2024-2025 Supreme Court Term Preview

Hey y'all, it's Rhiannon.

This month, as we mark a year of genocide in Gaza, I want to let y'all know about a way that each one of us can help the people of Gaza right now who are still facing bombardment and starvation and forced displacement.

I am joining the call of the Palestinian Youth Movement, the U.S.

Campaign for Palestinian Rights, the Palestinian Feminist Collective, and many others to raise $1 million for the Middle East Children's Alliance, which is a non-profit humanitarian aid organization that delivers life-sustaining services to Palestinians in Gaza, even a year into the genocide, even in places in the Gaza Strip, deemed too dangerous for other international humanitarian organizations.

Since the beginning of the war, MECA and its partners have provided nearly 700,000 meals, 20,000 hygiene kits, 1 million gallons of water, and tens of thousands of warm clothes sets to my people in Gaza.

MECA also supports educational and mental health programming for kids.

I am never prouder to be Palestinian than when I've seen images of young children in Gaza, in like a makeshift classroom in a bombed-out building, and they're singing songs about the joyous future ahead.

So, importantly for me, this isn't just about charity.

Donating to help MECA continue to do its work in Gaza right now is a way to support the continued steadfastness and resilience of the people of Gaza in the face of unspeakable horror, some of the worst humanitarian crimes of the modern era.

My people in Gaza remain unbroken.

So your donation means a hot meal, a warm jacket, a menstruation kit, which is to say, it means the world.

You can make a donation at shutitown4palestine.org slash fundraiser.

That's shut it down and the number four

palestine.org slash fundraiser.

That link will be in the show notes.

Thank you to each and every one of you.

Free Palestine.

We were joking this morning, our morning meeting, that we feel like the 1950s are back.

We're having culture wars.

Hey everyone, this is Leon from Prologue Projects.

On this episode of 5-4, Peter, Rhiannon, and Michael are talking about the upcoming Supreme Court term.

The term will center around the culture wars, porn, guns, and trans rights.

We're just learning the high court will weigh in on state restrictions on gender-affirming care for young people.

Adult entertainment website Pornhub can no longer be accessed here in Texas.

A free speech group sued to stop this law, but a judge sided with the state saying it does not violate free speech.

The host will also discuss a case from a man on death row who is arguing that all exculpatory evidence must be shared with the defense, as well as their fears around the upcoming election and how the court could handle contested election results.

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 arrested our civil liberties, like Donald Trump arresting us in four months.

Oh.

Yeah.

I'm Peter.

I'm here with Rhiannon.

Hey.

And Michael.

Yeah, I saw he just said he thinks anybody who criticizes the Supreme Court should be arrested.

Yeah.

Round two for me already?

I want to say, officially,

we were joking.

This whole thing has been a goof.

You think I'm ready to

go down for my principles?

Absolutely not, folks.

Again, I've said this before.

I'll say it again.

I've seen Peter's hands.

Okay.

He is not ready.

His skincare routine alone.

This man isn't ready to see the inside of a jail cell.

No.

Don't be fooled by my imposing demeanor and physique.

Dude, if

Trump wins, Peter's like walking into the U.S.

Attorney's office the next day to like die less out.

Be like,

I'll cut a deal.

I'm ready to take a deal.

Whatever you want to know about Rhiannon and Michael, Donald, Mr.

Trump, Mr.

Trump, Mr.

President,

I will tell you.

Before any threat of prosecution for myself, I'm going to just offer this up right off the bat.

Yes.

Offering cooperation, not under any threat of prosecution.

No.

All right.

Today's episode is a term preview for the Supreme Court term to come.

the Supreme Court that, at the time of publishing, will have just started.

Before every term starts, we'd like to take a gander at the cases that loom the most ominously, shall we say, and discuss what might happen.

Yeah, the darkest clouds on the horizon.

Do you know what I think of when we do these episodes?

What?

There's a scene in Rocky III where Mr.

T is being interviewed before the big fight.

Okay.

And his name is Clubber Lang, and they ask Clubber, what do you think is going to happen in the fight?

And he looks right at the camera and he goes, Prediction?

Yes, prediction.

Pain.

That is what I think of every time we do these episodes.

That's it.

That's my prediction.

Yeah, buckle up.

So every

term is characterized by a handful of cases.

A couple of years ago, it was Dobbs and the ascendants of like originalism.

This year was the court's power grab and and their defense of Trump.

And just eyeballing it, next year is about the culture war.

Yeah.

Trans rights, guns, porn.

We're going to talk about all of it.

But first, there is a pressing issue.

