0:00:00.0 Speaker 1: We will hear an argument this morning in case 20-107 Cedar Point Nursery versus Hassid.

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0:00:09.5 Leon: Hey, everyone. This is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about Cedar Point Nursery v Hassid. The case, which was decided this past June, centers on a California regulation that allows union organizers to enter farms for a few hours each day during certain parts of the year to talk to farmworkers. Cedar Point Nursery sued saying that the law represented a taking, as in the government taking away the farm's property.

0:00:40.2 Speaker 1: The only question before the court is whether that regulation is a per se taking, and the answer is no.

0:00:47.4 Leon: But the court ruled in favor of the property owners, paving the way for future cases that could have sweeping ramifications for safety regulations and civil rights. This is 5-4, a podcast about how much the Supreme Court sucks.

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0:01:05.0 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our nation parched and weak, like a record-breaking heat wave.

[laughter]

0:01:15.9 Peter: I am Peter, I'm here with Michael.

0:01:18.4 Michael: Hey, everybody.

0:01:19.5 Peter: And Rhiannon.

0:01:20.1 Rhiannon: Hello.

0:01:22.4 Peter: Pretty brutal heat wave out there this week. A good news is that it'll actually get worse every single year for the rest of our lives.

[laughter]

0:01:28.1 Michael: That's right.

0:01:29.4 Peter: So, this is the best it's gonna get, which in and of itself...

0:01:32.0 Rhiannon: Enjoy it. Yeah.

0:01:34.3 Michael: Yeah, yeah.

0:01:35.0 Rhiannon: Right.

0:01:35.1 Peter: Glass half full kind of guy. We'll never see temperatures this cold again.

0:01:37.8 Michael: That's right.

0:01:37.8 Rhiannon: Yeah, hot girl summer. We're supposed to be vibin'.

0:01:41.6 Peter: Yeah, hot girl summer cut to a girl who just passed out of dehydration on the sidewalk.

0:01:49.1 Rhiannon: Right. I get sun stroke. [chuckle]

0:01:53.3 Peter: And heat stroke girl summer. [chuckle] Today's case is Cedar Point Nursery v Hassid. The best part about doing a podcast about shitty Supreme Court decisions is that new material, not too hard to come by.

0:02:06.1 Rhiannon: Keeps rollin' in.

0:02:07.4 Michael: That's right.

0:02:08.2 Peter: This one just dropped a couple of weeks ago, and it's about union busting. Oh, I'm sorry. A private property rights.

0:02:16.1 Rhiannon: Yeah, come, correct.

0:02:17.2 Michael: That's right.

0:02:18.9 Peter: The Constitution has a clause in the Fifth Amendment called the Takings Clause, and it says that the government cannot just take your shit. Specifically, it says that private property shall not be taken for public use without just compensation.

0:02:35.8 Rhiannon: Right.

0:02:35.9 Michael: Right.

0:02:36.2 Peter: So the government cannot seize your property without compensating you for it. Now, there is a law in California dating back to the famous labor organizing efforts of Cesar Chavez that allows union organizers to occasionally go on to private farmland for the purpose of organizing farmworkers.

0:02:53.7 Michael: Yeah.

0:02:55.0 Peter: The corporations that run those farms don't care for that and so they said, "Hey, this violates the Takings Clause. The government is forcing me to allow these union organizers onto my farmland, and that is sort of in an abstract way, like the government taking my property so that's not allowed under the Constitution."

0:03:18.0 Rhiannon: Right. [chuckle]

0:03:20.2 Peter: And in a six to three decision authored by Chief Justice John Roberts, the court agrees with the farming companies, they say that a law that requires the companies to allow union organizers onto their land is the constitutional equivalent of the government seizing the land. Now, this is a decision deeply rooted in crackpot libertarian conceptions of property. Right?

0:03:48.0 Michael: Absolutely.

0:03:48.4 Rhiannon: Yes.

0:03:50.5 Peter: Where any interference with a landowner's property is excessive encroachment by the government, and that is at the core of this case, not just the sort of obvious anti-union sentiment, but the age-old protection of the landowning classes from everyone else. So Rhi, I believe you have a little bit of color here.

0:04:14.1 Rhiannon: Yeah, let's dive into the crackpot shit, shall we? So yeah, the 1975 Agricultural Labor Relations Act in California, that's the law that Peter was just referencing. The specific provisions of the Act, which come to be at issue in this case, are that the law allowed union members, as long as they give gave prior notice to California's Agricultural Labor Relations Board, it allows those union members to come on to agricultural properties up to three times a day, one hour at a time, and up to 120 days during a year. Now, they're allowed to do that so that they can perform unionization activities, encourage people to join these collective bargaining associations, flyer among laborers and that kind of thing.

