RHIANNON HAMAM

MICHAEL LIROFF

[ARCHIVE CLIP: We'll hear argument now in case 23-753, the City and County of San Francisco versus the Environmental Protection Agency.]

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about San Francisco v. EPA. This is a case from just a few weeks ago about environmental regulation, and more specifically, how much garbage and human waste a sewage treatment plant is allowed to dump in the water supply. The case centers on the sewage system in San Francisco, which during heavy rains can exceed its capacity, resulting in overflows that empty out into public waterways.

Leon: As you might imagine, the EPA's guidelines seek to impose limits on the pollution level in the water. San Francisco sued the EPA over these guidelines, claiming that they were insufficiently concrete, and therefore unenforceable. The Supreme Court agreed. This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our civil rights to collapse like the stock market under Donald Trump. I'm Peter. I'm here with Rhiannon.

Rhiannon Hamam: Hey!

Peter: And Michael.

Michael Liroff: Hey, Peter. You got your eye on your portfolio?

Peter: Always, baby. Always.

Rhiannon: My 401k's in the tank.

Peter: I'm always wheeling and dealing. Line goes up, line goes down. I'm all over it either way.

Rhiannon: Oh, it's so bad. Oh, did y'all see that, like, there's a Donald Trump past tweet for every occasion, and so he tweeted God knows how long ago, during the Obama …

Michael: I think it was Obama.

Rhiannon: Yeah, during the Obama presidency. Like, something like, "If the stock market drops, you know, this much in a day, the president should be impeached."

Michael: Yeah. A thousand points. A thousand points in a day, the president should be impeached.

Peter: Yeah. On the Dow. Right.

Rhiannon: Yeah. Yeah, yeah.

Peter: Well, to be fair to him, that was a higher percentage of the Dow at the time.

Michael: [laughs]

Peter: Now ...

Rhiannon: Don't correct me. I said stock market dropped so many points, and you said the Dow?

Peter: Well, no. It's a specific market. You're not wrong. You're not wrong. But I'm just being specific for our listeners who are of wealth.

Rhiannon: [laughs]

Peter: So that they don't complain.

Rhiannon: Yeah.

Peter: That's gotta be the least likely demographic to get a complaint from for 5-4, people who have money. No one has any idea what we're talking about. Most of our listeners are burdened by six-figure debt, and even if you gave them a multi-million dollar business, they would run it into the ground almost immediately.

Michael: All of our listeners have never felt more seen than when Rhi was like, "Do I have stocks? What's a stock? [laughs]

Rhiannon: Yeah. And Peter and Michael were both in unison, "No."

Peter: Don't worry about it.

Rhiannon: [laughs]

Peter: All right. Today's case, San Francisco v. EPA. This one is fresh, hot off the presses, dropped a couple weeks back, and it is about sewage in the water.

Rhiannon: Mm-hmm.

Peter: How much do you want? What's the ideal amount? The Environmental Protection Agency is the number one federal agency in charge of keeping poop out of the water.

Rhiannon: Yeah.

Peter: In the process of regulating a sewage treatment plant in San Francisco, the EPA gave them some general guidelines for adhering to the laws regarding water quality. But San Francisco argued that the guidelines were actually too generic and therefore not enforceable. And the Supreme Court, in a five to four decision, agreed.

Rhiannon: Yeah. Guys, this case is about shit in your water.

Michael: Yes.

Rhiannon: It really is.

Peter: A flawless metaphor for our times.

Michael: Yes.

Peter: The EPA was like, "Hey, can you cut down on the shit in the water?" And Sam Alito was like, "They don't have to!"

Rhiannon: Right. Back off!

Michael: Right. San Francisco was like, "No, fuck you." Sam Alito was like, "For once, I agree with these libs."

Rhiannon: Yeah. A hundred percent. Yeah, so it is very literally about shit in the water. CBS headline about the Supreme Court case. "Supreme Court Sides with San Francisco, Makes it Harder for EPA to Police Sewage Discharge." You know, it is what this case is about. So look, we've talked about the history of the Clean Water Act before, but I do want to emphasize again that before the Clean Water Act was passed, many waterways in the US were used as disposal sites. We're talking raw sewage, we're talking chemical pollutants, garbage, whatever people and companies and governments were disposing of, it went in the water, you guys.