What's disconcerting about this upcoming term is not just the cases that the court has accepted onto its docket, but those that it is likely to accept in the next few months.

So before we go any further, let's talk about the possibility of election shenanigans.

Yeah, they're coming.

Yeah.

They're happening already, right?

Yeah.

The

last I checked, which was literally like a month ago, so this is outdated, the DNC had filed like two dozen cases and the RNC over 90.

So

things are already kicking off, right?

Those are early September numbers.

And I want to cover in sort of broad strokes, because we don't know what's going to come up to the Supreme Court.

What we might see, right?

Now, one of the obvious things is that the Supreme Court recently handed itself the power

to hear challenges to state Supreme Court rulings on the content of state rules.

So you might get some of those, right?

Now, again, it's hard to know what cases will be the most pertinent and which will rise to the court.

So let's identify some broad categories.

I think the simplest way to look at election cases is as having two fronts.

One, pre-election, where the disputes mostly revolve around Republicans trying to limit ballot access and do your classic vote suppression sort of thing, right?

And then post-election, where they will revolve around challenges to ballots and perhaps the certification process itself.

So on the front end, you're looking at things like attempts to purge voters from the voter rolls, right?

There are something like three dozen active cases right now pertaining to voter role purges in this country.

The RNC brought a case in Nevada claiming that state officials were not properly maintaining the voter rolls and that they were becoming bloated with illegal immigrant voters or something like that.

Something so stupid that

it's just another little reminder that our world is a hellscape, you know?

You have efforts to limit polling places, the number and availability of polling places in Democratic areas.

You have a lot of fighting about mail-in ballots in various states.

That's the big one, right?

Now, the back end, the post-election challenges, it's where things get a little weirder because really until 2020, Back-end challenges to election results were not a thing that we saw very very often.

It was really just a failed coup in 2020 that turned this into the focus of Republican efforts.

So what has happened since then is that Republicans at the state and local level have started to lay the groundwork to make those back-end challenges more viable.

And

the state where this has happened the most intensely is probably Georgia.

So the GOP has worked to secure a majority on the state election board in Georgia for MAGA freaks.

So last time when Trump made the phone call to the Secretary of State in Georgia asking him to find some extra votes, the guy was like, no, sir, I respect you, but I will not do that because of my duty to the Constitution or whatever nerd Republican shit he said, right?

Still the Secretary of State, by the way, Raffensperger.

That's right.

Now the MAGA wing has sort of removed that point of friction by seizing seizing control of the board, and the board has granted itself an enormous amount of discretion to identify so-called discrepancies in voting and come up with solutions, quote unquote, big, big air quotes, to those discrepancies basically on the fly.

So you could see where this is headed.

Right.

Now,

I think a good way to think about the problem being posed here is that in 2020 you had results coming in, and then Trump challenges the results after the fact, which is tough because the votes have been tallied.

And if you're Trump and you lost, you need one of two things to happen: one, you need to find more Trump votes somehow, or two, you need a legally valid reason to disqualify a very large number of your opponents' votes, right?

That's challenging if you are Trump.

That's tough.

Because, like, yes, you can go to court and allege voter fraud, but very importantly, you will be lying.

So you're sort of just stuck streaming in court, right?

Right.

So how do you solve this problem if you are a MAGA nutcase?

The way around this problem is that you gum up the works in the vote tallying process itself.

That way, you never get to the point where there's an official tally and Trump has lost.

And you just have this like veneer of plausibility to Trump's claim that he won, right?

There will be some group of ballots that go uncounted because of allegations of fraud.

And we will never really know what's in that group of ballots, right?

Yeah.

And they will all be in like Atlanta.

Right, right.

So what I'm imagining here is a lot less 2020, a lot more 2000.

Yes.

Although worse, worse, of course.

And, you know, I think big picture, this is sort of like the natural.

conclusion to the strategy of the GOP where the front end vote suppression becomes inadequate for an increasingly unpopular party, right?

You can only do so much by limiting mail-in ballot access or whatever.

Why bother with that kind of shit

when you can just do like a full-on right-to-the-face fraud?

And I believe that that's what they're envisioning in Georgia especially, but across the country for sure.

I think in my mind, that's the real risk in 2024.

There are some other possible disputes, of course.

A big one is the Electoral Count Reform Act which tries to eliminate some ambiguities from the Electoral Count Act of 1886

that January 6th folks took advantage of.

That law had a safe harbor provision.

If you submit your slate of electors by a given date, that slate is presumptively conclusive, meaning Congress can't challenge it.

