“What if Trump Dies?” And Other Questions

All right, everybody.

We had a listener QA episode planned, but we have to put that on hold because we've just scored the interview of a lifetime, frankly.

This is huge.

Very excited.

Amy Coney Barrett, Supreme Court nominee and likely the next justice on the court, is on the line.

Judge Barrett, welcome to the show.

Thank you very much.

And I am so grateful for your kindness on this rather overwhelming occasion.

Yeah,

sure.

So, first of all, congratulations.

How are you doing?

The president has nominated me to serve on the United States Supreme Court.

Yeah.

Okay, we wanted to start by getting a sense of what your philosophy on interpreting the Constitution is.

How would you describe it?

I love the United States, and I love the United States Constitution.

Right, right.

Okay.

So you'll be replacing Justice Ruth Bader Ginsburg on the court.

Those are some pretty big shoes to fill.

Are there any lessons that you take from her career?

Particularly poignant to me was her long and deep friendship with Justice Antony.

Sorry, Julia.

I don't mean to cut you off, but did you just say poignant?

Poignant.

Are you trying to say poignant?

Poignant.

Poignant.

The G sound is sort of old French, so it's poignant.

Poignant.

Okay, it feels like we're kind of hitting a wall here.

I think we should probably just end this interview unless.

Rhea or Michael, do you have any questions?

No.

No.

Okay, well, thanks for coming on, Judge Barrett, and good luck at the hearings.

Poignant.

All right, Leon, you can just do the intro, dude.

Hey, everyone.

This is Leon from Viasco and Slowburn.

On today's episode of 5-4, Peter, Rhiannon, and Michael talk about Donald Trump contracting COVID-19 and how the consequences might affect the Supreme Court.

Also, for the first time, the hosts are answering listener questions.

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

All right, folks.

We're sorry about the interview falling apart there.

We're just going to go with our scheduled programming, which is a special listener Q ⁇ A episode.

So we've been taking questions for a few weeks and we're going to answer them to the best of our ability.

Not everyone.

Not all of them.

Not all of them.

A lot of them were, I'm going to be honest, disappointing.

I might even say disturbing, some of them.

Yeah.

Before we get to listener questions,

I think we need to talk a little bit about current events.

There are a couple happening.

Yeah.

As a country, we have been for years in a storm.

Our lives, our bodies, our minds battered and eroded by ceaseless wind and rain.

We've grown to know only the storm, right?

Only the suffering.

We've become weary and hardened.

But early this past Friday morning, for the first time anyone can remember,

sunlight crested on the distant horizon.

And while clouds still hang overhead we can feel the sunbeams dancing briefly across our faces

Donald Trump has COVID-19

how are you guys feeling oh I feel fucking great I have never felt more alive more high I can feel the blood running through my veins.

I feel my heart pounding in my face.

Yeah, I might stop drinking.

I just, I don't really feel like I need anything anymore.

You know, things are developing quickly.

So by the time you listen to this, you will almost certainly know more than we do now.

But following Hope Hicks testing positive for COVID, Trump and Melania tested positive.

Kellyanne Conway tested positive.

Ron McDaniel, head of the Republican National Committee, tested positive.

Chris Christie tested positive.

Mike Lee and Senator Tillis, both senators on the Senate Judiciary Committee, tested positive.

And from from what we can tell, this all traces back to the Amy Coney Barrett nomination press conference, where Republican top brass ran a public victory lap about replacing RBG.

It's more beautiful than I thought it was possible.

Right.

And apparently, God had had enough.

That was it.

Because the disease that these just endlessly selfish, effervescently stupid pieces of shit have been ignoring and downplaying for months, has come to feast on their flabby, decrepit bodies.

Right.

How anyone can pretend this is not pure poetry is beyond me.

Yeah.

Yeah.

Ron Johnson, by the way, also testing positive, who is not at the Super Spreader event and not on the Judiciary Committee, which means this is definitely leaked into like the broader Republican caucus, which is beautiful.

The Republican strategy of pretending this is not happening and all going to regular parties where they kiss each other has backfired.

Right, right.

Yeah.

And Michael, I know you are about to tell us about how this will affect Senate hearings and the procedures and stuff to come.

But I think that I want to make a point about compassion.

You know, the news came out and inevitably you get these fucking hand wringers, these pearl clutchers who say that, I don't know, I'm a bad person because I got excited.

You know what I mean?

I felt good hearing the news that Trump got COVID.

You should wish him well, a quick recovery.

Right.

And we need to wish him well because if we don't, then that makes us just as bad as them.

And I want to say, Fuck you, eat my dick, because that's not true.

These are the people who an hour after Ruth Bader Ginsburg was announced dead were absolutely giddy to say, we will be replacing her ASAP.

Right.

These are the people who are putting kids in cages.

These are the people who are in charge of a government response to COVID-19 that has led to 200,000 dead.

Yeah, right.

The role of people in government.

is to care about the people, to have compassion for the people, and to be enacting policies that sort of effectuate that compassion for the people.

They don't fucking do that.

It is not on me to show compassion for Donald Trump or any of his ugly, disgusting fellow party members.

Yeah, that's right.

This is a better metaphor than I could ever even hope to conceptualize for how a boomerang works.

Yeah, for reaping what you sow, motherfuckers.

These people made it a central component of their career this year to downplay this disease.

Right.

Right.

And they really began to think, I think, that they were all immune.

Right.

They've really spent their lives just like so blessed with dumb fucking luck that they thought that this could only happen to other people.

Right.

Right.

It's framed as like empathy.

Like you should be an empathetic person.

Yeah.

That this is what's decent and proper is to have, you know, think of like Trump is a human being and Melania is a human being and we need to like be decent.