Peter: And then your parents drank that water. That's why they all vote for Trump now, because their brains are full of actual poop.

Rhiannon: Right.

Michael: And in Gen X cases, lead.

Peter: Also lead. Yeah, it's lead and poop.

Rhiannon: Gen Alpha these days, it's a microplastics issue.

Peter: It's the plastics, yeah.

Rhiannon: You know? Every generation has ...

Peter: Millennials, the only completely untouched brains.

Rhiannon: [laughs] I'm normal, actually.

Michael: We're so fucking normal.

Rhiannon: So the Clean Water Act, it was a response to high levels of pollution in the water in the United States, which obviously devastated ecosystems and also made people unhealthy. So part of what the Clean Water Act does is it directs the EPA, the Environmental Protection Agency, with regulating water pollution. It tells the EPA that it can pass and enforce regulations related to clean water, including—which is what's relevant to this case here—that the EPA can issue permits that impose requirements on any entities that do discharge pollutants into waters. So these permit requirements can be a lot of things. Like, a permit requirement can restrict the amount of pollutants that an entity can discharge into waterways. Or what types of pollutants. If you are, you know, putting crap in the water, it needs to be under this level. This is like what regulation is, right?

Michael: Yes.

Rhiannon: This is, like, how I think most people think the government should work. I don't know. Not these guys, but whatever. So here in this case, the EPA issued permits to the city of San Francisco for its two wastewater treatment facilities. They treat wastewater and stormwater, okay? And this is actually like a, in part combined facility, meaning that treated wastewater and treated stormwater can mix. And in fact, when rain levels are high in San Francisco, the combination of wastewater and stormwater can exceed that facility's capacity, which results in the discharge of untreated water, including raw sewage, into the Pacific Ocean or the San Francisco Bay. Lovely! So the EPA issued these permits, and these permits had what are called in this case, what end up being defined in this case as "end result requirements." There were two such requirements in these permits. The first was that these facilities did not make any discharge that contributed to a violation of water quality standards in that receiving body of water.

Rhiannon: So City of San Francisco, whatever discharge is coming out of these facilities, it can't contribute to what would be a violation of water quality standards in the Pacific Ocean or the San Francisco Bay. The second requirement was that the city couldn't perform any treatment or make any discharge that created pollution or contamination or a nuisance as defined by applicable water quality laws. Again, like, basically like, hey, whatever's coming out of these facilities, make sure it doesn't make these waterways worse, basically.

Michael: Mm-hmm.

Rhiannon: So we're gonna talk about this distinction between, like, end result requirements and other requirements that the EPA includes in these kinds of permits. But that's what's going on in San Francisco. And like Peter said, San Francisco decided to challenge these kinds of requirements, just these, quote-unquote, "end result requirements." They sued in the Ninth Circuit. Ninth Circuit actually was like, "This is the dumbest claim we've ever seen," and dismissed. But of course, the City of San Francisco appealed, because who's above the Ninth Circuit?

Peter: You know who loves poop? The Supreme Court.

Rhiannon: Yeah! And who would be totally down? That's the Supreme Court. So that's how we get up there.

Peter: Yeah. So let's talk about the law here. First, a real quick reminder of how these federal agencies work. Congress passes laws that create the agencies, and outline the scope of those agencies' power. And then the courts, like here, will sometimes hash out whether the agency is sort of acting within the scope of the power outlined by Congress. So that's what's going on here.

Michael: Right.

Peter: Now this case has a bunch of textual analysis. Extremely dumb, extremely convoluted. We'll touch on it a bit, but if I've learned anything about podcasting, it's that you don't want to do textual analysis in podcasting.

Michael: [laughs]

Rhiannon: [laughs]

Peter: It's bad enough when it's written out.

Michael: Yeah.

Peter: Right? But podcasting, it'll break your brain. So I'm gonna simplify a little bit. Basically, the EPA is allowed, under the law, to impose limitations on these facilities in order to meet water quality standards. So in this situation, they tell San Francisco, "Hey, when you're discharging waste, you can't do anything that would make the water quality worse." But the court says this is not a valid regulation. It's what they call an end result requirement. You're not telling San Francisco exactly what to do, you're just telling them what the end result needs to be, right? You're not telling them how to meet the clean water standards, you're just saying "Meet the standards."

Rhiannon: Right.