The amended act, that's replaced with a rule that says that states must submit their slate of electors by a certain date, but

there's no consequence for not doing so listed.

Peter, was that a Rhiannon butt?

Can I just butt in?

Wow.

Maybe it was.

I heard myself

just now when you said, but.

Look, both of you inspire me in various ways.

Doth she rub off on the bobbling?

Yeah, I know.

I give you credit.

I give you credit there.

Now, yeah, so some entrepreneurial young election denier might try to figure out what happens when you don't hand in your slate of electors, right?

And then there's other issues lurking around.

There's still the possibility of the disqualification of Donald Trump under Section 3 of the 14th Amendment, which says that, you know, insurrectionists who held office can't.

hold office.

Perhaps we might see objections to the certification of Trump's votes, for example.

That would require some pretty aggressive action by Democrats, so I'm not exactly holding my breath there.

But, you know, these are the kinds of fun legal theories that we get to float before it all comes crashing down on us.

But I think that's sort of my high level of the election shit.

You know, we'll take it as it comes.

There's no need to go deep diving into any case.

The cases will come to us.

That's right.

Speaking of insurrection.

Speaking of insurrection looming on the horizon, coming to us, being served to us on a platter.

You might be wondering what's going on with Trump and immunity and all his various criminal cases.

I'm here to give you the updates.

So first on the insurrection case, as you probably know, we did an episode about the court, Supreme Court, granting Trump blanket immunity for some of his behavior in the lead up to the coup, presumptive immunity for other behaviors in his lead up to the coup, and then disclaiming immunity for some third category of behaviors.

Since then, Jack Smith went to a grand jury and re-indicted Trump, excised all the facts that the Supreme Court had said were absolutely immune, and almost all the facts that the court had said were presumptively immune, and got a grand jury to nonetheless give him a new indictment on the same four counts.

He's also tweaked his indictment a little bit.

The language really focuses on how Trump is doing a lot of this stuff in his capacity as a candidate for president, not as the sitting president.

So that is in process.

Judge Chukten has set out a briefing schedule, and that will be going on during and after the election.

And if Trump loses the election

and the trial continues, because if he wins the election, he's sacking Merrick Garland and Jack Smith and possibly executing them.

But assuming he loses and this trial goes forward, there will be an opportunity then for all of the trial courts' determinations about what is and isn't immune conduct to then make its way back up to the Supreme Court.

So we may be there again,

you know.

By the way, if I can offer up my cooperation again, I will participate in the sham trial against Merrick Garland.

I'm absolutely happy to lend my hand to that effort.

There's also the case that has

earned Trump the convicted felon moniker, the hush money trial in New York.

That case is set for sentencing after the election.

The trial judge delayed that until after the election facing political pressures.

There are some questions as to whether or not the jury heard about conduct that the Supreme Court would say is immune conduct.

And as you might recall, the Supreme Court went out of its way to say that juries can't hear about any conduct that is immune conduct, even if that's not the conduct that the president is technically on trial for.

So I don't think that's going to change whether or not he gets sentenced, and if so, whether or not Trump was unfairly prejudiced by that.

And those determinations could in turn make their way up to the Supreme Court, which could in turn require a whole new trial.

They could say he needs to be tried all over again for that without any immune material making its way in to prejudice the jury.

There is, of course, also the documents case, which is interesting because all the behavior,

all the charged conduct postdates his presidency and so is outside the realm of the immunity decision, but was assigned to possibly the biggest hack in all of the federal judiciary, Eileen Cannon, who has dismissed this case on the grounds that Jack Smith is not a valid constitutional officer.

He was not appointed.

Absolutely cooked.

In keeping with the appropriations clause and in the appointments clause.

Can we also talk about the fact that she now has the case against the would-be assassin

of Donald Trump?

She's just going to spend the entire trial just crying and saluting the flag.

How dare you?

Oh, man.

It's,

Of course, all these cases are going to be colored by the posture with which they arrive at the court.

And by that, I don't mean their like legal posture.

I mean whether Trump is the incoming president or sitting president or a second time loser, right?

If he loses this election and doesn't manage to steal it, he will be at his sort of nadir

of political power and will not be in as strong a position to bully the Supreme Court.

Yeah.

And then we will arrest him.

That's right.

Citizens' arrest.

So it's possible that these cases arrive at a court that, as much as they love Trump, have decided that he's yesterday's news rather than, you know, like the sitting nominee for their...

preferred party, in which case he might lose.

We'll see.

Who knows?

Only the future will reveal this to us.

Only those dark, ominous clouds on the horizon know the answer.

Yeah.

