Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter is joined by friends of the show, Jay Willis from Balls and Strikes, and journalist Josie Duffy Rice to talk about two recent Supreme Court cases involving the Department of Government Efficiency, otherwise known as DOGE. The first case, Social Security Administration v. American Federation of State, County and Municipal Employees, is about DOGE asking for access to social security information and other highly sensitive information about the American public. The second case, US DOGE Service v. Center for Responsibility and Ethics in Washington, is about the federal watchdog group CREW requesting information about DOGE under the Freedom of Information Act. The Supreme Court ruled that DOGE can have access to private social security information, but CREW cannot access internal information about Doge. This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Liroff: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have forced our civil liberties to sleep on the ground like the National Guard in LA. I'm Peter, I'm here with Jay Willis.

Jay Willis: Hey everyone.

Peter: And Josie Duffy Rice.

Josie Duffy Rice: Hi.

Peter: Michael had to take the week off, and then Rhiannon is marching to Gaza. She's joined a humanitarian march to Gaza. And so I thought this is a perfect time to ask the question: Could I do it? Could I just do it with two other people? Could I just—could I do it myself? You know what I mean? Do I even need those two? Maybe not, right? Maybe it's all Peter at the end of the day. So I wanted to keep it going.

Jay: Smart.

Peter: You know? Keep the ball rolling.

Josie: Yeah. Yeah.

Peter: And so I thought I'd have you two on. Once again, unpaid.

Josie: I was gonna bring that up, actually.

Peter: You can bring it up all you want.

Josie: [laughs]

Jay: Last time I filled in for a host, I think it was Peter. So I guess continuing the same spirit, I'll assign myself Michael this time because gender roles are so important.

Josie: Yeah.

Jay: And in his honor, I would like to start by telling you guys about a law review article I was reading the other day for fun.

Josie: Uh-huh? You know, I have to say I really love that Michael reads law review articles because it makes me feel like I've read the article, even though I haven't, but someone I know has.

Jay: Someone has to do it.

Josie: That counts, you know?

Jay: Yep.

Peter: No, that's just like when you listen to 5-4, you've read the case as far as I'm concerned.

Josie: Yeah, a hundred percent. Yeah.

Peter: Before we go on, our thoughts with Rhiannon. I think the march might be over by the time that this is released.

Jay: Yeah.

Peter: But just know that between this moment where we're recording right now and the release of this episode, I am filled with an anxiety that is unparalleled in my chest in recent history, let's put it that way. I feel very anxious. Rhiannon, I understand that you're a powerful voice for justice across the globe, but please just take it easy on me with this stuff, you know?

Josie: Rhiannon, it's really about Peter at the end of the day when we think about Gaza, and so just keep that in mind.

Jay: Yeah. Yeah.

Josie: [laughs]

Peter: All right. Today we are doing something very special, sort of a 5-4 first, aside from the fact that I have two guest hosts. We're talking about two cases today. These cases are both about the Department of Government Efficiency, aka DOGE. One is Social Security Administration v. American Federation of State, County and Municipal Employees. And the second is Citizens for Responsibility and Ethics in Washington v. DOGE. So as you probably know, DOGE, this is Elon Musk's band of puppy torturers turned government efficiency aficionados.

Jay: [laughs]

Peter: And as I imagine you know ...

Josie: Minor puppy torture.

Peter: Right. They turned 18 and they were like, "I want to join the government. I've been throwing rocks at strays, and now to change how Social Security works forever."

Josie: [laughs]

Peter: So to give a little bit of background, and I'll take Rhiannon's usual background job here, and if I do this well enough, again, we can ask ourselves: Does Peter need anyone else on the show? In January, Donald Trump hands down an executive order creating DOGE, creating this agency. It was something that he had teased that Elon Musk was said to lead. Immediately they're hit with lawsuits. These come from various different angles, and we are gonna talk about these two.

Peter: So the first is about DOGE's demand for access to Social Security data. They were, you know, in the process of DOGE-ifying the Social Security Administration, and they said, "We need access to certain data." Social Security administration said, "No, that's private." Lawsuit ensues, right? Second, Citizens for Responsibility and Ethics in Washington—CREW—filed a FOIA request for DOGE's data. FOIA, of course, a law that allows people to basically sue for access to government documents and records, right? So they wanted things that included, like, financial disclosures, communications between DOGE members. They wanted to depose the administrator.

Peter: One Friday afternoon a couple weeks back, the Supreme Court held that one, DOGE gets access to social security data, and two, CREW does not get access to DOGE data—at least not yet.

Jay: Uh-uh-uh.

Peter: So these are both shadow docket cases. We have increasingly covered shadow docket cases. Again, there's sort of two dockets for the Supreme Court. One is they all sit around and they say, like, "What cases do we want to hear this term?" And those go on to what you might call the merits docket. And then you have cases that come up to them essentially as, like, emergencies. Things develop in lower courts, it rises up to the Supreme Court. They handle it in real time, right? The "shadow docket," they call it. Usually we wouldn't cover these cases because they tend not to have, like, fully fleshed out opinions, the cases might come back to the Supreme Court on the merits docket down the road. But a huge amount of the important cases this year are popping up on the shadow docket.

Jay: Yeah.

Peter: It's where they're just doing a lot of the dirty work. And so I think it would be a mistake not to cover it. And it's also great for us because we don't really have to read opinions because they don't provide any. They don't provide reasoning in these cases, which is—it's fantastic for me as a legal podcaster.

Jay: Yeah, absolutely.

Josie: You guys should just move to the shadow docket full time. Cut your work in half.

Peter: I don't wanna step on Steve Ladik's space. You know what I mean?