Peter: So the EPA could say, "Hey, you need to use this equipment," maybe. Right? Or, "You can only discharge this much waste into the ocean each month." But instead they're saying, "Do whatever you want, just meet the water quality standards," right? Anything you do must meet those standards. The court says you can't do that. They say the EPA is supposed to impose limitations necessary to meet water quality standards, but that's not really a limitation meant to meet the standards, it's just telling them to meet the standards. So there are limitations meant to meet the standards, and then there's just telling them to meet the standards. And I guess that's not a limitation.

Michael: Not a limitation. Yeah.

Peter: Not a limitation, according to Sam Alito. So to draw an analogy here—I'm gonna do a bunch of analogies—it's like there was a government agency.

Rhiannon: An analogy other than, "There's shit in the water."

Peter: Yeah, well, that's a—that's more of a metaphor for what's happening broadly.

Rhiannon: In the world. Sure.

Peter: But I'm gonna do an analogy about the reasoning here. So this is like if there was a government agency in charge of you getting to work on time, right? And instead of saying, "You have to use this route or that mode of transportation," they say, "Hey, do what you want, but 9:00am." Right?

Michael: Right.

Rhiannon: Yeah. Yeah.

Michael: Yeah.

Peter: And then Sam Alito says, "No, no, no. You can't say that."

Michael: Gotta give him a route.

Peter: You have to give them specifics. I have to say that this, to me, is what I would describe as clown shit.

Michael: Yes.

Peter: It's absolute clownery. This is such a good example of how textualism and, like, textual analysis gets abused.

Rhiannon: Yes.

Peter: Like, Alito was sort of right in the micro that there is a difference between saying "Do X, Y and Z so that you meet the water standards," and just saying, "Meet the water standards," right?

Michael: Yeah.

Peter: But he's wrong that the difference matters.

Michael: Right.

Peter: It's just two approaches to achieving the same exact goal, right?

Michael: Right.

Peter: This is why textualism is useful to conservatives, because it allows them to, like, parse laws every which way to sort of locate any grammatical oddity that they can and then exploit that.

Rhiannon: Mm-hmm.

Peter: So the bottom line here is that the law says the EPA can impose limitations necessary to meet water quality standards. The EPA turns around and says to San Francisco, "Hey, you have to meet the water quality standards." And then the court says, "No, you can't say that."

Michael: Yeah.

Peter: Just think about the mental gymnastics required to believe that this is reasonable.

Rhiannon: Right. And call it—like, this is actually your better understanding of the English language.

Peter: Right. Like another analogy. I'm the regulator in charge of making sure Rhiannon doesn't cross the street.

Rhiannon: You can't make me! You can't stop me!

Peter: Congress put me in charge of it. They're like, "Don't let her cross the street." So I say, "Cool. Hey, Rhi. don't cross the street." And the court's like, "Well, no. You can't say that."

Michael: [laughs]

Peter: "What are you talking about? That's—that's what I was put in charge to do."

Rhiannon: It's an end result requirement.

Michael: Yeah.

Peter: You can get deep into Merriam and Webster's asses about all of this, trying to figure out, like, the precise etymology of every word if you want. But at the end of the day, the EPA is in charge of maintaining water quality standards, and the court just told them that they can't tell San Francisco to maintain its water quality.

Michael: Yeah.

Peter: Just again, clown shit. Clown shit.

Rhiannon: Buffoonery, dude. Buffoonery.

Michael: It's so ridiculous.

Rhiannon: It's clown shit in the water. It's not just shit in the water, it's the clown's shit in the water. Yeah, there's a crazy quote here. Alito says, quote, "When a permit contains such requirements—" he's talking about, like, these quote-unquote, "end result requirements." "When a permit contains such requirements, a permittee that punctuously follows every specific requirement in its permit may nevertheless face crushing penalties if the quality of the water in its receiving waters falls below the applicable standards."

Michael: Yeah.

Rhiannon: Yeah, that's the point of keeping the water clean is that when they don't keep the water clean, they're violating the law. [laughs]

Michael: Yeah. It's so fucking stupid.

Peter: Just think about the fact that the EPA is allowed to be like, "You can use this machinery, but not that machinery. You have to use these chemicals and not those chemicals." They can give all of these little requirements that impose these, like, great costs on businesses and municipalities in this case. But they can't just be like, "Hey, don't violate the standards."