I'm just going to have another sleep of myself.

Yeah.

So maybe let's turn to the culture war bullshit that's also coming up this term.

The actual cases that they have accepted.

Yeah.

These are cases on the docket.

There will be oral argument and there will be decisions on these.

The first up, Peter mentioned trans rights on the Supreme Court docket this term.

This is United States v.

Skirmetti.

This is an equal protection challenge, a 14th Amendment challenge to Tennessee's Senate Bill 1, which prohibits the sort of prescription of medication to minors, medication that includes puberty blockers or hormones that would assist minors with gender transition or treat gender dysphoria.

SB1, the state law that was passed in Tennessee, prohibits all medical treatments intended to allow, quote, a minor to identify with or live as a purported identity inconsistent with the minor's sex or to treat purported discomfort or distress from a discordance between the minor's sex and asserted identity.

So you see obviously the direct attack on gender identity that doesn't match assigned sex at birth as sort of like purported.

This is fake.

And the state stepping in here to prohibit this kind of, not just life-saving, but necessary medical treatment for minors experiencing gender dysphoria or wanting to transition.

So, the legal question here actually is whether or not this is sex discrimination, if this is discrimination on the basis of somebody's sex.

And we should back up a little bit to explain how the court might sort of reason through this.

So, back in 2020, there was a case called Bostock v.

Clayton County.

In that case, which was about employment discrimination under Title VII,

the Supreme Court held this was a six to three decision with Gorsuch and Roberts joining the liberals.

And the Supreme Court said that an employer who fires an individual based on their sexual orientation, that's a violation of Title VII.

And backing up a little bit, The way the court, including these two conservatives, gets to that holding is by saying that this is an illegal application of sex stereotypes on people.

That's what the law bans is stereotyping that can be applied to people in discriminatory ways.

So, the idea with sexual orientation is that, well, if your sex is male, then these discriminatory stereotypes would like sort of force or have the expectation that a male would only be intimately partnered with or love or marry a woman.

That is discrimination according to the Supreme Court.

That's a violation of at least Title VII.

And now we have this constitutional challenge in this Tennessee case.

This is a 14th Amendment challenge, again, saying that it violates these children's equal protection under the law, but for similar reasons here, that discriminatory stereotypes are being applied through this law onto children based on their assigned sex at birth that are unconstitutional.

Now, what Tennessee is saying here is really fucking dumb.

They're saying this isn't sex discrimination.

This isn't discrimination that has to do with sex stereotypes.

This is discrimination, you know, like based on age, it's based on medical condition.

The state can do things for like wellness and welfare of the people and health, and that's not unconstitutional.

And the state says this law treats similarly situated boys and girls the same,

neither can transition, neither can get medical treatment for gender dysphoria.

But that's a really similar argument, just in a different form that was put forward in Bostock and rejected.

And the court seemed to then base their decision on this like really simple analysis, which is like,

would this person,

if they were the other gender, be treated differently by this law?

The answer is yes.

Right.

So the idea is that these medications are only prohibited by this law if you are using them to transition or treat gender dysphoria.

Right.

So

if you're just popping them, if they're prescribed for some other reason,

that would not necessarily violate this law.

That means that the law is discriminating based on gender, right?

So that sort of creates this situation where perhaps this violates the Equal Protection Clause.

In a way, you know, Bostock was about Title VIIs.

It was really about statutory interpretation.

It's not quite the same.

But the basic analysis of like whether this discriminates on the basis of sex, I think actually should be the same.

I doubt the court will agree, but

I think that's, it feels pretty common sense to me.

Yeah, I think it'll be interesting to see,

like maybe Gorsuch is still here.

Gorsuch wrote the majority in Bostock.

Maybe Gorsuch is is still here, but like we just did a whole episode about how Roberts is like,

you know, completely masked off, doesn't give a fuck anymore, totally with the hyper, super conservative.

There's also a big difference between

being pro-gay rights in like 2019 and being pro-trans rights in 2024.

In 2024, I think that's right.

And I think they might use the fact that this is a constitutional challenge, that this is a 14th Amendment thing and not just a federal law, Title VII, to say like, no, the Constitution does not protect on this basis.

Yeah, we even, I think, speculated in our episode on Bostock, or at least we talked about it in prep, that the Libs, the winning side had a majority without Roberts.

And there was some question as to whether he joined them just so he could assign it to Gorsuch and shape the ruling and as to whether he would actually come down in that way if he were the swing vote, given where he had landed in like Obergefell, for example, where he was in dissent.

