up just by the KKK in Pontiac, which was outside Detroit. Real terrorism. Can you imagine that?

30:15 Peter: Well, they're true believers in the Constitution. If you really get in their mind, you know? It's also important to note that it's inaccurate to treat school districts as being independent. So Justice Burger often refers to school districts as autonomous and leverages that to get where he wants to go, but it's a completely false premise. School districts in Michigan, like just about everywhere else, are controlled by the state. So to say that some are guilty of purposefully implementing segregation while others are not is missing the point; all of those districts are functionally controlled by the state of Michigan. The state is implementing or reinforcing segregationist policies through the school districts. That's why the NAACP sued Michigan itself.

31:00 Leon: The whole state as opposed to a school district. Right.

31:03 Rhiannon: Right, right.

31:05 Peter: So, some districts may be more directly involved than others, but they are all part of the state's segregationist scheme, which means that they should all be part of any meaningful solution.

31:13 Leon: And the reason they had to do it this way, there weren't white students in the Detroit school system.

31:18 Rhiannon: Exactly.

31:19 Leon: They were gone, they had moved away, and so if you wanted to desegregate those schools like...

31:23 Peter: Right. Without including these suburban school districts, there's no adequate remedy here.

31:28 Rhiannon: Exactly.

31:29 Peter: If Metro Detroit has schools that are 80% black, how can they desegregate on their own? How can Detroit reduce the unconstitutional concentration of black students without either subtracting black students or adding white students. If a district is 80% black, it doesn't matter how many different ways you try to reshuffle the students, it'll never be desegregated. It is a solution that is designed and destined to fail.

31:53 Leon: Yeah, and just to jump in with a connection to Boston. In Boston, there was a complaint about the busing plan, which said, why are you taking these black kids from this poor black neighborhood and moving them from this poor school into a school in a poor white neighborhood, it's just as poor and just as shitty. What is gained by taking poor white kids and poor black kids and mixing them together, if the schools they all go to suck. Milliken have made it so that kids in Boston wouldn't be bused to schools in suburbs like Brookline or Wellesley. Those were neighborhoods where white people lived and where the public schools were better and better funded because of property taxes. If you had taken kids from Roxbury and bused them into Wellesley or whatever, or Brookline, that would have been a real change for those kids, but they were instead sent to Southie.

32:44 Peter: I wanna cut in, because that does increase their chance of becoming a Good Will Hunting. That's my understanding.

32:50 Leon: And I think the reason Milliken was so scary to suburban parents is that leaving the suburbs was their way out of being involved in integration. And suddenly their kids whom they intended to send to their nice suburban school, were gonna be sent to this scary school in a scary neighborhood. It just played to all kinds of fears that plenty of people had who didn't want to admit to being motivated by racism.

33:13 Peter: Right. It's not about racism, it's about not wanting my kid to interact with black children. And look, the whole goal of desegregation from the perspective of a lot of scholars was, "Look, if you expose white students, especially wealthier white students, to these schools for long enough, political pressure to improve those schools will develop."

33:36 Leon: Yeah, exactly.

33:39 Peter: "And over time, those schools will become better and better." Obviously, in the short term, that's not gonna happen. If your kid's getting bused to some shitty school for the next two years or whatever, before he graduates middle school or high school or whatever, that school is not gonna get drastically better in that time period. All that to say, certainly white families had some legitimate concerns about the education that their child might be receiving. But, in case you think that the reaction in Michigan to the prospect of desegregation was motivated by something other than racism, earlier, we noted that segregationist George Wallace ran for the Democratic nomination for the Presidency, lost to George McGovern, he won Michigan. The Governor of Alabama, with basically no sway outside of the South, managed to miraculously win in Michigan the very same year. Also worth noting, just to make you feel better, he was also, the day before the primary, shot and paralyzed for the rest of his life, back when people were taking direct action. Bad politicians got shot back then and yes, some good ones or like okay ones got shot too, but look, if 10 politicians are getting shot and one of them is George Wallace, I'm sorry but that's a win.

