Fulton v. Philadelphia

In this emergency episode, the hosts discuss one of the spiciest cases from this term, Fulton v. Philadelphia. And you know how conservatives hate spice, so suffice it to say, this holding didn't come out great!

An emergency broadcast of 5-4 where we dissect and analyze the Supreme Court cases that have brought American liberty to the brink of extinction, like the widespread use of DDT did to the Bald Eagle

0:00:00.5 Speaker 1: We will hear argument this morning in Case Number 19-123, Fulton versus City of Philadelphia.


0:00:11.8 Leon Neyfakh: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are discussing Fulton v. Philadelphia, a holding that just came down last week. In a 9-0 decision, the Court ruled Philadelphia could not terminate its contract with a Catholic Social Services Agency just because the agency refused to place foster children with gay couples.

0:00:35.6 Speaker 3: This is a big win for religious liberty advocates. Interestingly, it's also a unanimous decision.

0:00:42.1 Leon Neyfakh: The conventional wisdom among liberals has been that Fulton v. Philadelphia is a good decision and should come as relief for anyone who feared the new conservative court, but, as you'll hear, that is a short-sighted view. This is 5-4, a podcast about how much the Supreme Court sucks.


0:01:06.5 Peter: Welcome to an emergency broadcast of 5-4, where we dissect and analyze the Supreme Court cases that have brought American liberty to the brink of extinction, like the widespread use of DDT did to the bald eagle. I am Peter. I'm here with Michael.

0:01:24.4 Michael: Hey, everybody.

0:01:25.7 Peter: And Rhiannon.

0:01:26.9 Rhiannon: Hi, hello.

0:01:28.7 Peter: We were gonna drop a premium episode about textualism today, but then, one of the most controversial cases of the term dropped, and we thought we'd better cover it. So, today is Fulton v. The City of Philadelphia. And I am reporting from the ground, folks. I'm in Philly.

0:01:49.6 Rhiannon: The field podcaster.

0:01:51.0 Peter: Yeah.

0:01:51.5 Michael: The second the opinion dropped, Peter packed his bag and was like, "I'm going. I'm going to Philly."

0:01:57.3 Peter: My audio might not be great, as is the standard in Philly; not only do I not have my usual microphone and everything, but there are street fights taking place outside.


0:02:09.6 Rhiannon: Racist epithets coming in the window, wafting in. [laughter]

0:02:14.0 Peter: Cheesesteaks flying at the windows, smacking into them; just standard Philly stuff.

0:02:20.2 Rhiannon: That's right.

0:02:21.1 Peter: This case is about whether... Sorry, someone's muffler legit just went off right outside my window. [laughter] Philly, baby! Go Sixers! This is a case about Catholic Social Services, a foster care service that matches children with families, except they don't do it for gay families, 'cause they don't like that. And the City of Philadelphia said, "Well, then we are not going to contract with you to do foster care services," and they said, "We're suing you under the United States Constitution, Amendment Number One. That's the 3000-foot overview. Rhi, I don't know if you wanna give some more details.

0:03:01.8 Michael: I don't think that we need more details. [laughter] I think that's it. [chuckle]

0:03:06.5 Rhiannon: Happy to jump in here, thank you for that handoff, Peter. Yeah, so the City of Philadelphia, like many cities and states, relies on contracts with private foster care agencies to administer the city's foster care system. So, private foster care agencies are involved at different steps in this process, but one responsibility of these private agencies in Philadelphia is certifying perspective families as eligible to be matched with a foster child. Now, the state sets criteria for eligibility for these families, and the role of the private agency is to screen applications and conduct interviews and do all of that stuff to make sure that families meet those eligibility criteria, and then can continue on with the foster matching process. So, one such private foster agency, like Peter said, doing this certification work is Catholic Social Services, also known as just CSS. So, the City of Philadelphia and CSS have contracted together for more than 50 years, actually, to make the foster care system work in this way. But, in 2018, the Archdiocese of Philadelphia announced that CSS would not be considering interested foster parents who are in same-sex marriages.

