We can make Roe the law everywhere"" - An Interview with Senator Elizabeth Warren

Senator Elizabeth Warren, we can only assume against the advice of counsel, agreed to come on 5-4. We talked about the filibuster, the Democratic response to Dobbs, and Peter and Michael's beards.

0:00:00.0 Senator Elizabeth Warren: How is everybody?

0:00:01.2 Peter: Good, good.

0:00:01.3 Rhiannon: We're doing great. Thank you so much for being with us.

0:00:03.8 Senator Elizabeth Warren: You bet.

0:00:04.0 Rhiannon: We are the 5-4 Podcast. We critique Supreme Court cases and we're so happy to have you with us. My name is Rhiannon.

0:00:12.6 Senator Elizabeth Warren: Yes.

0:00:12.9 Rhiannon: Michael and Peter are here with us.

0:00:15.2 Senator Elizabeth Warren: Two guys with beards.

0:00:16.7 Rhiannon: Yes.

[laughter]

0:00:16.8 Peter: That's right. Classic podcast.

0:00:18.0 Senator Elizabeth Warren: Yeah, exactly. [laughter] So is it true you're a public defender?

0:00:21.4 Rhiannon: I am, I'm a public defender in Texas.

0:00:23.3 Senator Elizabeth Warren: Wow, a public defender in Texas. That's like...

0:00:25.6 Rhiannon: It's the Wild West.

0:00:27.2 Senator Elizabeth Warren: Okay, I'm ready whenever you all are.

[music]

0:00:32.2 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this special episode of 5-4, Peter, Rhiannon, and Michael are talking to Senator Elizabeth Warren. Warren has been a vocal critic of the Supreme Court decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade.

0:00:50.4 Senator Elizabeth Warren: The Republicans have been working toward this day for decades. They have been out there plotting, carefully cultivating the Supreme Court justices so they could have a majority on the bench who would accomplish something that the majority of Americans do not want.

0:01:09.4 Michael: Warren has pressured the Biden administration to take stronger action to protect abortion access and to reform the court, including by adding justices, but she stops short of criticizing the Democratic Party for inaction, pointing out that it's Republicans who have waged a multi-decade campaign against abortion rights. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:34.4 Peter: So first of all, welcome to the show.

0:01:36.2 Senator Elizabeth Warren: Hello.

0:01:37.1 Peter: We're glad to have you. We wanted to talk initially, at least, about the party response to Dobbs. In early May, the draft Dobbs opinion is leaked, and the entire country is sort of on notice that the court is poised to overturn Roe at that point. You were in the streets shortly after, you were proposing policy along with some other Democratic lawmakers in the month following, which we'll touch on, and yet when the decision drops about six weeks later, it seems like it caught the administration and the party more broadly a little bit flat-footed. There seemed to be little to no coordinated messaging, no day of policy rollout, and maybe this is too broad of a question, but what the hell happened there? Do you have a sense of why the administration seemed to be caught off guard and why there wasn't sort of an immediate and coordinated response?

0:02:33.7 Senator Elizabeth Warren: I'm gonna just push back in the following sense. Roe v. Wade... Overturning Roe v. Wade, it's just... It's cataclysmic. I mean, it's enormous. The idea that the Supreme Court would restrict rights rather than preserve or expand them, the idea that they would do so on an opinion that is so... I don't want you to lose your license here, so I'm not gonna use the word, but just kinda, urgh. [laughter] Not even try to persuade and that they wouldn't just chip a little... I feel like every part of this is enormous and that everyone is still absorbing this, and that what I'm just gonna stay focused on because it's what we've gotta stay focused on, is the emergency that is now upon us.

0:03:32.2 Senator Elizabeth Warren: And I know, and I don't wanna be cranky with you, because I know the politics are the most fun thing to talk about, but we're really in a situation right now where there are people who are pregnant right now, and they need help. There are people who are gonna be pregnant next week and who need help, and so I think this is... At this moment, we gotta be focused on what we're gonna do to help them and protect them right this minute, and then our bigger question is in what we're gonna do to get permanent protection in place, and this time nationwide, not it's different in Texas than it is in Massachusetts.