35:05 Peter: I think we've covered a lot of great ground here and we should pause for an ad.

35:09 Peter: So, back to the law and the opinion here. Justice Burger is talking, like we mentioned, about the scope of the remedy needing to be tailored to the scope of the problem. He's saying, "If the real problem is segregation in Detroit itself, suburban school districts outside of Detroit shouldn't be part of the solution." And what that really means is he thinks it's too much of a burden for white families to have to deal with their kids being bused to more black schools. We've talked a bit in the past about the hollowness of the conservative formalistic view of rights. Burger is saying, "Sure, there's segregation here, but that doesn't mean you can bus kids all over the place to solve it." He's saying there's a violation of a right, but he's unwilling to provide a remedy that can actually solve the problem because he thinks that would be too much of a bother to suburban families.

35:55 Rhiannon: Exactly.

35:56 Leon: It would be a punishment for them. Right?

36:00 Peter: Right.

36:00 Leon: The premise of that argument is that having black kids come to your school, if you're a high school kid in a white suburban neighborhood is a punishment and it gives it away that this is about not wanting those people here.

36:11 Peter: We've said this before in so many words, but if your children have the constitutional right to attend non-segregated schools, but the government refuses to use its power to provide them the opportunity to do so, then what does it even mean to have that right?

36:25 Rhiannon: Right. Exactly.

36:26 Peter: And I want to add something about this that goes beyond the legal analysis here, which is the sort of conservative unwillingness to believe in the idea that justice might involve any type of collective sacrifice.

36:41 Rhiannon: Yes.

36:41 Peter: Any type of personal sacrifice that is designed to help someone other than you. They fundamentally disagree that that is important, and they believe that you shouldn't have to do it, and the reason they believe that is because their status in society is generally secure. And that bleeds into this reasoning so much that it just needs to be mentioned. And I think that this all gets to what the role of the Court in American society is. There's a long history in this country of the Supreme Court identifying rights but being unable to protect them. Roe v. Wade, another example, the right to an abortion technically exists per the Supreme Court, but in practice it's extremely weak, and if it's the experience of the Court, that time and time again, the rights that it identifies are ignored by other branches of government and other institutions, that should obligate the Court itself to take affirmative steps to protect those rights. And that's why the Court's refusal to step in and create a remedy here is such a deep and profound failure, not just of policy, but of the way in which we should conceptualize the role of the Court in American government.

37:50 Leon: And it's worth underscoring that Milliken follows this string of decisions that all had steadily gradually closed loopholes for states that didn't want to abide by Brown v. Board. There was a tightening of the standard that made it impossible for these states to continue wiggling out of their obligations. And then Milliken follows and it just creates this massive loophole in the place of all the other ones that the Court had been closing over the course of more than a decade, which is that you can just move to the suburbs and not have to worry about any of this and not have to apologize for your kid going to an all-white school, so like you can just do that. And then the entire project of desegregation is thereby undermined.

38:28 Rhiannon: Yeah, exactly, and I think I wanna highlight the role of the Supreme Court, I guess, in all of this. The reason why Brown versus Board of Education is taught as so important is that it really is not just a watershed moment in the American experiment, broadly, but really specifically in law, and a huge opportunity and new conception of the Fourteenth Amendment and how we use the law and what we think the law is for. Right after Brown and in the couple of cases that we talked about that followed, it's clear that the kind of legal philosophy of the Fourteenth Amendment is that the Fourteenth Amendment is aimed at anti-subordination, and scholars have written about this, but anti-subordination sort of means like a broad conception of equal rights and that the guarantee of equal citizenship in the Fourteenth Amendment, that can't be realized under conditions of really intensive social stratification. So the law is the tool, the law should reform institutions and norms like public schools that enforce subordinate social classes. But on the other hand, what conservatives do, what Peter just talked about, is read Brown v. Board and read the Fourteenth Amendment, and read the role of law and what we have law for completely differently.

