0:00:00.0 S?: We'll hear argument now in number 87-154, Joshua DeShaney versus Winnebago County Department of Social Services.

[music]

0:00:11.9 Leon Neyfakh: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about DeShaney v. Winnebago County Department of Social Services. This is a tragic case about the failure of the state to protect a child from his abusive father. The mother of the child, Joshua, argued that the state had violated the 14th Amendment's Due Process Clause by not stopping the abuse or removing her son from his father's custody.

0:00:41.0 S?: Take the situation where the child is locked behind the door with his protector, and the protector becomes the predator, and proceeding is brought at the extreme end of the child protection spectrum to terminate the parental rights. The court has already said that the Constitution governs that relationship.

0:01:00.6 Leon Neyfakh: In its ruling, the court found that the state does not have a responsibility to prevent harm against children by private actors. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:15.6 Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that are imploding our civil rights like a homemade submersible imploding at the bottom of the Atlantic.

0:01:26.5 Rhiannon Hamam: They gone.

0:01:27.3 Peter Shamshiri: I'm Peter. I'm here with Michael...

0:01:29.7 Michael Morbius: Hey, everybody.

0:01:30.6 Peter Shamshiri: And Rhiannon.

0:01:31.7 Rhiannon Hamam: Hi, hello.

0:01:32.0 Peter Shamshiri: Now that we have some temporal and emotional distance from it, is the submarine thing still funny?

[laughter]

0:01:39.0 Rhiannon Hamam: I was just about to say it's still so hilarious.

0:01:42.6 Peter Shamshiri: It's still so funny, dude.

0:01:44.1 Rhiannon Hamam: I'm sorry. [laughter]

0:01:44.7 Michael Morbius: I feel bad, especially 'cause of the kid.

0:01:46.9 Rhiannon Hamam: Right.

0:01:46.9 Peter Shamshiri: Finding out about the kid was a big bummer, I gotta say.

0:01:49.9 Michael Morbius: Big bummer.

0:01:49.9 Rhiannon Hamam: Yeah, for sure. Yeah.

0:01:50.9 Michael Morbius: But everybody else on that thing...

0:01:52.4 Rhiannon Hamam: Conceptually.

0:01:53.7 Michael Morbius: Yeah.

0:01:54.7 Rhiannon Hamam: I mean, come on.

0:01:55.4 Peter Shamshiri: Yeah.

0:01:55.7 Michael Morbius: And there's been so much, like the stepson of the billionaire who was going to Blink-182 concerts and being like, "My family would want me to be out and just waiting for that inheritance check."

0:02:07.4 Peter Shamshiri: Yeah. I feel like there was just a lot in that story about the hubris and the fraudulence of the ultra wealthy.

0:02:16.9 Rhiannon Hamam: Yeah.

0:02:17.3 Peter Shamshiri: And that's why it will stick with me, I think, for the rest of my days.

0:02:21.5 Michael Morbius: Oh, for sure.

0:02:22.2 Rhiannon Hamam: Right.

0:02:22.5 Peter Shamshiri: Assuming that they don't keep doing this. I feel like there's a decent chance that every year, billionaires are gonna kill themselves on some new adventure.

0:02:30.2 Michael Morbius: Going into space.

0:02:31.7 Rhiannon Hamam: Right.

0:02:33.1 Peter Shamshiri: Yeah, yeah.

0:02:33.9 Michael Morbius: Whatever. Somebody recently did it, like driving a race car in a racetrack or something like that really fast.

0:02:40.9 Rhiannon Hamam: Sure, sure. I can believe it.

0:02:41.9 Michael Morbius: Yeah.

0:02:42.4 Peter Shamshiri: Yeah.

0:02:42.8 Rhiannon Hamam: There's a certain death drive. There's a certain entitlement that comes with all of that wealth that psychologically, clearly, makes you think that you can toy with death in a different way.

0:02:55.5 Peter Shamshiri: Yeah.

0:02:56.7 Rhiannon Hamam: Right? Whereas everybody else on the planet is like, "No, thanks."

0:03:00.8 Michael Morbius: Yeah.

[laughter]

0:03:02.3 Peter Shamshiri: Yeah. Things like regulations are just an obstacle to you because when you have that much power, all it could ever be is an obstacle.

0:03:10.5 Michael Morbius: Yeah.

0:03:11.3 Rhiannon Hamam: Right.