Michael: Right. Right.

Peter: And you're meant to believe that San Francisco saying, "Hey, don't violate the water quality standards," is not a quote-unquote, "limitation" under the law. Like, we just get to this point with these textual analyses that the conservatives do where it's like, do you speak human language?

Rhiannon: Yeah. You just described a limitation.

Michael: Yeah.

Rhiannon: You said that if they violate applicable standards, then they will face penalties. That's a limitation. It's a limitation.

Peter: Yeah, but that's a limitation from without.

Rhiannon: [laughs]

Peter: There's a terrible part of the opinion where he's like, "There are limitations from within and there are limitations from without. And this is a limitation from without." And you're sort of like, why are we talking about this?

Michael: Yeah, it's insane.

Peter: These are different types of limitations. It's one of those things where it's like, yeah, if you paid me a million dollars and were like, "I want to put feces in the water, write the opinion," I guess this is what I would come up with. I guess I would be like, "Well, there's limitations from within and there's limitations from without." [laughs]

Michael: [laughs] It's so bad. It's so bad. Amy Coney Barrett writes a dissent for her and the three liberals. You know, I usually like statutory interpretation cases because I think it's kind of fun. I like doing puzzles, and statutory interpretation can feel like a puzzle. You know, like, all these different pieces of a statute, how they interact, the whole scheme, how it fits together. It's like a little logic game that I enjoy. This bored the shit out of me because that's not what this is at all.

Rhiannon: Yeah.

Michael: There's just two provisions. One's like, you can describe limitations on effluence, which is just wastewater, sewage, essentially. And then a catch-all that's like, yeah, and otherwise limit the—to protect the quality of water. And that's it. The way this works, by the way, I think we should say, is that all discharge is presumptively illegal, right? And that's why there's permitting. So the EPA can issue a permit to San Francisco saying, "This otherwise illegal dumpage of sewage into the waters of the United States, into waters that we control, we're gonna let you do that as long as you do X, Y and Z, use X chemicals and Y disposal. And also just make sure that you don't violate the water quality standards." That's it.

Peter: Right. That's worth pointing out, Michael, because what the court is ultimately saying here is even though the EPA could just revoke the permit, right? The EPA could say, "You don't have a permit to discharge waste."

Rhiannon: Right.

Peter: "You can't get rid of your sewage." They could say that, but apparently they can't say, "Hey, you can discharge your sewage, just abide by the water quality standards."

Michael: [laughs]

Peter: Because that limitation is not a limitation under the law.

Rhiannon: Outside the scope. It's outside the scope.

Peter: What are you talking about?

Michael: It's insane. Barrett, like, the best part of her opinion is when she just starts listing examples of things that, like, are obvious limitations, and that wouldn't be under Alito's logic.

Rhiannon: It's the easiest thing, right?

Michael: I thought a good one was, like, saying a minimum GPA. Like, "Oh, our law review has a minimum GPA of 3.5." What, is that not a limitation on who can apply for law review? Because they didn't say, "You must have seven As, three A minuses, and four B pluses," or whatever? Like, what are you talking about? Obviously, it's a limitation, right?

Peter: I mean, she cuts to the core of it when she says, "Conditions that forbid the city to violate water quality standards are plainly limitations on the city's license to discharge."

Michael: Right.

Peter: Right?

Michael: That's it. What are we talking about?

Peter: The EPA is giving them an instruction that limits their ability to discharge sewage, and Sam Alito is like, "It's not technically a limitation when you think about it. When you think about it, it's not really a limitation in this sense." And she's just like, "What are you—what is this? What is this?"

Michael: It's insane. It's insane. I would love to, like, sit in on a legislation and regulation class next year to listen to a good professor try to explain this case to law students. It's nonsense. It's nonsense. It's nonsense that sort of undercuts textualism as well.

Rhiannon: Yes.

Michael: I mean, in the abstract sense. But also it's like textualism, if you ask an academic, it's supposed to be about the plain meaning, right? What's the best meaning? What's the best reading of this? What's the way a normal human being reading this statute, you know, what conclusions would they draw? That's why they love dictionaries and stuff. They're supposed to be evidence of general understandings of the way language works.

Rhiannon: Yes. Big Scalia talking point, writing point, right? Plain meaning when we're interpreting the text.