Josie: Mm-hmm.

Jay: That'd be hard. He's really tall.

Peter: [laughs] This is us. We do generic shit talk. As soon as you start to specialize, people expect you to understand a lot about what you're talking about.

Josie: It's true.

Peter: I've been able to avoid that, avoid those tough conversations where someone's like, "How does this procedure work?" And I'm like, "I have to go."

Jay: [laughs]

Peter: So let's talk about the Social Security Administration case first. I think that this is, like, the big one.

Jay: Yeah.

Peter: Trump puts out this executive order saying that DOGE should be granted access to agency records, quote, "consistent with applicable law." The DOGE perverts request access to Social Security records. The Social Security Administration in turn says that's not consistent with applicable law because there's this law called the Privacy Act that says that agencies can only disclose data to one another if there is a need for the record in the performance of their duties. Not to mention—and this is sort of hanging behind all of these cases—you have this lingering question of whether DOGE is, in fact, a federal agency, right? They're not created by Congress, they're created by executive order. It's sort of obvious in many respects that they're not really a federal agency, but here we are in June. They have functioned like a federal agency until now, in fact, sort of like a super agency that lingers above all the others. You know, what is law, right?

Josie: Mm-hmm.

Peter: So to give a little bit of color here, data in the executive branch is actually relatively segmented, and a big part of that is the Privacy Act. It basically says, like, unless there's a specific need, you cannot share agency data, right? This prevents the centralization of information and power in the executive branch, right? It gets dispersed throughout these different agencies.

Josie: Well, I have a question.

Peter: Yeah?

Josie: Don't you think it should be called "dawj?" Don't you think DOGE is just the weirdest frame of that name?

Peter: So this stems from the origins of DOGE, which are Dogecoin, which itself is a derivation of the Doge meme.

Josie: Mm-hmm.

Peter: So the pronunciation stems from a meme from, like, 2014. It's the dog meme.

Josie: This is where this all started with? I had no idea.

Peter: Yeah. No, that's ...

Josie: I'm not that online, I guess.

Peter: I guess not. No, that's why there's, like, an extra layer of national humiliation.

Jay: Yes.

Peter: In all of this.

Jay: Absolutely.

Peter: This is predicated on a meme coin that itself is predicated on a meme.

Jay: Yep.

Peter: It's so many layers of uncool that it's almost hard to process. Like, you have to just put it out of your mind and move forward.

Jay: You have to keep saying the word as if it's like a serious word, a serious concept.

Peter: Yeah.

Jay: Like, very well-paid expert—subject matter experts keep having to discuss DOGE with, like, a straight face.

Peter: Right. And again, the origin of it is just that it's a stupid way to say "dog." Like "doge! Doge!" Like, you're petting a dog and you're acting like it's cute. Like, that's what it is. I believe that its origins are in that sort of like, cute speak.

Jay: Yeah, and that's the reason toddlers don't have access to food assistance now.

Josie: [laughs]

Peter: If they just hadn't put that meme out.

Josie: Yeah, it's a butterfly. A butterfly flaps its wings in Brazil, right?

Jay: Absolutely.

Peter: So a lower court weighed in on this and they said, "Okay, DOGE can have access to redacted and anonymized records if they have certain required training and background checks, which is what you usually need to get access to this data.

Jay: Right.

Peter: If they want the non-anonymized data, they can get it. They just need to submit a request providing a reason. But the Trump administration was not satisfied with that. They wanted unfettered access. They said these 20-year-old sexual perverts cannot pass a background check, all right? We need to give them this data immediately.

Josie: As opposed to what kind of pervert? What are the other kind of perverts?

Peter: You've got business perverts. You've got law perverts, right? There's all kinds.

Jay: 21-year-old perverts, 22-year-old perverts.

Peter: I like to sometimes say "sexual pervert." That way when I say "pervert" in general, you can argue down the road that it's not defamatory.

Josie: Mm-hmm. Good point.

Peter: I'm building a defense when I say "sexual pervert."

Josie: [laughs]

Peter: So again, because this is from the shadow docket, it's not uncommon for the court to hand down their ruling without providing a written explanation. And that's what happens here. We don't know what the court's analysis is. The Supreme Court says, "We conclude that under the present circumstances, SSA may proceed to afford members of the SSA DOGE team access to the agency records in question in order for those members to do their work." No analysis, we don't really have insight into what the court is thinking. We do know what the analysis should be, and the primary component is about irreparable harm, the idea of irreparable harm. Would granting DOGE access to the records irreparably harm the Social Security Administration? Would not granting them access irreparably harm DOGE? DOGE might claim that they want these records to do their anti-fraud work or whatever, but what's harder to explain is why one, they need the unredacted data, and two, why they can't just either make a request for the data or wait until this litigation has concluded in a few months and then we'll find out whether they get it. At best, they can say, "Hey, we can't do our job quite as efficiently, as effectively as we would like to," but that's it, right? That's not like irreparable harm in the legal sense. Irreparable harm in the legal sense is like they're going to demolish my house unless you put this injunction into place.

Jay: This is a fantastic example of "reparable harm." We can't do our job as well as we want to but, like, if down the road the court gives us everything we want, suddenly the problem will be resolved.

Peter: Right. Right.

Josie: Right. It feels like you really have to drive home that there is no clear, urgent reason they need this data. They just want to do things faster.

Peter: Yeah.

Josie: Which is like, that's why you don't get into government.