0:03:11.5 Peter Shamshiri: Things are just in your way. Everything is within reach if you want it. And so the government's mere existence is just a bother to you.

0:03:21.6 Rhiannon Hamam: Right, right.

0:03:22.5 Michael Morbius: Yeah.

0:03:22.6 Rhiannon Hamam: Exactly.

0:03:22.7 Peter Shamshiri: That's why these guys all end up being fucking libertarians because they can't conceive of the government as anything else other than an impediment to the thing that they want.

0:03:32.2 Michael Morbius: Right.

0:03:32.5 Peter Shamshiri: Exactly.

0:03:33.1 Michael Morbius: And never being told no and never meeting an obstacle that's insurmountable, I feel like it wouldn't take long for that to legitimately damage your brain.

0:03:43.0 Peter Shamshiri: Yeah, yeah.

0:03:44.4 Rhiannon Hamam: Oh, for sure.

0:03:45.8 Michael Morbius: Absolutely.

0:03:46.3 Rhiannon Hamam: Bro, it has... They're bragging about a PlayStation controller. This is not okay.

0:03:52.8 Peter Shamshiri: Yeah.

0:03:53.4 Michael Morbius: Yeah.

0:03:53.8 Peter Shamshiri: Alright. Today's case, DeShaney v. Winnebago County, this is a case about the state's obligation to prevent child abuse. Way, way back in the day, we did a case called Castle Rock v. Gonzalez where the court held that the police were not obligated to enforce a restraining order. This case is in a similar vein. Should sort of go without saying here, there's a content warning up top. We will avoid any detailed depictions, but there are general discussions of child abuse in this episode.

0:04:28.5 Rhiannon Hamam: Yeah.

0:04:29.1 Michael Morbius: This sucks. This case sucks.

0:04:30.1 Peter Shamshiri: Yeah.

0:04:32.5 Rhiannon Hamam: Yea.

0:04:32.6 Peter Shamshiri: So in this case, an abusive father has custody over a young child, Joshua. He got custody in a divorce. And despite the fact that the Department of Social Services had numerous warnings about his abuse, no action was taken. Eventually, the father beat the child to the point where he had severe brain damage. The mother brought a legal action claiming that Joshua's civil rights were violated. And in 1988, this comes to the Supreme Court with the fundamental question being whether Joshua's 14th Amendment right to liberty had been infringed by the state's inaction here.

0:05:14.6 Peter Shamshiri: And the Supreme Court, in a six-to-three decision, says, "No, it has not." Rhi, I will hand it over to you and I will reiterate our content warning here.

0:05:27.8 Rhiannon Hamam: Yeah. Yeah, it's a really tough one. There are a lot of details we could go into here, but I don't actually think that detailing the abuse specifically tells this story really responsibly or for our purposes, respectfully, right? Everyone knows that as a very young, small child, Joshua was severely abused to the point, like Peter said, that he lost significant cognitive and executive functions.

0:05:56.2 Rhiannon Hamam: He was permanently developmentally disabled by physical trauma to the head. But the question here, in this case, is did this state agency, the Department of Social Services, the Child Protective Services agency for this county violate Joshua's civil rights? And what you have to look into when answering that question is, what did they know? How much were they involved in this? Did they know enough that they should have done anything about the abuse? Questions like that. So for background facts here, I think we can go through a timeline at least of DSS involvement without the horror details, just for horror details' sake.

0:06:39.3 Rhiannon Hamam: So DSS, again, the Department of Social Services of Winnebago County, Wisconsin initially becomes involved in this case when Randy DeShaney and his girlfriend bring four-year-old Joshua to the ER in Neenah, Wisconsin in January 1983. The severe nature of Joshua's injuries and evidence of past injuries caused medical staff at the hospital to suspect child abuse, and that's when the Winnebago County DSS is brought in. They obtained a temporary restraining order that gave DSS custody of Joshua for a few days while further legal decisions were being made. But a few days later, a team of medical staff and social workers decide there wasn't enough evidence to show abuse, at least not enough that would justify DSS seeking permanent custody of Joshua.

0:07:30.9 Rhiannon Hamam: So Joshua was released back to his father, and a social worker from DSS was assigned to work with the dad on parenting skills and providing a healthy home environment. Now, all DSS involvement, the totality of DSS's involvement in this case happens over the course of 15 months, beginning again in January 1983. And again, because part of what's being assessed here is DSS involvement, what did they know, what were they doing, and because the majority opinion, which we'll get to, minimizes DSS's involvement. The record shows there are at least 17 DSS events in those 15 months where DSS is involved or does a home visit or the social worker makes a note in the file because she's learned something new, or there's a legal update in the case that's relevant to DSS.