Michael: In what world is this a plain meaning, that limiting what the city can do is not a limitation? Like, what are we talking about? And it's just like, it's clearly, like, bullshit. And it's bullshit that's like an inversion of the way conservatives usually talk about government, right? Which I think is good to note that the usual complaint is like, "Oh, we don't want big government micromanaging business," or "We don't want big government micromanaging local government. We like local control. We like states rights and cities," and all that shit. And then here you have the EPA just being like, "Look, just make sure the water quality is fine."

Rhiannon: Right.

Michael: And they're like, "Can't do that. Can't do that."

Peter: Right. No, you have to give them really specific and onerous instructions.

Rhiannon: Yeah.

Michael: Yeah.

Peter: Like, the idea being that the EPA is again within its power to not only just revoke the permit entirely, but to say, "Hey, you can discharge sewage if you abide by, like, these 10 steps."

Michael: Give you a 300-page binder of regulations that you have to follow.

Peter: Right. You could—you could make them basically jump through crazy hoops, but you can't just say, "Hey, keep the water quality where it needs to be." It's just sort of absurd on its face. It's bad governance. It's sort of like lawyer brained, in a sense. Even if you think that Alito's acting in good faith, which I really don't, but it's lawyer brained in the sense that, like, you need to be able to take a step back and think, "Where are the rules that I'm following getting me here?"

Michael: Right.

Peter: Because it seems like I accidentally backed up into a spot where the word "limitation" has no meaning, where I just told the EPA that it can't tell a wastewater treatment facility that it needs to watch the water quality of the water that it's discharging waste into.

Michael: Right.

Peter: Like, you need to be able to take a step back and be like, "Oh, that's—that outcome is actually so absurd that whatever route I took to get there has to have been wrong in some sense."

Rhiannon: Yeah. This kind of reasoning and, you know, the whole majority opinion they're holding here, it really, like, exposes, like, it's not just that, you know, they are anti-administrative state. They want to shrink the power of these federal agencies. It's so anti-intellectual, actually, and so disconnected truly from reality, that what this boils down to is just whatever the EPA fucking does, it's a no from me. That's what it is. This isn't reasoning that makes sense. There's absolutely no logic here. It, in fact, is inversion, like you said, Michael, of a lot of how conservatives think about regulation and what federal agencies do. This is so bare in exposing that it's just like, "I don't give a shit what the EPA is doing. Whatever comes to my desk, I'm gonna say, 'No, it's bad.'"

Peter: Exactly. Exactly. We're gonna make it as hard for them as possible, no matter, like, what the issue is. When it arrives on the Supreme Court's docket, their goal is to make these agencies have to jump through as many hoops as possible so that they don't get as much work done, so that their billionaire friends with yachts and sex parties don't have to worry about their companies being fined or whatever.

Rhiannon: Yeah.

Peter: It's just so transparent. And while we're talking about agencies, I think that there's, like, an extra layer of absurdity here, because Trump is hollowing out other agencies as we speak.

Michael: Right.

Peter: Like, ostensibly, this is about agency authority and the will of Congress, right? Congress wrote the Clean Water Act, and that gave the EPA some amount of authority, and we must abide by Congress's will, right? This is just about making sure that Congress's will be done. Meanwhile, Trump is just shuttering agencies created by Congress, independent agencies. The same week this drops, Sam Alito sides with the Trump administration against USAID, right? About, like, the illegal freeze of USAID funds. So, like, you know, what's the conclusion you can draw here? What's the only conclusion you can draw here? When it's the people he likes, they can use the law for fucking kindling.

Michael: Right.

Peter: They can seize control of independent agencies. But when it's someone he doesn't like over at the EPA, he's like, "Oh, I don't—I don't think that's technically what 'limitation' means."

Rhiannon: [laughs]

Michael: Yeah.

Peter: Like, suck my dick, you fucking scumbag.

Michael: Even better than kindling. When it's the people they like, they can use the law to wipe their ass and then throw it directly into your drinking water.

Peter: Right into the San Francisco Bay, baby.

Michael: [laughs]

Rhiannon: There's evidence—did y'all see in the case, there's, like, evidence that, like, when the stormwater and the wastewater mix and get discharged into the Pacific Ocean, there's solid waste in the water that's visible. There's toilet paper visible in the water. Like, you look in your toilet after dinner, and that's what the fucking Pacific Ocean looks like when this happens. Like, what?