Here's the thing.

I personally blame Trump for the death of my aunt.

I know a lot of people blame Trump for the deaths of their parents, their children, their husbands and wives.

Yep.

To say nothing of businesses that folded, people who've gone bankrupt, their dreams fucking dashed.

Telling them that they need to be wishing Trump well, telling me.

Right.

And framing that as empathy.

No, that's fucking callous.

Right.

Exactly.

Where's your empathy for me?

Fuck you.

Right.

Absolutely, fuck you.

Exactly.

Empathy and compassion don't get you into heaven.

Just thinking positive thoughts doesn't make you a good person.

It's actions and what you do and your material harm or benefits that you give to other people.

Right.

Yeah.

That's what makes you a good person.

Right.

So tell us about the election, Michael.

What does this mean, Michael?

Because I don't know.

Okay, so there is a procedure for when a major party nominee dies.

Like this is something that's been anticipated before.

And the procedure is pretty, you know, what you'd expect.

The party convenes, they have another convention, and they nominate a new candidate, and the election essentially starts over.

The issue here is that there just isn't enough time to do that.

Like printing ballots takes time.

Right.

To say nothing of the fact that 2 million people, over 2 million people at the time of this recording, have already voted.

The train has left the station on this election.

Yep.

And the name on the ballot on November is going to be Donald Trump, regardless of what happens.

So the question is, how do you go forward when one of the candidates on the ballot is dead in this hypothetical?

It's such a lovely thing just to contemplate.

So

the answer is it's going to vary state by state.

As a preliminary point, we should assume that the Republican Party is going to make Pence the new nominee, one way or another.

Maybe they have a convention.

Maybe it's sort of informal, but people understand that if you vote for Trump, you're voting for Pence.

The first thing to remember is that, like, you know, you don't vote for president.

You vote for electors to the Electoral College.

And so in states that zombie Trump wins, what the GOP is going to try to do is free up those electors to vote for Pence instead of Trump when the Electoral College convenes.

Right.

Some states allow for this already, and that's like in their laws.

Others don't, and it would probably require getting courts involved.

I don't think courts will actually be a hindrance to this.

The Supreme Court recently had an Electoral College decision.

They sort of left open this possibility.

Here's the thing, though.

Some state Republican parties also might try to use the fact that, you know, it's a dead person on the ballot to invalidate Trump losing those states

and trying to bypass the election results to directly appoint their electors to the Electoral College.

And so, you know, Joe Biden wins Pennsylvania, but the Pennsylvania state Republican Party tries to pass a law or otherwise by legislative fiat send Republican electors to the Electoral College.

That might sound crazy and dystopian.

It's very much within the realm of possibility that they'll at least try it.

We'll talk about this more on our Electoral College episode, which is next week.

So get excited for that.

Yay.

And the last point is that the body that counts the Electoral College votes, that accepts them, is Congress.

And so there is a possibility that Congress could call into question or decline to accept the Electoral College votes of certain states if they get weird or funky with this.

Or, you know, if they don't get weird or funky with it, right?

If Pennsylvania does send Biden electors and then, you know, Republicans in Congress try to not get those electors counted and not accept them.

Right.

So this could be a huge fucking mess.

It'll be a disaster.

It's a shit show that would be almost impossible to like predict the precise contours of how it would turn out, but it would leave a lot of stuff up in the air.

Yeah, but there is one thing that we can be certain of.

If Donald Trump dies of COVID-19, he cannot be president actually that's right right that's right yeah that's a guarantee that's the five four guarantee baby

all that stuff should like make us concerned about like the legitimacy of a biden win in this scenario or a pence win or whatever but if he's dead the likelihood that american democracy is smashed on the rocks of Donald Trump's ego and self-preservation gets significantly reduced.

I think the far more likely scenario is that Republicans take their Amy Coney Barrett victory and lick their wounds and just move on to the next round of fights of obstructing President Biden.

I don't think we're as likely to see the sorts of long-fought legal battles that Donald Trump has guaranteed us at this point, that he has like promised are coming.

I think there's an argument to be made, not just an argument, I believe that Donald Trump living is a bigger threat to the legitimacy of this election than Donald Trump dying.

I do.

Despite the shit show I just described, there's a sense in which Donald Trump dying from COVID very well could save American democracy.

I don't think that's an exaggeration to say.

So yeah, setting aside the fact that like, I hate this piece of shit, there's a lot of reasons to celebrate this possibility.

And American democracy is one of them.

Yeah.

Well, I mean, we should certainly note that Amy Coney Barrett has tested negative, making her the only person who was at her press conference who will not die of COVID-19.

The rumor is that she has had it before.

If that's true, we don't yet know, but it seems like a possibility since

she was, you know, open mouth kissing everyone else there and doesn't have it now.

But I think the implications for her confirmation hearing are less about about her health right now and more about the health of the senators on the Republican side of the Senate Judiciary Committee.

Right.

And whether or not it is safe to hold hearings, how exactly they would do it.

It seems like they would be fine doing it remotely.

Lindsey Graham has said that they will.

But Republicans currently have a 12 to 10 advantage in the Judiciary Committee.

Two of their senators being down is a big deal.

Right.

Right.

Yeah.

So we don't know what's going to happen, but certainly the course of the confirmation hearings are potentially affected here.

Right.

I think the best chance Democrats have for delaying her confirmation is if they are able to deny Republicans a quorum in the Senate.

Right.

Essentially.

In the Senate as a whole.

In the Senate as a whole.

A quorum requires 51 members present from either party.

The vice president does not count for that.

So 50 senators from the Republican Party would not suffice.

That being said, you need to make an objection if there's not a quorum present, which means a Democrat would need to be present who would then create the 51st vote.