0:08:23.7 Rhiannon Hamam: Now, in addition to those, again, at least 17 events, there are additional home visits that are referenced in the record. There are some months where the social worker conducts more than one home visit in a month. Consistently over the course of all of these events, all of this involvement, consistently, it is noted that Joshua has a new injury. There were four more trips to the emergency room, each time, a medical professional calls DSS and reports possible child abuse. The social worker that was assigned to the case visited the home where Joshua was living and found Joshua there alone at least on one occasion.

0:09:07.5 Peter Shamshiri: Again, this is a four-year-old child. The police sometimes called DSS, worried about potential child abuse. Neighbors called the police because they have witnessed the abuse themselves. So over and over and over and over again, DSS is not just notified, but is, again, actively involved and themselves memorializing ongoing abuse in their own records over the course of these 15 months, until finally, Joshua is brought to the ER a fifth time, in 15 months. This time was severe head trauma in addition to other injuries. He underwent emergency surgery that did save his life, but there was permanent damage to his brain that led to profound developmental disability, and he was partially paralyzed. It was expected that Joshua would live in an immediate care facility with round-the-clock care, that he would need that kind of institutional care for the rest of his life. He was adopted, I believe as a pre-teen or a young teenager.

0:10:15.5 Michael Morbius: Yeah, I think he was 12.

0:10:16.8 Rhiannon Hamam: Yeah, and lived the rest of his life with the adoptive couple. But that is where Joshua ends up at the end of this 15 months of monitoring and involvement by the Department of Social Services in Winnebago County.

0:10:32.3 Peter Shamshiri: One quick initial note up top, this case is not about the father's criminal prosecution.

0:10:39.4 Rhiannon Hamam: Right.

0:10:40.3 Peter Shamshiri: This is a claim that the Department of Social Services failed to intervene here and that that failure was a violation of Joshua's right to liberty under the 14th Amendment. So there is a fundamental question here of what exactly the 14th Amendment right to liberty is. What it says is that no person may be deprived of life, liberty or property without due process of law. With respect to this case, the question is, does this mean that the government has an affirmative obligation to step in when someone's liberty is being violated? In other words, everyone agrees that the government cannot violate your right to liberty directly. But what is their obligation under the Constitution to step in when someone else is violating your liberty? Right? To give an extreme example, if someone punches you on the street, you can't just sue the government for not preventing it, for example, right?

0:11:41.3 Rhiannon Hamam: Right.

0:11:41.8 Peter Shamshiri: But there might be circumstances where the government is obligated under the Constitution to step in and provide you with aid. And so we're trying to figure out in this case what those circumstances might be. And looming over that analysis is the question of whether the state creates obligations for itself once it steps into a situation, right? Even if the government isn't obligated to protect everyone from having their liberty violated in every situation, what about in a situation like this where the DSS is actively involved in these circumstances? Right? What are their obligations then? So these are all of the big picture questions swirling around here. The majority is written by William Rehnquist, a segregationist, if you few folks haven't listened to our premium episode on him, and what he says is that the 14th Amendment is meant to prevent the government from actively violating your rights, but it does not create an affirmative obligation on the government to step in and help you if you're being harmed by someone else.

0:12:50.7 Peter Shamshiri: "Nothing in the language of the due process clause itself requires the state to protect the life, liberty or property of its citizens against invasion by private actors." In other words, again, in Rehnquist's view, the clause protects against government interference, but does not require that the government provide you with aid.

0:13:13.5 Rhiannon Hamam: Right.

0:13:13.9 Michael Morbius: And before we continue, can we just take a moment to think on that sentence? Nothing in the language of the Due Process Clause requires the state to protect the life, liberty and property of its citizens against invasion by private actors. This guy is literally telling you, "We don't owe you shit to the general public. We don't owe you anything. Fuck you."

0:13:41.8 Rhiannon Hamam: Right. Yeah.

0:13:42.4 Peter Shamshiri: That the Constitution has nothing to say about the government protecting you from other people, from corporations, et cetera. Right? That's...

0:13:52.8 Michael Morbius: This is pure '80s, greed is good, you're on your own, everybody get theirs, like ethos defined down to one constitutional principle. It's...