Michael: Yeah.

Rhiannon: And the EPA can't be like, "Hey, watch out for that." [laughs] You know?

Peter: You gotta be specific. You gotta be specific.

Michael: Sam Alito, by the way, is also the guy who ruled that if this shit water connects to other waters underground, they're not actually connected. They're not connected.

Rhiannon: It's not one waterway. What case was that? I don't remember. Another fucking Alito decision striking down something the EPA was doing.

Peter: I don't know, but I'm a little concerned about two water cases in the span of one year.

Michael: Written by Alito.

Rhiannon: Written by Sam Alito.

Michael: Written by Sam Alito. Yeah.

Peter: Yeah, he's in charge of the mission at the Court to poop-ify the water, to really poop it up. In a couple years, the decisions are just gonna be like, "If someone wants to swim in poopier water, that's his right as an American, and the EPA is abridging it." I guess we should probably talk briefly about Amy Coney Barrett's beautiful redemption. Of course, you had this case where she sides with the libs, but then she also sided with the libs in the USAID case, which gave the libs the win.

Rhiannon: So did John Roberts, right?

Michael: Yeah.

Peter: Yeah, he's a hero as well.

Michael: Except in the case of poop in water, then he's back to villain status.

Peter: Well, that's his line in the sand. He must have—he must have poop in the water.

Rhiannon: Dr. Jekyll and Mr. Hyde kind of thing, you know?

Michael: Yeah.

Peter: Yeah. There has been a little bit of media and public reaction to two consecutive defections from the conservatives for Amy. First, you have conservatives being upset. The average conservative, of course, is a murderer, whether or not they have murdered someone is irrelevant. It's spiritually.

Michael: In their hearts.

Rhiannon: Yeah.

Michael: Yeah.

Peter: They are murderers. And so obviously, she's receiving death threats online. You know, the academic right, Joshua Blackman over at The Volokh Conspiracy, some of those conservative blogger guys have just written that, like, she is, you know, a DEI hire who should be, like, impeached.

Michael: Yes. Yes.

Peter: By the way, I've seen multiple right wing law professors—I'm not talking about random online scumbags, law professors say that she's a DEI hire.

Rhiannon: Yes.

Peter: Which is, of course, true. And also hilarious.

Michael: Yes.

Peter: Clarence Thomas, of course, also a DEI hire. Neil Gorsuch, DEI, because he's tall, kind of a silver fox as far as judges go. Brett Kavanaugh, DEI hire.

Michael: Alcoholic. [laughs]

Peter: Because he looks sturdy.

Rhiannon: Yeah. They needed a sturdy boy up there.

Peter: He left the room and Trump was like, "You couldn't knock that guy over if you tried."

Rhiannon: Yeah.

Peter: You know? They're all DEI hires in different regards. And of course, the complaint about Amy Coney Barrett, it's just—it's just like these people eat their own so fucking quickly. That's just good fun. As far as I'm concerned, conservatives talking about impeaching Amy Coney Barrett, things like that, that's funny. Sadder to me is liberals who were like, "Is Amy Coney Barrett good now?"

Michael: Yeah.

Rhiannon: "Is she the angel that we needed?"

Michael: Right.

Peter: I have seen some people be like, "Maybe she's on sort of a David Souter arc." And Souter is, you know, a Reagan appointee who drifted left over the course of his career. Now whether or not you think Amy Coney Barrett is drifting left, I assure you that she is not on a David Souter arc of any type. Amy Coney Barrett voted for immunity for Trump last year.

Michael: Right.

Peter: It was like nine months ago, right? Now when you're analyzing what's happening at the court, you can't let the order of cases just fuck your brain up like this, right? If these two dropped and then immunity dropped after, would you be talking about her drifting left? Of course not, right? But they're only nine months apart. This is not a meaningful period of time. Dahlia Lithwick, on her podcast—and Dahlia is a, you know, a liberal legal journalist, said that, "Amy Coney Barrett hasn't had years and years to be pickled in the brine of her own victimhood and fury. And you really see that this is not a pickled person. This is a fresh-faced person who's still really curious about how the world works." I don't know what to say about that other than relax. Like, what do you—this is two cases. We have no more information. The idea that you need to be doing armchair psychology about this woman based on these two cases, it just blows my mind. Like, have we learned nothing? How many glowing profiles of John Roberts did we get over the years because once a year he sides with the liberals, twice a year he sides with the liberals, right? Now it's maybe more like four or five times a year because the cases that come to the court are more insane.