So you need to be down to 49 Republicans present.

There currently is not any provision for remote voting in the Senate or anything like that.

So the quorum issue is real.

Didn't McConnell say a couple of days ago, like, no, no way, we're not doing virtual voting?

Yeah, I believe so.

Yeah.

So if there are enough Republicans, I think it would require four to be incapacitated and unable to attend, then Democrats by refusing to attend could deny them a quorum and delay the vote indefinitely.

There are things the Republicans can do then.

They can send the sergeant-at-arms to go round up the Democrats.

Who's the sergeant-at-arms?

Yeah, seriously.

It's like Stephen Miller.

God.

The other thing is, like, if you're going to boycott this, don't just like go to your like townhouse in Bethesda or whatever.

Like, go back to Oregon, Ron Wyden, right?

Like, go back to California, Diane Feinstein.

Like, just fucking leave.

Or be prepared to kill the sergeant-at-arms.

Those are your choices.

Yeah.

So, yeah, there are avenues to make this, like, at the very least, a huge spectacle.

Definitely, they could almost certainly delay it, at least for some period of time, you know, and who knows how many more Republicans are going to end up with COVID at this point.

It feels like we're just at the beginning of this.

Fingers crossed, baby.

That's right.

Yeah.

That's right.

We can only hope now.

So, you know, let's take this celebratory mood and just, in the best way we know how, transition into answering some listener questions.

So we've got some voicemails and we're going to play those questions.

But we also have a lot of written questions.

And for those, we're going to have our producer, Kacha, read them.

Kacha, say hi.

Hey, guys.

Katya.

Hey.

KK is on the pod.

Our silent partner.

Our concert companion.

All right.

So, Katya, do you want to hop right in here?

Let's do it.

Yeah, let me just kick it off.

I'm going to play this VM for you.

We'll see where it goes.

Okay.

Hi, Class Before Podcast.

I'm a law student and I'm doing my law homework right now.

And I know you guys are lawyers.

And I'm just wondering, is it worth it?

I'm sure you probably get asked this question all the time.

Is it worth it?

Safe, guys.

Love the podcast.

It is true that we get asked that question a lot.

It's never quite that sad.

Oh, my God.

That is so bleak.

I've also never heard anyone use the term law homework.

Yeah,

this poor person, it's first semester of 10.

It's been like two weeks of law school, and that girl sounds like she has been a lawyer for 50 years.

My heart goes out to you.

Seriously.

It does.

Oh, really?

In the previous episode, I mentioned that I don't think our listeners should hurt themselves.

And I want to reiterate that point to this caller in particular.

Yeah, like we'll get into law school and the law and all of that stuff, but take care of yourself.

And honestly, if you get to law school and don't want to do it, then fucking quit.

Yes.

I know a lot of people who struggled their first semester, like one fall, and then we're fine for the rest of the way.

But I think you should probably get a pretty good idea within the first few months if this is or isn't for you.

And if you are two months in and you're like, this doesn't feel right.

Right.

Then trust yourself.

Agree.

You know yourself better than we do.

And if that's what your heart is telling you, like listen to it before you go 150 grand into debt.

Yeah.

I do want to provide one caveat here, which is that like there aren't a lot of good jobs.

Law can be pretty miserable, but like, what are you going to go into accounting?

It's all really rough.

There's like six good jobs and they're very competitive.

Yeah.

I'll say this.

If you are struggling that much emotionally, you're not absolutely killing it, if it's not like A's and like 150 grand payout within a couple of years in exchange for that sort of misery, like I think you got to go find something that works better for you.

And either way, keep listening to the podcast, baby.

All right, here we go.

Listener questions.

Hello.

I am calling to ask if you guys can reflect on the Judicial Procedures Reform Bill of 1937 and what were the problems they were dealing with then as far as getting that bill passed.

I'd also like to say thank you for making this wonderful podcast.

I'm not a lawyer, but my partner is, and it gives us something to talk about in her career field.

And it's always nice to hear law boys clinking whiskey glass in the background.

What?

Wow.

Huge mistake.

What?

Number one, huge mistake.

Number two, I love that the podcast gives you something to talk about with your wife.

Yeah, that sounds like things are going great over there.

Yeah.

I am the clinking glass guy.

Let's see.

That's right.

So this question, I think, is an extremely nerdy way of asking about FDR's court packing plan.

That's right.

First of all, I don't believe that there's a lot to be learned from history.

So, I'm just going to keep this one short.

But, you know, one of the big lessons of FDR's court packing plan, even though it failed, was that you could leverage the threat of court packing, right?

Which he did successfully in several cases to sort of ensure that the Supreme Court upheld New Deal legislation, right?

Right.

So, you know, he was sort of dangling at various points the threat of court packing over the court's head and saying, if you don't uphold these laws, I'm going to move forward with this.

And, you know, even though the court packing plan failed, the threat of it was actually in some ways a success.

Right.

And I do want to say, like,

maybe there are some like political lessons to be learned there.

That's not really the focus of this podcast, but you're thinking the right thing right now if you're looking at the 6-3 court and thinking, well, how can we change this?

Like, that's where the mindset needs to be but the question is how do we put pressure on the government as it's currently constituted or hopefully how it's constituted in you know a month from now two months from now right to affect that change yeah i think like one big lesson to be learned is that we can and should exert political pressure on the supreme court to act the way a federal court should act right there are mechanisms already built into the system to do this.

We can reform the court by legislation, through statutes, if we want to, and we should have all those options on the table.

Okay, cool.

Let's stick with this court reform stuff.

Maddie is asking, I was hoping you could talk about proposed Supreme Court reforms like term limits, set number of appointees per president, court packing, removing the justices, and having federal circuit court judges preside on a rotation.