0:04:22.6 Rhiannon: Now, the City of Philadelphia responded that their contract, therefore, with CSS would not be renewed the next year, because CSS's refusal to screen same-sex couples for foster care eligibility violated two antidiscrimination laws. One was a provision that was in the actual contract between the City of Philadelphia and CSS, a provision that said that the private agency would not discriminate in this way. And the second law was a city-wide ordinance called the Fair Practices Ordinance, that said that the City of Philadelphia can't discriminate against gay people in public accommodations. So, CSS turns around from the announcement that their contract will not be renewed with the city. They turn around and sue the City of Philadelphia, saying that this is a violation of their free exercise rights under the Constitution.

0:05:15.7 Peter: So this is written by John Roberts. The holding here is unanimous.

0:05:21.8 Rhiannon: Yeah.

0:05:22.2 Michael: And, just to cut in, the holding is unanimous, but Roberts wasn't the only person who wrote. Three other conservatives, Barret, Alito, and Gorsuch, wrote separate concurrences, dropping their two cents.

0:05:34.6 Peter: Oh, God. But the first thing I wanna note is that Roberts kicks off this opinion with some narrative posturing about the Catholic Church's history of providing to needy children, which is a pretty transparent way to say that like, "Look, they really mean well. Look how great they are." He stops after two sentences, which is good, because I'm not sure it would have the same impact if he had given a more comprehensive history of the Catholic Church's relationship with children.


0:06:08.9 Peter: Second thing here is, Robert spends 90% of this opinion just dodging issues like he's in the Matrix; just incredible agility. There are two relevant clauses in the contract between the city and CSS, and he says no, only one applies. There's a claim, like Rhi mentioned, that they are obligated under public accommodations laws to avoid discrimination, but he makes up a rule to say that public accommodations laws don't apply to them in a way that I'm pretty concerned will be used as precedents in the future, when other types of organizations want to exempt themselves from public accommodations requirements. So, there's a lot going on here, and I... We're gonna get to a little bit of the bigger picture stuff later, but I'm gonna cut out some of the fat and talk about what I think is the heart of the holding.

0:07:01.9 Peter: The basic issue here is that Philadelphia has a clause in its contract saying that it will not contract with anyone who engages in discrimination, including anti-LGBT discrimination, but it also allows for exceptions to this rule on a case by case basis. So according to precedent, if you allow for exceptions, you have to have some compelling reason why a religious organization should not be granted an exemption; that's the precedent. It's a little convoluted, but the fundamental question is simple: Is the prevention of anti-LGBT discrimination a compelling enough reason for the city to break off its contract with Catholic Social Services? That's the question that Roberts winds his way toward over the course of this opinion. And at the very bottom of the opinion, tucked away in a fairly short paragraph, the court answers this by saying no, it's not compelling enough. They do not provide any substantive rationale. They give some lip service to how important it is to be nice to gay people and [chuckle] things like that.

0:08:09.4 Peter: Like I mentioned, the contract clause says that the foster care service provider cannot discriminate, but then it also allows for case-by-case exceptions. And what the court says, although I'm reading between the lines a little bit because they barely provide a justification here, is basically... "Well, if you cared so much about antidiscrimination, then you wouldn't allow for exceptions at all. So, the very fact that exceptions are a possibility means that you're willing to grant them, which means that you have to grant one here. Not exactly the cleanest reasoning, but that's it. The court says if you grant any exceptions to your antidiscrimination policy, even just in theory, because none were actually granted in reality here, then you have to grant one to the religious people who want to discriminate against gay couples. That sounds like maybe it doesn't make much sense? Right there with you, but I can't help you. That's really where this opinion ends up, and I gotta say, I don't get it. I don't get it.

0:09:11.3 Michael: Yeah. So Peter made the point that Roberts is saying, "Hey, if preventing discrimination of gay couples or LGBTQ people was actually important to you, if this was really a compelling interest of yours, you wouldn't grant exceptions to this rule, but whether or not something is a compelling interest is a matter of law that the court decides. It's not a question that's state by state, or city by city, ordinance by ordinance thing.

0:09:43.0 Peter: Right, it's not about the subjective belief of the city.