39:49 Rhiannon: It's something that's sort of more like an anti-classification thing. The kind of narrow conception of the Fourteenth Amendment, that what the Fourteenth Amendment with the Constitution does, it just protects us against the government classifying people based on race, but that's it. So as long as you don't have this de jure, as long as you don't have a law that says that some people are black and some people are white, conservatives are fine with that, and the law doesn't need to be effectuating any other progressive change in society.

40:16 Leon: Yeah, what's weird to me is that... It's not like conservatives are denouncing Brown v. Board, right? Everyone's on board with Brown v. Board at this point. And...

40:26 Peter: Well, now they are.

40:27 Leon: Well, I'm saying like...

40:29 Peter: Look, the whole conservative project is just like 20 years later, you pretend you didn't support whatever the mainstream conservative position was 20 years ago.

40:34 Leon: But even if it's like... Okay, let's say you... Say that you support Brown v. Board, how can you then not look around today all these years later and see that we have segregation in schools in every major city, more than just every major city?

40:47 Rhiannon: But not by law, right? And they read Brown v. Board on purpose to mean... They interpret it that way on purpose, to say, "Because Brown v. Board was not substantively thought out, because there weren't directives in it, because the Court didn't want to step on people's toes," right? But what Brown v. Board just says is, segregation is unconstitutional, and so the way conservatives interpret it is, "Okay, well, then there's no legal segregation, nobody says you have to segregate schools anymore, so we're good. We love Brown v. Board."

41:16 Leon: But presumably there's a reason why you don't want it to be in the law. What does the conservative who holds that position you just described say is the reason why we don't want there to be segregative law? Isn't it the premise that segregation is bad and to be avoided?

41:25 Peter: No... I mean, yes, that is the premise, but I think that the fact that they defended it at the time, the reactionary movement was defensive of the Plessy v. Ferguson jurisprudence, it shows that they evolved with society and as society rejected that form of explicit segregation, they evolved the tactics they use to maintain social and political power. I don't think it's much more complicated than that. I mean, you'd have to be an absolute psychopath to look at America and not see segregation. If you've traveled across the industrialized world, have you seen pockets of urban decay anything like what you see in America? Anywhere?

42:10 Rhiannon: No.

42:11 Peter: Rhi, you used the term the American experiment a little bit tongue in cheek, a few minutes ago.

42:13 Rhiannon: Right.

42:17 Peter: It always cracks me up that people use that term, like they think we're so fucking interesting. Like we're not like 38th in every meaningful metric...

42:22 Rhiannon: Exactly.

42:22 Peter: Of like how you measure a society. Of course they see segregation, they justified it then with the idea of express white supremacy, and they justify it now with a nod and a wink. What do they talk about like, "Oh, black family values" and shit like that.

42:38 Rhiannon: Right.

42:38 Peter: I think it's important as we wrap up to contextualize this as part of a broader conservative conception of social hierarchy. As we mentioned, Burger's argument here is deeply rooted in the idea that the white people in the suburbs are not responsible for the plight of black people in the so-called inner city, and that may be true of some white people in a vacuum, but it ignores the fact that they are beneficiaries of an unjust system, and that removing that benefit is not unfair. It's inherently fair. The decision in Milliken needs to be contextualized within this broader trend of the privileged classes acting as if they can wash their hands of the systems that operate to their benefit. Much of the conservative political project is informed by the idea that social hierarchies are both naturally occurring and inherently just. A lot of like hackish, like Jordan Peterson made his bones in large part on arguments like this, and you can't properly read Burger's reasoning without keeping that in mind. Not only are the white suburbs in his mind innocent of having any ill intent, but they've actually earned their privileged position.

43:47 Leon: You see this in the Trump tweet from this past week. What was it, like the suburban lifestyle, right?

43:53 Rhiannon: Yeah, right, yeah.