0:04:14.1 Peter: But I mean, do you feel like the party's response was adequate considering the moment? I mean, I agree that it was cataclysmic, but it really seemed like what the administration was doing, especially... And I use the administration, not to pick on them, but because I think there were lawmakers that had a higher level of urgency, yourself included, at least it seemed to be the case, but I mean, it took weeks to see any sort of policy, right, coming out of the Biden Administration.

0:04:40.1 Senator Elizabeth Warren: But remember, we didn't even wait for Dobbs to come down. We voted on it in the United States Senate, and every single sitting senator as of this moment is now officially on record on where they stand on Roe v. Wade. We put WHPA, Women's Health Protection Act on the floor. And let's get nerdy for a minute; I love WHPA because it is truly about Roe and reinstating Roe, not all the ways it got chipped and banged and exception-ed through the years through conservative courts. We put that on the floor and put a hundred senators on record. And let's just remember, every single Republican voted against it, every single one of them, and one Democrat, yup, but I wanna talk about 50 Republicans who put us in this hole, and I wanna talk about 50 Republicans, if you wanna talk about how we got here, I wanna talk about all the Republicans who helped get those last three Supreme Court seats and all the ones who helped get the Supreme Court seats before then that put a pro-corporate, socially extremist group of judges on the court that has driven this court out to the far edge.

0:06:03.4 Senator Elizabeth Warren: So, I'm just gonna keep driving what I think are the central points here. The central points are what we need to do going forward, but the other one is where we need to cast blame, and we need to cast blame on the folks who really made this happen, and it's not the Democrats. It's the Republicans.

0:06:19.3 Peter: I don't disagree that that's where the blame lies, but I do think there's a question from our perspective, for example, of where it's useful to direct your energy, right?

0:06:29.2 Senator Elizabeth Warren: Oh, I agree with you. I totally agree.

0:06:31.7 Peter: That means that we talk about the Democratic party, right?

0:06:34.0 Senator Elizabeth Warren: Well, no, it means let's do talk about where it's effective to direct our energy. First place it's effective is what are the things we can do right now through executive action? And I... Boy, sign me up for that conversation; I'm ready to go. As you know, I've written op-eds, I've been on now two letters to the President, lining up all the things that I think that the administration can do on its own without Congress, but the second part of what we can do on our own is we can hold every one of those Republicans accountable. A third of them in the Senate will be up for re-election this year. All of them in the House will be up for re-election this year. We have a chance, not only to hold on to the Senate, but actually to expand our lead in the Senate. Two senators, we get two anti-filibuster pro-choice senators, and all of a sudden the whole world looks different, because if we can hang on to the House and do that in the Senate, we can make Roe the law everywhere, Texas, Massachusetts, Alabama, Illinois, we can make it the law everywhere. And we can make it strongly the law, that is, get rid of a lot of the craziness that got built in over the last few years, and I think that's something worth getting out there and fighting for, and that we truly are within months of being able to make that change.

0:08:01.1 Rhiannon: Senator, do you have a sense of which seats you think the Democrats could pick up?

0:08:06.2 Senator Elizabeth Warren: Yes. So first, we gotta hold on to the 50 we've got.

0:08:10.4 Rhiannon: Sure.

0:08:11.0 Senator Elizabeth Warren: Right? That's critical, but we're looking good. The places I'm most excited about right now, Pennsylvania and Wisconsin. Pennsylvania, John Fetterman, he has already gone on record about where he stands on the filibuster. He's very much a supporter of Roe. Same thing for Mandela Barnes in Wisconsin. He would be a very strong partner. We get those two people in the United States Senate... And here's the part we need to see. It's not that it pulls us back to where we were on the day before the Dobbs decision came down, it's not that it pulls us back to this grinding that we've been in in the last year over reconciliation and how skinny a bill can we get through that we can get 50 votes for, it's that if we've got 50 Democrats who really are willing to get rid of the filibuster, now the dominoes start to click in the other direction. So voting rights is now right there, front and center, ready to go, and I mean, robust voting rights, protection for every American citizen to get a chance to vote and to get that vote counted. Obviously Roe.