0:05:04.2 Rhiannon: So this case comes out of efforts by agricultural union organizers who were encouraging laborers at a strawberry nursery and a fruit-packing operation to join the union. And this happened in 2015. Now, the nursery and the fruit-packing company, those owners decide to turn around and sue saying that the law in California allowing those union organizers to come on to their land, again, maximum three hours a day, just 120 days a year, to encourage people to join a union that that was taking their land without compensation.

0:05:45.7 Michael: Yeah.

0:05:45.9 Rhiannon: So here we are.

0:05:46.8 Peter: So this case requires a little bit of academic background. The Takings Clause of the Constitution, again, says that private property shall not "be taken for public use without just compensation." What exactly that means has been the subject of much debate over the years among academic morons. [laughter] Some cases are obvious. If the government seizes your land to build a public park, the Takings Clause covers that situation. That is what's called a per se taking, but there's another type called a regulatory taking, which is when the government interferes with your property use in a more limited way. So if the government passes a zoning restriction that limits how you can use your property, what kind of building you can build on your land, that might be a regulatory taking.

0:06:36.5 Rhiannon: Right.

0:06:37.4 Michael: The one thing that I really like about the regulatory takings is that any interference with the use of your land is not a regulatory taking. The official test of the Supreme Court is when the regulation goes "Too far." That's the test.

[laughter]

0:06:57.6 Michael: And it's cited Excited all the time. That is literally the test. These are the greatest legal minds of a generation at work.

0:07:03.3 Rhiannon: Thank God for judges.

0:07:04.9 Michael: It's pure judgement call, which maybe that's what judges are supposed to do, but just to see them write a rule that's like, "Well, whatever you think is just a little too much."

0:07:17.7 Peter: If it's bad, it's unconstitutional. If it's good, it's constitutional.

0:07:20.5 Rhiannon: Right.

0:07:20.8 Michael: Yeah.

0:07:21.2 Rhiannon: Right, and that's the literal legal rule.

0:07:23.9 Peter: So lots of more libertarian-minded conservatives have a theory that this clause should be read to apply to almost any government interference with your property no matter how abstract that interference is. So here you have these big farming companies saying, "Hey, you passed a law that allows union organizers to come onto my land, that's the government forcing me to let people onto my land even though I don't wanna. So that's the equivalent of taking my land for public use, and the government isn't paying me any compensation for that taking, which is required by the Fifth Amendment, so this is unconstitutional."

0:08:05.1 Michael: Yeah. [chuckle]

0:08:06.0 Peter: Badabing, badaboom. You know? [laughter] And now, what's interesting is I just outlined the two types of takings. They are claiming that this is a per se taking, which as I mentioned above, is the more severe type of taking, not like the regulatory taking that Michael was mentioning where you're dealing with zoning restrictions or whatever. The standard for this, a per se taking, is that the government's action must force the landowners to suffer "a permanent physical occupation" of their land or be deprived of "all economically beneficial or productive use of their land."

0:08:43.6 Michael: All.

0:08:45.6 Rhiannon: All. All. 100%.

0:08:47.3 Peter: All. In other words, for it to be a per se taking, the government needs to either seize a property or render it completely useless.

0:08:56.9 Michael: Yeah.

0:08:58.2 Peter: And that is what Cedar Point Nursery, the farming company, is arguing here. They are arguing that allowing a union to access their land for three hours a day, 120 days a year to organize workers is the equivalent of having the property seized or made completely valueless.

0:09:18.7 Michael: Yeah, like literally there's no justifying it beyond just saying it is and then repeating it is in various different ways being like, "Oh, property is a bundle of rights, and the right to exclude is an important one, and this modifies your right to exclude, so it's a per se taking." But there's no effort to really show how this actually is an appropriation of land, how this is taking someone's property, it's hard to square. The opinion just states it.

0:09:49.5 Peter: Yeah, there's some weird shit in the conservative academic psyche about dominion over your property, where it must be total. Your control over your property must be total, or else they're stepping on your snake, right?

0:10:03.4 Rhiannon: Right.

0:10:03.6 Peter: They're treading all over you, and it's like fuckin' weird Ron Paul shit, right?

0:10:08.0 Rhiannon: Yes. Yes.

0:10:09.2 Michael: Yeah.

0:10:09.3 Peter: And it's being fully adopted here. I think what really gives a lie to this analysis by Roberts is that if you use his analysis, the entire Takings framework falls apart. Again, there are supposed to be two kinds of takings, regulatory takings, where the government imposes a regulation that impedes a person's ability to use their property in some minor way, and then per se takings where the government physically seizes or appropriates the property entirely. So if this temporary intrusion by union organizers is a per se taking, then what's a regulatory taking?

0:10:47.8 Rhiannon: Right, right.

0:10:49.5 Michael: Right.

0:10:49.6 Peter: What's a more minor intrusion onto the land than this? I think what Roberts is really doing is saying that these two categories don't really exist anymore. According to Roberts, almost any law that interferes with an owner's property rights, no matter how minor, is going to automatically infringe upon their constitutional rights.