43:55 Leon: People were making fun of that phrase, like he was inventing a phrase, which I think he was, but there's a reason he chose that word, which is that I think that worldview holds the suburbs as like a place to aspire to, confers the status of achievement and stability, right? And...

44:07 Rhiannon: And it's a dog whistle for whiteness.

44:10 Leon: Yeah, no, of course.

44:11 Peter: Of course it is. What other benefit do the suburbs have?

44:12 Rhiannon: Right, exactly. It's just that this is a white community.

44:15 Peter: I would love to have to drive 15 minutes to a grocery store.

44:17 Rhiannon: Right. [laughter]

44:19 Peter: Look, it's why conservatives oppose welfare benefits, it's why even in the 1970s, they were sort of implying that explicit racism is more of an issue of the past than the present, when we look back at that era and we see explicit racism all over the place.

44:34 Leon: Or the South as opposed to the North, right?

44:37 Peter: Right, right. Their worldview is defined by the idea that people's socio-economic status is deserved, and so while they can't say it too explicitly anymore, their sincere belief is that the relative position of the black community in this country is the black community's own fault and the relative position of the white community is due to the white community's inherent virtues. And of course, that ignores the willful public and private practices that drove whites to the suburbs and blacks to the so-called inner city in the middle of the last century. But that is the belief that informs Justice Burger's opinion, not some convoluted analysis of the scope of a constitutional remedy.

45:17 Rhiannon: Exactly.


45:23 Peter: Alright, next week is Boy Scouts v. Dale case about whether the Boy Scouts are allowed to discriminate against gays under the First Amendment. Michael will be back, almost certainly. It's a near guarantee.

45:37 Rhiannon: Thank God.

45:37 Peter: And another promise, no Leon. [laughter] Leon, thanks for joining.

45:43 Rhiannon: Thanks, Leon.

45:44 Peter: Leon, are you our executive producer?

45:46 Leon: I think I'm credited with editorial oversight.

45:48 Peter: Okay, Leon Neyfakh...

45:51 Rhiannon: He's our king.

45:51 Peter: Not our executive producer. [chuckle] I know a power vacuum when I see one. I'm gonna say it right now, I'm the executive producer. [laughter]

46:00 Leon: You can be the executive producer, if I can plug my podcast one more time. Go listen to Fiasco, everybody, if you like Slow Burn, if you're interested in public education or Boston or the Civil Rights Movement. Check out the new season coming to Luminary, August 13th.

46:14 Peter: Follow us on Twitter @fivefourpod. Tell your friends. And if you are RBG's doctor, call us.

46:22 Rhiannon: We would love to talk to you.

46:24 Peter: Reach out. Open invitation.

46:27 Rhiannon: Absolutely.

46:31 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.

46:51 Leon: From the Westwood One Podcast Network.

Term Recap: 2019-2020+


00:03 Leon Neyfakh: Hey everyone. This is Leon Neyfakh from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon, and Michael are taking a break from history. Instead, they're talking about the present.

00:15 [Archival]: It was the first abortion case decided with President Trump appointees on the court.

00:19 [Archival]: A decision coming in on DACA.

00:21 [Archival]: Roberts wrote the opinion, and it was John Roberts and the four Liberals, and the opinion is, it's a joke.

00:28 Leon Neyfakh: What happened during the Supreme Court session that just wrapped up, and how it differs from what a lot of people think?

00:34 [Archival]: So we have another decision from a conservative Supreme Court with an outcome that would please the democrats and the Liberals.

00:42 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

00:53 Peter: Welcome to 5-4 where we dissect and analyze the Supreme Court cases that have burned through American life like hot lava through the streets of Pompeii.


01:04 Peter: I am Peter. Twitter is @The_Law_Boy. I'm here with Rhiannon.

01:09 Rhiannon: Hey. Hi everybody.

01:11 Peter: And Michael.

01:12 Michael: Hello.