So I wouldn't be counting on him as your fifth vote here, even if Gorsuch is

still on board.

We are planning to do a deeper dive on the state of trans rights in the courts right now.

So we don't have to go too much deeper than that, I think, for now.

Now, the next big case, it's about guns.

Pew, pew, pew.

Ghost guns, folks.

Garland v.

Vanderstock.

Get it.

This is about,

yes.

This is about what are called ghost guns.

Ghost guns are guns that are essentially homemade.

Yeah.

Relevant for this case, there are kits that you can buy that are essentially ready to assemble firearms.

This functions to skirt around a federal law called the Gun Control Act, which imposes certain requirements on firearms, like serial numbers, for example.

The law defines a firearm as any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive as well as the frame or receiver of any such weapon.

So this is not a Second Amendment case.

This is about whether a device that can be readily converted into a firearm or a frame or receiver is regulated under the law.

The Fifth Circuit has said, no, this is different.

What is a gun?

What is, you know,

the Lego set that you can turn into a gun clearly is not a gun.

You have to understand.

You can't take this logic too far.

What about any metal on the ground combined,

melted

in the correct irons could eventually be turned into a gun.

So are you saying that metal should be illegal, Michael?

Is that what you're saying?

Yes, I am.

You know what's so crazy?

Like, having, yeah, obviously, like, having the Bronze Age was a mistake.

We're going back to the stones, baby.

You know what's so crazy, like, having been a public defender when you defend people on like ag assault with a deadly weapon, the crazy things that prosecutors will allege and like fall under the law, under like the definition of weapon, like fists, rocks, uh, car, horse.

We're in Texas, um, you know, like all that, all that kind of stuff.

So, obviously, a gun built from a kit that was used to hurt somebody would, under the law in criminal prosecution, certainly count as a weapon.

But it's really funny that, like, the definition of gun, though, is, you know, like sort of up in the air over this shit.

It's very funny to me that, like, if, if there's a Theseus' ship kind of thing going on here, right?

Like what?

As Theseus' ship is, it's a, you know, a These ship?

The ship of Theseus?

No, it's like...

I probably do.

I just don't know the name.

There's a ship.

If you take one part of it and replace it, it's still Theseus' ship.

But if you replace every piece, like over time, at what point is it not no longer the same ship?

Did you say women in STEM?

As just a, you know, it's one of those

allegorical sort of things that you say when you want to make a point on a podcast.

You Talk about it in like sophomore year philosophy.

Yeah, yeah, yeah.

If you were a philosophy major, it's the allegory of the cave-level philosophy, right?

It's like one of the first things you learn.

You're like, whoa.

Yeah.

Yeah.

What is real life?

Right.

Right.

The shadows, noble savage, and Theseus' ship.

Got it.

That's also what the Fifth Circuit is doing, where they're like, well, like, you have this thing, and everyone agrees that it's a gun.

But then what if you made it into two parts?

What if you separated one part from the other?

Still a gun?

The Fifth Circuit's like, I don't know.

Not sure.

I don't know.

We're getting pretty far from a gun now.

Yeah.

Anyway, that case should be stupid.

It's always exciting to see what is and is not a gun in the minds of a Supreme Court justice.

We just found out that, of course, bump stocks, not machine guns, despite functioning identically.

So I'm excited to find out that when you divide a gun into like three pieces, it's just no longer a gun legally.

Yeah.

Continuing on in the Culture War stuff, we have the Free Speech Coalition v.

Paxton.

This is an interesting case.

It's about what happens when your stepmom is stuck in a Washington machine.

No!

No!

No!

No, no, no.

This is the porn case, folks.

And

Michael wasn't participating in prep, but he just kept texting us, like, let me handle this case.

I'm deep in the research here.

I've been looking into this.

Lies, lies.

This case is about a Texas law that says basically if a website has more than a third of its content that's harmful to minors, like porn, apparently is harmful to minors, then you need to verify your age, verify that you're an adult

by engaging in a sort of identity verification where you have to de-anonymize.

You have to name yourself.

So, the Free Speech Coalition, the ACLU, a bunch of porn sites are saying this violates the First Amendment.

This is chilling people's speech.

If people want to look at porn, that's protected by the First Amendment.

And Texas is saying, no, we're protecting kids here from the vagaries of Twitter, which is now almost entirely porn bots.

Nazis and porn bots is

fairly.

So there is a bunch of really incoherent precedent here.

The precedent, especially around pornography, like the court has gone back and forth on rules in the last hundred years about whether and to what degree pornography is covered by the First Amendment.