0:09:32.2 Senator Elizabeth Warren: Climate, we are there and ready to go. Opportunity to unionize, the PRO Act, we are there and ready to go. Tax reform, these giant corporations. What was it? 55 corporations made more... Publicly traded, made more than a billion dollars in profits last year and paid zero or near zero in taxes.

0:09:58.6 Rhiannon: Right.

0:09:58.7 Senator Elizabeth Warren: We can fix that. The international tax, the 15% international minimum that shuts down these tax havens. Universal child care, click, click, click, click, click. We have enough votes to get all of those pieces through. And so it's like people are always talking about, oh, the most important election in forever, and now we've come to the fork in the road, but this one really is. This is a huge division in terms of what we'll be able to do.

0:10:29.8 Michael: So on... I did wanna talk about, you started listing a bunch of bills that we could pass, so I've got WHPA up in front of me, and I'm familiar with the John Lewis Voting Rights Act, and the For The People Act. I would say I have some concerns with them. Like one of the reasons we're here is because Texas and Mississippi ignored Roe v. Wade and Casey when they were law. Why should we expect them to respect the We The People Act and not just say that this is unconstitutional, Congress doesn't have the power to tell us what to do here and keep going with their restrictive regimes?

0:11:05.5 Senator Elizabeth Warren: Well, let's do it on WHPA. To start, it's one thing to say with Roe, oh, this is all court developed, court created, the court has given us the language. The court has shown that the language, shall we say, is somewhat malleable in terms of its particular application. Now we have the opportunity to come back and do it by statute. Will somebody sue and say you can't do this at the federal level? Of course, they will. Somebody will sue. Come on, we're all lawyers here. [chuckle] Let's be frank. But even this Supreme Court will recognize the places where Congress has the power to act. Mitch McConnell has already assumed that he can act because he said he will ban abortions, or he will consider banning abortions all over the country, so has Pence, has said that this is what he'll do. We've now got, I think, a bunch of congressmen who've said that they will do this. So I don't think anyone's saying Congress isn't in the game. I think what they're saying is that Congress has not been in the game, and when the courts have created the language, the power, they have obviously permitted the states to move in a direction, I think, is wrong, put it that way. But I think you're actually raising a bigger point, and that is the importance of getting Congress back in the game.

0:12:38.7 Senator Elizabeth Warren: The EPA decision, for example, in which the court does not say Congress can't do this, as I read the opinion, the court says Congress didn't do this, and we think if it's gonna be that important, Congress should weigh in. Well, okay, give me 52 senators and a teeny-tiny majority in the House, but give me those two things and Joe Biden's still sitting in the White House. And you know what? We can make it clear that Congress wants them to do it. All it takes is an amendment. We can just put it in. Gorsuch in the Native American case on the question of jurisdiction...

0:13:17.6 Rhiannon: Castro-Huerta.

0:13:18.9 Senator Elizabeth Warren: Yes, notice what Gorsuch does. He writes the language for us and says, here's the language that Congress needs to enact. So I think part of what we've got is we've recognized we can't rely on the court to protect our rights, we've recognized that the court is just way outside the mainstream. This means Congress needs to clear its throat and act, and I'll use that as one of the best reasons why we need to get rid of the filibuster, because it's one thing to have a filibuster when it is rarely used and so on. Although, let us all remember the racist roots of how the filibuster was used for so long.

0:14:04.8 Rhiannon: That's right.

0:14:06.5 Senator Elizabeth Warren: But it's quite another now to be able to say Mitch McConnell just gets an automatic vetoed and anything that walks through that you can't get 60 votes for, which means pretty much everything. So that's why getting Pennsylvania, getting Wisconsin, and by the way, North Carolina might be in the hunt on that, getting these Democrats in who start out saying no to the filibuster, that's what gives us the power to be talking about action.

0:14:33.2 Rhiannon: And senator, I'm glad that you brought up Congressional Action. I also think even with Congressional Action, you still have the radical Supreme Court looming in the background. Do you think items like jurisdiction stripping, for example, should be a part of this legislation, whether WHPA or the John Lewis Voting Rights Act, those kinds of things, or else that legislation is sort of threatened by the Supreme Court that will say this stuff is unconstitutional?