Peter: What's interesting about this is like, they don't even make the case in their briefs that, like, they don't try to build some bullshit reason that they need this immediately. They're just sort of like, "We would like this." And Jackson writes a dissent here, and she talks about that. She's like, "They're not even trying to say that they need this immediately." And then the other side of this, the potential harm if you do give them the data, just seems enormous, right? Like, this stuff obviously includes names, birth dates, Social Security numbers, but also bank account information, addresses. If you receive disability insurance through Social Security, it includes your medical history. The whole point of this irreparable harm analysis is like there are some cats you can't put back in the bag. Once you give DOGE this data, all of that private data is in the hands of these little freaks.

Josie: Right.

Peter: Who work for a fake administrative agency, presumably haven't passed background checks. So if a court later decides hey, actually DOGE should lose this case, it doesn't really matter because the harm's already been done. Your private information is already out there, right? That's supposed to be the whole point of this irreparable harm analysis is like, let's not let this move forward if that means that something's gonna happen that we can't undo.

Jay: You guys did an episode recently on Trump v. Wilcox, the case about firing independent agency heads.

Peter: Yeah.

Jay: And the parallels between these two cases are, like, pretty uncanny. As in Wilcox here, like the Wilcox opinion, which didn't mention Humphrey's executor case they were functionally overturning, the majority in this case doesn't mention the Privacy Act, which again is a federal law that they're pretending doesn't exist. As in Wilcox, when they said, "We're just staying in order," you know, that in the real world has the effect of firing a person, here, too, they say, "You know, we're just staying a lower court order." Which, as Peter says, has the result of getting DOGE everything it wants. And then again, as in Wilcox, they're picking the outcome here that changes the status quo during litigation instead of preserving it. Like, basically tipping their hand on how they intend to rule on the merits. And Peter, you mentioned at the top that there's no analysis in this case. Like, can't be stressed enough. What Peter read is not like the introduction to the court's analysis. That sentence is all of it. And I mean, this sounds like a joke, but I honestly wonder if after the well-deserved backlash to the Wilcox opinion and their, like, weird little carve out for the Fed, I almost wonder if when they were putting together this opinion, they were like, "Hey, do you guys wanna just, like, not show our work this time, and maybe fewer people will make fun of us?"

Peter: Yeah. It's almost, like, better to ask for forgiveness than permission, you know? Like, better to just do it than explain ourselves and inevitably humiliate the court.

Jay: Look stupid. Yeah.

Josie: There are all these analogies to Wilcox, but the way in which it's different obviously is like nobody actually cares, or most—many people do not care if an agency head gets fired. In fact, they welcome it. But it is remarkable. I don't think there's, like, a huge market of people who want all of their data out, like, who want random people accessing their social security data. It just isn't ...

Peter: Give Big Balls my data. That's what—I'm a single issue voter.

Josie: [laughs]

Jay: The pro data breach coalition.

Peter: Give Big Balls my address history.

Josie: Right. And, like, the New York Times did a list of, like, data that they have access to that have centralized just like everything they can tell about you. And it is remarkable. I mean, it's—it's basically everything. They, like, maybe don't know what you had for breakfast, but that's essentially it. And, like, who's the constituency for "please take my data?" It just is such a remarkable thing.

Peter: You mean the constituency for good government, for good and efficient government, Josie? They're rooting out fraud, okay?

Josie: Apparently.

Jay: You're gonna let Big Balls cook or what?

Josie: Yeah, we gave a million dollars a year to, like, South America, and now my social security number is gonna be on a billboard somewhere.

Peter: Yeah, I think that there's a degree to which, like, this is so patently unserious and yet, like, here we are at the Supreme Court talking about it like it's normal. Like, this is the normal machinations of the government. But, like, Elon Musk was on Twitter being like, "Oh my God, there are people in the Social Security database that are getting payments that are 170 years old." And then a bunch of database experts were like, "Nope."

Josie: That's not happening.

Peter: Nope.

Jay: Nope.

Peter: Nope. You don't know what you're looking at or talking about.

Josie: It's the same fucking logic as voter fraud.

Peter: Right. Right.

Josie: There are people on the rolls who haven't lived here in 20 years. Yes, but they're not voting.

Peter: Right.

Josie: They're not voting.

Peter: It's just people who don't know what they're looking at, looking at it and getting scared. That's what it is. And it's the product of a political movement that has, like, just decided that expertise is fake in every respect. And so here we are, right? 19-year-olds know where you have lived your entire life because the right-wing political movement does not believe in expertise.

Jay: So there is a written dissent in this case. It's written by Ketanji Brown Jackson and joined by Sonia Sotomayor. Kagan also noted that she dissented from this decision, but she did not formally join Jackson's opinion.

Peter: Boo. Boo.

Jay: Yeah.

Josie: Lame.

Jay: Like, I don't want to do too much palace intrigue speculation here about, you know, why you take the step of dissenting but not joining the opinion, but I don't know, it's a good dissent. Like, join it. Or if you don't want to join it for some reason, at least write separately. Like, let us know what's up here.

Peter: Well, I think we were speculating that one interesting thing about the dissent is that she comes very close to saying this court favors Donald Trump, right?

Jay: Yeah.

Peter: I think she frames it as like the court has favored the government.

Jay: Yeah.

Peter: But it's very clear what she means, right? She doesn't mean the Biden administration.

Jay: Right.

Peter: And I think maybe Kagan thought that was a step too far. Let us not cast the dark, long shadow of politics over the court.

Jay: Well, we're gonna cast. We're gonna cast that shit.

Josie: We're casting. Yeah.

Peter: No, I agree with her. I'm gonna be moving away from such things.