Yeah.

So, Michael, I'll let you go off in a second, but I do want to say one thing about this, which is like there's no reform that is going to separate out politics and the court.

That's not something that's actually a plausible or even really desirable goal.

That's sort of meaningless, right?

You can't separate out ideology and the practice of law.

So, when you're talking about court reform, what you're really talking about is just shifting power.

Right now, there is disproportionate conservative power in the Supreme Court and the federal courts generally.

If you are coming at this either from the perspective of us on the left or of someone who wants to see more balance, then reform should be geared towards increasing the power of the liberal and left justices, liberal and left legal academics, et cetera, within these institutions.

You can't create a framework under which politics and the law are somehow 100% separate.

It's just not possible.

So, yes, there are tons of court reform options.

There aren't any court reform options that are going to sort of create this like platonic ideal court that is separate from ideology somehow.

Right.

An objective court.

Right.

That's not how it works.

I think some reforms are sort of geared towards this idea that maybe we could like lower the stakes of any particular nomination.

And in the course of doing so, it would like sort of let some of the heat out of this and make everything just feel a little calmer.

So these would be like, for example, term limits.

The idea with term limits and like a fixed number of justices being appointed by every president, the idea would be like, look, if you didn't win this round, you just win the next round and then you have to appoint justices, right?

And so there's like less at stake.

You know that the next election cycle, you have a chance to appoint two justices yourself.

Maybe that's true in the abstract.

Same with the idea of a popular proposal.

I think Bernie Sanders talked about this, where like you wouldn't have a Supreme Court, you'd have like a rotating panel of justices pulled from the appellate circuits to hear those cases.

Same idea that like, well, now you're talking about hundreds of appellate judges instead of like one out of nine Supreme Court justices.

I don't think that's right, to be frank.

Like, for example, we've already seen the overt politicization of the appellate circuit and district circuit nominating process.

Like the last 12 years is an object lesson in like the Republican Party showing how easy it is to obstruct the opposite party from appointing district and federal appellate judges.

And then when you have power, appointing them yourselves en masse and taking like a stranglehold control of several federal circuits, which really changes sort of the inflection of the federal courts as a whole.

Like that's something you can do.

So I don't think those are necessarily the answer.

I think we have to be kind of clear-eyed about what our goals are here, which is like we want more political power so we can do things we think will improve people's lives and make the country more fair and more just.

And like there's a very simple and clear answer to that, which is just expand the size of the court and appoint four or six justices who are our allies.

That's it.

I think a lot of the concern is people are like, well, you know, when the Republicans get power again, they're going to do the same thing, right?

And yes, of course.

I think that's sort of a given.

They already kind of leverage their power to the best of their ability.

So I think we could expect them to meet the Democrats there.

The challenge for them is that if we had a Democratic-led Supreme Court, they might have trouble winning elections without completely reforming their political strategy for the next 50 years.

I mean,

like we've mentioned many times in the past month or two on this podcast, free and fair elections in America would lead to the decimation of the Republican Party as it stands right now.

And so, you know, would they be able to turn the tables theoretically?

Yes, absolutely.

And I think they'd be willing to.

Sure.

Will they even really get the chance?

I don't know.

Yeah, that's what I was just going to say is the sort of tit-for-tat argument that, like, oh, well, Republicans, once they get to be the president again or whatever, will just do court packing their way.

You know, I think the power built in the meantime is worth it, though.

Like in the short term, the options are pack a court or do nothing.

Yeah.

I don't think there's a realistic choice between those two.

I think like Democrats, liberal, left of center, whatever, like we have to expand the court, pack the court, do this, because in the short term, we need to be gaining and building as much power as possible.

And maybe when things like, you know, progressive legislation is passed, like a Green New Deal, like Medicare for all, all of those things, we need as soon as possible a court that's going to uphold that stuff for us.

And then what flows out of that is a more secure and just society and democracy where the people have more power.

And then we can ask ourselves about strategies down the line with like, oh, well, now Republicans are even more of a minority and they want to be doing tricks on the federal bench.

Right.

I want to just talk really quickly about actual legislation.

Rokana, who I greatly admire, introduced like a term limits bill in the House.

Yeah.

Yeah.

You know, obviously that's not going to get any support in the Senate.

Who knows if it's even going to get majority support in the House right now.

But it's interesting.

One thing that's interesting about it is that it doesn't impose term limits on the current justices, which creates a scenario where it's not clear who, if anyone, would even be able to constitutionally challenge this law.

But I don't think this is like the ultimate avenue to go here because

even in the ideal scenario, we're talking about five to seven years, assuming no untimely deaths before Democrats would have a majority majority on the court.

Right.

That means winning re-election in 2024, which is no given.

Exactly.

If you have an opportunity to exercise power in January 2021, you have to give yourself a win.

You know, you can't give yourself something that looks good and you might benefit from in five to seven years.

Exactly.

Things are too close right now.

Like, we're too much on the precipice.

Right.

We need this fixed

now.

Yep.

All right.

Andrew asks,

and he's referencing a few articles here published recently in late September.

And he says, all of these people have proposed some variant of Dems are too concerned with court packing.

The real issue is constitutional review, and the next president should just declare that the rulings of the Supreme Court do not have constitutional weight.

Yeah, so for everyone who doesn't know, the argument here is that instead of packing the court, Democrats could simply ignore Supreme Court rulings.

And the basic concept is that there's nothing in the Constitution itself that says the Supreme Court is the final say on constitutional issues.

The Supreme Court essentially granted itself that power over 200 years ago in Marbury versus Madison.

So you could treat what the court says as basically being advisory rather than binding and just say, look, thanks for weighing in, but we disagree.

