Medina v. Planned Parenthood South Atlantic

hear argument this morning in case 231275, Medina v.

Planned Parenthood South Atlantic.

Hey everyone, this is Leon from Prologue Projects.

On this episode of 5-4, Peter, Rhiannon, and Michael are talking about Medina v.

Planned Parenthood South Atlantic, a case from earlier this year about a Medicaid recipient's right to choose their health care provider.

In 2018, South Carolina excluded Planned Parenthood from its Medicaid coverage.

Julie Edwards, a resident of South Carolina, filed a lawsuit against the state, claiming that her civil rights were violated because the state denied her the freedom to choose her health care provider as stated under federal Medicaid law.

Supreme Court ruled that Edwards did not have the right to sue the state to begin with.

The U.S.

Supreme Court today sided with South Carolina, ruling Planned Parenthood and one of its patients could not sue over that state's effort to deny it Medicaid funds.

The ruling paves the way for other states to more easily cut off funding to abortion care providers.

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

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have occupied our Constitution, like the National Guard occupying Washington, D.C.

I'm Peter.

I'm here with Michael.

Hey, everybody.

And Rhiannon.

Hello.

Good morning.

Right now it's morning.

Usually we're behind the news cycle, but I I imagine this will still be happening.

Yeah.

Oh, yeah.

When this comes out.

By the time this is out, not only will they be there, but according to Marisa Cabus, I don't know how to pronounce her name.

At the handbasket, they will be carrying guns.

They'll be carrying the

military version of the Six Hour P320, which you may have read about.

for

accidentally discharging all the time.

Yeah.

Including like Wallen Holster and law enforcement agencies discontinuing use of it.

But that's going to be on the streets of D.C.

in the hands of National Guardsmen.

Yeah.

Great.

Yeah.

I said good morning and y'all took it here.

You know,

I thought good morning.

Welcome to, welcome to the real world, Mannon.

Well, we can talk about the bright side.

Fair evasion is down.

Yeah, there you go.

We were just discussing a situation where like over a dozen agents from three different agencies arrested a single fare evader in D.C.

So you thought you could get away with it, buddy, didn't you?

Yeah.

Nope.

Not in Donald Trump's Washington, D.C.

All right.

It's a new day.

Carolyn Webb being like, yeah, Dino Dashes are completely eliminated.

It's because nobody's eating out anymore.

Yeah.

Everybody's just staying home.

Less fair evasion because everybody's at home.

Yeah.

And you might think, oh, is it worth having 15 guys each paid six figures to eliminate $3 worth of fare evasion?

But you have to think about the deterrence, right?

Because once you stop 2 million fare evaders,

then it makes sense.

Right.

A number, of course, that doesn't exist.

And

that's every resident of D.C.

evading fares twice a day.

And decades of, you know, socioeconomic, sociological, sociopolitical study that shows deterrence doesn't work this way.

But yeah, yeah, yeah, yeah.

That sounds like woke bullshit.

Yeah.

Yeah.

If you want to trust those gay studies, sure.

Today's case, Medina v.

Planned Parenthood, South Atlantic.

This is a case from this past term about states excluding Planned Parenthood from Medicaid coverage.

South Carolina is one of several Republican-led states to exclude Planned Parenthood from the state's Medicaid coverage because, of course, Planned Parenthood provides abortions.

But federal Medicaid law requires states to allow coverage for, quote, any qualified provider.

So one woman, Julie Edwards, sued, saying that she has a right under federal law to have her care at Planned Parenthood covered by Medicaid.

But the Supreme Court in a 6-3 decision said that she's actually not allowed to sue for that.

No, surely not.

Definitely not, Julie Edwards.

Think again, dummy.

Okay, let's talk a little bit about like Medicaid, Medicaid funds.

What are the rules around Medicaid funds?

Obviously, these are federal funds.

They're allocated by Congress.

You know, what can the states do with those funds?

And what rules can they suddenly impose on Medicaid access for Medicaid recipients?

So Congress provides federal funds for Medicaid to states through Congress's spending power.

It's a spending clause in the Constitution.

And states actually administer Medicaid themselves.

If you're a Medicaid recipient, you know this, but Medicaid offices usually administered by the state health and human services agency or what have you.