0:09:45.8 Michael: Right, as evidenced by its statutes or whatever. And there are... There is an exhaustive list of things that have been adjudicated and been determined to either be a compelling interest or to not be a compelling interest, and Roberts is just pretending that's not the case, that this whole determination is done completely differently.

0:10:05.1 Peter: Yeah. Any law student who has failed an exam because they confused subjective and objective factors in an analysis is gonna know how bad John Roberts fucked this up.


0:10:17.1 Michael: The other thing I wanted to note, that I think just sort of is a good example of Roberts sort of dodging and weaving bullets here... Peter talks about how there are two contract provisions that prohibit discrimination, and only one of them granted this exemption on a case by case basis, and it's important to note that those two antidiscrimination provisions cover different stages of the process. And that's relevant, because the antidiscrimination provision that has no exceptions is on certification of parents to become foster parents, and it makes perfect sense to have no exceptions to that; there's no discriminating on the certification of parents. However, when it comes to the placement of children, it forbids discrimination, but does grant exceptions, which makes sense, because you might have a really racist kid that you're trying to place with a black couple, or a kid who has a history of violence against his gay classmates, and you don't necessarily wanna place them with a gay couple, and those things are different in kind, and Roberts is grasping on to that exemption clause in one part of the statute and sort of retroactively making it attached to the other part of the statute to make this seem very different than what it is, right?

0:11:44.7 Peter: Yeah. The sleight of hand that he pulls with respect to those two clauses is egregious. It's hard to articulate, I think, but it's just... It's flatly incorrect, as a matter of logic. It does not flow.

0:11:59.2 Rhiannon: That's not how contracts are read; these are separate clauses.

0:12:02.3 Michael: It's just... It's an incredibly... I would say it's an incredibly sloppy opinion, but I think it's the opposite. It's a very sophisticated example of how you bullshit your way through to avoiding something you don't wanna say or you don't wanna do, right? This is very purposeful, what they're doing here.

0:12:22.3 Peter: I think that's right. I think it's a great example of bullshit and a great example of our primary thesis, which is like, this stuff is not objective. The law is not math. This is a fantastic example of it, because here's John Roberts resenting the cadence of logic, as if it were actual logic, throughout the opinion, and it just... It doesn't make sense. It doesn't actually get to where he wants it to go.

0:12:47.0 Michael: Yeah, it doesn't go together at all.

0:12:48.3 Peter: It's bizarre.

0:12:48.9 Rhiannon: Yeah.

0:12:49.3 Peter: This portion of the opinion, where he says that alleviating discrimination against gay people is not a compelling enough reason. That's the critical dispositive portion of the opinion, but it has gone completely overshadowed in journalistic coverage and academic commentary, in large part because people were bracing for this decision to be a lot worse, which we'll get into in a second. But I'm very concerned about the court almost flatly saying that alleviating discrimination against gay people is not an inherently compelling interest, and I assure you that this will be cited going forward. People on Twitter immediately reacted by saying, "Well, this is very narrow," and I think you should be hesitant to assume that the conservatives will read this narrowly moving forward. It's just not what I expect. The only real good news from this, in and of itself, is that I think it's a quick fix for the city. Roberts latched on to this exception language in the antidiscrimination clause in such a way that if the city just crosses it out, they're good. So if they have the balls to do that, they should be fine not contracting with Catholic Social Services.

0:14:01.6 Peter: But I think we have to circle to what has been driving the conversation, which is... This is a 9-0 decision, and many people have reacted by being relieved by it, and that is because it could have been much worse. What could have happened is the court could have overturned a case from 1990 called Employment Division v. Smith, a case about freedom of religion. That case answered an important question. Everyone knows that the government cannot pass laws that intentionally target religious groups under the First Amendment, right? You couldn't pass a law saying that Sikh men have to take their turbans off in airports; that targets them on the basis of their religion. But what if you passed a law that said everyone has to take off any head coverings in airports? Could a Sikh person claim that that violated their religious rights? What Employment Division v. Smith said is no, that law would probably be okay, because it applies to everyone. The First Amendment prevents religious people from being targeted, but it doesn't mean that they get exceptions from laws that apply to everyone. The case itself was brought by Native tribes who used peyote as part of religious rituals. They wanted to be exempt from laws that outlaw peyote. And the court said no, it doesn't work that way; you don't get exemptions. Essentially, a law can't target religious groups, but if it's just a coincidence that a law interferes with someone's religious practice, that's generally gonna be okay.