01:13 Peter: And today, we wanted to take a step back and reflect on the Supreme Court term that ended a few weeks ago. We took a week off last week to give thanks for the term that was and also because I was moving, and now I'm there, in a new closet surrounded by pillows and blankets, and all the things that my producer makes me put inside my closet.


01:37 Rhiannon: Mo' money, mo' problems.

01:39 Peter: That's right. The incredible wealth that we've derived from this podcast is not without sacrifice.


01:49 Rhiannon: Guys, can you imagine doing this podcast and it being economically worth it?

01:53 Michael: I cannot.

01:55 Peter: I truly can't.


01:56 Rhiannon: Wouldn't that be so fucking cool, though?

01:58 Michael: It would be fantastic.

02:00 Peter: Before we talk about what actually happened to this term, we should talk about what people seem to think happened this term. And what people seem to think happened is that Chief Justice John Roberts established himself as a moderate voice on the Supreme Court. He joined the Liberals in a handful of close cases, especially towards the end of the term, and that gave a lot of observers the impression that he's gravitating left. But any close analysis of those cases shows that his opinions are intentionally cagey and designed to give Liberals a short-term win, while paving the way for Conservative victories down the road. So Roberts has changed his voting strategy, but he remains deeply committed to the conservative political project, and you really couldn't tell that if you were just reading the legal journalistic media. Right?

02:58 Rhiannon: Yeah.

03:00 Michael: Right.

03:00 Peter: He's been receiving heaps of praise from moderate and liberal journalists and pundits, and I think we should talk about some of that media coverage, and Rhiannon, you read through some of it, so...

03:10 Rhiannon: I unfortunately did, and I'm here to report that it is a pile of smelly garbage.


03:17 Michael: It is.

03:18 Rhiannon: Do legal analysts have some sort of duty to say, "Gotta hand it to the Chief Justice," just like every fucking term? Can they just say for once that shit fucking sucks? This is why cancel culture, it's not real. If cancel culture was real, we wouldn't be here right now having to tell you that actually Chief Justice John Roberts is a little bitch, and he's not good at his job. But yeah, let's go through some of this ridiculous media rundown over the past couple of weeks, commenting on the end of the Supreme Court term. So Jeffrey Rosen wrote in a piece called "John Roberts is just who the Supreme Court needed." He writes that, "At a time of greater partisan conflict between the President and Congress than any time since the Civil War, as Americans are questioning the legitimacy of all three branches of the Federal Government, Roberts worked to ensure that the Supreme Court can be embraced by citizens of different perspectives as a neutral arbiter guided by law rather than politics."

04:26 Michael: Wrong.


04:29 Rhiannon: Adam Liptak, in the Times, he's on a John Roberts' dick sucking marathon. He can't stop. "In an era of stark partisan polarization, Chief Justice John G. Roberts Jr... " Thanks for the full name.


04:43 Peter: Very uncomfortable when you write it out.


04:46 Peter: Like it's an honorific or whatever, very weird.

04:50 Michael: Yeah.

04:50 Rhiannon: John Roberts steered the Supreme Court toward the middle, doling out victories to both left and right in the most consequential term in recent memory. Then he quotes a Professor Lee Epstein as saying, "The trend is clear, he is drifting left at a statistically significant rate and at a rate roughly resembling Souter's liberal turn in the 1990s."

05:12 Peter: No.

05:12 Michael: Wrong.

05:12 Peter: No.

05:14 Rhiannon: That's fucking embarrassing.

05:15 Michael: Wrong.

05:16 Peter: If you ever see any statistical analysis of Supreme Court decisions that tries to place them on a political spectrum, you can immediately move on. It's so difficult to do. You can't clearly delineate between left and right decisions. It's more complicated than that. And anyone who's trying to do it and selling it to you as an explanation of the Supreme Court is a grifter.

05:43 Rhiannon: Yes, absolutely.

05:44 Michael: Yeah. That's right.