There's also,

more generally speaking, what they call content-based restrictions, rules about content-based restrictions, which they're very wary of.

Generally speaking, if the government is regulating speech, like, for example, what you put on a website based on its content, like, for example, whether or not it's pornographic.

Generally, the court is very suspicious of that and it has to survive a strict test, strict scrutiny, which we've talked about on the podcast before.

In this case, the Fifth Circuit said, actually, well, this is about protecting kids.

And so it's rational basis review.

Fuck that.

And rational basis review is very easy to satisfy.

And, you know, therefore, the law survives.

That's the basic outline of the jurisprudence and the

subject of the case.

It's interesting.

It's an opportunity, perhaps, for the court to dabble in some more of its

turning every every single legal test into a history and tradition test.

Yeah.

That's very possible.

Yep.

Yep.

And it's also, I mean, it's interesting.

They had to do this now because Clarence Thomas might leave the court in the next few years.

And it's rare that you get a subject matter expert on court

for a case such as this.

Oh!

Look, look, he went to porn theaters, but let's not shame anyone for their kinks.

Sure.

He's no Mark Robinson.

I'll tell you what.

I'll tell you what.

He's no Mark Robinson.

This is a sex positive Supreme Court negative podcast, okay?

That's right.

Yeah.

That's right.

Sure, guys.

Sure.

Clarence Thomas defenders here.

No,

I shame you.

Looking at porn now in the modern era, normal.

Looking at porn in the 80s at a theater, you should be ashamed.

Disgusting.

What a filthy time.

Okay, history and tradition, though, right?

There's an argument that historically and traditionally

it was worse.

Back when the Constitution was written, you had to go to a live sex show.

That was all there was available.

Do you know what the founding fathers were getting into sexually on the weekends?

Ben Franklin, that guy was a freak.

Who needs porn when you can just go off to Paris and spread syphilis?

Right.

Yes.

This case is concerning, though.

I think not just for the history and tradition stuff, but also

in general.

Again, if there is a second-term Trump presidency, we joked about it at the top of the podcast, but I would expect to see lots of speech restrictions coming from his administration, not just at podcasters who

criticize the Supreme Court, but

all sorts of speech restrictions.

Yeah.

So get your final jerks in, folks.

Wrap it up.

This could be a sort of harbinger of how

much the Supreme Court's going to tolerate a sort of authoritarian crackdowns on speech.

I hope it goes wrong because I would love to do an episode where we're just cracking porn jokes the entire time.

And Texas is just doing culture war bullshit, right?

Like

what is the point?

Like it's just to be like we're doing

religious righteousness or something.

I also imagine that what's actually happening here is that it's it's like funneling people to like shady porn sites, right?

Like, that's what I imagine is the function.

Absolutely.

Yeah.

Yeah.

Like, I mean, especially because, like, conservatives are so porn-brained these days.

It's like, it's very bad.

But, yeah, I would assume this just leads to the proliferation of VPNs and

shitty porn sites and lots of viruses,

computer viruses

circulating in Texas because everybody's going to the

this is why Rhea is finally gonna move.

It wasn't Dobbs.

This is what does it for me.

It wasn't Dobbs.

It wasn't any of that.

Yeah.

Rhea's like, this is the final straw for me.

I'm done with Texas.

I have to verify my age when I go to my preferred porn websites.

Absolutely not.

All right.

I keep looking at our outline of the cases that we're going to cover.

And I'm sorry for putting the death penalty right after porn, but that's.

We are.

Yeah, we did porn.

And not just that, but ending on the death penalty one where I should have flipped it.

Yeah, yeah, that's right.

That would have been a rough transition, too.

That's right.

I would have made the same joke.

Yeah.

We probably should have given some more thought to the order of

these cases in this episode, but we are ending on a death penalty case.

Actually, maybe before we even get to this death penalty case that's on the Supreme Court's docket this term, we do need to mention, I think, Marcellus Williams, a death sentence individual who tonight, as we're recording this, was executed.

And I'm just making a note here.

We're going to be talking about Mr.

Williams at the end of this episode.

But back to the death penalty case that is on the Supreme Court's docket this term.

It's actually a death sentenced individual who you may have heard about already, a death sentence individual who has been to the Supreme Court before.

This is Richard Glossop.

We've done an episode on Richard Glossop's case that previously went to the Supreme Court.

That was called Glossop v.

Gross.

And Richard Glossop is back at the Supreme Court now.

That previous case, Glossop v.