0:15:32.8 Rhiannon: Yeah, that's right. And if I recall correctly, we have talked about Employment Division v. Smith before on the podcast. I'm pretty sure we talked about it in our episode on Roman Catholic Diocese of Brooklyn versus Cuomo. If you remember, that was a case about COVID-19 restrictions on religious gatherings, and one of the questions discussed in that case was whether these New York City restrictions on large gatherings were laws of general applicability that applied to everybody, or whether they were being targeted at religious organizations. And so, maybe it is foreshadowed based on the conservative opinion that came out of that case, but conservatives don't like Employment Division v. Smith. They want it overturned. Now, this is kind of interesting, because Employment Division v. Smith, back in 1990, was written by Justice Scalia himself. This, back in 1990, was a conservative position. This was the conservative decision.

0:16:36.6 Michael: A bunch of liberals in dissent.

0:16:38.1 Rhiannon: That's right. And now, it's a little too coincidental, shall we say, it's a little too obvious that now that this case is being applied to Christian organizations, to when Christian activity is being restricted, now the conservatives have a problem with Employment Division v. Smith.

0:16:58.9 Peter: Yeah, and I have a working theory on this, if you'll humor me for a moment.

0:17:03.5 Rhiannon: Go off, king.


0:17:05.2 Peter: Conservatives in the '80s had a very different view of this issue. They saw these Native Americans, and they said, "No, you can't do that." And they didn't view that holding as a threat to their own beliefs because they perceived of the state as, in many ways, the manifestation of themselves; as something that protects them. If you truly believe that this is, both in form and function, a Christian country, which I think they probably did much more so in the 1980s, then you're not worried about laws preventing you from practicing Christianity in any meaningful way. You're a white Christian guy in the late '80s... Things rule. Everything's going great. The state is there to protect you, right? But now, the tides have shifted, and conservative Christians are on the defensive vis-a-vis LGBT rights. They wanna be exempt from laws requiring that they serve and otherwise engage with LGBT people, but the rule they created back in 1990 to smack down some Native Americans is preventing them from doing it. And they inadvertently frustrated themselves because they didn't ever really view the First Amendment as something that restricts them.

0:18:15.5 Michael: Right, and I think this is evident in Alito's opinion, which is nearly 80 pages. [laughter] It was miserable to read.

0:18:25.2 Rhiannon: But the Roberts controlling opinion, I think that's only 15 pages?

0:18:31.0 Michael: 15 pages, yeah. And Justice Barret had a two-page concurrence, and Justice Gorsuch had an 11-page concurrence. So that's total 30 pages compared to Alito's 80. But... So he kicks it off by this sort of parade of horribles, of what would be okay under Employment Division v. Smith, like laws forbidding circumcision, and... He tries to make a checklist of every non-Christian religion he could come up with. There's Muslims, and there's Jews, and... He's going through, saying everybody's religious freedom is threatened by this, but in fact, when it's come to litigating religious exemptions to laws in the last two decades, it has consistently been Christian organizations who want exemptions from antidiscrimination statutes, who want exemptions from birth control and abortion-related statutes... It's all about that.

0:19:35.0 Rhiannon: Period.

0:19:35.7 Michael: That's what this issue has been about, and that's what's driving this discussion. But... So his opinion, it basically calls for the overruling of Smith, and he does an exhaustive case history of all the cases about religious exemptions before Smith, about First Amendment research and scholarship, about the free exercise clause at the founding. And his basic conclusion is, "Hey, what the free exercise clause means is religious people get to do whatever the fuck they want, as long as it doesn't endanger the peace and safety of the general public."

0:20:12.7 Peter: That's a great standard. That'll hold up.

0:20:14.2 Michael: No problems there.