05:45 Rhiannon: Alright, well, but this completely un-earned praise for the Chief Justice is not just an East Coast disease. So David Savage in the LA Times wrote, "As he has done in previous years, Roberts showed again that he is masterful at finding the middle ground on contentious issues." Later, Savage says, The Supreme Court term took on "A dramatically different tone than conservatives or many others expected with Chief Justice John G. Roberts firmly in control and steering the court on a middle course." Why? You do not have to act like something is cool and novel and surprising, if it just isn't. Like, can somebody check on these people's brains?

06:31 Michael: It's not hard 'cause they're, like, dripping out of their nose...


06:34 Michael: And pooling on the floor.

06:35 Rhiannon: And they're writing their thoughts! Their writings are a perfect check-in with their brain.

06:39 Peter: I'm also upset that these people just get to go to the LA Times, the NY Times, the Atlantic, and just pitch their shitty idea. "What if we said that John Roberts is good now," and it's the same column you see in every newspaper across the country, and the editors are like, "Yeah, yeah."

07:03 Rhiannon: Yeah, that's what we pay you $200,000 a year for. Do it.

07:06 Peter: It's also even creepier to be just a law professor who's like, "You know what the world needs to hear is an op-ed saying John Roberts is doing good."

07:17 Rhiannon: Yeah, okay, I got one of those for you. Jonathan Adler, who is a law professor at some garbage law school, which...

07:23 Michael: He sucks.

07:24 Rhiannon: They're all garbage. He said in an op-ed in the New York Times that Roberts is, "A judicial minimalist."

07:32 Michael: No.

07:32 Rhiannon: "A judicial minimalist who seeks to avoid sweeping decisions with disruptive effects. If a litigant seeks an outcome that will transform the law or produce significant practical effects, Roberts' vote will be harder to get." Guys... My soul has left my body. A minimalist where?

07:51 Peter: It's not minimalism. I don't know what he thinks minimalism is. I think that someone who dismantled the Voting Rights Act is not a minimalist.

08:02 Rhiannon: Exactly.

08:02 Peter: That's not minimalism. He's a minimalist when the alternative is something that he feels as politically untenable. Sure.

08:10 Rhiannon: Right.

08:11 Peter: Where he feels it's advantageous, he's minimalistic, when it's not, he's maximalistic. That doesn't make him a minimalist. That makes him an opportunist.

08:19 Rhiannon: Exactly.

08:19 Michael: Right. And so Rhiannon, you were asking where the shit comes from, why these people do it. And I just... I think of it like in ancient Greece, there was the fucking Oracle at Delphi, right?

08:30 Rhiannon: Yeah.

08:31 Michael: Who would just pronounce nonsense. And then there were like these priestesses, the prophetae, who would interpret the nonsense and turn it into something coherent. And that's basically law professors and legal journalists. The Supreme Court just says whatever the fuck they want, they say they're following precedent when they're not, and they say they're respecting the lower courts fact finding when they're not...

08:58 Rhiannon: Yeah.

09:00 Michael: These people's job is to be like, "Actually, they are. Money is speech. That makes sense."

09:04 Rhiannon: Yeah.

09:04 Michael: "And this is an overturning Roe v. Wade, it's just interpreting it." And it's because their entire job, you know, relies on it. Like if you're fucking priest of the Supreme Court, and the Supreme Court's garbage, nobody has any use for you.

09:19 Rhiannon: Exactly.

09:19 Peter: Right.

09:19 Michael: And look, just as an example, if you're like a prof at, like, UC Hastings. Even if you graduated from Yale, if you're a young prof likely you did graduate from Yale or Harvard, you went and clerked at the Supreme Court. None of your students have that career path ahead. Like that's just not something that's on offer for them, and you don't have anything meaningful to teach them about the law as they'll be practicing it in their careers. Because they don't know shit about what a real estate post-closing looks like, or how to get a default judgement vacated in some county court or whatever. Which is what most of their students will be doing. Their value to the students and to the academia in general is their interpretation of the federal courts. The Supreme Court in particular, but also the Courts of Appeals. And if the courts are just ideological law makers pursuing their own agendas, that value is next to nothing.