Gross, that was actually on behalf of a group of death sentenced individuals, including Richard Glossop, who were back in 2015 challenging the drug protocol that was being used in executions, saying that basically that drug protocol, which was not reliable, which led to obviously very long, sort of drawn out and painful deaths of death sentence individuals, that that was cruel and unusual punishment.

The Supreme Court allowed those drug protocols to continue to be used in death sentences.

Richard Glossop in this case, though, is challenging something else about the case.

In this case, it's Brady evidence.

We've talked about Brady before.

Brady evidence is the the kind of evidence that is exculpatory or mitigating of somebody's culpability.

Evidence that shows that criminal defendant actually didn't do something, is actually innocent.

That's Brady evidence.

And Brady is the Supreme Court case that says that prosecutors, the state, the government in a criminal case, they have to turn over exculpatory evidence to the defense.

There's another case called Napiu, which says that, yes, prosecutors do have to turn over exculpatory evidence.

And part of prosecutors' burden is that when somebody testifies at trial and the prosecutor knows that that testimony is false, is incorrect, that somebody lies on the stand, the prosecutor has to say something.

The prosecutor has to tell the defense or the prosecutor has to correct that.

And so this is about evidence.

in Richard Glossop's underlying case, evidence at trial when he was found guilty of capital murder and sentenced to death.

It is evidence that was not turned over.

The prosecutor did not correct incorrect testimony.

If you go back and listen to Glossop v.

Gross, we kind of go into details with what happened in Richard Glossop's trial.

But as a quick summary, the star witness, Justin Sneed, testified at trial that Richard Glossop had paid him, had paid Sneed to kill the decedent, Barry Van Tries.

When testifying, Sneed said that he had never received psychiatric care and that there was a time when he took lithium, but it was on accident.

Now, all of this is relevant in

with the idea being that like this, this kind of evidence is important in assessing a witness's credibility, in assessing a witness's mental health, you know, their kind of like psychiatric state, et cetera, that is all relevant to obviously a criminal trial in which this person is saying that the defendant at trial paid them to kill somebody.

Now, when Sneed said that he had never received psychiatric care and that the lithium that he had previously taken on a previous occasion or occasions was on accident, the prosecutor, the state in Richard Glossop's trial knew that that was false testimony and they never corrected the record.

They never revealed the truth to the defense.

So That's what's being brought up to the Supreme Court here.

And there are a lot of procedural hurdles, a lot of procedural legal questions that Richard Glossop has to overcome in order to win this case and have this death sentence overturned.

So there's a materiality question.

When Brady evidence or evidence about false testimony, when that is not revealed to the defense, it still has to be found that it was material.

That would have changed the jury's verdict, basically.

So in this case, if the jury had known that Sneed lied on the stand, that Sneed had received psychiatric care in the past and had been prescribed lithium by a psychiatrist.

Would that have changed their determination in the case?

There's also a due process question here, whether Richard Glossop is making the claim that the prosecutor not revealing the false testimony violates his due process rights.

So that's a whole other constitutional question.

And then there are also what I think, in my opinion, are the hardest procedural hurdles for Richard Glossop to win here.

There are procedural questions about if Richard Glossop, at this point in his appeals process, can even bring this question up.

Whether this is, quote unquote, an unfair, like second bite at the apple.

That at some previous point in his appeals, Richard Glossop should have brought up this argument about the Brady evidence, about the prosecutor not revealing false testimony to the defense.

And And since he hasn't up until this point, I'm simplifying and summarizing, is he allowed to now?

On those final procedural questions, I think it really doesn't look good for Richard Glossop.

We know that Clarence Thomas, we know that Sam Alito, we know that Gorsuch and really the rest of the conservatives, especially in the past few years, have really, really sort of ramped up what I would call a bald and extreme cruelty for death sentenced individuals and criminal defendants in general on these post-conviction procedural questions about when and how you can make a claim, whether it's a claim of actual innocence, whether it's a claim of, you know, unrevealed exculpatory evidence, what have you.

I think that legal hurdle is probably the hardest for Richard Glossop to overcome in this case.

I mean, the weird thing about this case is that this is about a ruling of the Oklahoma Criminal Court of Appeals, but the state of Oklahoma is on Glossop's side.

And they are like filing briefs in support of him.

They don't want this to go ahead.

There's another, one of the questions presented here and something that the court has brought up is whether there is a due process concern here because

Oklahoma basically agrees with Glossop that this prosecution was so riddled with errors that it shouldn't stand.

So basically,

in a sense, asking like, is there an exception here, perhaps, for a situation where the state is like, yeah, we fucked this up, right?

Right.

Yeah.