Rhiannon: Right!

Michael: Right.

Peter: But he continues to get credit. And now we're gonna see the same media cycle for Amy Coney Barrett because people, I guess, are incapable of sort of taking a step back and being like, "Oh, this is an ideological conservative who doesn't align with, like, Sam Alito on X, Y and Z, necessarily." It's that simple.

Rhiannon: It is so wild how quickly and viciously conservatives come for their own, police their own, punish their own as soon as they step out of line a little bit from the conservative perspective. You see truly wild—I also think it's hilarious. Like, I don't feel bad for Amy Coney Barrett, not one second. I think it's hilarious, but you see conservative ideologues proposing crazy things right now. Peter, you mentioned impeachment. They are saying that Amy Coney Barrett should be impeached right now. I saw a proposal online from a conservative that Trump should pack the court. Go ahead and pack it. Go ahead and expand the Supreme Court. Put five more crazies on the Supreme Court, and that would negate Amy Coney Barrett's power. It's—this is a dissent!

Michael: Yeah.

Rhiannon: It's a dissent! [laughs]

Michael: It's insane.

Peter: Yeah, but they got one win in USAID. It's such a telling difference between the right and the left. Even a slight deviation from the party line, the very far-right party line, and they are fucking furious. Meanwhile, you throw the libs a bone once a year, and they're like, "Is this our new God? Is this someone who can save us from the brink?"

Rhiannon: You know, you have a different example of this and, like, how—how liberals have not learned the lesson yet in Anthony Kennedy.

Michael: Mmm.

Rhiannon: So retired Supreme Court Justice Anthony Kennedy, you know, Brett Kavanaugh, replaced him. So Mr. Anthony Kennedy happened to be at the recent address to Congress, Trump's joint address to Congress a couple weeks ago. Anthony Kennedy was there. He was wearing a robe. He's not a fucking judge. He's not a justice anymore. But he's in a robe anyway, and he's sitting next to the Supreme Court justices. And for folks who don't know, you know, Anthony Kennedy during his tenure on the court, and certainly at the time of his retirement, totally celebrated for this supposed, like, moderation, the moderate, the centrist. He's not really a conservative. In fact, he's an important swing vote. And, you know, he could be convinced by the liberals, and he sometimes sided with them.

Michael: He wrote the gay marriage case.

Rhiannon: And, you know, he's not a committed conservative ideologue. Like, this is how liberal, you know, legal academics and liberal journalists would comment and talk about justice Anthony Kennedy. And it's like, okay. Well, in 2025, when Anthony Kennedy has no reason to be at a Donald Trump address of Congress, he is there anyway. He's showing up in the first or second row. And why? It's so that when President Trump is going through the crowd shaking hands, Anthony Kennedy is there. Anthony Kennedy doesn't have a reason to be there other than he is fangirling. He is a huge fan of Donald Trump. And as Trump is moving through the crowd shaking hands, what does Anthony Kennedy say to him? He says, "Mr. Trump, you're making young people love America again."

Michael: Yeah.

Rhiannon: What the fuck?

Peter: Well, he was having a stroke. But I still think it was a bad thing to say.

Rhiannon: Yeah, it's just weird to notice, like, over and over and over again, like, liberals not learning the lesson. Like, again, like, you know, doing this celebration, this, like, creation of a hero in Amy Coney Barrett when it's like, we did this in Anthony Kennedy and look how he's acting now. Like, this is your hero? And it's just weird about placing hope in all the wrong places.

Michael: Yeah. No, and I think there's—like, I get we're all sort of looking for something to be hopeful about, but this isn't the right place to look for hope is the thing. That's—that's the key insight you need.

Rhiannon: Yes. Yeah.

Michael: Right? Like, this is not the place to look for hope. And the place to look for hope is in the mobilization of the American people. I wish it was from maybe elected representatives, but that does not seem to be the case either. So if you want to look for hope, look for it in the right places. Don't look for it in lifelong conservative Supreme Court justices who gave Donald Trump immunity and voted to overturn Roe v. Wade in just the last 24 months. Come on. Like, come on! It's a sucker's game. Another way to look for hope for the future is to just steel yourself against the likely consequences of bad actions. And in this, I'm segueing into a little PSA, which is you should get vaccinated. And I don't mean about COVID or measles—although you should get your titers checked and maybe get a measles booster.