I think that people are drawn to that idea because the idea of simply ignoring the court is appealing in its simplicity.

Right.

And it's something we should think about and maybe

in certain situations might be more useful than in others.

In a general sense, it seems like the appeal here is that you avoid the sort of political calamity of attempting to pack the court, for example.

But I'm not sure that flatly stating you will not abide by the court is much better on that front or

sort of creating a standoff between two branches of government can be done without significant political consequence.

The court can direct members of government to obey their orders and if they refuse, could order their imprisonment, for example, for contempt.

Right.

So, is the court ordering some poor bureaucrat to take action against like sitting members of the government because they ignored a court order?

Like the simple solution here,

I don't really think so.

Not to mention every Republican jurisdiction in this country will immediately start violating the Equal Protection Clause, and you'd have to figure out how to handle that.

So, you know, are there situations where this seems useful?

Sure.

If there were Green New Deal legislation being proposed by the Democrats that the court court found unconstitutional, there is some merit to being like, no, no, thanks.

We're going to keep going.

But absent a really specific, discrete situation like that where it would be beneficial, I don't think it's the best option available.

I think that court packing gives you all the advantages with fewer downsides.

Right.

I agree.

Packing the court is a simple matter of passing a law and signing it.

It's a basic function of government that is in every sense of the word legitimate.

Do Do you know what's illegitimate, though, is when, like, for example, this month, a federal court ordered that the Trump administration continue the census till the end of October, and the Trump administration said no.

Right.

And everybody understands that this is done purposefully to disadvantage minorities, disadvantage urban areas, and ultimately disadvantage Democrats, Democratic districts, Democratic states in their representation in Congress.

Right.

And And they're just going to do it.

And there's not much redress.

And that's a problem.

And it's not a problem that we necessarily want to make routine.

Exactly.

If Republicans are going to keep doing it, stuff like that, they're going to keep doing it.

You know, there's not much we can do about it.

But at the very least, we can say, well, look,

this is bullshit.

Right.

And not like, well, yeah, well, we do that too.

Right.

Exactly.

Okay, guys, that was really smart, but I got to pay my rent.

So we're going to go to an ad now.

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All right.

This is going to be a hard-hitting one from the voicemails.

Hi.

My name is Ellison.

I am a recent college grad thinking about a career in law.

So I just have a very important question, which is, do you guys think that being lawyers has helped or hurt your chances of getting laid?

Okay.

Yeah, hurt.

Definitely hurt.

Hurt.

Hey, guys.

My name is Jacob.

I'm a listener from the the great state of Iowa.

Against your advice and my better judgment, I have decided to enroll in law school.

I'm a one L this fall.

I don't take con law until the spring, but I'm a big fan of the pod.

I've been listening since the first episode.

So I just wanted to see whether you guys have any advice about how to make Bedsock people cry during class discussions.

I'm really hoping to make that happen and looking forward to your insights.

Thanks.

Okay, first of all, you have the right idea.

Like, if you are going to go to law school, which is fucking dumb, you should be doing it with this attitude at least.

We should make clear, though, the question is, how to make Federalist Society members cry during class.

Not everyone knows the term FedSOC, so I just want to make that clear.

Not everybody knows what the Federalist Society is.

It's a Republican organization churning out robot judges who want to take take all your rights away.

Yeah, that has a huge student outreach branch.

It's a big presence on just about every law school campus.

In terms of how to make them cry during class discussions, I would say it depends on the individual weaknesses of the person you're dealing with.

But I would say that a good, reliable go-to, just physical violence.

You could also use logic, I guess, if you're good at that.

In terms of classroom topics, say that you think Antonin Scalia is stupid.

Yes.

Racist.

Yeah.

Originalism is stupid.

Textualism is stupid.

Right.

And a lie.

I think that the point of this is that making these FedSOC losers cry is actually pretty easy.

My first day of law school orientation 1L, there was like a book discussion.

And the book

that my small group chose to discuss was The New Jim Crow.

And a man came to that discussion to argue that criminal justice reform

and

over-police of black and brown people is not a racial justice issue.

So like these people are fucking idiots, dude, and you can make them cry really easily.

Also, every 1L crim class has at least one awkward day where you discuss rape.

And

there can be somebody who says something stupid.

and like really offensive that happens every year in every section.

And if you want to make a FedSOC guy cry, all you got to do is make sure that you think consent is necessary to avoid rape.

Raise your hand and be like, look, I just want to be on record

that consent is like an element

of not raping somebody.

They'll be pissed.

If you start losing a debate to a Federalist Society person, the key is to turn the tables by asking them how their Title IX investigation is going.

All right.

This is a good segue because the next question is, do we really want a leftist version of the Federalist Society?

If the Supreme Court isn't actually some deliberative club of legal scholars analytically solving complicated issues and is instead just dudes being guys trying to keep suburbs segregated, what would a liberal Federalist Society accomplish?

Yeah, well, so first things first, the Federalist Society is about promoting a specific view of the law, which then gets taught to students, which it then uses to promote and get conservative judges installed in the judiciary, right?

They have a complicated and vast network of people and institutions that are designed to do this.

So, should the left be engaging in that?

Absolutely.

Of course, there needs to be a response.

And we can see what happens without an adequate response to the Federalist Society.

The judiciary is vastly, disproportionately conservative.

They have the ear of every major Republican politician.

You know, Republican presidents speak at their events.

They're deeply connected to the party.

So does the left need a response to that?

Of course, it's separate and apart from just how they interpret the law.

And I think we all say, but I know specifically that I say a lot that like talking about like formalistic reasoning, like this shit doesn't matter.