0:14:01.8 Rhiannon Hamam: Yeah.

0:14:02.2 Peter Shamshiri: Right.

0:14:02.6 Michael Morbius: Fucking gross.

0:14:04.2 Peter Shamshiri: And even if you think that the amendment should be that narrow, Rehnquist has a problem here, which is that there are cases that place affirmative obligations on the state to provide assistance in certain situations, most notably in the context of providing medical aid to prisoners. The court has held that the government is constitutionally obligated to provide medical care in those situations because the prisoner has been deprived of liberty and cannot care for himself. Just a few years before this case, there was a case called Revere v. Massachusetts General, where the court held that the 14th Amendment requires police to provide medical care to suspects in their custody. And Rehnquist sort of just waves that off, saying that it only applies to situations where the person is in police custody, not a situation like this.

0:14:56.1 Peter Shamshiri: He distinguishes this case by saying that in those cases, the state has an obligation because the state was the one that caused their predicament. So this will touch on stuff in Justice Brennan's dissent, but I think Rehnquist is trying to create a distinction that is just not really there when you think about it.

0:15:17.9 Rhiannon Hamam: Right.

0:15:19.2 Peter Shamshiri: He's trying to say that in the case of a prisoner, the state has an affirmative obligation because the state caused the situation. But I don't think that's the right analysis. I think the correct way to look at it is the degree to which the state has, through its actions, assumed responsibility. They have assumed some responsibility for the well-being of prisoners or suspects in their custody, and they have assumed some responsibility here by placing this child under the supervision of DSS, by having DSS continuously intervene in this child's life. The question shouldn't be whether the government caused the situation. And I think you could just as easily argue that even in the case of a suspect being in custody, the government didn't "cause" the situation.

0:16:13.6 Peter Shamshiri: You could blame the suspect, for example. The question should be, what exactly is it that creates an assumption of responsibility for the situation by the government? The way that Brennan puts it is that, "The knowledge of an individual's predicament and the expression of intent to help him are what should matter here." The bottomline is that this child, like a prisoner, has no meaningful liberty, and this child, like a prisoner, is under the supervision of the state. So I think Rehnquist's attempt to create a distinction here is just a little gimmicky and thoughtless.

0:16:53.2 Rhiannon Hamam: Yeah.

0:16:54.7 Peter Shamshiri: It just doesn't quite make sense. It's the kind of thing that you think might make sense until you start to drill down and you realize he's just sort of creating an arbitrary distinction and making it appear as if it's like a material distinction.

0:17:08.8 Rhiannon Hamam: Right. It really strips the state's intervention of any purpose. It completely de-contextualizes the state's affirmative actions here. Right?

0:17:18.4 Michael Morbius: Right.

0:17:18.8 Rhiannon Hamam: Yes, an affirmative action was taken by the state in sort of inserting, taking over supervision, intervening in Joshua's life. The purpose is Joshua's safety because there is a state concern about it. Right?

0:17:33.1 Peter Shamshiri: Right.

0:17:35.8 Rhiannon Hamam: Medical professionals, people who work for the state, social workers, neighbors...

0:17:39.2 S?: Police officers.

0:17:40.6 Rhiannon Hamam: Police officers have a concern over the safety of Joshua and his life, and so the state has intervened for what? To keep him safe. Right?

0:17:51.2 Peter Shamshiri: Right.

0:17:51.3 Michael Morbius: Yeah.

0:17:51.7 Rhiannon Hamam: And so Rehnquist saying, "Well, yeah, there's some state intervention here, but it doesn't put any responsibility on the state," just boils down to saying the state intervention is meaningless and for no purpose.

0:18:05.4 Michael Morbius: Yeah.

0:18:06.3 Peter Shamshiri: Right. He's trying to create two distinct categories; one, where the state is in control...

0:18:10.9 Michael Morbius: Right.

0:18:11.1 Rhiannon Hamam: Yes.

0:18:11.6 Peter Shamshiri: And one where they're not, right?

0:18:13.1 Rhiannon Hamam: Yes. Uh-huh.

0:18:13.6 Peter Shamshiri: But in reality, this is a spectrum. It's a spectrum of state intervention and state control over the situation.

0:18:18.6 Michael Morbius: Yeah.

0:18:20.1 Peter Shamshiri: If you are in police custody, that might be far down the spectrum of state control over the situation, but a situation where DSS is continuously intervening. They have real power. They have a real authority. They can take all sorts of actions legally that exert control over the situation. That is also on the spectrum of state control.