0:15:01.0 Senator Elizabeth Warren: I think this is something we should explore what it would mean to start using this tool on a regular basis. I would describe it this way. I think we're gonna see a lot of... Potentially, if the Democrats can hold on to Congress and expand their lead in the Senate enough to solve the filibuster problem, I think the next phase that we're gonna watch in law is a much more dynamic interplay between Congress and the court. And my own surmise is that John Roberts, the institutionalist, will certainly be with Kagan and Sotomayor and Ketanji Brown Jackson in terms of the court has to be more modest in its assertion of dominance in shaping the legal landscape, and the interesting question will be how many more can you pull off to that? I understand that some of the folks on the extreme right here seem to be driven by outcome, but the question is how much are they willing to keep stretching the court's power into these areas? It's not just the extremist outcomes, it's the process along the way. How much are they willing to do that? And that's what will play out.

0:16:26.7 Peter: So what's your sense? I agree that John Roberts has institutionalist tendencies, but I do wonder how far those go when he, for example, he writes The Majority in West Virginia, the EPA, which I thought was an aggressive opinion, right?

0:16:39.2 Senator Elizabeth Warren: No, I know. But remember, it was held to Congress didn't do it. He didn't say Congress can't do it.

0:16:45.3 Peter: That is what he said, but I do think that Congress did do it. [laughter]

0:16:49.4 Senator Elizabeth Warren: Look, I'm not gonna defend that opinion. It's a stupid opinion. I'm not going there, but I just want to say, you can still hear the echo with the institutionalism in it.

0:17:00.0 Peter: Sure.

0:17:00.2 Senator Elizabeth Warren: And remember, he is the guy testing whether or not the Affordable Care Act could survive, that he crafts this place in the middle to keep the court out. Now, again, talk about a, not a really good decision. It's a terrible decision. [laughter] But the point is, I thought that it reflected a kind of the court cannot be in the business of going that far out structurally in terms of shaping the law. That was how I read it.

0:17:33.7 Peter: Yeah.

0:17:33.9 Senator Elizabeth Warren: Now if I'm wrong, I'm wrong, and I will still be glad then that we have a Democratic majority in the House and a Democratic majority in the Senate. And remember, we got other tools here. I'm in favor of expanding the Supreme Court.

0:17:45.3 Rhiannon: Yes.

0:17:46.3 Peter: Yeah, so let's talk about that. What is your sense of the appetite for court reform of any type on the Hill? Obviously, we don't have 50 votes for expanding the court at this point, but there does seem to be some amount of momentum building, at least sort of within political discourse, and there are more broadly popular reform options on the table, like term limits, that are under discussion. Do you have a general sense of where the wind is blowing among lawmakers on this?

0:18:17.0 Senator Elizabeth Warren: Oh, there's a whole lot more appetite now than there was before the Dobbs decision. Look at it this way, when I ran for President... Spoiler alert, I lost.

[laughter]

0:18:28.4 Senator Elizabeth Warren: When I ran for president, I talked about getting rid of the filibuster. And I don't know if you remember this, but I think I was like... I don't know, was there one other person initially who agreed with me on that? I'm not sure. And my pitch was on every one of these. All the Democrats would stand up during the presidential... And I'd said this also, by the way, during, I think during my Senate race, everybody would stand up and say, "I'm for serious gun safety laws. I want to get rid of assault weapons, don't belong on our streets, we need background checks," or, "I'm... " They'd talk about different things that they were in... I'm for tax reform, I wanna get rid of Trump's tax stuff. And anyway, talk through a bunch of these. The immigration reform. And I would say, if you're not willing to get rid of the filibuster, you're not serious about any of these proposals you've got, except for the ones that you can get through in reconciliation, you're just not serious. So if you really wanna do immigration reform, if you really want to do gun reform, and then I started talking about Roe at that point, if you really want to put these through statutorily, you got to get rid of the filibuster. And the appetite as you put it, or the...