What I mean is we're a very outcome-focused podcast and we care about the output of judicial decisions.

Will this woman have her rights vindicated after the cops let her ex-husband kill her kids?

And in that sense, those things don't matter.

Originalism and textualism doesn't matter.

But that doesn't mean they don't matter at all.

You know, it's propaganda.

And propaganda exists and is used by both political parties and by political actors throughout time and history and across the world, because it's effective.

It's important.

It adds legitimacy to everything you're trying to do.

Like the Supreme Court is engaged in a massive project of social engineering right now, where they are fundamentally reshaping the way power is distributed in our country.

And part of that is doing it in a way where people aren't in the fucking streets rioting and keeping people placated and thinking that all this change is legitimate and like an output of democracy.

That's a part of it.

And so, yeah, we need academics and we need activists who are coming up with arguments that will give legitimacy to whatever sort of social engineering a progressive court would do.

And what we want is a progressive court that would engage in a lot of social engineering and create a society that is far more fair and just and equal.

Exactly.

And that's where it gets legitimacy.

Yeah, look, we critique formalistic reasoning, but the legal profession operates on that framework.

So you can reject its usefulness as a matter of theory, but if you want to be able to effectively fight for people's rights within the legal system as it exists, you need to understand it and be able to utilize it.

You can't build a sort of legal response to the right by simply operating outside of the system.

Yeah, like as a public defender, right?

Somebody who defends people in court.

My strategy, the, you know, the way I practice the law is not going to court and begging a judge for mercy or like being in a fit of tears because like what's happening is sad.

Please don't be mean to my client, Your Honor.

Right, right, right.

I make arguments that are based in laws.

I read and research the law.

I look to case law for winning arguments.

There's legal strategy that we have to use as lawyers to like fight for our causes.

It's not all just bullshit.

And I do think there are a lot of these issues where like reasonable minds could disagree.

And like, it's important to have like an answer.

Like it is, it's important to, to persuade people.

And there are a lot of true believers in the Federalist Society.

I don't think any of them hold any positions of note.

And I don't think any of them actually end up as judges, to be honest.

But I think a lot of the rank and file like believe in the principles.

And I think it's important to have similar rank and file who believe in like a living constitution and like the values professed by, you know, a legal left, whatever that might look like.

All right, let's go to the next one.

This seems really important.

Okay.

Hey, bye, FloraPod.

This is Olivia.

I'm a leftist, and I'm interested in organizing and making the world slightly less shitty than it is.

Do you think law would be an outlet for someone with those interests?

Tell Rhiannon I love her.

Thank you.

That was very interesting.

We all love Rhiannon.

Thank you.

Olivia, I love you too.

Number one, little baby angel.

Number two, I did get a look at some of the questions, and I know that a lot of people asked about like, if you want to make the world a better place, if you want to do organizing, if you want to do social justice, should I go to law school?

And I think if you have a really specific idea of what you want to do and law school gets you there, then I think going to law school is fine.

A lot of people ask me, like, as a public defender, like, how do you feel?

Because at the end of the day, being a public defender means that you end up helping a lot of people plead guilty.

You're just a cog in the system, right?

You're just moving cases the way the court system moves them.

You know, they come in, you spit them out, all of that.

And I have a couple of things to say in response to that.

One is, I don't know of another job to have where you are like the perfect, most ethical social justice anti-capitalist.

Like maybe teaching, teaching high school social studies, maybe.

Like,

you know, I don't know what the other thing is

in the current system we have, which is unjust.

Every job you can have is going to be fucked up.

Yeah.

There's no job where you're not a cog in a system, by the way.

Exactly.

Like, that's just

such a dumb fucking critique.

That's not attainable.

So, if you want to make a difference and the law is an area where you want to make a difference, then yeah.

The only other thing that I will say is the debt burden of going to law school is fucking insane.

And so, I do think that either you have a plan for dealing with the debt burden or you get a scholarship somewhere or those kinds of things.

I mean, just taking on $200,000 in debt to go to law school, I don't just advise to do that.

Yeah.

My advice to you, Olivia, is you've got a few years before you graduate.

Try to come up with like a quarter million dollars in that time.

No, Olivia, you sound super smart.

You're going to get a scholarship somewhere.

No, you want to get the money if you can,

just in case you don't get a a scholarship.

So just try to get the quarter million, Olivia.

That's priority number one.

Right.

Okay.

I'd like to seriously weigh in here.

You have a plan on how to get that money?

I think, you know, it's natural that

the output of politics is law.

And like our society is structured by law.

And so if you are interested in restructuring our society, there's a degree to which like interest in the law makes sense.

I don't think legal careers, for the most part, are good avenues for affecting that sort of change.

They're like within that structure that you want to change, and they're not geared towards that.

There are maybe a few impact litigation and things like that, which can be like big enough and like affect the government or affect a company's bottom line enough that it could lead to some sort of like incentive change or regulatory change or something.

But those jobs are very few, very far between, and highly competitive.

That doesn't mean legal fluency is unimportant, but going into 200 grand worth of debt for legal fluency is a questionable decision if that's your goal.

And so you need to be realistic about what your monetary situation is, what your future career could look like, and what you want to do.

Because if your career is going to be a legal career, changing the system is very likely not something you're going to be able to do.

Yeah.

At least not on your company time, maybe in your free time.

I think that's right.

And I think there's also something to be said about the practice of environmental law.

Yes.

Yeah.

Something to be said would be, don't go into it.

Right, exactly.

I will never forget being a 10, and I don't remember where this woman worked, but she had gone to my law school and she was coming back to talk to students about her work.

She kept talking about how she practices environmental law and how great that is.

Right.

And somebody asked, Okay, so what do you do every day?