Josie: [laughs]

Jay: Peter hedging his bets. So there are Supreme Court dissents that, you know, dispute substantive legal points, make legal arguments, and then there are dissents that sort of fall into this category of just saying, like, "Man, what are you talking about?" And that's kind of where this dissent comes down because again, there's no analysis here. The court states the legal standard, and then just says, "Upon review, we think the government wins. Let's get out of here, guys." Like, if you wrote this on a law school final exam, you would probably fail. But, like, at the actual Supreme Court, this is what passes for analysis sufficient to write the Privacy Act basically out of existence.

Jay: So in this dissent, it's basically on Jackson to say things like, "Okay, here is the standard. Let's walk through the factors. Here is how it's supposed to work." And, you know, surprise where she comes down is the court keeps just glossing over its work, you know, not showing its work in cases involving the Trump White House. She points out that the District Court that, you know, issued the lower court—issued the injunction, it showed its work in a 145-page opinion, walking through each element of the test. The lower court particularly took issue with the fact that the government never said why DOGE needed the unredacted data. And when the court asked the government, like, "Hey, can you provide some clarification on why you need this?" DOGE just said, "No, we feel comfortable standing on the record." Which is so cool, just like the hubris to be like, "Hey, fuck you, we're gonna get this kicked on appeal. Like, we're gonna win this eventually." Yeah.

Peter: Right.

Jay: And Jackson says, you know, this should be the end of the case. The government has failed to demonstrate any harm. This should be the end of it. The only thing the Trump administration wants is not to wait to get everything it wants, which under the relevant legal test doesn't matter. You don't just get to say no thanks to legal orders you don't like. Jackson has a pretty funny line in there where she characterizes the government's argument that the courts are, quote, "micromanaging DOGE's work." And she says, "Yeah, that's just what it means to have to follow the law. Like, this is— what is it that you think we're doing here?"

Peter: Right. You're looking at, like, every time we steal the data from every single citizen in the nation, you're saying we can't.

Josie: You're on my ass about it. But this is what happens when you put 18-year-olds in charge, you know? They're like, "Mom, like, leave me alone. I don't want to follow the rules." And it's like, these are just—this is having a job. This is like every youngest person not in office upset that they have to show up on time. But in this case, it's stealing our identities with all of the data that exists about us in the federal government.

Jay: Jackson also talks about how light of a compliance burden the injunction actually poses. If you read the majority opinion—again, short as it is—you might think that this is a fight over DOGE getting access to any data, or not getting access to data at all.

Peter: Right.

Jay: And as Peter said, that's not, like, remotely correct. Like, despite the fact that the government barely tried to justify its request, the lower court said, "Okay, DOGE staffers, if you go through the background checks that everyone else has to go through and you go through the training that everyone else has to go through, you can get the anonymized data that everyone else at Social Security gets to work with." And this is not just like general day-to-day work. The lower court says, "Look, even Social Security employees who are investigating fraud, waste and abuse, they only get access to as much data as they need to investigate the abuse. They don't just, like, get the keys to the kingdom." And the lower court says, "DOGE can get some non-anonymized data if they provide a written explanation for why you need it."

Peter: Right. If you can literally just explain why you need it.

Jay: Give me one reason.

Peter: Then you can get this data. And, like, the entire case at bottom is, like, predicated on them just being like, "We shouldn't have to tell you fucking nerds anything."

Jay: Sounds like a lot of work.

Josie: Yeah.

Peter: "We want the full universe of this nation's Social Security data. and we don't want to have to tell you why or what it's for. We don't want to have to explain it. We just want to look at it. We just want to look at it. I just want to feel the power coursing through my body when I look at, you know, the fucking address history of some lady from Minneapolis." That's all they want.

Josie: Well, it essentially sounds like what they're saying is also, in a way, "We don't know why we want it. We'll know when we see it." Like, "We need the data to find the problem," which is, in some ways, embodies the entire idea of this fake-ass agency.

Peter: But even then, they could probably come up with a request that says, like, you know, "Here's what we're looking for," or whatever. But I don't think they actually know what they're looking for. I think that they just truly believe—if I'm trying to, like, conjure up a good faith version of these guys, I think that they truly believe that the government is so poisonously inefficient and ineffective that if they just glance at this data holistically, there will be, like, massive fraud and inefficiency glaring back at them.

Josie: Yeah, I feel like it's a—it is some of that, but it's also the almost—it's the inverse in some ways, which is like, not just that the government is so inefficient, but that they are so brilliant and smart and, like, preternaturally talented that even if there are no obvious problems, they can make this. They can do this better.

Jay: Right.

Josie: I don't know if you guys saw Mountainhead, but it is very much that vibe ...

Peter: Not yet.

Josie: ... of, like, wow, okay. Well, you should be more efficient.

Peter: Excuse me. I'm waiting for my wife to not be sleepy at night so we can watch it.

Josie: It's gonna be a while. As a sleepy wife, I tell you.

Peter: For sure. For sure. You know what it's like.

Jay: So from there, Jackson gets to the portion of the dissent that Peter referenced earlier, where she kind of takes a step back and talks about the bigger picture of how the court has been disposing of these shadow docket cases involving pretty extraordinary requests from the Trump administration. She says, "The effect of the court just tossing out the test whenever it's Donald Trump asking for help is that you're creating two different standards." Like, what—she says, "What would be an extraordinary request for everyone else is nothing more than an ordinary day on the docket for this administration." Now she does stop short of criticizing the majority as harshly as she maybe could have, because she at one point says the court's decision might, quote, "Unintentionally send the message that it favors the White House," and undercuts the work of her lower court colleagues. But, like, she's kind of being polite in writing here.

Peter: The only reason they're not putting the thumbs up emoji in there is because it doesn't fit, like, the style guide.