10:17 Peter: Right. Right.

10:17 Rhiannon: Yeah. Really good point.

10:18 Peter: We should note that not all academics have been so blinkered in their analysis here. Leah Littman wrote a great article for the Atlantic, I think she had one in the Washington Post, about just how narrow the so-called Roberts wins were. Eric Segall wrote about just how dangerous some of the precedent created this year was. But I wanna note that writing articles about how a Supreme Court Justice seems good and smart, even if it's accurate, is a type of journalism that is just fundamentally unimportant.

10:47 Rhiannon: Yeah.

10:48 Michael: Yes, yes.

10:48 Peter: It doesn't ask anything of the powerful, it doesn't challenge its readers, it is produced by and for the brains of people who are on mental cruise control from birth until death.

11:00 Rhiannon: Yes.

11:00 Peter: Like the intellectual fruit of completely frictionless lives. I know the things seem bad, but what if I told you that it's actually okay? Like, "Don't worry, John Roberts is there for you."

11:10 Rhiannon: Right, right.

11:10 Peter: It's these people that are selling comforting lies to people who are not effected by any of the turmoil in this country or in this world, right. They just need reassurance that their apathy is acceptable.

11:24 Rhiannon: Yeah.

11:25 Michael: Right.

11:25 Peter: But if you're a professor and that's your takeaway, you shouldn't have a job. And this is just what happens with like 20 years of... Your entire job being, write two articles a year, give kids the same test two semesters in a row, take a month and a half to grade it, and that's it.

11:45 Rhiannon: Exactly.

11:45 Peter: Other than that, you just fucking blow smoke up your friend's asses at cocktail parties. And that's it.

11:50 Rhiannon: Right.

11:50 Peter: These people are not interacting with the world in such a way where they could ever actually produce an interesting thought about it.

11:58 Rhiannon: Right.

11:58 Peter: You don't have to fucking pay attention to what they think, 'cause it's so disconnected from reality that it just doesn't fucking matter.

12:03 Rhiannon: Exactly.

12:04 Peter: So the dominant media narrative about John Roberts here runs into two problems. First, the cases he's being praised for aren't nearly the victories a lot of liberals seem to think they are, with the exception of Bostock County, the LGBT rights case that we covered a few episodes ago, each of the cases, and we'll talk about them, are very hollow and fleeting wins for liberals.

12:28 Michael: Yeah.

12:28 Peter: The other issue is that Roberts' votes in other areas are consistently the same horrific reactionary shit we've come to expect from him.

12:37 Rhiannon: Yeah.

12:37 Peter: So first I think it's important to quickly discuss the cases where Roberts supposedly flipped to the liberal side. And again, you know... Maybe the most unequivocal victory where Roberts joined the Majority was Bostock v Clayton county. Again, we did an episode on it, so I don't wanna get into too much detail, but the court held that Federal Employment Discrimination laws apply to LGBT people. And the caveat is that the opinion expressly left the door open for a religious exemption to the law through the Religious Freedom Restoration Act. The other caveat here is that Roberts didn't even write this one, Gorsuch did. His vote wasn't even necessary, really, to carry a majority, and so giving Roberts credit for it, seems a little bit odd.

13:19 Michael: Right, and then in the abortion case, June Medical v. Russo, Roberts joined the liberals in striking down a restrictive Louisiana abortion law, and that was five, four, and so he was the deciding vote. But that also has huge caveats. And the big one is that it's the exact case, not like similar, not kind of the same, this law was before the court four years ago. And in that case, Kennedy sided with the Liberals giving them five votes and striking down their restrictions. And so the only reason this case is back in front of the court is because conservative activists were like, "Oh, well fucking Kennedy's gone. He's been replaced by Kavanaugh. And so, yeah, Roberts switched sides, but the reason he did so is because he's just like, "Look, the court just ruled on this. You can't ask me to say, "Yeah, all that really matters is the personnel of the court." We're supposed to at least pretend like this shit matters. He just doesn't wanna look transparently in bad faith. But what happens is, he writes a concurring opinion, which is gonna end up being like what a lot of courts pay attention to, that endorses a standard that actually allows for a lot more restrictive laws without requiring any demonstration that those laws protect the health and safety of women.