0:18:45.7 Rhiannon Hamam: Absolutely.

0:18:46.0 Peter Shamshiri: So Rehnquist is trying to imagine that you can just sort of like draw a straight line and say there are some things that are in this category and some things that are in that category, but it's just not true.

0:18:56.9 Michael Morbius: Yeah. And I do wanna note just a little factual thing that makes this sort of weird but useful I think for Rehnquist's purpose, is Peter mentioned that the father got custody of Joshua in a divorce. That divorce happened in a separate state. That divorce happened in Wyoming. And all the facts of the case take place in Wisconsin. So if you were wondering, "Well, didn't the state literally put him in custody of the father?" The answer is actually no, in this case, not the state of Wisconsin, not the Winnebago County. And so that does complicate things a little bit, but I don't think too much at all.

0:19:34.8 Peter Shamshiri: No. Especially if you view it as a federal constitutional right. Right? It should apply to both.

0:19:39.9 Michael Morbius: Yeah, exactly. And I think we should just get into the dissents.

0:19:43.1 Rhiannon Hamam: Totally.

0:19:43.4 Michael Morbius: Because they're both very good.

0:19:45.7 Rhiannon Hamam: Yeah.

0:19:45.8 Michael Morbius: They're very different and will be good for framing this discussion. So we'll start with Brennan's dissent. It's the principal dissent. It's a big one. It starts with a pretty detailed discussion of positive versus negative rights. My discussion, which I'm sure undergrad philosophy majors would find fascinating and nobody else in the country would, [laughter] as a former philosophy major myself, I find he has the better reading of positive and negative rights than noted segregationist, William Rehnquist. It will shock no one that Rehnquist has a very un-nuanced and impoverished vision of human rights.

0:20:19.4 Rhiannon Hamam: Yeah that's right.

0:20:20.1 Michael Morbius: But that's not the good part of Brennan's dissent. I think when he pivots more to the facts of the case and he says, as Rhiannon did, like rather than focusing on what the state does and doesn't owe you, we should start with what the state did. We should start with its actions and details all the different state interventions, including taking temporary custody of Joshua at one point, and then releasing him back into his father's custody.

0:20:50.8 Rhiannon Hamam: That's right.

0:20:51.4 Michael Morbius: He sort of intimates, I think, that the case worker in charge of this wanted to remove Joshua from his father's custody, quotes her saying, "I just knew one day I was gonna get a phone call and Joshua would be dead," and mentions that like corporate counsel and such were involved a lot in these decision-makings, again, I think intimating that higher-ups in DSS were shooting down this suggestion that they remove Joshua from custody. The people involved were like, "This kid's getting abused, we need to take him away," and their bosses were like, "Nah."

0:21:29.2 Rhiannon Hamam: Right.

0:21:29.7 Michael Morbius: It raises the question, what happens when the state isn't just involved but occupies the field? Right?

0:21:37.2 Rhiannon Hamam: Right.

0:21:38.2 Michael Morbius: He makes the point, all of Wisconsin law directs people to DSS, which is what the facts here bear out. If you're a teacher and you're concerned that a kid is getting abused, you report it to DSS. If you're a cop and you get a call and you have concerns a kid is getting abused, you bring it to DSS, right?

0:21:57.3 Rhiannon Hamam: That's right.

0:21:57.9 Michael Morbius: If you're a doc... Again, everybody funnels it to DSS. And if you're a state operator concerned about someone's safety, once you've reported it to DSS, you have essentially fulfilled your obligation. Right? In the mind of state actors, they're like, "I'm worried about this kid. I'll report it to DSS. I've done my job to help this kid, to protect this kid to make sure they're okay." In that scheme, DSS doesn't just get to shrug its shoulders and be like, "Well, not our job."

0:22:30.2 Rhiannon Hamam: Right.

0:22:30.4 Peter Shamshiri: Right.

0:22:30.9 Rhiannon Hamam: We don't actually have to do anything. Yeah.

0:22:33.0 Michael Morbius: It's quite literally your job.

0:22:34.0 Peter Shamshiri: Right. I think what's happening in the majority is that Rehnquist doesn't see this as a necessary function of the state.

0:22:42.2 Michael Morbius: Oh, right.