So maybe that, I mean, you know, I, you don't want to get too hopeful with the Supreme Court, but I try to be hopeful in these cases at least where it's like, maybe, maybe there's an exit ramp for the procedural psychos on the court.

Who knows?

Yeah.

Yeah.

Well,

I don't want anyone listening to think that there aren't more awful cases in the works at the court.

These were just the ones that jumped out to us.

There's also lower court cases percolating.

One of the highest profile is the questioning of the constitutionality of the NLRB, the National Labor Relations Board.

Elon Musk and

several large companies have challenged the constitutionality of the NLRB in the last several months.

And those are...

I think maybe even the Audubon Society is getting in on the act.

What?

Once the gauntlet's been thrown down, everyone brings it up.

The end of the NLRB would be functionally the end of the American Union as it exists right now.

So something to keep your eye on, even though it has not been brought up to the Supreme Court just yet.

There are horrors even further out on the horizon.

Next week, Mackenzie v.

Hare.

this is a case from 1915 that a bunch of people had asked us about because

it involves, shall we say, the precarity of American citizenship.

And a lot of sexism.

And sexism, but we won't be talking about that.

We're talking about important stuff, okay?

Yeah.

No, you don't want intersectionality.

It's too confusing.

It's too much.

You just have to pick the largest oppression.

So, in the last few weeks, we have heard the Project 2025 psychos and their friends start to talk about denaturalization in a second Trump term, denaturalization, the process of stripping citizenship from naturalized citizens, which would mean that what they're going to do is attempt to strip citizenship from naturalized immigrants en masse.

So that might seem crazy and out there and unconstitutional to a lot of people when they first hear it.

We're going to talk about a case from 100 years ago that talked about this sort of thing pretty openly.

And since that's the point in time that this court is trying to return us to, we feel that it is relevant to the Supreme Court.

Yes.

So we'll be talking about that and some other sort of Trump 2.0 themed shit in the next month as the election encroaches.

We're going to talk about trans rights.

We're going to talk about the potential coup.

We're going to check in in a few weeks.

Where is it?

Where's the coup sitting right now?

How are we doing?

Probably be playing that one by ear, you know?

And then, of course, there will be an episode where we are either fleeing the country

or whatever the emotion is when a Democrat wins an election.

Just sort of nodding politely, thumbs up.

All of the emotions that the Democratic Party is capable of conjuring up in us.

Can't wait.

Can't wait.

Follow us on social media at 54Pod.

Subscribe to our Patreon, patreon.com/slash five fourpod, all spelled out for access to premium episodes, special events, our Slack, all sorts of shit.

Premium feeds should be

getting spicy as the election rolls around.

We'll see you next week.

Bye, everybody.

Bye.

5-4 is presented by Prologue Projects.

This episode was produced by Dustin DeSoto.

Leon Nayfok and Andrew Parsons provide editorial support.

Our website was designed by Peter Murphy.

Our artwork is by Teddy Blanks at ChiffsNY, 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/slash five for pod.

Before we totally wrap up the episode, I think we would be remiss if we didn't mention Marcellus Williams.

Marcellus was executed tonight, the evening that we're recording this, executed tonight by the state of Missouri.

He was 55 years old.

Williams was convicted of a 1998 murder in St.

Louis that later DNA evidence showed he was innocent of, that later the victim's family opposed Marcellus Williams' conviction and execution, and that eventually the prosecutors who had prosecuted Marcellus Williams also sought to undo that death sentence.

The U.S.

Supreme Court declined to stay Marcellus Williams' execution tonight.

The governor of Missouri declined to grant Marcellus Williams clemency, and so he was executed.

I just want to read maybe in honor of Marcellus Williams a poem that he wrote while he was on death row called The Perplexing Smiles of the Children of Palestine.

Despite the actions of the few and excessive retaliation, drones, planes, bombs, tanks, rubble, Buildings demolished, vanished houses and neighborhoods, hospitals targeted, UN shelters disrespected, murder, death, deliberate killings of non-combatants, babies buried alive, amputations, hunger and political starvation, lack of or no water, strategic sanitation, daily terror, and terrorized daily, military maneuvering, moving here and there, to return back again to nowhere, trauma with all its manifestations, international parlays and hesitation, defiance to the realization of two nations, global aid thwarted, global amnesia, siblings and relatives gone forever, parental worries, in the face of apex arrogance and ethnic cleansing by any definition, still your laughter can be heard, and somehow you're able to smile, O resilient children of Palestine.

So we just wanted to honor Marcellus Williams' life and point out here that all oppressed people all over the world are connected and they know it, and we will honor all our martyrs.