Peter: Maybe look into what could be done for hepatitis if you live in San Francisco.

Michael: Yeah. Well, that's the thing is, like, when you travel, you go to countries where there aren't very good safety standards for food and water, you get certain vaccines like hepatitis or the ones I'm recommending are cholera and typhoid, both caused by waste in the water or unclean foods. I've had typhoid. It's caused by salmonella. You might remember there was a salmonella outbreak in 2022, in the fall of 2022, tied to onions that came from Mexico. I will tell you, it was the sickest I've ever felt. I thought I was gonna die.

Rhiannon: I can't imagine. I can't imagine.

Michael: I had 104° fever—over 104° fever after taking a bunch of, you know, acetaminophen and running multiple fans right in front of my face. It was like 3:00 am and I was on Twitter being like, "When should I go to the hospital?" And all these doctors replying, like, "Four hours ago. You should have gone to the hospital four hours ago." [laughs] I thought I was dying. I was like, it's the worst I have ever felt. Of course I know it was salmonella related to raw onions because the CDC tracked the outbreak, figured out where it came from, got all those onions thrown out so that the outbreak stopped. But, like, the people who did that, who do that tracking, a lot of them have been fired already. As you're seeing in this case, the standards that protect you from unclean water are going to be weakened, or at least the agency's ability to enforce those standards is weakened. Yeah, our drinking water, our communal waters are going to be dirtier. When there are outbreaks and there are outbreaks in the US all the time, it's gonna take longer to figure out where they came from, and it's gonna be harder to recall them. So yeah, go to a travel clinic and get some vaccines. It's a couple hundred bucks. Well worth it. Well worth it in my mind.

Peter: Yeah. I don't have anything to add to that. I just think if you see poop in the water, don't drink it. And that's the strategy I'm gonna be taking moving forward.

Michael: I thought it was your chance to take a victory lap on the age of diarrhea.

Rhiannon: Damn!

Peter: I did say that we were coming into the age of diarrhea. I've also said the age of morons. I mean, nothing but dubs in my ages, the various ages that I've identified.

Michael: [laughs]

Peter: The question is: Is this more the age of morons or more the age of diarrhea? I think that remains to be seen.

Michael: Yes.

Peter: Certainly there are a lot of morons, but give diarrhea a minute.

Michael: [laughs]

Peter: Next week, Mobile v. Bolden. This is a case from a few decades ago. We are going to explore Justice Lewis Powell's racism. We teased this in a recent premium episode: Another segregationist at the Supreme Court in the '70s and '80s.

Michael: What?

Peter: Can you believe it, folks? That is, of course, unless there is another poop-related case that comes down the pipe in the next few days.

Michael: Right.

Peter: Which we will—we are contractually obligated to cover.

Rhiannon: That's our promise to you. If there's a poop-related case, you're gonna hear about it on 5-4.

Peter: We're on that poop beat.

Michael: Yeah.

Peter: More than anyone else, I think.

Rhiannon: We're on the shittiest beat imaginable without a fucking poop case at the Supreme Court.

Peter: Oh, sorry. I meant at some point to just say, "Well, this was a shitty case, wasn't it, folks?"

Rhiannon: [laughs]

Michael: Yes.

Peter: We really droned on too long at the end here. Follow us on social media @fivefourpod. Subscribe to our Patreon at Patreon.com/fivefourpod for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We will see you next week.

Rhiannon: Bye!

Michael: Bye, everybody.

Michael: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at CHIPS.NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod.

Rhiannon: It is so, so nuts how conservatives will come for their own, and how quickly they do it, how viciously they do it. And—oh, shit. I just missed the—what was I gonna say about that? Holy shit, did I just forget again? I'm sorry. Michael, you were gonna make a point if you want to go.

Michael: Sure, I'll go.

Rhiannon: I'm sorry.

Michael: That's okay. Now I forgot my ...

Rhiannon: We've all forgotten. I'm so sorry. That was so crazy. I'm gonna have it back though.

Michael: Oh, fuck. What was my ...