0:22:42.7 Peter Shamshiri: Right? He thinks of the 14th Amendment as something that applies to like when you're in police custody, because to him, cops and the carceral system are necessary functions of the state, but a state apparatus designed to monitor the well-being of children, to a conservative-born fucking 100 years ago now, almost, that's not a necessary function of the state. It's something that the state probably in his mind, shouldn't even be involved in.

0:23:15.1 Rhiannon Hamam: Exactly.

0:23:15.7 Michael Morbius: Right. I think that's right. I think that's right. He's such a piece of shit.

0:23:18.5 Peter Shamshiri: He's fucking awful, man.

0:23:20.6 Rhiannon Hamam: Mm-hmm.

0:23:21.0 Michael Morbius: And like I was saying before, I do think this feels very '80s in a lot of ways, like both this atomistic view of people and of society where we don't owe each other anything and the government doesn't owe us anything and everybody just has to get theirs, but also in this sort of transition period where we're leaving one type of conservative behind and embracing a new type of conservative. And I think we see that with Blackmun dissent, an erstwhile Conservative who was reborn anew, a liberal, a famous dissent...

0:23:56.4 Rhiannon Hamam: Yeah.

0:23:58.5 Michael Morbius: Very short, very punchy, feels like a mission statement for this podcast, only a few paragraphs. The first two feel very much like Peter to me, where he talks about the rigid formalism of the majority opinion and decries it as stupid, basically. [chuckle] He says, "Such formalistic reasoning has no place in the interpretation of the broad and stirring clauses of the 14th Amendment." Buddy, you would love our podcast.

0:24:28.0 Rhiannon Hamam: Yeah.

0:24:28.4 Peter Shamshiri: Yeah.

0:24:28.6 Rhiannon Hamam: Classic law Boy.

0:24:29.6 Peter Shamshiri: That's probably one of his greatest regrets...

[laughter]

0:24:32.3 Michael Morbius: Yeah.

0:24:32.4 Peter Shamshiri: Not listening to 5-4.

0:24:33.6 Michael Morbius: That's right.

0:24:34.3 Peter Shamshiri: Dying too soon.

0:24:35.4 Michael Morbius: He's up in heaven right now looking down and smiling on us.

0:24:38.7 Peter Shamshiri: That's right.

0:24:39.9 Michael Morbius: Next paragraph is mainly Michael, it's mainly me, 'cause he calls Rehnquist a segregationist piece of shit, quite literally says, "This majority opinion is like pre-Civil War judges who denied relief to fugitive slaves."

0:24:53.7 Rhiannon Hamam: Yes.

[laughter]

0:24:54.6 Michael Morbius: Just like he was ringing the alarm bell on Rehnquist in the fucking '80s. Good for him.

0:25:00.5 Rhiannon Hamam: Yep.

0:25:01.0 Michael Morbius: And then the final paragraph is very Rhi and it is the most famous paragraph, one that was read by Bill Clinton upon Blackmun's retirement, I believe, and was published in his obituary. It starts, "Poor Joshua, it centers the important people in this case and the impacts on their lives and it just reminds everybody that there are human beings here." A stark contrast to Brennan's discussion of positive and negative rights. It's like, here's this kid abandoned by respondents who placed him in a dangerous predicament. This is real, you know? And I think the most important thing he does is literally call for moral ambition, a call that I don't think has been answered often enough by the left in the Supreme Court, and it's something that could take a lot from this dissent. What is required of us is moral ambition. It's a quote he drops and it's I think one people need to take seriously.

0:26:11.6 Rhiannon Hamam: Yeah.

0:26:12.6 Michael Morbius: It's precisely what's required of those in power.

0:26:13.9 Rhiannon Hamam: Yeah. I think both dissents are really powerful in different ways. Both of you have referenced the majority Rehnquist's sort of formulation vision of government as being just utterly impoverished, right?

0:26:28.3 Michael Morbius: Yes.

0:26:28.3 Rhiannon Hamam: The government doesn't owe you anything. And reading this case just has me thinking headline, like flashing phrase in my mind as race to the bottom. The race to the bottom in terms of law enforcement, but it's also kind of like more broadly, government in general. Right? So in terms of law enforcement... Let's step back and talk a little bit about child welfare, state child welfare services like CPS, like DSS here in this case. I think that this is hard to hear maybe for a lot of people. It might be the first time maybe that a lot of listeners even hear someone say this, but it's okay, come with me till the end. Child welfare services have a lot of the same problems as cops do in this country, which is to say that child welfare services, as we have conceived them, in my opinion, should be abolished along with the cops.