0:11:07.9 Rhiannon: Totally, and I think, something that's important that is relevant is a little bit more of this history, this background of how this California regulation was passed in the first place. Before this California law allowing union organizers on to agricultural companies' land, before it was passed there was a decade, more, more than 10 years of labor strife. Literal violent struggle, right?

0:11:35.2 Peter: Yeah.

0:11:36.0 Rhiannon: There was the Delano grape strike, the Salad Bowl strike, people are getting arrested by the police for striking, people are being met by anti-unionist rioters and anti-unionist laborers who are straight up assaulting them, trying to make them go to work, trying to force people to cross the picket lines. And so yeah, this legislation, it's about the fundamental right to organize on a political or a philosophical level, but on a practical level, there's a public benefit of this law, and that is keeping the peace and getting laborers access to political power that they had been violently struggling for for years beforehand.

0:12:19.9 Peter: Yeah. There's something so stark about this law that is born in workers' blood and then struck down by some fucking nerd who went to Harvard.

0:12:30.1 Michael: Yeah.

0:12:30.2 Rhiannon: Yeah. Right?

0:12:32.6 Michael: Yeah.

0:12:33.6 Peter: There's a sort of detachment in anti-labor jurisprudence from the struggle from which those labor laws were born. You see it here when you see it in Janice and in Epic Systems, it's just all over these cases.

0:12:51.4 Michael: Yeah.

0:12:51.5 Rhiannon: Totally.

0:12:52.1 Michael: Yeah. And there's something else I wanted to note that Roberts does implicitly that I think is important, which is, he says, "Look, this isn't as sweeping and as bad as the dissent thinks because look, there are all these sort of exceptions to this rule," And he lists them, and one of them is that the government may require property owners to see the right of access as a condition of receiving certain benefits without causing a taking. That's what he says. And so there's something implicit in this, which is that these labor laws have no benefits to the employers or to the public at large, to be frank. Which I think the history of this law, it shows that that's bullshit. These owners don't want riots, they don't want years' long strikes, labor peace is a real benefit. It's just the way they want labor peace is to just have the state punish anyone who has the temerity to act out, to speak back.

0:13:58.5 Rhiannon: Right.

0:13:59.0 Michael: It's a very sneaky and shitty way of construing labor laws as solely interfering with and impinging on employers without having any benefits enured to them, which is just wrong.

0:14:11.8 Peter: Yeah, and it construes public benefit as being separate from the workers themselves, as if a benefit to the workers is not a benefit to the public at all.

0:14:22.5 Michael: Right.

0:14:23.3 Rhiannon: Right, that's exactly right. As if protecting labor's interests and protecting workers rights is not of a public benefit or public use.

0:14:31.8 Peter: Right. John Roberts, you are doing what is called othering and we do not appreciate it.

[laughter]

0:14:38.8 Michael: So I do wanna switch gears for a sec, Peter mentioned conservative academic psyches, and so this sort of crank shit has been bouncing around in conservative circles for a while, sort of the headliner in this is Richard Epstein, who is a crank in all sorts of ways, maybe most infamously claiming that there would only be 500 deaths due to COVID.

0:15:02.5 Rhiannon: Oh, yeah.

0:15:04.0 Michael: In a memo that circulated in the Trump White House and was apparently very influential in their initial response.

0:15:08.3 Peter: Yeah. And by the way, I've been pitching this recently. Any media outlet that wants it, I will pitch an article about Richard Epstein entitled, The Worst Epstein.

0:15:18.3 Rhiannon: Wow.

0:15:18.9 Peter: And it'll just be sort of a bio.

0:15:20.4 Rhiannon: Bold.

0:15:22.4 Michael: Yeah. So he's had this very libertarian idea about the Takings Clause that has an extremely expansive view of it, that's far out of step with how it was used in the early days of the republic, or any days of the republic, for that matter. It would be sort of a sea change to take it to these extremes where just about any government use of land or any government interference with land at all is a takings that requires compensation, which makes sense because as a libertarian, he is opposed to the administrative state, he's opposed to regulatory state and this has been working its way through conservative academia for a long time.

0:16:07.9 Rhiannon: Right.

0:16:09.3 Michael: And I don't think anybody ever saw it as a real threat, maybe there was a period in the early 2000s when people were concerned about it, but the fact that it seems to be resurfacing now, that this feels like maybe the thin edge of the wedge here, that Cedar Point is maybe just the start of this new expansive view of the Takings Clause that could eventually be like a serious assault on the administrative state is, it's pretty scary.

0:16:39.3 Rhiannon: Right. Right, it's so dangerous in the way that conservatives want small government to work, right?

0:16:45.5 Peter: Yeah.