0:20:15.2 Peter: That won't be abused.


0:20:16.2 Michael: No mention of this sort of parade of horribles that would come from that standard. I don't know, it seems to me the fundamentalist Mormons who want to marry several underage brides would probably get an exemption, right?

0:20:31.2 Peter: Yeah. It's not interfering with peace and safety.


0:20:33.5 Michael: Right, especially the way he defines them. The way he defines them is fomenting insurrection and war and riots and things like that, so...

0:20:42.2 Peter: Yeah. By the way, I wanna add... He basically starts off, like Michael said, by saying like, "Well, what if someone made it illegal to slaughter animals while they're conscious? That would interfere with the Muslim religion because of halal meats. And I have to say that while that, in and of itself, is something that makes you go like, "Hmm, that's a good point," how would that play out? When Donald Trump was like, "I'm gonna ban Muslims from coming here," and then sort of did it, where was Justice Alito to fucking protect Muslims then? When it actually comes down to it, when you actually throw down for any other religion, Alito will stand against them.

0:21:20.5 Rhiannon: Yeah, and I wanna mention really quick, because I think, Michael, you have some stuff to say about how the Chief Justice in this case gets to a unanimous decision, gets to this 9-0, and it's by the Chief Justice being the Chief Justice and doing some politicking and some sleight of hand. But before we talk about that, I wanna just mention that you can see, by sort of comparing Alito's writing here, an 80-page concurrence with Roberts's writing here, a 15-page sort of controlling opinion, you can see the stark differences in who they think their audience is and who they're writing for. Alito here is writing, very clearly, to the far-right, sort of fringe, deeply conservative sectors of not just the Republican Party, but lower court's conservative justices who are reading his opinions... You know, the Federalist Society. He is giving them fodder for cases on these issues on religious exemptions in the future.

0:22:26.5 Rhiannon: And it's not a mistake. Justice Alito himself has been publicly talking about this issue, framing the rights of Christians in the United States as being under attack for the last couple of years, signaling very clearly, if not explicitly, that he wants these cases to come to the Supreme Court, and he wants to decide them in a specific way. And so, it makes me think a lot about how somebody like a Justice Clarence Thomas was writing sort of fringy, what might have been looked at as really far-right or crazy, even, narrow concurrences or dissents in the past, and now, that is sort of more widely accepted as a mainstream conservative opinion. And so, just don't miss that Alito and the ultra-conservative justices are doing this all of the time.

0:23:17.0 Michael: Yeah, that's right. And I do think you can see, like you're saying, they're writing for different audiences. That's evidenced in Roberts's opinion. Right off the bat, he opens with this discussion of the CSS here, if they get gay couples applying, would just refer them to another agency that will work with gay couples, and there are dozens of other such agencies, and so...

0:23:41.0 Rhiannon: Right, right. Everything's fine, everything's fine, yeah.

0:23:44.1 Michael: Yeah, for sure. Yeah, no, it's transparent bullshit, and you can see it throughout the opinion. His dissent... Not his dissent, sorry, his concurrence; it reads like a dissent, but it is a concurrence, 'cause he concurs in the disposition. He talks about, basically, how... The text of the Constitution here is clear, and it says you can't burden the free exercise. And it doesn't matter what your intentions are, it doesn't matter if this is generally applicable or not. If you burden the free exercise of religion, that's in violation of the law. But he never takes that approach when it comes to, say, the plain language of the 14th Amendment. When it comes to people being treated equally under the law, then it's the opposite; then you can show how the law is disparately treating people to the moon, and if you can't prove that there was discriminatory intent in the heart of the legislatures putting voter ID laws into place or whatever, Alito has no time for you. He doesn't wanna hear it. He doesn't see any discrimination there; he doesn't see any unequal treatment there. So, it's definitely a sort of greatest hits of Alito's particular brand of vile bullshit, and it was miserable to read.

0:25:03.0 Michael: The one thing I'll say is, I appreciated Amy Coney Barrett's concurrence, where she was basically like, "Look, Employment Division v. Smith, I have some qualms with it, but it would be really complicated to overturn it. There's a lotta nuance, there's a lotta discussion, and despite the 80-page opinion Justice Alito has written, I don't think we're there. I don't think we're ready for that conversation, and I don't think this is the right case to have it."