0:27:23.4 Rhiannon Hamam: Child protection across the country operates a lot like law enforcement does, and so the same problems come with it, both structural and legal and otherwise. From a structural and institutional standpoint, child welfare services are racist. They are. They disproportionately target families of color, especially black and indigenous families. They criminalize, they separate those families and in turn, they destabilize kids and communities.

0:27:49.3 Rhiannon Hamam: They're not equipped, nor are they mission-oriented towards doing what would actually improve people's lives, which is we know provide them with material resources, safe housing, meaningful job and income assistance, robust mental and physical healthcare, community parenting support. Instead, what they are oriented towards is surveillance, the threat of punishment, violence, and control of poor people, especially again, people of color. That is structurally extremely similar to policing, right? Those are a lot of the same problems. Now, that's a whole episode, like child welfare is the cops or whatever. That's a whole different episode. We'll talk about it a different time. But even setting those structural issues aside, like say those structural issues aren't even relevant to this particular tragedy, to this particular case, even in tragic cases, even in individual cases where something could be done that could have saved Joshua's life, they fuck it up.

0:28:51.1 Rhiannon Hamam: And again, that's similar to the police. We know about the stats about what police actually do to solve crime. They don't. What I'm saying is it's all a race to the bottom and it's because of cases like this that allow that institutional breakdown, not just on a structural level, but again, even in individual cases where courts and the law are saying there is no obligation to provide any actual services to the people in your community.

0:29:24.4 Rhiannon Hamam: There's also this race to the bottom idea of like the bigger government stuff, which is what both of you have referred to earlier in the episode. This case is a legal expression of a political preference, of a preference about what the government is. This is doctrinally about what the government does in our country, what the government is supposed to do, why we have a government in the first place, and by the terms of this opinion, we have government services so they can dutifully document things. That is a direct quote from the majority. Rehnquist says that DSS dutifully documented what was happening in Joshua's life, nothing more. And that is what rugged individualism and pull yourself up by your bootstraps and conservative small government bullshit and no taxes, that's what that actually means, right? This is the philosophy behind it. It means the government doesn't owe you shit, and not just that, but the government child welfare office doesn't owe a four-year-old a thing.

0:30:29.7 Michael Morbius: Yeah.

0:30:30.3 Rhiannon Hamam: It's really fucking dark, this formulation of the government. But I'm not left with just a doom and gloom. You look at the dissents, you realize and remember it doesn't have to be this way. That's why the dissents are so important here. It doesn't have to fucking be this way. We can build something different.

0:30:47.4 Michael Morbius: The way child welfare services operate, separate issue, but I think if you ask most people, they would say that they do want a government [laughter] that actually cares for and protects children.

0:31:00.3 Rhiannon Hamam: Yes, yes.

0:31:00.5 Michael Morbius: This opinion, it is an expression of a political preference. I don't know... It's an expression of a majoritarian political preference.

0:31:07.9 Rhiannon Hamam: Absolutely.

0:31:08.8 Michael Morbius: I wanna talk a little bit about procedural posture of this case. It's not something we talk about often. I will keep it high level, not get into the weeds. But the main thing to understand is the way this case went, the district court basically called it over before we even got to discovery. And this is important because I think an underrated fucked-up thing about this case is that Joshua and his mom never got to learn why DSS didn't take him out of his dad's custody. We never learned if it was a reasoned decision, one where they looked at a bunch of facts and consulted relevant laws and worried about trial and things, or if it was neglect, or if it was cowardice, or if Randy DeShaney was just buddies with someone who was buddies with someone who knew someone at DSS or what. We don't know. And we'll never know because this was the chance to know why this happened. Otherwise, those records are pretty tightly kept. And the court shut it down before they were forced through legal process into the sunlight. And I think that's fucked up, too.

0:32:30.9 Peter Shamshiri: Yeah. Not to typecast myself when you already said that I talked about formalism, but I'm gonna talk about formalism.

0:32:37.3 Michael Morbius: Let's do. Let's do it.

[laughter]

0:32:40.0 Rhiannon Hamam: Get on that [0:32:40.7] ____.

0:32:43.7 Peter Shamshiri: This is, by the way, for all of our listeners, this is how you structure the end of an episode. You have, redo a stirring moral call-to-action, and then you stamp on the emotional element by having Michael talk about procedure and then me talk about formalism.