0:16:46.4 Rhiannon: To say that union organizers coming on to land for three hours a day is the government totally seizing a property, to render it economically useless for the owners, I worry about how this language will be used in the future to limit any... You can think of a whole host of things that state legislatures would do that would then be struck down.

0:17:12.8 Michael: I'll tell you how this language is gonna be used in the future. When the meter reader comes, I'm gonna tell them him they cannot invade my land.

[laughter]

0:17:21.0 Rhiannon: Yeah.

0:17:22.2 Michael: That the right to exclude is fundamental to my ownership in the land.

0:17:27.7 Rhiannon: Right.

0:17:28.3 Michael: And until I am justly compensated, they may not invade. [laughter] This could have pretty broad implications going forward, it hasn't gotten that sort of play at this point in the press and amongst liberal academia, but I don't really trust the conservative Justices or conservative academics or the Federal Society or any of them to stop here, to say I'm good. This just seems like an invitation for the next case that's gonna be even more extreme, that's gonna cite to this case.

0:18:01.3 Peter: Yeah, they really revel in the breadth of these constitutional amendments when it's beneficial to them, right?

0:18:08.3 Michael: Yeah.

0:18:08.9 Rhiannon: That's right.

0:18:09.0 Michael: Absolutely.

0:18:09.8 Peter: They will yammer on about liberal judicial activism when it comes to the 14th Amendment, and then they see something like the Fifth Amendment or the Second Amendment, and they get that shit as broad as possible in their mind.

0:18:25.2 Michael: Oh, yeah.

0:18:25.3 Peter: And that's their sort of starting point. The Takings Clause, they're like, "Oh, yeah, if the government tells you to do anything, that's a taking." You start with that position and you work your way towards something that looks like a little more palatable. Exactly the shit that they complain about. Exactly the shit that they complain about.

0:18:40.7 Rhiannon: Right, and they do it knowingly. This is sort of explicitly hypocritical, this is the... John Roberts knows that this decision is not constitutionally sound and well-reasoned. John Roberts knows that this is flying in the face of precedent, but this is completely in line with a conservative court's political agenda to be the arbiter of deregulation. He knows that this is a precedent that can stand for so much more deregulation, and that's the point, they don't give a fuck.

0:19:15.7 Michael: Yeah, even in the opinion, they concede that this isn't how takings were originally conceived of. They talk about the history of takings and it's like, yeah, back in the early 1900s, in the 1800s, it was like when the government condemns a property, when the government takes possession of a property formally, without acquiring title to it, when the government floods a property and makes it useless, things that are not at all like this. And the way they get around that is by saying, "But actually, this is like that." [laughter]

0:19:54.1 Rhiannon: Right. What if we just said, it is those things. That's it, that is the reasoning.

0:19:59.1 Peter: This is our second straight case episode, 'cause we did, we just did Fulton, where John Roberts does the same thing, where he does the cadence of logic. It's like he's almost doing some syllogistic reasoning, except it doesn't make sense, or he's just like, "Well, takings involve a physical invasion of the land. This is a physical invasion of the land, therefore it is a taking. Alright, moving on." And they're like, "Wait, I think there's actually a lot of incredibly incorrect assumptions built into that."

0:20:27.0 Rhiannon: Exactly.

0:20:27.4 Peter: "That I would love to explore." But you don't get to.

0:20:30.8 Rhiannon: Right, right. In this case, John Roberts is asked to basically compare apples and oranges, and he comes out saying, no, apples and oranges are the same thing.

0:20:38.7 Michael: Right.

0:20:38.8 Peter: Right. An apple is a fruit, an orange is are fruit, therefore, they are the same thing.

0:20:43.0 Rhiannon: That's right. This feels like a good spot. We should take a break. Okay, we are back.

0:20:50.8 Peter: This is a disconcertingly dangerous precedent. You have the administrative state side of this, which I think is a concern that will become real very quickly. You also have the civil rights side of this, what the court says is that, the company had a "right" to exclude people from its property and by requiring them to allow union organizers on the property, they were being deprived of that right to exclude. And if you take that logic, all of a sudden, a lot of progressive laws, civil rights laws look potentially unconstitutional. Anti-discrimination laws deprive employers of their right to exclude workers on discriminatory grounds, public accommodations laws deprive business owners of their right to exclude people of different races or genders, or sexual orientations, legally disabled people, etcetera from their places of business. Are those now constitutionally questionable?

0:21:48.3 Peter: The good news is that, the Court expressly says, "Well, public accommodations laws are different because unlike the farm, those are businesses open to the public," which is reassuring, that they're distinguishing it. But is that actually true? Are they actually substantively different? If the constitutional issue is triggered by a company's right to exclude people from its property being interfered with, why wouldn't it apply to that context just as directly? It feels like the court is trying to provide bullshit reassurances to give the initial impression that this ruling is not as sweeping as it seems like it logically should be. My "this holding is not a slippery slope that will devastate civil rights" T-shirt is resulting in a lot of questions already answered by my shirt. [laughter] The point is that, many civil rights laws frequently limit the property rights of some person or corporation. When you read the Takings Clause broadly enough, it calls almost any of those laws into question, and that's what's so disconcerting about this.