0:25:29.0 Peter: Yeah. She also really... She dismissed him in the course of a sentence, where she was like, "I don't think that that was persuasive."

0:25:34.7 Michael: Right!


0:25:35.9 Peter: Dude wrote 80 pages, and she was like, "Hmm, I don't think so."


0:25:42.6 Michael: But she does... She raises some good points about like, "Well, what about individuals versus institutions?" It's gonna be complicated, and she didn't think this was the right vehicle to address it, although it does seem like there are at least five conservatives who are ready to have this conversation with the right case.

0:26:00.0 Peter: Yeah, which is one of the remarkable things. I think something Mark Joseph Stern, in his coverage for Slate, pointed out is that Roberts appears to have secured a unanimous decision by bringing in the liberals, presumably by saying to them, "Join me and we won't overturn Employment Division v. Smith," and that's why the liberals came along. But he also has somehow tricked the conservatives into staring at their own shoes for so long that they forgot to overturn Employment Division v. Smith when the opportunity was right there. And I think he might have done it, in part, thanks to Alito. Alito's dissent is such crank shit that even Coney Barret and Kavanaugh couldn't join on, despite thinking more or less that he's on point. And I feel like Alito has very firmly established himself now, after a full term of Amy Coney Barrett, as the definitive right wing crank, right?

0:26:55.2 Michael: For sure.

0:26:55.6 Peter: Not to be fucked with. Undisputed champion of the Newsmax brain on the Supreme Court.

0:27:03.2 Michael: Yeah. And so, what I wanted to say was, I thought the best written and easily most persuasive opinion of the four, in this case, was Justice Gorsuch's, and that sort of, I think, will end up tying everything together, is because all Gorsuch does is, step-by-step, delineate all the ways that Roberts's opinion doesn't make sense and doesn't hold together. And it's like all the different rhetorical moves he makes, all the sleight of hand, all the bad leaps of logic... The way this all sort of clicks into place as you realize Roberts is doing these things, as we said before, purposefully, because he wants to keep Employment Division v. Smith; that's the goal. And how do you write an opinion that lets the Catholic Social Services do what it wants and discriminate against LGBTQ people and still hold that precedent in place? That's how you get the 9-0 count that Roberts loves. That's how you get this sort of legal middle ground, in a sense, and that's how you kick the can down the road for the bigger issue of whether or not to overturn this seminal case through tortured logic and very, very bad reasoning and writing. And so Gorsuch does a great job of detailing that.

0:28:24.5 Rhiannon: Yeah, Gorsuch calls out Roberts for the bullshit. In his own concurrence, Gorsuch says, "The Chief Justice is using "a dizzying series of maneuvers to turn a big dispute of constitutional law into a small one."."

0:28:39.7 Michael: Yeah, that's right, that's right. And so... I think that's the best evidence of this being politicking; that what this is all about, and you can see it in the way Roberts opens his opinion too, where he stresses that like, "Look, Catholic Social Services, if they do get a gay couple that wants to foster, they're gonna refer to them to one of the other agencies that will certify gay couples." And there are dozens of other agencies will do that, so this won't be any material hindrance to gay couples who want to foster in the City of Philadelphia, and that's very much just a recognition of where the country is and what the court can and can't get away with, and a way of saying, "Hey, look, it's okay." That's what he's trying to say is, "It's okay, nobody's getting treated unfairly here," but what he's describing is, literally, separate but equal treatment, and saying that's fine, because this is a city-sponsored activity here. CSS is acting as an agent of the city and saying, "Well, look, you can get equal treatment elsewhere." That's really the heart of this, is whether or not religious institutions should be able to discriminate. That's what this case is about, and the court ultimately said yes, and the liberal justices signed on to that.

0:29:56.3 Peter: Absolutely.

0:29:56.9 Rhiannon: Right.