[laughter]

0:33:00.2 Michael Morbius: That's right.

0:33:01.5 Peter Shamshiri: That's the perfect structure for the end of a podcast episode.

0:33:04.4 Michael Morbius: That's right.

0:33:05.4 Rhiannon Hamam: Left hook, right hook, uppercut. [laughter]

0:33:08.1 Michael Morbius: Yeah, okay. We puts them in the mindset where they're like, "We'll listen to anything they say."

[laughter]

0:33:15.8 Peter Shamshiri: Now you have.

0:33:15.9 Michael Morbius: Now they're ready to hear my take on procedural posture and your take on formalism. They're ready.

[laughter]

0:33:24.1 Peter Shamshiri: So this case is so rough, I think, not just because of the awful facts, but because of how starkly the brutality of conservative jurisprudence is laid bare. If you want a sort of minimalistic, hyper narrow interpretation of the Constitution, these are the situations that you necessarily create. Right? This isn't some deeply unfortunate development that no one could have done anything about.

0:33:56.3 Rhiannon Hamam: Yep.

0:33:57.5 Peter Shamshiri: It is the output of a mode of analysis that is designed to and will inevitably reach outcomes like this. This is what the purpose of legal formalism is, right? If you think that judges are just archeologists trying to dig up and reveal the true law, that creates a moral distance between the judge and the outcome. The judge gets to say, "Well, hey, I just found out what the law is and then I applied it." He gets to act like he wasn't making a choice. This decision is a choice about what justice should be available to Joshua DeShaney and the court's interpretation of the 14th Amendment is a choice about what the relationship between the government and its citizens should be.

0:34:46.6 Michael Morbius: That's right. It's a choice that we can make anew, right?

0:34:49.6 Rhiannon Hamam: Right.

0:34:50.5 Michael Morbius: We don't have to live with this.

0:34:51.7 Rhiannon Hamam: Exactly. It does not have to be this way.

0:34:55.0 Michael Morbius: If we have the moral ambition that Blackmun asks us to have as a society, as people, as a voting public, and hopefully as judges, not us specifically, but we the people generally, have that ambition, we can build a better and more just society.

0:35:14.8 Rhiannon Hamam: Yep.

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0:35:21.5 Peter Shamshiri: Next week, we are taking a break, and then we are coming back with a premium episode, Reflections On The Past Supreme Court Term, which has been an interesting one, a rollercoaster ride.

0:35:36.1 Michael Morbius: Yeah.

0:35:36.3 Peter Shamshiri: Was it conservative? Was it moderate?

[laughter]

0:35:39.3 Rhiannon Hamam: Right.

0:35:40.1 Peter Shamshiri: Who knows, right?

0:35:41.2 Rhiannon Hamam: The ghost of the three-three court has come up again.

0:35:44.9 Peter Shamshiri: Yeah.

0:35:45.2 Michael Morbius: We need to take the week off 'cause we need to go on a retreat in a cave, no light, no sound, and just really meditate on this.

[laughter]

0:35:52.4 Rhiannon Hamam: Right.

0:35:53.6 Michael Morbius: And then we can answer these questions for you.

0:35:57.5 Peter Shamshiri: Yeah.

0:35:57.6 Rhiannon Hamam: Oh, I thought you were gonna say a retreat to the Adirondacks paid for by a billionaire. I would take that.

0:36:02.2 Peter Shamshiri: My opinion about the Supreme Court term will depend entirely on whether a billionaire sends me to the Adirondacks retreat.

0:36:08.2 Rhiannon Hamam: Right. [laughter] Stay tuned.

0:36:12.8 Michael Morbius: Yeah.

0:36:13.4 Peter Shamshiri: Subscribe to our Patreon at patreon.com/fivefourpod, all spelled out, to hear that premium episodes, to get access to all of our premium episodes, our ad-free episodes. Follow us on all social media at @fivefourpod, including our YouTube, which we're messing around with these days.

0:36:32.0 Michael Morbius: Yeah.

0:36:32.2 Rhiannon Hamam: Yeah.

0:36:33.0 Peter Shamshiri: Check out our uploads.

0:36:34.1 Michael Morbius: We had a great livestream and we hope to have more stuff on it soon.

0:36:37.9 Peter Shamshiri: Yeah. We'll see you next week.

0:36:40.3 Michael Morbius: 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at Chips NY. And our theme song is by Spatial Relations.

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