0:22:48.9 Rhiannon: Yeah, that's right. And not only the far-reaching impact of this case and what it means as precedent in the future, for what legal developments come out of it, but turning back to just union organizers and unions in California, the labor rights of farmworkers right now, this case has a massive impact. Maybe the first thing that comes to mind is that, unions have way less of an ability now, to help California's agricultural workers. Agricultural workers, people who work on farms, day laborers often, are paid the lowest wages in the country, often work jobs that are listed and reported as the most dangerous for on-the-job injuries, for on-the-job death, and they work in extremely harsh conditions. You're talking about California summers, high temperatures, not a lot of room for taking breaks to take care of your body, on and on and on and on. Not to mention that, these workers are incredibly important, not to just the American economy, but to our society.

0:23:59.5 Rhiannon: Without California's agricultural workers alone, just take that one state, without California's farmworkers, this country doesn't have food. They are the people who put food on the table for all of us, in restaurants, in our grocery stores. And so, this case obviously limits organizers' ability to reach those workers, to make sure that they are kept safe, to make sure that they can organize and use their collective power to ensure their rights are protected in those kinds of conditions. So then you might say, "Okay, well, unions can't go on to the farms, on to the land, but they could reach these workers in another way. Why don't they send out an email, or why don't they meet at the community center, or what have you?" Well, the particular conditions that these workers work in, many are migrant laborers and many are laborers who move with the seasons. So they move to different properties, they work for different employers, they work on different farms and move around the state, often. And so, not being able to reach them at their workplace means that by and large, thousands of these laborers are now inaccessible to organizers, they can't reach them.

0:25:20.2 Peter: Union access to the workplace is essential for organizing because there's no other place where you can ensure that all the workers are actually going to be there.

0:25:30.7 Rhiannon: That's right.

0:25:30.8 Peter: Anything else is just gonna be so imprecise. You're just doing your best to get as many of them as possible. Union organizers' access to the workplace has been a battleground, not just in California but across the country, because it's so important to the Union mission, to actually be able to target workplaces physically, because that's the only place, obviously, where you know the workers are going to be. When your goal is to rally a large percentage of workers to the cause of joining your union, you need access. And so it's essential to the function of unions, and companies are always pressing back on union access to their workplaces, trying to keep them out on the street, away from the parking lots, whatever it might be in different context. And that's why this law is so important, because especially in this context, like Rhi mentioned, with so many migrant workers, access is necessary for any real organizing to take place.

0:26:30.1 Michael: Absolutely. And I do wanna return to the illogic of this decision, something that I had been thinking about with this is, in terms of value, a lot of the examples that are used here, are a law that says cable companies need to have access to buildings' roofs in order to put cable boxes up there. And in addition to being a permanent physical intrusion, unlike these temporary rights of access, that's also just literally taking away your access to part of your property. There's a physical space that's no longer yours, that has value, that maybe you could have sold, you could have sold someone a roof deck there and instead, it's going to a cable company.

0:27:17.3 Michael: Similarly, with an easement, if you have a beach front property and the government has an easement granting access to the public to get through your house, not through your house, but through your yard, to get to the beach, that's land that you could have sold or that you could have used, that now you can't and there's a certain value loss. And you can quantitatively say, "My land is worth X or was worth X, but now it's worth Y, it's worth something less, because I have less use of it or I have less of it, period. I can't convey this portion of it to somebody else in exchange for money, it's worth less." That's not what's happening here. The land isn't worth less if unions are allowed to organize on it, it's not less tillable land, the soil isn't less fertile, [chuckle] there's not less space. It just means that they can't pay their workers as shitty.

0:28:16.2 Rhiannon: Right, right. That's the problem that actually John Roberts is trying to address. It's not that landowners lose the value of their property or their property depreciates because union organizers, for an hour, three times a day, are there talking to their employees. It's that their employees are learning about unions.

0:28:38.8 Peter: Roberts expressly seems to be referring to disruption of the workers, but they don't have a property interest under the Constitution, in their workers' productivity. If a worker stops working for an hour, then they don't get paid for an hour, that's simple enough, that's wage an hour fucking law, that's not a constitutional issue. And what he seems to be implying, or at least the way in which this seems to be muddying the water is creating this gray area where the employer almost has a property interest in their workers' productivity, and that is slave owning shit. That is fucked up.

0:29:18.6 Rhiannon: That's right. That's right.