And like, turns out actually, she like she works for a big law firm.

So she actually represents like big corporations and environmental law and stuff like that.

I will never forget.

Somebody asked her, like, what do you do?

Like, what issues do you work on?

And she literally said, well, you know, like, sometimes they'll just say that the company killed like a thousand dolphins.

And you have to step in and be like, okay, it wasn't a thousand.

It was like 400 dolphins.

Like, that's what the practice of environmental law.

That woman makes $1.5 million a year.

Yeah, that girl.

And that woman makes a lot of money.

So, yeah, I think what Michael said is like spot on.

You first want to think about what role do you want to have in social justice and all of that.

And then think about the limitations of what law jobs are going to give you.

One last thing is who you want to serve.

For me, as a public defender, I directly represent individual clients.

So, yeah, it doesn't matter in the system necessarily that in a conservative Texas jurisdiction, I helped 10 people on a Monday morning plead guilty to something and get probation or whatever.

It means a fuck of a lot to each of my individual clients that somebody was there who fought for them, who screamed at the cops or made an argument in court on their behalf when otherwise, you know, a person other than me or no lawyer at all, like, uh, would have helped them.

And so, if you're talking about change, if you're talking about influence and putting progressive values in practice, then to my clients and their families, this practice of law means a fuck of a lot, even if I'm not overturning the system every day.

Right.

Yeah, I think that's an important point.

There's good work you can do in the law.

Right.

There is.

I think there are very few jobs that are like without qualifier.

Yeah, absolutely.

All right, guys, let's do a couple of factual questions.

Okay, what happens if a SCODA's case is 4-4,

and what happens if there is no majority?

Yeah, so when there is a tie on the Supreme Court, the lower court ruling stance.

So, you know, I imagine that any question about a 4-4 tie is anticipating an election case where Amy Coney Barrett has not been confirmed.

Right.

And what happens?

So, yeah, the answer is that whatever the court below held would remain.

So, it could be either a federal circuit court or a state Supreme Court, but that's all that happens.

So,

you know, it depends what happens below.

And let's say that there's a lower court that rules in favor of Trump.

A lot of people have floated the idea that maybe Roberts would really enjoy a tie that kind of deflects blame off the Supreme Court.

Right.

Yeah.

It's like we didn't really do anything.

Yeah.

Okay.

Ben asks, I read a lot about the shadow docket.

Can you explain what that is and how it works?

Fucking hate the shadow docket.

Yeah, all right.

So the shadow docket is what refers to any cases that the Supreme Court gets that are not on its official docket.

So it has an official docket going into the term, but then cases can be brought to the Supreme Court outside of those constraints.

Again, in the case of an election case, right?

There's not an election case literally on the Supreme Court's docket, but one might get elevated to the Supreme Court essentially because it's an emergency.

And so the Supreme Court hears it.

Right.

Right.

And the vast majority of them in a regular year are cases that the Supreme Court decides without oral argument or necessarily even much briefing.

Right.

And a lot of it will be like, are they going to stay a ruling below, which means are they going to put a ruling on hold or are they just going to summarily reverse it or summarily uphold it?

Things like that.

They don't, you don't read three sentence orders in law school.

Right.

Right.

Yeah.

That say like reconsider in light of X case or whatever.

Or you don't read like an opinion staying a judgment until like the court gets to hear it more fully.

But they have massive implications for how courts behave.

That's sort of the way the shadow docket works.

And that's why it's kind of called the shadow docket is because you don't read the decisions, you don't hear about them, but they cast, you know, a long shadow.

Are we sure that's why?

I thought it was like in the shadows.

No, it's in the shadows.

It is in the shadows, but I like found myself committed to the improper

metaphor there.

I was very embarrassed about it.

Talk your shit, King.

I think that one reason the shadow docket's been written about a bunch recently is because the Roberts Court in particular seems to be utilizing it to make a lot of important decisions that sort of fly under the PR radar.

It's hard for like legal journalists and regular journalists, especially, to understand what's happening on the shadow docket because it's just a lot of procedural stuff for the most part.

And so the court is using that sort of inherent secrecy to, you know, push a lot of what's frankly like fairly conservative agenda and get it done without it hitting the headlines.

Right.

Absolutely.

This is from Kent.

What is, in your opinion, the most harmful SCOTUS decision in practice to the American people?

I'm going to open that up, and you also get to talk about what is the best decision.

Okay.

All right.

So we talk a lot about bad decisions on this podcast.

And so there are a lot of them that are terrible, but maybe

I would like to talk about my favorite decision, which it's not going to be a surprise, is Gideon versus Wainwright.

Gideon versus Wainwright is 1963, a decision of the Warren Court era that made it so that if you are poor, you must be provided an attorney if you are at risk of going to jail, of being incarcerated for a crime.

What I really like about Gideon versus Wainwright is that it is a recognition, which I think is rare from the Supreme Court, especially today, about how powerful the state can be in a person's life and how laws operate in real people's lives.

I don't take it as like lawyers are so important.

It's not like an ego boost or anything.

It's just, I like the realism of it, right?

It's a decision that looks at how the law operates in people's lives and can, you know, ruin a person's life and says you need a lawyer before the state tries to do this to you.

Peter, what's your least favorite?

Yeah, okay.

I guess it depends on what you, how you define like the worst decision and how abstract you want to be.

In terms of direct impact, Dred Scott, right, allowed for the expansion of slavery across the country, Plessy v.

Ferguson, legalized segregation.

I feel like most people go for those as one and two, as the worst decisions.

If you want to get like a little more abstract, without Bush v.

Gore putting Bush in office, you don't get a million dead in the Iraq War,

without which you don't get ISIS, and so on and so on.