Jay: Right. She is being very polite. It's pretty clear what's going on here. And she references some examples, and then there are others that we can take from headlines. You know, "Here, by granting a stay of the lower court order, the Supreme Court is giving DOGE everything it wants." In Noem v. Doe, "By granting a stay, the court allowed the government to terminate the parole status of half a million people while the court is still deciding the case." In Trump v. Wilcox, which we've already talked about, "By granting a stay, the court allowed Trump to fire people who, under federal law, he's not supposed to be able to fire."

Peter: Mm-hmm. Mm-hmm.

Jay: And in US v. Shilling, the ban on trans people in the military, "By granting a stay, the court allows Pete Hegseth to start discharging trans people from the military, again while the litigation is still ongoing." And Jackson says, "Look, anyone else who comes to us in a case has to show irreparable harm in order to get a stay, but not the government." And the pretty clear subtext is not this government, right?

Peter: Right.

Jay: Not the Trump administration. If the Biden administration had tried to pull something like this, like, there would be six separate opinions explaining why this is terrible.

Peter: It's the most frustrating shit that we don't get to witness the alternate reality where a Democratic administration requests all of the Social Security data to hand it to a fake administrative agency run by a tech billionaire.

Josie: Right.

Peter: Like, the conservatives would be losing their mind, dude. Like, Alito would write his opinion on the fucking Betsy Ross flag if this shit happened.

Josie: [laughs]

Jay: Yeah, Clarence Thomas is gonna, like, start bringing a gun to work if Biden tries this.

Peter: A hundred percent. Absolutely. Like, the consequences of this ruling are sort of hard to overstate. I mean, it's very obvious—again, this is supposed to be a preliminary injunction analysis. It's very obvious that the court is basically just saying, "Hey, we're eventually gonna side with DOGE, so let's just do it now."

Jay: Right.

Peter: It would be so refreshing for them to just be like, "We're gonna reach the merits right now, write a short opinion, side with DOGE." They don't have to do this bullshit. Like, this is so exhausting. It's so embarrassing. It's such, like, procedural nonsense. And it brings us to the same exact place, right? Right now, because of this decision, your private info is functionally within the control of the White House, right? Which is something that wasn't true before. Access to enough information that you can imagine not just is there potential for, like, mass surveillance here outside of the scope of, like, the NSA and the FBI but, like, political retribution, right? They have, like, a roadmap for whatever authoritarian shit they want to do. It's just like it greases the wheels for authoritarianism in so many different conceivable ways that it's hard to list them off. But I mean, the basic bottom line here is the Supreme Court just handed Donald Trump a list of every single person in the country, how much money they've ever made, where they've lived, some of their medical histories.

Josie: Mm-hmm. Their connections, their family members, their former roommates, their educational history.

Peter: Their social networks to some degree.

Josie: Mm-hmm.

Peter: Who have you lived with? Who have they lived with, right? It's wild to think about what could be done by the administration if they really wanted to put this data to, you know, quote-unquote "good use."

Josie: I feel like the scariest part is almost the bank account information. It's like you don't—like, this is just basically pretext to cut you off from any kind of source of money you have. It's just—it just essentially, like, gives them power to ruin your life like that very easily, very efficiently.

Peter: Yeah. And for our listeners, it's just embarrassing. You know what I mean?

Josie: Yeah.

Peter: Donald Trump knows that you're broke as fuck.

Josie: Yeah. Well, not just your listeners, sometimes your guests.

Peter: Sometimes your co-hosts because they refuse to sell out like I constantly advise them.

Josie: [laughs]

Peter: So that's one case here. I'd say that's the big one. The court hands our private data to the most totalitarian administration in modern American history. But then there's the other question: What are we allowed to know about DOGE? CREW—Citizens for Responsibility and Ethics in Washington—which based on the name is history's least successful nonprofit, they made a FOIA request. They're good guys. I just—I had to take that dig. That's a rough name. They asked for a list of DOGE employees, a list of employees and positions for which DOGE has recommended termination, a list of government contracts and grants that DOGE had recommended to be canceled, and the deposition of Amy Gleason, the purported administrator of DOGE. I say "purported" because courts have consistently asked DOGE, "Hey, isn't Elon Musk in charge?" And they've consistently dodged the question. And they said, "Well, Amy Gleason is our administrator." And yet Elon Musk is online being like, "I am in charge of DOGE." He's clearly directing things.

Jay: "Here is what I did today at DOGE." Yeah.

Peter: A federal district court granted CREW most of these requests, including the deposition, but the Supreme Court steps in here to send it back down to be reconsidered. First, there was a portion of the FOIA request, again, that asked about the DOGE recommendations, right? The terminations of employees and contracts and grants. The court said, "No, that's too much. You can't have that. The sanctity of the recommendations of a fake government agency is too great for you to infringe upon it."

Peter: And they also said, "Hey, reconsider the rest of these in light of these principles that we've identified." And so they basically say "Here are two factors that you should consider more when you reconsider these requests." They say—like, one of them is sort of a technical item about the question of whether DOGE qualifies as an agency under FOIA. And then the other is that the courts should be extra cautious about this type of FOIA request given separation of powers concerns, right? Between the judicial and executive branches. So they don't provide specifics. They don't actually resolve this issue. They just punt it back to the lower courts, and they're sort of like, "Try it again, and this time, show some respect for our president, okay? Let's be nicer to Donald Trump." In general, incredibly unserious to punt this back to a lower court with, like, general guidelines rather than just say, "Here are the documents you can have. Here's the information you can have." Like, this is a discovery order, meaning this court has said, "All right, you can have these documents, you can have this deposition." Bang, right? If the Supreme Court disagrees with that analysis, they can say, "No, not these documents, but these are okay." Instead, they strike some of the documents, and then they say, "The rest of them? Maybe. Maybe after you think about separation of powers a little bit."