0:29:19.7 Michael: Yeah. Literally, that's literally slave owning logic. And this law, in particular, specifically circumscribes when and where labor organizers could be and what they could do. And so, the remedy, if the law is not being followed by labor organizers, if they're not showing up with adequate notice, if they're not coming in the prescribed times, if they're not doing what they're supposed to be doing, which includes no work disruptions, there are other remedies, then this is a constitutional violation, they're not even in compliance with the law.

0:29:58.1 Rhiannon: Right, right. There are consequences under the law.

0:30:02.1 Michael: Right. So it really is sort of the slave owning logic aspect of this is almost inescapable, because it has to ignore everything else, and literally, this only makes sense if the interests the owners have here, that's constitutionally protected, is in the productivity of their workers.

0:30:19.9 Rhiannon: Yeah, and just a really quick point that I think Breyer, in dissent, does a good job of describing the far-reaching impact of this decision, the kinds of things that we have talked about already. Can a food inspector then enter a factory farm or a restaurant if this activity here in this case is a per se taking? He points out those sort of examples, but one thing I think that the dissent fails to do is, point out sufficiently, that slave owning logic, what it means for migrant laborers, what it means for people who work in fields, on farms, picking fruits and vegetables day in and day out, in the State of California.

0:31:04.8 Michael: Right, I think the dissent, it makes a lot of good points, but it's overall pretty weak in a lot of ways. I think that's one. I think the other was, there was a point where I was rolling my eyes, reading the dissent, where Breyer hinges everything on, "Well, this doesn't fit with our precedent." And part of me it's like, "Well, who gives a shit? Who cares about the precedent? It's absurd." Forget about the precedents not consistent with the text or history of the Fifth Amendment, but even beyond that, it's such an empty thing, a weightless thing to hinge your argument on. This is not something that anybody is gonna give a shit about, in 10 years.

0:31:49.2 Peter: Sometimes something is so nonsensical that saying, "Well, this doesn't comport with precedent," is just underselling it by so much.

0:31:56.8 Michael: Right. Exactly.

0:31:57.8 Rhiannon: Right, right. Yeah, just call it ridiculous.

0:31:59.1 Peter: Right. It's lawyer brain shit, where he's like, "Wow, this doesn't fit with our precedent."

0:32:04.6 Rhiannon: Yeah. I can't find one citation to go with this.

0:32:07.6 Michael: What points do you get, for that? Roberts called the dissent thoughtful. Who gives a shit? It didn't change the outcome. It just made everything seemed like a high-minded debate.

0:32:19.3 Peter: Yeah, and also this is the precedent now, this is the fucking precedent now. This is what we're stuck with, moving forward. So you need to make an argument that future lawyers can actually hold on to. Because if your argument is, this doesn't comport with the precedent, that argument fades over time inherently. We need something that you can actually sink your teeth into, and in 20 years, if this issue comes up again, you can make that argument.

0:32:40.6 Michael: Right.

0:32:42.7 Rhiannon: Exactly.

0:32:42.8 Peter: So as the term wraps up, we've gotten the usual influx of op-eds, about how the court is showing signs of moderation and restraints. The legal media loves to do this "well, actually" thing, where they sort of say, "See, the worst case scenario didn't happen. You were all wrong about the court being a partisan instrument." And part of that is just slight of hand, where they take something like the case that upheld the ACA, ObamaCare this term, and use it as a symbol of moderation. When in reality, that case was absolutely batshit. And the fact that several Justices seemed to sign on to the argument for striking it down, is the sign of an aggressively far right fringe on the court, that we should be very concerned about.

0:33:27.8 Peter: But another part of the media cycle is that it almost always completely ignores the ways in which this court is actually extremely conservative and consistently conservative. Roberts himself, the supposed moderating influence on the court is deeply conservative on questions of corporate interests. This is by just about any metric, the most anti-labor court since the 1930s.

0:33:50.3 Rhiannon: Absolutely.

0:33:50.7 Peter: And that goes largely ignored in media coverage about the court. I think the real reason for that is that the political consensus in America is so neo-liberal, that questions of labor and corporate power have become steadily cordoned off from the mainstream political discourse, which has become just increasingly focused near exclusively on cultural signifiers. And the result is that, these hack analysts can reassure you that things aren't going so bad while the court is at this very same time, aggressively wiping away the power of American workers. That to me, is the most glaring defect in legal journalism today, that they can't look at things like this and see that as part of a very consistent pattern of anti-worker jurisprudence from this court.

0:34:38.3 Michael: That's right.

0:34:40.8 Peter: I think the ammo of this court in the past year has been, to throw the left and liberals' crumbs on certain civil rights issues, while going full speed ahead conservative, not job shit, on voting rights and corporate rights and these areas that are a little less centered in the political discourse. And when they are centered, a little bit easier for them to claim where, "Well, it's like a legal issue." And there's such a campaign of obfuscation going on from the legal media who for some reason, has some fucking vested interest in convincing you that this institution is going to take care of itself over time. And it's just fucking not true, and this case is a great example.

0:35:24.8 Rhiannon: Yes.

0:35:26.6 Michael: Yeah, that's right.

0:35:28.7 Peter: Alright, so before we get out of here, we have a gift to give. Some University of Chicago students had an auction and they auctioned off us roasting someone of their choosing. And so, our friend at UChicago, Joseph, maybe Joe, maybe he goes by Joe, I don't know.

0:35:46.8 Rhiannon: Joey.

0:35:47.4 Peter: He was like, "Yeah, I want you to roast Judge James Ho of the Fifth Circuit."

[laughter]

0:35:53.2 Michael: I thought we were gonna get somebody's friend, like we'd hop on his hoove...

0:35:56.5 Rhiannon: Yeah, that's what I thought too.

0:35:56.8 Peter: That's what I thought. I thought he was gonna be like, "Here's a picture of my friend," and we were gonna be like, "Looks like shit, dude." [laughter] Instead, he was like, "Here's a sitting appellate judge in line for the Supreme Court."

0:36:15.2 Michael: Who really sucks.

0:36:15.3 Peter: I was like, "Great. Now I have to read cases for this roast? What the fuck." I feel like we were given homework, and I was really just looking to do some problematic insults towards someone's close friend.

[laughter]

0:36:28.2 Michael: A law professor would have been a nice choice too. Those are easy.

0:36:32.5 Peter: Yeah, that's true. This is the most bat-shit federal judge maybe, one of the top five.

0:36:36.0 Michael: For sure.

0:36:36.4 Rhiannon: Oh, definitely.

0:36:36.7 Peter: That helps. And what else? Is that we were... I was like, "What are we gonna say about James Ho?" And then he came out with a decision last week, that was like, "We follow the Constitution, not the woke Constitution."

[laughter]

0:36:54.2 Rhiannon: Okay, fuckin' dork.

0:36:54.3 Michael: That's when we start to get really excited about this. It was like, "Alright, fuck this guy."

0:36:58.0 Rhiannon: Yeah, yeah, that's absolutely right.

0:37:00.4 Peter: I just love the degree to which everyone's like, "The Republican base has lost its mind, it's all like QAnon shit." And the implication is that there's this big segment of the Republican Party that is actually still very intellectual, and then all of their judges are like, "Tucker Carlson says that immigration is out of control."

[laughter]

0:37:23.4 Michael: And this isn't... Ho is not one of the bullshit nominees, the ones with zero experience who were 31. This was a guy who worked in the White House, he worked in the DOJ, the Civil Rights Division, helping dismantle it under George Bush, and was considered one of their top ones, one of the ones that centress like to be like, "No, he's really well-qualified." And meanwhile, he's out here writing... He's written some of the dumbest shit I have read, [laughter] which is saying something. But literally, one of the worst arguments I have come across was his, on campaign finance, when he said that if you think there's too much money in politics, that the solution to that is to enact the preferences of rich people and cut the social safety net. His solution is give consideration to what they want, 'cause then they won't need to spend money on politics. That's the brightest legal minds in the conservative movement at work.

0:38:23.4 Rhiannon: Logic.

0:38:23.8 Michael: Yeah.

0:38:24.7 Rhiannon: Yeah.

0:38:25.0 Michael: Broken on the wheel of logic.

[laughter]

0:38:27.2 Peter: A very tight circle of logic there. Unfortunately, our producer told us that we can't do problematic roasts, which means I can't talk about the proportional size of his face to his head, which is way off, it's not normal.

0:38:44.3 Rhiannon: Wait, is it a Charlie Kirk small face-to-head ratio? Or it's too large?

0:38:49.0 Peter: It's an unbelievably small face.

0:38:50.0 Michael: It looks Photoshopped.

0:38:51.7 Rhiannon: Anyways, so this guy, after law school, clerked for Crazy Bones himself, Clarence Thomas. And like Michael said, he has experienced real experience in politics, he worked for Senator John Cornyn out of Texas, and then later, Judge Ho replaced... Before he was a judge, obviously, he replaced Ted Cruz as Texas' Solicitor General back in the late ots. And during that time, he led my state's shit throwing exhibitions against the federal government, back during the Obama administration. So yeah, he super sucks really deeply. Once he got up to the Fifth Circuit, he has been whining non-stop. In a case that was about a ban on interstate handgun sales, Judge Ho said, "The Second Amendment continues to be rated as a second class right. Law-abiding Americans should not be conflated with dangerous criminals. Constitutional rights must not give way to hoplophobia."

0:39:50.5 Michael: Hoplophobia?

0:39:52.8 Rhiannon: Which is a morbid fear of guns.

[laughter]

0:39:55.9 Michael: Wow. Do you think he knew that? Or do you think he likes being a clerk? Like, look that up.