14:42 Rhiannon: Yeah, yeah, so the case four years ago that Michael mentioned, that's called Whole Woman's Health, and that case was about restrictive laws that were passed in the state of Texas to force abortion providers to meet these really unrealistic standards. For doctors, to have admitting privileges to area hospitals. In that case, as Michael said, it was struck down, and then this case, June Medical, brought basically the same sorts of laws that Louisiana had passed. So while Chief Justice Roberts... Yeah, he upholds the ruling to strike down the Louisiana law in June Medical, he does it clearly, really begrudgingly. He says, "I joined the dissent in Whole Woman's Health and continue to believe that that case was wrongly decided." And because Roberts makes himself the swing vote here, that means that his concurrence, that's the holding opinion, that's the law of the land, so to speak.

15:39 Rhiannon: This is gonna allow states some wiggle room to pass laws that are restrictive. And in addition, something that's really, really concerning for people who are working on reproductive justice and reproductive rights is that Roberts in that concurrence, he straight up signals that he'd be open to overturning Casey, which is a conservative opinion that sort of saved abortion rights, but in an already narrow way. And Roberts here, in this concurrence is basically signaling that he wants to hear argument about Casey. He says, "No party in June Medical has asked us to reassess the Constitutional validity of Casey." Meaning, bring us a case where we can assess the validity of Casey. So again, we don't need to praise this guy for being some big respecter of precedent. Casey is precedent to, and he's signalling to the public, "Hey, I'm willing to rethink it."

16:38 Michael: And just to emphasize the importance of Casey, everybody knows the name Roe v. Wade, and think like, "Oh, they're gonna overturn Roe v. Wade. That's the right to abortion and all that." But in reality, the decision that describes that Right and the degree to which it exists, and the degree to which states can restrict it, is Casey. And so if he's willing to revisit it, that means they're willing to rethink entirely the way abortion is regulated or whether or not it's even allowed.

17:08 Rhiannon: Exactly.

17:08 Peter: A couple other small decisions we wanted to mention, Roberts joined the liberals to uphold DACA and to save the Consumer Financial Protection Bureau. Both of those cases were kind of similar. Roberts joins the liberals, but he provides the Trump administration with a road map for dismantling DACA, and for ending the CFPB. It's barely a win in both of those cases. You also have the Trump subpoena cases, sort of similar, he denied Congress access to Trump's tax records while saying that prosecutors could have them, essentially ensuring that whatever those tax records are, they won't be seen until after the election. It's just embarrassing to see the media buy into the idea that those are wins, frankly. The dominant narrative praises Roberts for two things, his objectivity and his desire to preserve the integrity of the institution of the court.

18:06 Peter: But those things are incompatible. You can't be both objective and purposefully shifting your opinions to make the court seem more moderate, right? Almost no legal commentators have pointed out that there is inherent tension between these two things. If Roberts is intentionally trying to land on moderate outcomes in certain politically contentious cases, and I think we all agree that he is, that doesn't prove that the court is apolitical, it shows that Roberts is expressly factoring politics and public opinion into his decisions. This is someone who, in his confirmation hearings, famously described to his judicial philosophy as being a neutral umpire who calls balls and strikes. So it's bizarre to see people praise him for engaging in what we all agree is political decision-making on the court. And it should go without saying that if you admit he's shifting his opinions for political reasons, you need to ask yourself, "To what end?"

19:00 Peter: Everyone says he's trying to preserve the institutional legitimacy of the court. What it means is that he's trying to obfuscate just how conservative the court really is and just how much farther right of the general public it is on a huge array of issues.

19:13 Rhiannon: Yes.