Jay: Think about what you did. Yeah.

Peter: "Maybe after you say the Pledge of Allegiance, then—then you can think about what documents they get." We said this in the Wilcox case, too. You're not functioning like a court. This is just not what courts do. You don't—just make the fucking decision, tell them what documents they get. I don't understand what they're doing here. I mean, I do, but it's just pissing me off.

Josie: Actually, I think you get it.

Jay: I mean, in a lot of appeals courts, they love to say, "We don't concern ourselves with trial court decisions. That's not really our business to stand in the shoes of a trial court." But Peter, like you say, you could at least provide the lower court—even if the Supreme Court didn't do the very easy thing here, which is say, "You can have these documents, but not these," you could at least provide the lower court with, like, some standards for how to re-evaluate the decisions that the justices don't like.

Peter: Right. The standard they're providing is meaningless. "Think about the separation of powers a little bit more." Just complete abstractions.

Jay: Yeah.

Peter: They're doing, like, sophomore-level psychology things.

Josie: I was about to say ...

Peter: Stare at this bald eagle and then write your discovery order. It's so embarrassing. And also, I just don't agree that that's doing the work of a trial court. If they can strike some of the discovery, they can just say that the rest is fine.

Jay: Right.

Peter: Like, they have brought to you this discovery order. If you want to carve it up, fine. Appellate courts carve it up all the time. But to just send it back with, like ...

Josie: Vibes.

Peter: You know, the waving American flag vibes. It's so fucking stupid. And there's no written dissent here. The libs note their dissent.

Jay: Yeah.

PW: And I think we all decided that maybe they're just exhausted. Maybe they're just like, "I don't have time for this one."

Josie: Yeah, they run out of time.

Jay: In the other case, Ketanji Brown Jackson walks right up to the line of saying, "You people are in the tank for Trump and everybody can see it." Like, I don't know, seems sufficient for a day's work.

Peter: Mm-hmm. Yeah, I think that's right. I mean, maybe they're just like, "We've already talked a little bit of shit about DOGE. We have to, like, write our various other dissents for the end of June, so let's just move on mentally and physically."

Jay: Yeah, we have so many dissents to write.

Peter: And then big picture, when you're looking at this DOGE stuff, I guess there's the question of where's Elon in all of this? We already touched on this a little bit, but, like, the sort of constant presence in reality and absence in the courts of Elon Musk is so glaring and bizarre. And the idea that you can not only have a fake agency, but install, like, a shadow head of it that, like, is untouched by the courts.

Josie: Who's also the richest man in the world. Like, not even the shadow—like, can the richest guy in the world have your social security information is essentially the question here. And there is, like, separation of powers. It's just crazy.

Jay: [laughs]

Peter: And, like, I mean, think about it. Like, if you were CREW, the Citizens for Responsibility and Ethics in Washington folks, you probably wanted to depose Elon Musk, huh?

Jay: Mm-hmm.

Peter: But Doge is saying no, he's not really part of it. Meanwhile, he's on Twitter being like, "I'm looking at the social security data right now."

Josie: Right.

Jay: Musk isn't mentioned in either opinion. The closest either opinion gets to even tangentially referencing Musk is CREW's request for an org chart for DOGE, right? Saying, "Look, you won't give us a straight answer on what his job is within DOGE, if any, so just, like, give us the papers. Like, show us where he is, who does he report to, if anyone." But yeah, like, the howlingly obvious reality of this Silicon Valley vampire being the recipient of the information, just like not mentioned by this court.

Peter: Right. I was talking about this case with Michael, and he had said, you know, this is, like, such a good example of the inadequacy of the courts to deal with this moment. Like, they can't keep up with the pace of what they're doing here. Like, we have decisions handing DOGE all of our private data before a court has reached a conclusion about whether they are a federal agency. I'm sorry, but one of those needs to precede the other. And they're just not built for this deluge of bullshit.

Josie: Right, although they could stem the tide a little by just saying no a couple of times, in which case, like, then you set a standard of, like, what kind of behavior are they gonna try? It just seems like that, too, is kind of a structural decision that they've made.

Peter: Yeah.

Josie: And that they've sort of said, like, "Well, we don't know. Well, we're gonna tell you in a little bit." Which then encourages DOGE to go out and, like, whatever, try to get more, bringing more cases, and then they're overwhelmed. It's like the really fast way to stop being overwhelmed is just to tell them to shut the fuck up.

Peter: In a functioning system, this gets intercepted immediately.

Josie: Immediately.

Peter: Executive order comes out, and there's immediately a challenge being like, "Fake agency." Boom, that's it.

Josie: Yeah.

Peter: And they're like, "Yeah, these people can't do anything."

Josie: Right. In a functioning system, DOGE isn't even like a household name because it was an idea that Trump said in some fucking speech, and they said no, and we moved on, right? Like, it's not even a thing.

Peter: I think it originates from Elon Musk tweeting it, being like, "Wouldn't it be funny if there was a Department of Government Efficiency—LOL DOGE?"

Jay: Right.

Peter: And now we don't do foreign aid anymore.

Josie: [laughs] Yeah, exactly. Now everybody I know is out of a job. Yeah, exactly.