0:19:34.5 Senator Elizabeth Warren: How was the wind blowing around here to get rid of the filibuster in 2018-2019? Pretty low. Very low. But watching this past year, after the Republicans, I think it was on voting rights, that just everyone started to tweak up and recognize more clearly what the Republicans are up to. And if they cut off voting rights, then our whole democracy is thrown under the bus here. So the importance of voting rights, the John Lewis, as you were pointing out, you've got them in front of you, the John Lewis Voting Rights Act that passed almost unanimously 20 years ago now, you can't even get... Can't get a single Republican voter, you can only get a handful of Republican votes for it. And so a lot of folks who were, "Never, never, never would I vote to get rid of the filibuster," shifted over. So now we're down to only two hardcore defenders of the filibuster on the Democratic side.

0:20:44.1 Michael: Right, right. I think this broadly speaks to maybe the party adopting a more combative, hard nose partisan approach, although not yet to my liking, I don't think... There's something like 70 vacancies on the Federal Courts right now, and all we're talking about here is the importance of the courts. Not even half of them have nominees, it looks like we're probably gonna go to the mid-terms with at least 40 vacancies open without nominees in part because Democrats are still giving Republicans vetoes on district court nominees. Is that good enough?

0:21:25.4 Senator Elizabeth Warren: Look, if you're asking me, do I think we ought to be more combative about getting more judges through? All I can say is, "Yes." And if you tapped my phone lines first, I would say, "You can't do that." But the second thing is you would hear me as I just sizzle various folks on Capitol Hill and elsewhere in government about the urgency of getting our judges through. I just think it's absolutely critical. And can I put in a pitch here? It's not just that we need Democrats, it's not just that we need people who are of different races and different genders, it's that we need people of different lived experiences, we need public defenders. Okay, I didn't just say that to pander.

[laughter]

0:22:12.7 S?: Yes you did.

0:22:13.2 Senator Elizabeth Warren: We need...

[laughter]

0:22:14.9 Senator Elizabeth Warren: But it's been my argument from the beginning. We need people who didn't just work for giant law firms, we need people who really come to the bench from having seen other slices of the world, of America, and of the legal world. I just, I think this is just crucial. One of the first people that I was able to recommend when President Obama was still president, was a labor lawyer, labor side labor lawyer. And while nobody did all of the research, as best we could tell, she was the first labor side labor lawyer to be nominated and confirmed in a bazillion years. And that's really my point here. Yes, you know how much we need a strong judiciary, district court, Court of Appeals and Supreme Court. And the way we do that is we've gotta be combative. For decades now, the Republicans have understood the importance of who goes on the federal bench.

0:23:21.4 Rhiannon: Exactly.

0:23:21.9 Senator Elizabeth Warren: And they have played the game aggressively and smartly. You have to give them credit, they've played it effectively. And we have just been dithering around, we Democrats, in the wrong end of the wading pool on this one. And I keep trying to pull more and more of my colleagues down to the deep end, because that's where we need to be. We need the right judges and we need them now.

0:23:53.0 Rhiannon: Thank you so much, Senator, for your time. We really appreciate it.

0:23:55.9 Peter: Yeah, we do.

0:23:56.5 Michael: Yeah. Thank you.

0:23:57.0 Senator Elizabeth Warren: Oh, thank you. This is fun, I could do this all day long.

[laughter]

0:24:02.0 Rhiannon: We'd love to have you all day.

[laughter]

0:24:04.5 Senator Elizabeth Warren: This is cool. I'm glad you do this, and I love having an audience that we can talk about stuff like this, and people have not fallen asleep. I don't think you're the go-to-bed podcast are you? You're not that?

0:24:16.3 Rhiannon: No. We're far from that.

0:24:17.9 Senator Elizabeth Warren: Okay.

0:24:19.3 Peter: We're a wake up and get angry podcast.

0:24:20.3 Senator Elizabeth Warren: Good. That's my kind of podcast. Yeah. Okay.

0:24:24.1 Rhiannon: All right. Thank you so much. Bye-bye.

0:24:25.5 Senator Elizabeth Warren: Bye-bye.

0:24:26.8 Peter: All right, let's take a quick break and then come back to discuss. Okay, we are back.

0:24:34.8 Rhiannon: So what do you guys think?

0:24:36.3 Peter: Well, speaking of filibusters...

[laughter]

0:24:39.6 Rhiannon: She's the expert.

[laughter]

0:24:41.5 Peter: She just goes... Obviously, she's one of the good ones, and her political agenda aligns with us enough that I have very little interest in complaining about it. The general impression I get is, she has some real loyalties to the party and the president at the end of the day, or at least some bridges she's trying to maintain without burning too much. And that's why you get the full dodge on the, "Did the administration fuck this up?" question. When I think if you look at her policy proposals, including an executive order from June, that was much more robust than what Biden put in place something like two weeks after the Dobbs decision, I think it's pretty clear that she does think that the response was inadequate, and there's only a matter of getting her to say it, which apparently we're not the intrepid journalist to do. But I don't think we thought we were.

[laughter]

0:25:40.0 Michael: Yeah. I do feel a little bit like in the cartoons when the big... What are those things, the big construction with a huge flat wheel runs over someone and they turn into like a little sheet of paper.

0:25:52.8 Peter: Yeah, a steamroller. Yeah.

0:25:53.6 Michael: A steamroller, yeah. A steamroller. I've been steamrolled and I'm like a little flat sheet of paper now floating in the wind.

[laughter]

0:26:00.9 Peter: Yeah. Well, I blame Rhiannon. Michael and I obviously can't interrupt her because that's talking over women. Talking over powerful women.

[laughter]

0:26:07.9 Peter: That's your job Ree, and you were supposed to cut in, "Senator, stop, stop with the bullshit."

[laughter]

0:26:16.8 Rhiannon: I was the third person to be steamrolled here, okay? Regardless of my gender.

0:26:22.3 Michael: She also was a little dodging us on jurisdiction stripping.

0:26:25.8 Rhiannon: Yeah.

0:26:26.2 Michael: Where there's a lot of like, "We'll have to look at that stuff," where I couldn't even get the sense of with something that she herself would support.

0:26:33.8 Peter: Sure.

0:26:34.2 Rhiannon: I think she has ideas for what the federal government, for what the administration, for what Congress could be doing in the wake of Dobbs. And I think it's a disappointment that the rest of the party doesn't seem to have a taste for it.

0:26:50.2 Michael: She did say something that I obviously agree with, which is that the party needs to be more combative and it needs to be more partisan and it needs to be better about the judiciary. And I think that is broadly in line with our general critiques of the party, that they don't take this stuff seriously enough and they don't fight hard enough on it and they're getting better, but they're still not there. And they're still prioritizing arcane Senate rules over securing...

0:27:22.4 Peter: Yeah.

0:27:22.6 Rhiannon: Right.

0:27:23.4 Michael: Reproductive freedom. But she seemed more willing to engage on expanding the court.

0:27:29.4 Rhiannon: Yeah.

0:27:30.1 Michael: Which I actually think is good. Honestly, jurisdiction tripping, I would love for them to do it to protect the Women's Health Act, the WHPA, and any other laws that in dream fantasy land where Democrats manage to ride a wave of anti-Dobbs public opinion to expanded majorities. In the midterms, I would like to see them protect their accomplishments in the wake of that, but I think it's far more important to just generally be more combative with the court, to be willing to take it on and to talk about the personnel and changing the personnel in a serious way. And so if people are talking about expanding the court and if there's expanded appetite for that, which I think that's what I heard her say, then that's encouraging.

0:28:15.5 Peter: Yeah.

0:28:16.0 Rhiannon: Yeah. I think that is the probably the boldest court reform measure, is literally expanding the Supreme Court. But we asked her broadly about... Peter, I think it was your question, broadly about court reform, other methods of court reform, and she basically answered with the answer about the filibuster.

0:28:35.9 Peter: Yeah.

0:28:36.0 Michael: Yeah, it's true.

0:28:36.4 Rhiannon: Not about the other court reform options that are on the table, right?