0:40:00.2 Peter: Look up the fear of guns. [laughter] He's waving his pistol in a clerk's face.

0:40:09.8 Rhiannon: Right, right. In another case, when he's talking some shit that makes no sense at all, that 15-week ban on abortions in Mississippi, we know that case has been accepted next term, by the Supreme Court. The Fifth Circuit unanimously, a three-judge panel of Fifth Circuit judges, unanimously struck that law down saying, "Look, this law clearly violates Supreme Court precedent on abortion. This violates Roe v Wade." But Judge Ho writes separately to say, "Yeah, that's the right result if you're going based on precedent, but this precedent is garbage." He's complaining the whole time, about Roe v Wade and the Casey decisions upholding the right to reproductive autonomy. In that concurrence, he also used it as an opportunity to underscore and reiterate something that Clarence Thomas did in a 2019 case, where he linked abortion healthcare providers to racist supporters of eugenics. So this guy is really, really out here, going cuckoo lulu on the law.

0:41:18.3 Peter: That's 'cause if eugenics kicks off, people with tiny little faces would be the first to go, and he knows that.

[laughter]

0:41:24.6 Michael: Peter. [laughter]

0:41:26.1 Rhiannon: Stupid. He's so stupid.

0:41:31.1 Michael: I wanted to call attention to something he said way back in the '90s, about affirmative action. This is a quote explaining why he's against affirmative action, it's along the same lines that you normally hear conservatives say the really racist stuff about basically black people having trouble with academic rigor that's beyond them. And so he says, "If I, 5'6" and uncoordinated, were told I could someday make the NBA, I'd try real hard, then I'd spend the rest of my life cursing the system that lied to me, rather than exert my energies on more fruitful and realistic pursuits."

0:42:10.5 Rhiannon: What a piece of shit.

0:42:13.1 Michael: That's a pretty shit thing to say and a lot of racism embedded in it, but I do like imagining that instead of somebody telling him he could make the NBA when he was a teenager, his mom or his guidance counselor sat him down and was like, "Look, you have the moral bankruptcy. If you try really hard, one day, you could chill for white people and racists. You got that. You got it, buddy. You work towards that and dedicate your life to it." And he has. He has.

0:42:44.8 Peter: Plus, Ben Simmons made it. [laughter] Judge James Ho, more like Judge James No-thank-you.

0:42:53.2 Rhiannon: Got his ass.

0:42:54.7 Michael: Boom.

0:42:56.6 Peter: From us at 5-4.

0:42:58.4 Rhiannon: Pull up, bitch. You heard that?

0:42:58.5 Michael: More like James Schmoe. Boom. Boom.

0:43:00.1 Peter: Okay, we are getting him. We're on a roll.

0:43:05.2 Rhiannon: Yeah, he can't come back from this.

0:43:06.9 Michael: He's done.

0:43:07.2 Peter: Hearing now in my earpiece, that he's gotten wind of this segment and he is resigning, he is stepping down from the Fifth Circuit.

0:43:14.1 Rhiannon: Yeah, you heard that, Judge Ho? Three people at your Alma Mater, the University of Chicago, they don't like you. And we three people right here, we don't like you either. You dork.

0:43:25.2 Peter: We buried him.

[laughter]

0:43:29.0 Michael: If we didn't quite have as much fun with this as you had hoped, part of that is 'cause he is just the fucking most bored person. I looked far and wide for fun stories about him and there are none.

0:43:41.9 Peter: Yeah, and the other part is, artificial limitations put on us by our producer.

[music]

0:43:48.8 Peter: Alright, we are taking off for a couple of weeks. Michael is going to Barbados, I believe. I will, as always, just be grinding and hustling.

0:44:00.2 Rhiannon: That's what you call what you do?

0:44:01.5 Peter: Yes. Yes, it is.

0:44:03.2 Rhiannon: That's an interesting label.

0:44:04.5 Peter: Big talk from someone who needed an extra 10 minutes to prep for this episode, when we started.

[chuckle]

0:44:09.8 Rhiannon: Listen, typing is hard. [laughter]

0:44:13.8 Peter: And then we will be back with an episode about legal journalism, which we think, is in some disrepair, but also, we have proposals for fixing, like giving me a column in the Washington Post and other stuff. I'm gonna think of others too. Follow us on Twitter @fivefourpod. Join our Patreon, patreon.com/fivefourpod, all spelled out. Get our incredible benefits.

0:44:39.9 Michael: That's where I'll be posting hot pics of me on the beach.

0:44:43.4 Rhiannon: Ooh.

[chuckle]

0:44:47.1 Peter: See you in three weeks.

0:44:47.6 Rhiannon: Hot girl summertime. Bye.

0:44:51.6 Michael: Five to Four is presented by Prologue Projects. This episode was produced by Rachel Ward, with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percia Verlin. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.