Peter: If the courts can't step in and stop that, if they can't stop these fucking little freaks from ransacking, like, the civil service and cutting foreign aid and getting all of our private data, whether it's structural or ideological, they're functionally complicit here. And there's just, like, no real hope when I look at these cases of, like, the Supreme Court providing even, like, a minimal backstop, right? Like, maybe you could have said hey, maybe the Trump administration kind of freaks out Cav and Roberts and Coney Barrett and they start to take some L's, right? It's pretty clear that's not what's happening. And I think we know enough to know that no matter what happens at the end of the term, they've done an incredible amount of damage already to the point where I'm not even sure that, like, the merits docket cases coming up throughout the rest of this month are very symbolically important. Like, I think that we already know the direction the court is headed, even if we score some unexpected wins at the end of June.

Josie: Well, can I posit a theory, which is I just keep thinking about that quote JD Vance had a few years ago where he was like, "I told Trump if he got back in office, he needed to fire, you know, X amount of civil servants." I forget thousands of civil servants. And, you know, if the court says no, you say, like, who's gonna stop me, essentially? Like, he basically was like, "Just do it."

Peter: Yeah.

Josie: And even if the court says no, just do it. And that has been kind of the entire approach even more in the second administration. And pretty explicitly. And I wonder if, like, part of the logic on the court's part—not good logic, but logic nonetheless—is, like, trying to basically prevent their own irrelevancy. Like, they are basically trying to give them a leash because they're like, "If we say no, they're gonna do it anyway, and then everybody's gonna know that the law is fake and that we don't actually have any real power unless someone listens to us.

Peter: Right.

Josie: It almost feels strategic in that way.

Peter: Yeah, I could see that. The problem with that theory, I think, is that if it's happening, it has to be subconscious because they do believe that what they're doing is real. But I definitely feel like there's like, we want to avoid confrontation because we will get our ass kicked. You know, it's like when you see two dogs barking at each other behind a gate or whatever, and they open the gate and they're like, "Oh."

Josie: Yeah, yeah, yeah.

Peter: "Never mind." You don't wanna be the dog that gets exposed as a coward, right? That feels like it has to be part of it, but I honestly don't know how much. And you can also see elements in, like, some of Cav's recent writings of radicalization that wasn't there before. Their brains are fucking cooked, right? They're watching this LA stuff being like, "My God, send in the double Marines." They're not watching all of this through links on Bluesky. You know what I mean?

Josie: Mm-hmm.

Peter: They're getting radicalized significantly, and I think you're seeing it. I think that the fact that they're like, "Of course we should just hand these DOGE folks our Social Security data—" something that would be incredibly easy to not do.

Josie: Right.

Peter: I think that that indicates to me that they're largely on board, and any pushback, it's gonna be ticky tack.

Josie: Yeah. I mean, look, the fact that both major parties in the US have embraced the sense of, like, the government needing to be maximally efficient is such a disgusting turn of events in that it's another example of, like, liberals just kowtowing to the right wing. Because it's not that efficiency on its face is a negative thing, but it's certainly not the priority and not the priority of a government. It's like, the way that the government is supposed to work and should work is that it is actually hard, and there are many levels of approval needed or, you know, steps needed to actually make a major change. That's how you want the government to work. You don't want them to be able to do—to be able to, you know, use their enormous power, more power than everybody else combined, to do whatever they want with, like, as little resistance as possible.

Josie: That's just like—and by the way, that's true for, like, lots of industries. It's like you don't want the most efficient car industry, right? Because you want your cars to be, like, checked two or three times before you get in them. I get that, like, when you're building an app at the fucking Y Combinator with Marc Anderson or whatever, like, you maybe want the maximum efficiency. And the entire point of tech has been like, this is kind of a side industry where, like, we're inventing new things and we're trying them out and, like, efficiency matters.

Josie: But this weird obsession with efficiency from the government is going to be the downfall of everything. It's like you actually don't want all your data centralized. I was talking last week with one of Jay and I's friends who used to work at Health and Human Services, and she was like, "Yeah, it was incredibly difficult." Like, you need this information about, you know, a kid who's, like, a natural born citizen, but their parents are undocumented, and you have to, like, request it from all these different agencies, and it takes forever. And that's actually fucking good because, like, this is their data and it actually—I shouldn't be able to get it all at once, right? And that principle has just flown out the window as, like, everybody on X is sharing details about how we were, like, paying $700,000 for a transgender opera in Venezuela and that is, like, why they're willing to give—you know, to, like, allow for the government to prioritize efficiency above everything else. Efficiency, like, all kind of autocracies have to be kind of efficient. It's really hard to, like, run an authoritarian state inefficiently. It's really hard to have, you know, a lot of people in charge and run an authoritarian state. You consolidate power for a reason. It makes it easy to do all the shitty things that you want to do.

Peter: And I think it's, like, worth noting that a lot of the ways in which I think governments are inefficient is sort of like citizen facing. Like, if you want to interact with the government, you probably have to fill out a bunch of fucking paperwork, right? And you're probably at some point looking at it and being like, "This is too much," right? I would like less paperwork. I would like more points of access to the government. But when they talk about inefficiency, they're talking about it from the executive's perspective.

Josie: Mm-hmm.

Peter: Inefficiency that they see is we are looking out upon the civil service and we want to wipe it out, but there are all these rules in place saying we can't do it. That's what they're talking about when they're talking about government efficiency. It's a very, very different thing. They're not gonna fix the paperwork problem.

Josie: No. And in fact, they're gonna make it worse.

Peter: Yeah.

Josie: They're going to make it harder for you. In fact, the government's about to get a lot more—a lot less efficient for the average citizen because they fired half the people that are supposed to be helping you out, right? But it makes it easier for them.