And the federal government gives those funds to the states in exchange for the state's agreement to spend those funds in accordance with conditions that are imposed by Congress.

So, states still have a lot of discretion here.

I just said states really are the ones who administer Medicaid, and they have a lot of control over, for example, who is eligible to receive Medicaid benefits in their state.

And also, they have a lot of control about which types of services are covered by Medicaid in their states.

But the Medicaid Act, the federal statute that sort of creates Medicaid and these requirements that Congress imposes on states that receive Medicaid funds, that statute dictates that states have to abide by these conditions.

And if a state fails to comply substantially with those conditions, then the federal Department of Health and Human Services can withhold further Medicaid funding from that state.

Now, importantly for this case, one of those conditions that states have to substantially comply by is that Medicaid recipients be allowed to choose their own healthcare providers.

This is called in the Medicaid Act, this provision is called the free choice of provider provision.

So why would this be?

Why would Medicaid recipients be assured that they will be able to choose their own provider?

That's because this law prevents states from funneling Medicaid recipients to whatever the state's preferred health care provider might be, right?

So say a state suddenly wants to prefer a hospital network that might have a certain religious affiliation, or the Department of Health and Human Services, or the analog in that state, the agency in that state that administers Medicaid, has a preference because the doctor at this provider is this state official's sister.

Like there are tons of reasons why a state might prefer certain providers over another.

And this federal law conditions states receiving Medicaid funding on one requirement, which is that states can't funnel Medicaid recipients to a healthcare provider that the state prefers.

Medicaid recipients can choose their own provider.

Let's take another step back and talk about like the importance of this provision of the law, the choice of provider provision.

Remember, yes, we're talking about the provision, the giving of lots of federal funds.

We're talking about millions and millions of dollars.

We're talking about how states can administer it, the conditions that are on states.

But like, what's the whole reason?

The whole reason is that recipients need health care.

Medicaid is healthcare for many, many people who can't afford private health insurance.

And so there are human beings recipients, right?

Human recipients of this type of aid, of this welfare program.

And so there are conditions in the federal law, therefore, that make sure that this is being allocated fairly, that make sure that states are administering this in a way that makes sense for a government-funded healthcare program.

Now, like Peter said, Julie Edwards, a woman in South Carolina, wanted to get gyneological care at her local Planned Parenthood.

Now, unfortunately for Julie Edwards, in 2018, South Carolina's governor issued an executive order that called all abortion clinics unqualified to provide healthcare services in South Carolina and directed the state's Department of Health and Human Services to terminate both Planned Parenthood clinics in South Carolina from the state's Medicaid program, which means effectively that both Planned Parenthood clinics in South Carolina had to stop serving any patients who relied on Medicaid because none of the state's Medicaid funds would be going to those clinics anymore.

So Julie Edwards, who had been receiving gyneological care, health care at Planned Parenthood South Atlantic in South Carolina, sues under Section 1983.

Now we talked about Section 1983 before.

This is the Civil Rights Act.

This is originally passed way back in the 1880s for very important reasons, which is that right after the Civil War, right after emancipation, many people in state government were terrorizing.

people, terrorizing people who were newly liberated, formerly enslaved people with intimidation, with disenfranchisement, with violence.

And this was a big threat, not just to those individuals, but to literally like American democracy, like the state of our country after the Civil War, the attempts at Reconstruction.

So, the Civil Rights Act is passed way back in the 1880s to ensure that if a state official violates your constitutional rights, you have the power to sue.

You have the power to bring a lawsuit against those state officials for violating your individual constitutional rights.

Now, Julie Edwards in South Carolina wants to

use the healthcare provider of her choice,

which is ensured in the free choice of provider provision of the medicaid act is it south carolina

it's there in words you know in words only though it's in words only apparently in words and purpose only

south carolina is not allowing her to do that because as a medicaid recipient she can no longer basically use her medicaid coverage at planned parenthood south atlantic and so she sues asserting that that termination decision, the termination of Medicaid funds to Planned Parenthood, violate her individual rights under that free choice of provider provision to get care from the doctors of her choice.

So this goes up and down, actually, the appellate system, but this is the question where we get to the Supreme Court.

Right.

So to recap, South Carolina excludes Planned Parenthood from Medicaid coverage.

Federal law says that Medicaid recipients can obtain covered care from any qualified provider.

And Julie Edwards sues because she says that means it should cover Planned Parenthood.

But

the question is not whether Planned Parenthood is a qualified provider.

We haven't gotten to that question yet.

The question is whether Julie can sue.

The way this works is that a lot of laws will say who can sue in the law itself, right?

But some laws, especially older laws, do not specify.

So Julie sues under a different law, Section 1983 of the Civil Rights Act of 1871, which we mentioned, and that law allows people to sue state officials when their federal rights are violated.

There's a test this court has created for figuring out when you're allowed to sue under Section 1983.

And it's whether the law clearly evidences Congress's intent to create an individual right.

So basically, does it seem like the law creates a right for an individual person?

Because if so, they can sue to enforce that right.

The conservatives say no, this provision of the Medicaid law does not create the individual right to sue.

Neil Gorsuch writes the majority.

And he latches onto a very narrow reading of the law here.

The law says Medicaid recipients can receive care from any qualified provider.

So what Julie Edwards argued was that this implicitly creates a right for anyone to go to a qualified provider of their choosing.

So if you're denied that right, you should be able to sue.

But Gorsuch basically says that the law is not clear enough.

It does not specifically say that a person has a right to go to a provider of their choosing.

Although I think this argument is basically semantics.

Yes.

The law says, quote, any individual eligible for medical assistance may obtain it from any provider qualified to perform the service.

So, like, doesn't that just mean there's a right to go to the provider of your choosing?

Right.

Also, the name of the provision in the text of the law is the free choice of providers.

Yeah.

So, not entirely sure why that wouldn't create.

a right to choose your provider.

Dorsich contrasts this with another law that the court said does create a right to sue.

That law says that nursing home patients have, quote, the right to choose a personal attending physician.

He says that's clearer.

Although, to my eyes, they're just worded differently, right?

Like

this law says any individual eligible for Medicaid may obtain it from a qualified provider.

It's not just that like it implies the right to choose a provider.

It's that if you read it literally, there's no other way to interpret it.

Yeah.

Right.

And then you factor in the name of the provision being the free choice of provider.

And it's like,

what is the distinction that you're making here?

Yeah.

The majority fixates on the idea that Medicaid law is a spending law, meaning that it's about where federal money gets allocated.

So they essentially argue that the proper remedy here would be for the federal government to withhold funding if the state is violating the law or for Planned Parenthood itself to challenge its exclusion through like a very specific administrative process.

I feel like this analysis is just dodging the issue.

If the federal government is offended, yes, they can cut off funding.

But the point is that the federal government is not the only interested party here.

Julie Edwards is an interested party.

She has rights under the law.

She wants to enforce those rights.

And the court is cutting that off.

I also think it's bizarre to say that there's no like individual right here because then like, what's the point of Medicaid law?

Right.

The point of the law is to ensure medical coverage for citizens who need it.

Julie Edwards is a citizen who needs it.

Everything else about the law, about like how the money gets distributed from the federal government to the state and whatever, that's just logistics.

The ultimate goal of the law is to provide people like Julie Edwards with access to care.

So how can it be that she doesn't have a legally enforceable right to that care?

I just don't see it.

Yeah.

And there's something else I'd like to flag, which is that the way that the majority couches its argument is that the states need notice.

They need to be aware that they could be sued if they violate the law.

So, like, we can't just spring it on them, right?

It has to be clear in the law.

But, like,

is it not notice enough that there's a federal law saying that they have to do it?

Yeah.

Is that not proper notice that federal Medicaid law says that they have to do this?

It's like, oh, sorry, I didn't know that I could get sued if I violate this law.

I know it says I have to do this if I take this money and I took the money and therefore I have to do this,

but I didn't know.

A lawsuit might ensue.

We were operating under the understanding that there would be no consequences if we violated this law.

So if there's going to be consequences, please provide notice.

Yeah.

It's just, it's just stupid.

Yeah, just another example of this court, just like just finding

some fucking mealy-mouthed bullshit explanation that they can throw at you to get the conservative outcome here.

They want states to be able to carve out Planned Parenthood from Medicaid.

They want to make it as hard as possible for you to challenge that.

And so they find a way.

It's not coherent.

Yeah, exactly.

So Thomas has a concurrence.

Stop me if this sounds familiar.

He says the majority has faithfully applied our precedents, but believe it or not, he thinks those precedents are way too expansive in recognizing people's rights and their ability to sue.

He thinks the law should more closely resemble what it looked like in 1871

in terms of what rights are recognized and what rights are protected.

The man has collapsed into self-parody at this point, I think.

He's like chat GPT trained on Thomas concurrences.

That's what he churns out.

Easiest job in the world, Clarence Thomas Clerk.

I mean, this is just, this is what he writes all the time.

And it's particularly like

this is in some ways like the Er Thomas concurrence because it's literally about, you know,

the law passed to politically resolve the civil war and specifically individual rights to sue under that law to vindicate, you know, your rights.

So it's like just the perfect like, let's fucking wind everything back.

Like let's wind back Reconstruction, which we didn't even finish.

We shouldn't have even started it.

Like.

Right.

And he describes it as like, he's like, this is a narrow Reconstruction era statute.

Like he wants to conceptualize Section 1983 and these sort of like post-Civil War laws as like something that was designed for this very limited specific purpose, right?

Like addressing what was happening in the American South right after the war.

But if you're us and you're cool and you're smart, I think the proper way to think about this is like, actually what happened was that they had to restructure the relationships between citizens and the state governments.

Right.

And the federal and state governments.

Right.

I was going to say, and the federal and state governments.

Yeah.

And like, that's what this did, right?

Is give people an avenue to enforce their rights because they saw what happened when people didn't have the ability to enforce their federal rights.

Right.

That's the thing.

Like, that, one, the context is exactly backwards, right?

Like, acting like they were just doing very narrow legislating in the few years after the Civil War ended and not completely restructuring the government is nonsense.

But also, like,

he talks about how new life was breathed into the statute of 1961.

And it's like, yeah, was anything happening related to civil rights between like 1880 and 1960?

You know, like maybe like Jim Crow

and

mass disenfranchisement and a strict racial caste system.

Right.

He's implying that it's sort of unfair or that it's like disingenuous that people want to use the statute broadly.

And his evidence is like, well, we didn't use it for almost 100 years.

That was Jim Crow.

Yeah, yeah, dude.

In that period, black people were prevented from voting with violence.

Like,

what do you want?

Like, black businesses were burned to the ground.

Yeah, that's that was the period when it wasn't in use.

His vision of history, his version of history, is one that completely erases the actual political struggles around the fight for equality for all Americans.

I also just want to note that these guys like talk about their fidelity to the text.

They talk about the plain meaning.

They like to

position themselves as like

the common sense as opposed to these crazy woke liberals who want to read all this shit into the statutes and then they write stuff like this.

This is a quote.

Our cases have glossed over the threshold question of what constitutes a quote-unquote right under 1983.

As to constitutional rights, the court has simply assumed that the term quote-unquote rights has the same meaning in section 1983 as elsewhere.

Wow.

You think just because it says rights, it means rights?

It might mean something different.

It might mean fewer rights, more narrow rights.

Aren't you an idiot?

Yeah.

Right.

You're not using your imagination enough.

Right.

What if we imagined that this was not meant to enforce rights generally?

What if we imagined that it was just a couple rights that they were referring to, even though it doesn't say it.

Yeah.

He follows it up saying, as the statutory rights, which the law was specifically amended to include not just constitutional rights, but statutory rights.

The court essentially collapsed the question of whether a right exists into the broader inquiry into whether there is a right secured by the Constitution and laws.

So, under this telling, a right can exist in the Constitution or laws, but not be secured by the Constitution and laws.

He thinks this is at all tenable a way to do fucking constitutional law.

This guy, it just gives me a headache to read his things.

Why?

How did I get stuck doing all the Thomas shit?

Every time there's a Thomas concurrence, we're like, Michael's on it.

You got this.

Why me?

It's so painful.

I hate this guy so much.

We'll switch it up one time.

The next time there's a Thomas concurrence, I'll do it, but only one.

But I feel like it's nice to have a specialist, you know?

We've got our Thomas Expert in the house.

So maybe we move to a little bit of relief, at least, by turning to the dissent injection of a little bit of logic, maybe.

It's the losing argument here, but Katanji Brown Jackson writes this dissent.

She's joined by the other two liberals, Kagan and Sotomayor.

And what Justice Jackson is saying in this dissent is that, of course, this plaintiff can sue under 1983.

Of course, that's the case, because you have to go back to the purpose of the Civil Rights Act.

Why would we have this law?

Why did this law get passed?

And something that she does that's really important throughout the dissent is continuously grounding, reminding us why we have Section 1983 in federal law anyway.

And this is because of a history of disenfranchisement, threats to individual safety, a political and social intimidation campaign over the course of decades that was being done either by private actors and supported by state officials or by state officials themselves in the Reconstruction era.

And that's the reason why.

the Civil Rights Act was needed even after passage of the Reconstruction amendments, right?

You can think of, again, restructuring the relationship between individuals and the state, between this federalism relationship, between the states and the federal government.

You can imagine that the 14th Amendment is ratified, it's passed, it ensures equal protection of the laws.

And yet, right after its passage, right, right after the 13th, 14th, and 15th amendments are passed, ensuring essentially giving full citizenship to formerly enslaved people, that all of this violence is occurring, all of this disarray is occurring, really, truly the structures of a democratic government, which is to say, again, like that relationship between the individual and the state in our federalist system, the relationship between state governments and the federal government, these things are breaking down with the passage of these civil rights amendments.

And so.

federal law is passed to like bolster this, to bolster those amendments that were just passed.

And so not just the Constitution, but equal protection of all federal law.

So, Jackson is describing this and always bringing it back throughout this dissent, which I think is pretty good.

And also, really importantly, points out that the Civil Rights Act itself, you touched on this, Michael, the Civil Rights Act itself, section 1983, doesn't just say

you have the right to sue when your federal constitutional rights are violated.

It also doesn't just say when your federal statutory rights are violated or even your rights.

It says your rights, privileges, and immunities.

So the text of section 1983 itself does not say that, you know, Gorsuch's argument about where it's unambiguously, another law unambiguously confers a right because it says, you know, recipients have this right.

That's not even what the Civil Rights Act says.

So Justice Jackson, turning to what happened here to Julie Edwards, looking at the free choice of provider provision in the Medicaid Act, says, look, this clearly confers a right

to Julie Edwards, to all individuals who are Medicaid recipients to choose their healthcare provider.

And she says, we have found similar rights in analogous situations that conferred that right to sue under Section 1983 to many people before.

And this case is no different.

In fact, there's a case called Wilder v.

Virginia Hospital Association from 1990.

This is also under the Medicaid Act, a different provision, a provision of the Medicaid Act that applies actually to the healthcare providers and says that states have to reimburse health care providers at reasonable and adequate rates.

The Supreme Court in Wilder v.

Virginia Hospital said that healthcare providers can sue under Section 1983 because because, the quote from the case, quote, there's little doubt that healthcare providers were the intended beneficiaries, end quote.

So, in this other case, the Supreme Court found that there is a plaintiff, there is an intended beneficiary, somebody who was intended to have a certain right, a certain benefit from this law, and as a result of being the intended beneficiary, has a right to sue.

Whereas in this case, they're saying Julie Edwards, even though in the text of the law, being given a choice as to her provider, they say Julie Edwards, not an intended beneficiary, does not have the right to sue.

I mean, obviously, it's so weird that we end up having these discussions about what are like, how does a statute confer a right?

And it's just like the law says

a thing.

The law says that you can choose any provider.

Yeah.

That means you have a right to do it.

Yeah.

In the law.

Yeah.

It's so cut and dry.

And the way that they're like, the language isn't as strong as in other, it's like, okay, but the law says

you can do this thing, that you have this legal right to do it.

So, like, conversation over.

It's just so fucking annoying and tedious.

Yeah.

And she talks throughout, there's plenty of cases that she refers to, lots of precedent where she's like, no, this would dictate that we rule in favor of Julie Edwards.

This would dictate that we rule in favor of Julie Edwards.

This is a way that we've interpreted the Medicaid Act before.

This is the way that we've interpreted section 1983 before, right?

Of course, none of that matters at all to the majority here, but she lays it out quite nicely.

And I think over the course of the dissent, something that you see, and you see it even in her reference to the healthcare providers case, where it was interpreted, it was held that they were conferred a right.

That analysis was about healthcare providers being the intended recipients.

Here, what the majority does is totally take out recipients, recipients of Medicaid funds, who is intended to be benefited from these laws and from the allocation of these funds.

It's Medicaid recipients.

It's people on the end of this.

So laws can be about the administration of the funds, but what is the purpose?

There are recipients here.

The whole point is that there are people who are given benefits by this law.

And so as recipients of this funding, this confers a right.

very clearly right like laws that even seem to be or are arguably about things like administrative agencies or congress's spending power are about people.

And what the majority does here is takes out people

completely from this calculation and makes it an argument and a question that they're answering, which is about how states get funds.

What happens when states do something that the federal government doesn't want them to do with those funds?

And then does the poor state have notice by breaking federal law that they might be sued?

Right.

Yeah.

And this fits into

something we talked about a lot like the first few years of the podcast because it's such an integral part of the conservative legal project, which is just limiting the scope of section 1983.

Yeah.

You know, just this law that lets you sue states when they violate your rights.

And, you know, I think conservatives who don't necessarily believe in expansive federal rights realize that they don't actually have to limit constitutional or statutory rights exactly.

They can just limit the ability of citizens to enforce those rights.

And so you get cases like this where they're like, ah, the statute doesn't even create a right.

So you can't really sue.

Yeah.

And it's also like, when you think about what we're left with here, the court's basically like, well, federal government can withhold Medicaid funding if they want, or Planned Parenthood can go through a very convoluted administrative process, right?

So

Julie Edwards, she's just on her own, right?

There's no solution for her.

Yeah.

Especially in a world where like you have the Trump administration, they're not going to give a shit about this.

Like you have a federal government that's just sort of like actively uninterested in enforcing.

this law.

Yeah.

Yeah.

There's a massive remedies problem that's created by this holding, which is that Julie Edwards, at the end of the day, does not have a remedy.

The majority gets caught up and wants to obfuscate and tell you and convince you that, well, the thing that happens when states don't use the funds correctly or don't meet the conditions of the federal statute that allocates those funds to them, well, the remedy is that the federal government then can withdraw those funds.

But look again to the intended human beneficiary of this federal law, the intended purpose of the entire

federal statutory scheme that allocates these kinds of funds,

this person is missed.

This person does not have a remedy.

And it's not realistic, obviously.

It's not realistic that South Carolina would be punished by the withdrawal of federal funds because it did this to Planned Parenthood, because then South Carolina doesn't get millions and millions and millions in Medicaid funds that tons of Medicaid recipients get, like receive.

Right.

The purpose of the law is to give people health care, right?

To give people access to health care.

And they are,

the court is saying the remedy for the inadequate provision of that care by the states is to not give people health care.

Right.

To withhold funding from everyone.

Right.

From everyone.

So even if the federal government exercises its remedy, as described by the Supreme Court, Julie Edwards still can't get care.

Right.

Nor can anyone.

And a bunch more can either.

Yeah.

Yeah.

Across the state, which, by the way, is why even like the Biden administration, for example, or like any left, even like a left-wing administration is not going to exercise their right to withhold Medicaid funding because it will actually kill people.

It will be devastating.

Right.

Which is the thing that's like the in the most generous reading of the majority opinion the way this works is almost identical to the way international sanctions are supposed to work which is that you target an opposing regime by impoverishing their people so much that the people kick them out this is the only mechanism in which their remedy makes sense which is

We are going to withdraw funding.

People in the state will not be able to get health care when they're sick and dying.

Yeah.

And they'll be so upset that they'll kick out their legislator and their governor and replace them with someone who will then accept Medicaid funding and comply with the conditions.

That is a fucking insane way to do federal spending.

That is an insane way to do constitutional law.

It's one that's just completely divorced from reality.

And it's especially crazy because if you are a longtime listener of five to four or a constitutional law nerd, you might be like,

this sounds familiar for some reason in my head, withdrawing of Medicaid funding.

This is like, this is ringing a bell.

This came up in the Obamacare case about a decade ago because the Medicaid expansion there

basically gave states the option to enroll in the expanded Medicaid or lose all funding, all Medicaid funding.

And the Supreme Court,

including three justices in the majority here, held that that was coercive.

That was unduly coercive.

And what was coercive about it was withdrawing Medicaid funding, the remedy that they say here.

They said it's unconstitutional basically to dangle the threat of withdrawing Medicaid funding over the heads of the states.

And then here they're saying that that's actually what the federal government has to do.

Right.

Like John Roberts, language he used in that opinion was that it was literally holding a gun to the states' heads.

That's language he used.

They talk about like the dissenters and that, which included Alito and Thomas, talked about how it's like over 10% of some state's budget and irreplaceable funding.

So the threat of rescinding it is just unthinkable.

It's something that the government cannot do.

And then you're saying, well, yeah, but that's the only thing you can do, actually, if states don't comply with the law.

It's fucking, I mean, look, that they're hypocrites is nothing new.

And it's not like revelatory, but it's just the

shamelessness is

pretty wild.

Yeah.

And like...

In a way, this is like the kind of case we would have covered a few years ago, right?

They're like limiting section 1983 rights.

This is like a case you could find from like 1995 you know where they're trying to limit the ability of people to bring class action lawsuits or whatever but i do feel like what makes it very 2025 is just how embarrassing the logic is

and like i feel like they would have tried harder 20 years ago or 30 years ago you know they would have yeah they would have tried to build on firmer ground yeah you know peter it's interesting you mentioned that if you guys will bear with me for a moment, I want to get we always do I want to get big picture.

I want to get met

the music

No, I want to get self-reflective, okay?

Yeah, I mean let him cook let the man cook on it.

Peter, that's not that's not what that's not what you said.

Don't try to turn this on me.

Maybe make it seem like I said it.

Go off, King.

Go off, Michael.

I've I've been

thinking a lot lately about how the podcast has changed.

And it's changed in part because the political conditions have changed, right?

The conservative movement in a lot of ways has changed.

I'd say they're like drunk on their own victories at this point.

It reminds me of like, every now and then there will be an Olympics where Team USA basketball doesn't perform that well because they're just getting lazy.

You know what I mean?

That's what I'm seeing from the Supreme court they're the equivalent of team usa basketball not in that they're talented but in that it's almost impossible for them to lose no matter what they do yeah and so they start phoning it in a little bit and that's what we're getting we're getting uh which olympics was it where we didn't win gold 2004 i think yeah where was it athens yeah we're getting we're getting a little bit of a little bit of the team usa in athens kind of vibe here

yeah including that part of the issue was that they weren't sending their best either it's just all the mediocre talents.

Really not sending our best up there.

Yeah.

Right, right.

The metaphor is going to really be complete when like Thomas steps down and we get like James Ho or Cannon or whoever.

Yeah.

I think it's good that the podcast has changed.

I think it's a, I mean, I don't want to be like patting ourselves on the back or anything, but I do think like.

The moment has changed, right?

I think it's a reflection of the reality of where we are now.

So yeah, we talk about current events more and we talk about Trump a lot more and we talk about,

yeah, just contemporary politics and political conditions more because it's happening right now.

Stuff that we talked about being the goals of the conservative movement are being effectuated right now.

Like they're not planning to roll back the civil rights movement.

They are rolling back the civil rights movement, right?

They're not planning on rolling back the New Deal.

They're not laying the groundwork to roll back the new deal.

They're doing it, right?

It's happening.

And you gotta, you gotta engage with that, right?

Yeah.

So we're doing our best to do that, I think.

Yeah, I think if you have this case in 2005, it's the same holding.

The Supreme Court would be doing the same thing,

but the analysis would have been, like Peter said, just a little bit more shored up.

They would have been at least paying lip service to the law in a different way, to text, to, you know, finding supportive arguments, to finding more precedent that supports their argument, to more than just

what Gorsuch is talking about, where, you know, it doesn't say the right to choose your provider, even though it says free choice of provider and basically just leaving it at that.

And so, yeah, I think our analysis or, you know, the way we have engaged with these changes in the conservative legal movement, let's say, at least in their analysis and at least from the Supreme Court's perspective, I think the way we've changed and engaging with those things is like, it's important for documentation purposes, is important for the historical record, that there is more erraticism, that there is more incoherence, that this is what happens to legal institutions, that this is what happens to the law as authoritarianism and fascism has its victories, is ascendant.

It is important still to engage, even though we can say, like, it really feels like they're just doing victory laps, right?

Like they got Alito, Thomas, Gorsuch, Kavanaugh, they have their shoes up on the desk.

They are chilling.

They are laid back.

They're not even trying.

Again, easiest job in the world right now is to be a conservative Supreme Court justice clerk because you are just copy and pasting, basically.

And so while this seems just so

overwhelming in its bullshittedness,

our continued engagement with this focus on this and description of what is happening, our continued analysis, I think is really important, again, for describing accurately what's happening right now across government and supposedly democratic institutions with the conservative legal movement winning and

just far-right ascendance.

Yeah.

You can see this in broader politics too, where like

what's happening with the Republican Party and the Trump administration, it's the kind of stuff that has never really felt real as a possibility for most people.

It's basically been something that you hold up as like a symbol of what might happen.

Right.

It's the end of the slippery slope.

Right, right.

If the conservative legal movement continues down this path, then one day maybe there will be a court like the one we're seeing right now, right?

That's what we would have previously thought or a lot of people would have previously thought.

And if the Republican Party keeps down this reactionary path, there will one day potentially be an administration that's, you know, just deporting people to gulags without due process and deploying the military domestically, domestically, et cetera, right?

And I think that makes it hard for a lot of people to conceptualize what the next step might be because

you thought your role was playing defense, right?

You thought your role was trying to stop that.

Yeah.

Right.

And now we're in a situation where you are sort of forced to have an affirmative vision.

for the country, for the court, because you can't play defense anymore.

Defense doesn't work anymore.

Too much damage has been done.

This is something we've talked about, like what the liberal legal movement over the last half century has lacked is like a real affirmative vision for what the law should look like, right?

What is our version of originalism or whatever?

Like what do we have besides polite disagreement with the conservative legal movement?

I think you can sort of see the need for that right now.

I see a little of it in like in Justice Jackson, right?

That she has like a vision of the second founding.

of Reconstruction as a moment when the structure of American government was reborn and rebuilt.

There are little slivers of positivity that you can see here.

But I think that's the sort of like basic dilemma facing a lot of people on the left when they try to like think about the problem, right?

Is that like we've reached what we thought was a symbolic end point, but it's not an end point.

It's just reality now.

Right.

I mean, there was a point where in the not too distant past, where being a good government reformer meant like,

oh, they got to reform the filibuster, you know?

Yeah.

And now it's like, we need a third founding.

Yeah.

Yeah.

You know, and it's fucking wild, but it is.

Like, that's like where we are.

It's crazy to think, but it is the reality of where we are.

It's like time to think about what you would do with a constitutional convention, because maybe in 20 years we might need one.

Right.

Are we doing mandatory drag queen brunch?

Think about it.

Yeah.

Yeah.

These things should be on the table.

I mean, everything should be on the table.

We have to think broadly.

I said the conservatives were drunk under victories.

And now I have in my head, like, the shy guy having his first beer and being like, this feels good.

And so having like a second beer and being like, oh, I feel really good.

Then having a third beer and not being too drunk to notice that he's like becoming overbearing.

Yeah.

And like half an hour later, it's like funneling beers and chugging like 151.

Yeah.

And then he drowns in a river.

Right, exactly.

Or needs his stomach pumped.

That's where they're at.

They're at the stomach pump slash drown in a river phase.

Fingers crossed, baby.

Next week,

everyone always wants us to end on a positive note.

The conservative movement is a metaphorical frap boy about the drown in a river.

Yeah.

Next week, premium episode, we'll be answering listener questions.

We'll probably be doing these at a slightly higher rate than we have in the past, just because I feel like people have a lot of questions.

We'll be answering them, we'll be answering them better than anybody.

Follow us on social media at 54Pod.

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Bye.

Bye, everybody.

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