0:29:57.3 Peter: I think, again, this could have been much worse, and I think because of that, a lot of liberals are breathing a sigh of relief. Something we pointed out last year, I think it was you, Michael, was that with a 6-3 court, you're gonna see fractures in the conservatives. Among the conservatives, there are substantive disagreements. As the sort of Overton Window on the court shifts right, you are going to start to see the differences between someone like Alito and someone like Coney Barret, who seems to be just a nudge to the left of him on some key issues; just a little bit more reasonable. Which is good news, by the way, 'cause there was a chance going in that she might have been full crank territory.

0:30:37.5 Rhiannon: That's right.

0:30:38.0 Peter: But those fractures don't mean that much if, at the end of the day, the case is holding that Catholic Social Services can discriminate against gay people. And it doesn't matter how much Roberts is able to dress that up. Yes, of course, it's good that Employment Division v. Smith survives, but when the conservatives are under the gun, when the issue is being presented to them and there is no way around it, my best guess is that it will fall. And we shouldn't be applauding these scraps that we're getting. It feels to me like we're about to see another round of like, "Wow, everyone was really upset about the Supreme Court being conservative, but this proves that they're actually quite reasonable." I cannot stress how dangerous it is to underestimate what a court like this is capable of when the pressure is on, when elections are in the balance, when abortion rights are in the balance. John Roberts isn't gonna save you with some fucking bullshit every time. He's not gonna be able to thread the needle in every case. And the chorus of people who want you to be satisfied with this... It's just pathetic and disgusting. This case sucks. I don't care that it's 9-0. I don't care that it could have been worse. It sucks.

0:31:54.1 Michael: It does.

0:31:54.2 Rhiannon: Right, right. Just because nine people agree and there wasn't anybody sort of technically or formally in dissent doesn't make it a good opinion. It doesn't make it something worthy of our applause or our praise. And just because a decision, a shitty opinion could have been a lot fucking worse doesn't mean that it's worthy of our praise either, and doesn't mean that we sort of rest on our laurels and are reassured that the Supreme Court is working in a good way.

0:32:19.0 Peter: Yeah, and if... What actually happened here, which I think a lot of people think, is that Roberts effectively twisted the liberals' arms to get them to come on board with him in order to save Employment Division v. Smith. That's not a good thing. The fact that they can be leveraged to come out on the side of anti-LGBT discrimination is not a good thing. It's inherently awful and should freak you out.

0:32:43.0 Michael: Right. That's what I was gonna say is, the point I made last year that you'll see cracks in... When you have six conservative justices is, that's a reflection of the cases getting more conservative. This is a perfect example. 10 years ago, "Can religious organizations discriminate against gay people?" would have been an unthinkable question to bring before Justice Kennedy, as the median voter. This case exists because the court has drifted so right, and you see these cracks in the conservative justices because the court is so conservative and these decisions are so conservative. This is a conservative win either way, and it is, as Peter is saying, an illustration of the liberals' powerlessness and meaninglessness in the current court that they're willing to sign on to something like this, to cling to a precedent that seems on the chopping block in any event.

0:33:40.3 Rhiannon: That's right.

0:33:40.9 Michael: Just a matter of when.

0:33:42.5 Peter: I think that's enough for this week, guys. I'm gonna go have a classic Philadelphia experience. I'm gonna go out to a bar, have a beer and a shot, and get in a fight with a woman.


0:33:55.7 Peter: It's Philly, baby!



0:34:00.5 Peter: Alright. Next week, textualism. We're actually gonna do it this time. We will be discussing why it's stupid and why we know better than all the legal academics and judges, right?

0:34:16.1 Michael: Yeah.

0:34:16.6 Rhiannon: Yeah.

0:34:17.9 Peter: Just like every week, in some form or fashion.

0:34:18.9 Rhiannon: Yeah. I will have, specifically, a monologue about how I, Rhiannon, am maybe 100 times smarter than Neil Gorsuch.


0:34:28.7 Peter: Follow us on Twitter at fivefourpod. If you're somehow not a Patreon subscriber, patreon.com/fivefourpod, all spelled out. We'll see you next week.

0:34:43.5 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward, with editorial support from Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.