0:28:40.9 Peter: Yeah. And it is on track with current Democratic messaging, which is that the Republicans are this obstructionist force, and if you just help us nudge them out of the way, we will deliver the utopia to you. Here's our list of bills, and a little bit light on here's what we're using, the power that we have right now, no matter how limited it is, to fight for your rights and prove that we are the people to do this, that you're not placing your faith in the wrong institution here.

0:29:13.7 Michael: I will say there's a complete picture she paints, that is, she describes basically a more open dialogue between Congress and the court.

0:29:26.1 Peter: Yeah.

0:29:28.1 Michael: Where okay, you say we need to act, we're acting. So the way I take it is she's saying that they're not necessarily talking about fucking around on the edges with the court, where it's like they're gonna legislate, and if the court continues to step in, then they're just gonna change the personnel in the court. That's, I think, the most generous reading of her answers, which is a coherent approach. Like, look, we'll have a dialogue.

0:29:54.0 Peter: It is, and it's in line with things we talked about with Jamelle about a sort of reconceptualization of the constitutional order. One, where there's interplay between the branches and the court and Congress and the president are all engaged more directly in the project of interpreting the Constitution and conceptualizing the Constitution. On the other hand, I think that the less generous read of that is that it's an overly credulous approach to the court, that you're just walking right into a gauntlet where you're gonna get swatted back and they're going to say, "Now what?" And why waste time on phase one? Why waste time on having them prove to you that they are the partisan hacks that we all know they are?

0:30:39.3 Michael: Right. And kicking the reform can down the road to a later Congress that is going to then have presidential election between now and then and maybe a new president or maybe the same one, but the political world in calculus will be transformed. And there is, I think I've made this point on Twitter, but there is like if Bush v Gore didn't convince mainstream Democratic leaders to take on the court and Citizens United didn't do it and Shelby County didn't do it, and [0:31:11.7] ____ didn't do it. And all these awful cases we talk about, and now Dobbs doesn't do it.

0:31:17.4 Rhiannon: Yeah.

0:31:18.1 Michael: I don't know. Is it really like the next time, the next time is going to be the time that does it, I promise. Next time, next election, next Supreme Court decision, it does feel like there is a little bit of that going on.

0:31:32.9 Peter: Yeah. And the statement that this is in fact the most important election. It's like, come on.

0:31:38.7 Peter: There's nothing there.

0:31:39.2 Peter: You can't do it two elections in a row.

0:31:41.4 Michael: Yeah.

0:31:41.7 Peter: You gotta split them up by at least four years.

0:31:44.3 Michael: It was 2016. Let's be real. It was like it was...

0:31:47.5 Peter: And then, like second place, 2020, right?

0:31:49.8 Michael: Yeah.

0:31:50.1 Peter: This is like the third in the last ten years at best.

0:31:55.0 Michael: We just have like the retroactive confirmation, like Ginsburg did die, unfortunately, and was replaced and that has transformed the country, like those things happened and there's... The next important election will be the one, on the Democratic side, would be one that actually was a springboard to transforming the personnel in the court in a roughly analogous way in terms of shift. Otherwise, who are we kidding?

0:32:24.1 Peter: Senator Warren did say, after we stopped recording, that she was slowly slipping Joe Manchin the nerve agent that the Russians used on Viktor Yushchenko. So, give it a few months, we'll see.

0:32:37.5 Michael: Also, I think Rhiannon is probably going to get nominated for a district court judge. Is that what she implied? I think, I feel it did.

0:32:44.3 Rhiannon: Yeah, I'll take that, yeah.

0:32:45.2 Peter: There was a clear line in her logic. You're a public defender. We need more public defenders on the bench. Simple enough, enjoy being a Fifth Circuit District Court judge, the only job more depressing than being a public defender.

[laughter]

0:33:09.1 Leon: Next week, we are doing a bit of a live show. We recorded a show at the People's Parody Project Annual convening in DC a couple of weeks ago. We discussed free speech, cancel culture and the Court. It was a pretty good discussion and we'll be putting it out as a premium episode next week. Follow us on Twitter @fivefourpod. Subscribe to our Patreon, Patreon.com/fivefourpod. Premium and ad-free episodes, special events, access to our Slack, all sorts of benefits. See you next week.

0:33:55.7 Michael: Five to four is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.