So I think my dark horse candidate for worst case would be Bush v.

Gore because it sort of created ISIS.

Yeah.

When you think about it.

Yeah.

No, I think that's fair.

I think not just ISIS, but also like maybe the modern like security state, right?

Oh, yeah.

Oh, absolutely.

Under a Gore presidency, we might not have like this awful tech panopticon that we live in.

There also might be, because Gore did talk about climate change and stuff, and I doubt he would have enacted something sufficient, sufficient, but like there is a possible reality where like the ball is rolling in a more substantial way on climate change issues because of Gore.

So Bush but Gore might have completely destroyed the earth.

Right.

Right.

Right.

And the other thing is there's like sort of an assumption that Gore loses after 2004, but maybe 9-11 has a rally around the flag effect regardless and he wins and like Rehnquist dies and like we have like a progressive Supreme Court.

I don't know.

There is a possible world out there where it's just like this compounding.

The best case scenario of like a gore win because of no good Bush v.

Gore is like very, very good.

Yes.

But we probably wouldn't have a podcast.

So, like, is that really the future you want to be living in?

Yeah, wait a minute.

Not worth it.

Yeah.

If the planet has to die for us to have a medium, successful legal podcast, then so be it.

In terms of, I do think we talk a lot about Supreme Court cases we despise.

So I want to take this opportunity to discuss a Supreme Court case.

I like one I've mentioned in a recent previous episode, which is Miranda v.

Arizona.

Yes.

And I like it because it is, you know, an instance where the court sort of did something a little different, which is where it said like, we shouldn't have to wait.

until your rights are violated.

The whole decision is infused with this idea where it says like, look, cops have like like this deep institutional knowledge on how to coerce confessions for people.

They know how to like isolate you, how to get you in like a compliant mindset, and they know how to draw something out of you, something that's illegitimate, something that's unconstitutional, something that's unreliable, that's something that shouldn't be admitted to court.

And they were like, we shouldn't have to wait until they do that and then litigate it after the fact.

It's intolerable that too much injustice will be let through.

And so we're just going to say, this is what you have to fucking do to avoid that.

It's a perfect example of how this sort of restrained idea of what courts can and should do is inherently conservative and honestly stupidly and artificially limited.

Like in a lot of senses, Miranda is the most ambitious.

decision the Supreme Court has ever held.

Where it said, prospectively, the agents of the state have to do X, Y, and Z.

We're giving them a prescription on what they have to do.

And otherwise, whatever they do doesn't matter.

Their testimony is thrown out of court.

Like they have to do this or you're essentially free to go.

I love that.

And I think that's related to Gideon.

We are affirmatively saying it's future looking.

This is how we can protect people's rights.

Right.

It's the court flexing its muscle in a way that

was so controversial that

there was 30 plus years of debate about whether or not this was even a constitutional ruling, whether it could be overruled by legislation.

Congress tried to overrule it.

And it wasn't until the late 90s when it was before the Supreme Court in issue where the court finally had to say, Look, this was a constitutional ruling.

It binds everyone.

It binds the feds.

It binds the states.

This is it.

You have to fucking do this.

You have to give Miranda warnings.

And if you don't, we're just going to presume that any admissions you get are coerced and inadmissible.

Exactly.

It's fantastic.

And it's like the court should be thinking more creatively along these lines.

I don't think it's a surprise that this is one of the most easily recognizable to the layperson decision.

The name itself and what it says and what it means.

And a symbol internationally of like American democracy, right?

Like people know what a Miranda warning is and it's distinctly American in the sort of way that it's supposed to be protecting people's individual rights.

Right.

Um, and it is an example of the court saying, you know, we're not bound by all this bullshit that you say we're bound by.

We can do what we fucking want.

Right.

And we don't think you should be able to draw confessions out of people.

And we're going to tell cops you can't.

It's awesome.

It rules.

It's the height, I think, of Supreme Court jurisprudence.

It does.

It does.

It's the best.

No, it's great.

I love Miranda.

I do.

I do.

I love it.

What's the last one?

A lot of people do want to know what you guys are drinking.

We got a lot of queries about the ice cubes.

You know, people want to know.

The ice cubes are all Michael.

That's all me.

Yeah, the ice cubes are Michael.

Yeah.

Rhiannon is a teetoller.

Yep.

The absolute sober perfection is Rhiannon.

That's right.

I don't drink.

But I mean, sometimes I'm drinking like Gatorade or something out of a straw.

Yeah.

It's not sober, what I am.

Briannan has her own ways of getting in the mood.

Briannan is blowing lines all during recording.

You hear sniffing.

Yeah, and I mix it up.

Sometimes I'll have a beer, sometimes a cocktail.

During the summer, I've been known to have an albarino, you know, an increasingly popular Spanish white wine varietal.

Known for its bitterness and hint of peach, its minerality.

I am the ice cube guy mainly because my drinks of choice are usually either like Buffalo Trace on the rocks or

tequila on the rocks, like a nice tequila, usually Casamigos, but maybe chabuccos if I'm feeling it, especially fancy.

Do to do.

Yeah, that's right.

Next episode, special

electoral College Explainer.

Specifically, how does it work and why is it about to be directly responsible for fascism in this country for the next half century?

Tune in.

Follow us on Twitter at 54Pod.

Tell your friends, etc.

We're actually really popular now.

You can stop telling your friends.

No, keep telling your friends.

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I don't need them.

Five four is presented by Westwood One and Prologue Projects.

This episode was produced by Kacha Kumkova with editorial oversight by Leon Nafok and Andrew Parsons.

Our artwork is by Teddy Blanks at ChipsNY, and our theme song is by Spatial Relations.

From the Westwood One Podcast Network.