Peter: Right. And I'll also say they don't know—like, I don't want to go to bat for the idea that the government is particularly efficient, but it's a lot more efficient than they think it is. You know, there is that one guy who left DOGE and has now publicly said, like, "I didn't really see that much fraud or waste or inefficiency." Look at how the tech industry functions, right? In 2020 and 2021, things were booming. They said, "Oh, things are booming. We are sitting on massive piles of investor cash. We're gonna hire a ton of people." Hired a ton of people. Two years later—less than two years in some industries—they were like, "Oops, the investor money has dried up as the market has leveled off. We now need to lay a huge percentage of those people off." That's not efficiency. That's rash decision making. That's putting massive amounts of energy and cash into very quickly-made hasty decisions, not efficiency. It might look like efficiency to someone who doesn't really understand how anything works.

Josie: Right.

Peter: But it's not. It's not efficiency. And these little freaks just don't know what they're talking about. They couldn't run a business either.

Josie: It also looks like efficiency to people who are short term, their entire perspective is short term. And that's the same thing with, like, the foreign aid thing, right? It's like, you think of this as an enormous amount of money, but what you're actually doing is, like, trying to think long term about what can you prevent and, like, what relationships you need to maintain, and what does soft power look like and, like, how does this actually make being part of the international community easier on the US long term by, like, having an aid structure? When you reduce that, like, suddenly a lot of other things become much more of a grind. A lot of other relationships become much more of a grind. Like, down the road, you're paying for things that if you had paid for them on the upfront, then it wouldn't be as big of a deal.

Josie: But this is also reflective of, like, a lot of these people being kids. I mean, we joke about that but, like, it's really hard to understand how valuable your data is when you are like, you know, getting your first girlfriend in your dorm room. Like, it's just all this stuff that people, like, 19 year olds think is not a big deal. There's a reason that 50 year olds think it is a big deal, and it's not that they are, like, suddenly out of touch. It's that, like, you live a little bit longer and you realize how much shit is out there about you that you don't actually want everybody having access to. This is why we don't put kids in charge.

Peter: And that's why I want Elon Musk to have sole authority.

Josie: Sole authority.

Peter: The adult in the room.

Josie: I would love to steal his data.

Jay: I remember when DOGE first started, like, digging into government stuff, one of the big scandals churned up by right-wing media and on X was this idea that oh, look at how many redundancies are built into the Social Security systems that send out the checks. And everyone who knows anything about Social Security was immediately like, that's so that if one of the systems goes down, people still can get checks. Like, we can't just have one system for something this important. Like, what is for anybody with, like, a passive familiarity with what it means to, you know, depend on government assistance for your daily needs understands just looks like waste inefficiency to someone who, like, has never had to think about that.

Peter: Yeah.

Josie: Yeah. Well, if, like, your whole career has been at, like, Airtable or something where, like, if the server goes down, like, it's not a huge fucking deal.

Peter: Right. Like, who gives a shit.

Jay: Airtable taking strays.

Josie: I mean, I love Airtable, as you know but, like, you know, there's just the stakes. People—there's this whole sense in tech that, like, they're used to dealing with really high stakes, and that just couldn't be further from the truth. There's very little in tech that, like, is life or death. There's very little that, like, if it goes down for a day or 10 days, like, people can't make it. It is the entirety of, like, the basis of government, right? It's like we're keeping the fucking water moving, right? We're, like, keeping the lights on, essentially.

Jay: Right.

Josie: And I want the water to work. I don't care if it's working at its maximum efficiency. I want there to be a backup system so that, like, if the first system breaks down, we're paying extra money for the second one. There are some things that don't have to be maximum efficient.

Peter: Right.

Jay: Josie, you say people in tech never have to deal with life or death decisions. Why don't you tell that to a charred remains of a Waymo?

Josie: [laughs] I was just about to say, what about the robot car, you know? Like, the fuck.

Peter: I mean, I think that's what efficiency is to them, right? Is, like, you get right up on the edge of potential failure because that's the most cost effective thing to do. And sometimes that means you veer into failure. Your systems will fail, but it's worth it, right? Because who cares? What's your worst case scenario? You send out an email to your customers being like, "Sorry, the TikTok was down for 25 minutes. I know that you had it rough. You had to pay attention in school or whatever." But that's it. That's the worst case scenario right now.

Josie: Yeah.

Peter: Folks, we were gonna talk about the protests in LA, the "horrific riots" spreading across the city.

Josie: [laughs]

Peter: Absolutely devastating LA.

Jay: Heart goes out.

Peter: But we don't have time. We went way too long talking about DOGE. So we'll just see how that develops. We'll leave the deployment of the military to downtown Los Angeles to perhaps its own episode. We're gonna take off next week because again, Rhiannon is marching to Gaza. I don't know what about that you folks don't understand.

Josie: I take this to mean you don't want us to fill in ever again.

Jay: Didn't go well.

Peter: I think this went good, not great.

Jay: [laughs]

Josie: Re-record, start over.

Peter: And then we'll be back for the end of the month with the usual end-of-June ...

Josie: Bullshit.

Peter: ... stuff. I am not excited. We don't know what cases we'll be doing, but we'll be doing them, folks. Brace yourselves. Follow us on social media @fivefourpod. Subscribe to our Patreon, Patreon.com/fivefourpod—all spelled out—for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you in two weeks.

PDR: You can also I also pay me and Jay since Peter won't. Feel free to Venmo us.

Peter: Cut that.

Josie: [laughs]

Jay: Stay safe, Rhi. Come back soon, Michael.

Josie: Yes, both of you. We love you, Rhi.

Michael: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at CHIPS.NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod.