[music]

00:03 Leon Neyfakh: Hey everyone. This is Leon Neyfakh from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon, and Michael are taking a break from history. Instead, they're talking about the present.

00:15 [Archival]: It was the first abortion case decided with President Trump appointees on the court.

00:19 [Archival]: A decision coming in on DACA.

00:21 [Archival]: Roberts wrote the opinion, and it was John Roberts and the four Liberals, and the opinion is, it's a joke.

00:28 Leon Neyfakh: What happened during the Supreme Court session that just wrapped up, and how it differs from what a lot of people think?

00:34 [Archival]: So we have another decision from a conservative Supreme Court with an outcome that would please the democrats and the Liberals.

00:42 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

00:53 Peter: Welcome to 5-4 where we dissect and analyze the Supreme Court cases that have burned through American life like hot lava through the streets of Pompeii.

[laughter]

01:04 Peter: I am Peter. Twitter is @The_Law_Boy. I'm here with Rhiannon.

01:09 Rhiannon: Hey. Hi everybody.

01:11 Peter: And Michael.

01:12 Michael: Hello.

01:13 Peter: And today, we wanted to take a step back and reflect on the Supreme Court term that ended a few weeks ago. We took a week off last week to give thanks for the term that was and also because I was moving, and now I'm there, in a new closet surrounded by pillows and blankets, and all the things that my producer makes me put inside my closet.

[chuckle]

01:37 Rhiannon: Mo' money, mo' problems.

01:39 Peter: That's right. The incredible wealth that we've derived from this podcast is not without sacrifice.

[laughter]

01:49 Rhiannon: Guys, can you imagine doing this podcast and it being economically worth it?

01:53 Michael: I cannot.

01:55 Peter: I truly can't.

[chuckle]

01:56 Rhiannon: Wouldn't that be so fucking cool, though?

01:58 Michael: It would be fantastic.

02:00 Peter: Before we talk about what actually happened to this term, we should talk about what people seem to think happened this term. And what people seem to think happened is that Chief Justice John Roberts established himself as a moderate voice on the Supreme Court. He joined the Liberals in a handful of close cases, especially towards the end of the term, and that gave a lot of observers the impression that he's gravitating left. But any close analysis of those cases shows that his opinions are intentionally cagey and designed to give Liberals a short-term win, while paving the way for Conservative victories down the road. So Roberts has changed his voting strategy, but he remains deeply committed to the conservative political project, and you really couldn't tell that if you were just reading the legal journalistic media. Right?

02:58 Rhiannon: Yeah.

03:00 Michael: Right.

03:00 Peter: He's been receiving heaps of praise from moderate and liberal journalists and pundits, and I think we should talk about some of that media coverage, and Rhiannon, you read through some of it, so...

03:10 Rhiannon: I unfortunately did, and I'm here to report that it is a pile of smelly garbage.

[chuckle]

03:17 Michael: It is.

03:18 Rhiannon: Do legal analysts have some sort of duty to say, "Gotta hand it to the Chief Justice," just like every fucking term? Can they just say for once that shit fucking sucks? This is why cancel culture, it's not real. If cancel culture was real, we wouldn't be here right now having to tell you that actually Chief Justice John Roberts is a little bitch, and he's not good at his job. But yeah, let's go through some of this ridiculous media rundown over the past couple of weeks, commenting on the end of the Supreme Court term. So Jeffrey Rosen wrote in a piece called "John Roberts is just who the Supreme Court needed." He writes that, "At a time of greater partisan conflict between the President and Congress than any time since the Civil War, as Americans are questioning the legitimacy of all three branches of the Federal Government, Roberts worked to ensure that the Supreme Court can be embraced by citizens of different perspectives as a neutral arbiter guided by law rather than politics."

04:26 Michael: Wrong.

[laughter]

04:29 Rhiannon: Adam Liptak, in the Times, he's on a John Roberts' dick sucking marathon. He can't stop. "In an era of stark partisan polarization, Chief Justice John G. Roberts Jr... " Thanks for the full name.

[laughter]

04:43 Peter: Very uncomfortable when you write it out.

[chuckle]

04:46 Peter: Like it's an honorific or whatever, very weird.

04:50 Michael: Yeah.

04:50 Rhiannon: John Roberts steered the Supreme Court toward the middle, doling out victories to both left and right in the most consequential term in recent memory. Then he quotes a Professor Lee Epstein as saying, "The trend is clear, he is drifting left at a statistically significant rate and at a rate roughly resembling Souter's liberal turn in the 1990s."

05:12 Peter: No.

05:12 Michael: Wrong.

05:12 Peter: No.

05:14 Rhiannon: That's fucking embarrassing.

05:15 Michael: Wrong.

05:16 Peter: If you ever see any statistical analysis of Supreme Court decisions that tries to place them on a political spectrum, you can immediately move on. It's so difficult to do. You can't clearly delineate between left and right decisions. It's more complicated than that. And anyone who's trying to do it and selling it to you as an explanation of the Supreme Court is a grifter.

05:43 Rhiannon: Yes, absolutely.

05:44 Michael: Yeah. That's right.

05:45 Rhiannon: Alright, well, but this completely un-earned praise for the Chief Justice is not just an East Coast disease. So David Savage in the LA Times wrote, "As he has done in previous years, Roberts showed again that he is masterful at finding the middle ground on contentious issues." Later, Savage says, The Supreme Court term took on "A dramatically different tone than conservatives or many others expected with Chief Justice John G. Roberts firmly in control and steering the court on a middle course." Why? You do not have to act like something is cool and novel and surprising, if it just isn't. Like, can somebody check on these people's brains?

06:31 Michael: It's not hard 'cause they're, like, dripping out of their nose...

[laughter]

06:34 Michael: And pooling on the floor.

06:35 Rhiannon: And they're writing their thoughts! Their writings are a perfect check-in with their brain.

06:39 Peter: I'm also upset that these people just get to go to the LA Times, the NY Times, the Atlantic, and just pitch their shitty idea. "What if we said that John Roberts is good now," and it's the same column you see in every newspaper across the country, and the editors are like, "Yeah, yeah."

07:03 Rhiannon: Yeah, that's what we pay you $200,000 a year for. Do it.

07:06 Peter: It's also even creepier to be just a law professor who's like, "You know what the world needs to hear is an op-ed saying John Roberts is doing good."

07:17 Rhiannon: Yeah, okay, I got one of those for you. Jonathan Adler, who is a law professor at some garbage law school, which...

07:23 Michael: He sucks.

07:24 Rhiannon: They're all garbage. He said in an op-ed in the New York Times that Roberts is, "A judicial minimalist."

07:32 Michael: No.

07:32 Rhiannon: "A judicial minimalist who seeks to avoid sweeping decisions with disruptive effects. If a litigant seeks an outcome that will transform the law or produce significant practical effects, Roberts' vote will be harder to get." Guys... My soul has left my body. A minimalist where?

07:51 Peter: It's not minimalism. I don't know what he thinks minimalism is. I think that someone who dismantled the Voting Rights Act is not a minimalist.

08:02 Rhiannon: Exactly.

08:02 Peter: That's not minimalism. He's a minimalist when the alternative is something that he feels as politically untenable. Sure.

08:10 Rhiannon: Right.

08:11 Peter: Where he feels it's advantageous, he's minimalistic, when it's not, he's maximalistic. That doesn't make him a minimalist. That makes him an opportunist.

08:19 Rhiannon: Exactly.

08:19 Michael: Right. And so Rhiannon, you were asking where the shit comes from, why these people do it. And I just... I think of it like in ancient Greece, there was the fucking Oracle at Delphi, right?

08:30 Rhiannon: Yeah.

08:31 Michael: Who would just pronounce nonsense. And then there were like these priestesses, the prophetae, who would interpret the nonsense and turn it into something coherent. And that's basically law professors and legal journalists. The Supreme Court just says whatever the fuck they want, they say they're following precedent when they're not, and they say they're respecting the lower courts fact finding when they're not...

08:58 Rhiannon: Yeah.

09:00 Michael: These people's job is to be like, "Actually, they are. Money is speech. That makes sense."

09:04 Rhiannon: Yeah.

09:04 Michael: "And this is an overturning Roe v. Wade, it's just interpreting it." And it's because their entire job, you know, relies on it. Like if you're fucking priest of the Supreme Court, and the Supreme Court's garbage, nobody has any use for you.

09:19 Rhiannon: Exactly.

09:19 Peter: Right.

09:19 Michael: And look, just as an example, if you're like a prof at, like, UC Hastings. Even if you graduated from Yale, if you're a young prof likely you did graduate from Yale or Harvard, you went and clerked at the Supreme Court. None of your students have that career path ahead. Like that's just not something that's on offer for them, and you don't have anything meaningful to teach them about the law as they'll be practicing it in their careers. Because they don't know shit about what a real estate post-closing looks like, or how to get a default judgement vacated in some county court or whatever. Which is what most of their students will be doing. Their value to the students and to the academia in general is their interpretation of the federal courts. The Supreme Court in particular, but also the Courts of Appeals. And if the courts are just ideological law makers pursuing their own agendas, that value is next to nothing.

10:17 Peter: Right. Right.

10:17 Rhiannon: Yeah. Really good point.

10:18 Peter: We should note that not all academics have been so blinkered in their analysis here. Leah Littman wrote a great article for the Atlantic, I think she had one in the Washington Post, about just how narrow the so-called Roberts wins were. Eric Segall wrote about just how dangerous some of the precedent created this year was. But I wanna note that writing articles about how a Supreme Court Justice seems good and smart, even if it's accurate, is a type of journalism that is just fundamentally unimportant.

10:47 Rhiannon: Yeah.

10:48 Michael: Yes, yes.

10:48 Peter: It doesn't ask anything of the powerful, it doesn't challenge its readers, it is produced by and for the brains of people who are on mental cruise control from birth until death.

11:00 Rhiannon: Yes.

11:00 Peter: Like the intellectual fruit of completely frictionless lives. I know the things seem bad, but what if I told you that it's actually okay? Like, "Don't worry, John Roberts is there for you."

11:10 Rhiannon: Right, right.

11:10 Peter: It's these people that are selling comforting lies to people who are not effected by any of the turmoil in this country or in this world, right. They just need reassurance that their apathy is acceptable.

11:24 Rhiannon: Yeah.

11:25 Michael: Right.

11:25 Peter: But if you're a professor and that's your takeaway, you shouldn't have a job. And this is just what happens with like 20 years of... Your entire job being, write two articles a year, give kids the same test two semesters in a row, take a month and a half to grade it, and that's it.

11:45 Rhiannon: Exactly.

11:45 Peter: Other than that, you just fucking blow smoke up your friend's asses at cocktail parties. And that's it.

11:50 Rhiannon: Right.

11:50 Peter: These people are not interacting with the world in such a way where they could ever actually produce an interesting thought about it.

11:58 Rhiannon: Right.

11:58 Peter: You don't have to fucking pay attention to what they think, 'cause it's so disconnected from reality that it just doesn't fucking matter.

12:03 Rhiannon: Exactly.

12:04 Peter: So the dominant media narrative about John Roberts here runs into two problems. First, the cases he's being praised for aren't nearly the victories a lot of liberals seem to think they are, with the exception of Bostock County, the LGBT rights case that we covered a few episodes ago, each of the cases, and we'll talk about them, are very hollow and fleeting wins for liberals.

12:28 Michael: Yeah.

12:28 Peter: The other issue is that Roberts' votes in other areas are consistently the same horrific reactionary shit we've come to expect from him.

12:37 Rhiannon: Yeah.

12:37 Peter: So first I think it's important to quickly discuss the cases where Roberts supposedly flipped to the liberal side. And again, you know... Maybe the most unequivocal victory where Roberts joined the Majority was Bostock v Clayton county. Again, we did an episode on it, so I don't wanna get into too much detail, but the court held that Federal Employment Discrimination laws apply to LGBT people. And the caveat is that the opinion expressly left the door open for a religious exemption to the law through the Religious Freedom Restoration Act. The other caveat here is that Roberts didn't even write this one, Gorsuch did. His vote wasn't even necessary, really, to carry a majority, and so giving Roberts credit for it, seems a little bit odd.

13:19 Michael: Right, and then in the abortion case, June Medical v. Russo, Roberts joined the liberals in striking down a restrictive Louisiana abortion law, and that was five, four, and so he was the deciding vote. But that also has huge caveats. And the big one is that it's the exact case, not like similar, not kind of the same, this law was before the court four years ago. And in that case, Kennedy sided with the Liberals giving them five votes and striking down their restrictions. And so the only reason this case is back in front of the court is because conservative activists were like, "Oh, well fucking Kennedy's gone. He's been replaced by Kavanaugh. And so, yeah, Roberts switched sides, but the reason he did so is because he's just like, "Look, the court just ruled on this. You can't ask me to say, "Yeah, all that really matters is the personnel of the court." We're supposed to at least pretend like this shit matters. He just doesn't wanna look transparently in bad faith. But what happens is, he writes a concurring opinion, which is gonna end up being like what a lot of courts pay attention to, that endorses a standard that actually allows for a lot more restrictive laws without requiring any demonstration that those laws protect the health and safety of women.

14:42 Rhiannon: Yeah, yeah, so the case four years ago that Michael mentioned, that's called Whole Woman's Health, and that case was about restrictive laws that were passed in the state of Texas to force abortion providers to meet these really unrealistic standards. For doctors, to have admitting privileges to area hospitals. In that case, as Michael said, it was struck down, and then this case, June Medical, brought basically the same sorts of laws that Louisiana had passed. So while Chief Justice Roberts... Yeah, he upholds the ruling to strike down the Louisiana law in June Medical, he does it clearly, really begrudgingly. He says, "I joined the dissent in Whole Woman's Health and continue to believe that that case was wrongly decided." And because Roberts makes himself the swing vote here, that means that his concurrence, that's the holding opinion, that's the law of the land, so to speak.

15:39 Rhiannon: This is gonna allow states some wiggle room to pass laws that are restrictive. And in addition, something that's really, really concerning for people who are working on reproductive justice and reproductive rights is that Roberts in that concurrence, he straight up signals that he'd be open to overturning Casey, which is a conservative opinion that sort of saved abortion rights, but in an already narrow way. And Roberts here, in this concurrence is basically signaling that he wants to hear argument about Casey. He says, "No party in June Medical has asked us to reassess the Constitutional validity of Casey." Meaning, bring us a case where we can assess the validity of Casey. So again, we don't need to praise this guy for being some big respecter of precedent. Casey is precedent to, and he's signalling to the public, "Hey, I'm willing to rethink it."

16:38 Michael: And just to emphasize the importance of Casey, everybody knows the name Roe v. Wade, and think like, "Oh, they're gonna overturn Roe v. Wade. That's the right to abortion and all that." But in reality, the decision that describes that Right and the degree to which it exists, and the degree to which states can restrict it, is Casey. And so if he's willing to revisit it, that means they're willing to rethink entirely the way abortion is regulated or whether or not it's even allowed.

17:08 Rhiannon: Exactly.

17:08 Peter: A couple other small decisions we wanted to mention, Roberts joined the liberals to uphold DACA and to save the Consumer Financial Protection Bureau. Both of those cases were kind of similar. Roberts joins the liberals, but he provides the Trump administration with a road map for dismantling DACA, and for ending the CFPB. It's barely a win in both of those cases. You also have the Trump subpoena cases, sort of similar, he denied Congress access to Trump's tax records while saying that prosecutors could have them, essentially ensuring that whatever those tax records are, they won't be seen until after the election. It's just embarrassing to see the media buy into the idea that those are wins, frankly. The dominant narrative praises Roberts for two things, his objectivity and his desire to preserve the integrity of the institution of the court.

18:06 Peter: But those things are incompatible. You can't be both objective and purposefully shifting your opinions to make the court seem more moderate, right? Almost no legal commentators have pointed out that there is inherent tension between these two things. If Roberts is intentionally trying to land on moderate outcomes in certain politically contentious cases, and I think we all agree that he is, that doesn't prove that the court is apolitical, it shows that Roberts is expressly factoring politics and public opinion into his decisions. This is someone who, in his confirmation hearings, famously described to his judicial philosophy as being a neutral umpire who calls balls and strikes. So it's bizarre to see people praise him for engaging in what we all agree is political decision-making on the court. And it should go without saying that if you admit he's shifting his opinions for political reasons, you need to ask yourself, "To what end?"

19:00 Peter: Everyone says he's trying to preserve the institutional legitimacy of the court. What it means is that he's trying to obfuscate just how conservative the court really is and just how much farther right of the general public it is on a huge array of issues.

19:13 Rhiannon: Yes.

19:13 Peter: And so when someone writes an article praising Roberts for his statesmanship, or whatever, what they're really praising is his ability to project to the public the image of a Supreme court that does not actually exist.

19:24 Rhiannon: Yeah, it's misleading to the public on the part of John Roberts, and it's misleading to the public on the part of journalists and legal analysts who are regurgitating this line over and over for us.

19:36 Peter: Right.

19:36 Michael: That's right.

19:37 Peter: All right. Let's put a hold on this and go to a quick ad.

0:19:41 Peter: Alright. Let's talk about what actually happened this term. Outside of these handful of cases where he ostensibly took a small step to the left. This term, like any other Roberts court term, was defined by a huge number of reactionary decisions. The most visceral and farthest right, in our view, fall into three basic areas, immigration, religious liberty, and voting rights. So let's talk immigration first.

20:08 Rhiannon: Sure. Like we already said, while, we got a DACA win. An opinion that narrowly, again, upholds and protects DACA for dreamers please remember that John Roberts is no friend of immigration rights. We've already done an episode on it. John Roberts is in the majority in Trump v. Hawaii, which of course is not in this term. But Trump v. Hawaii upholds the Muslim ban in this term. He's in the majority in Hernandez v. Mesa. We also did an episode on that. That case is about a border patrol officer shooting a young Mexican teenager across the border. That case isn't expressly about immigration, but it's certainly about the border and border politics and what law enforcement can do in these immigration enforcement zones.

20:54 Rhiannon: Like the guy sucks, okay? He sucks on this issue, on immigration. And aside from DACA, there are two other cases this term that were awful for immigrants and asylum seekers in the United States. The first is Barton versus Barr. This case... It's literally too complicated to discuss at any length, but we can just say that this case, Barton v. Barr, creates an additional barrier for green card holders to be eligible for cancellation of removal, and that's one of the few defenses that green card holders have to deportation. And in another case, which was Department of Homeland Security versus Thuraissigiam. In that case... Again, Roberts in the majority saying that asylum seekers are not entitled to getting their case reviewed by a federal court after an asylum officer rejects their initial claim for refuge in the United States.

21:46 Rhiannon: Basically, what this means is that when someone reaches the US and wants to be granted asylum, the very first part of that process starts with an asylum officer in what's called a credible fear interview. And if the asylum officer agrees that you have a credible fear of being returned to your country, then you can get your refugee claim reviewed in detail by an immigration court. If the asylum officer does not agree that you have a credible fear, the Supreme Court has said, in this case, that that decision is final and you cannot appeal that to a federal court to review on your behalf.

22:22 Michael: And you can imagine what sort of fucking meat heads...

22:25 Rhiannon: Exactly.

22:26 Michael: Are these officials who are deciding whether or not your fear is credible.

22:31 Rhiannon: Right. Right.

22:32 Peter: Right. Right. So religious freedom, maybe one of the most consistent trends of the Roberts area is the expansion of preferential treatment for religious people and religious institutions. We talked in our Hobby Lobby episode about how the court a few years ago was using the religious freedom restoration act to create a space in which employers could discriminate using religious grounds and Gorsuch's decision on LGBT rights in Bostock hinted at future exemptions to employment discrimination laws for religious employers.

23:09 Rhiannon: Right.

23:10 Peter: But there were also two prominent cases that underline just how far right the Roberts court is on so-called religious freedom generally. In Espinoza v. Montana Department of Revenue, the court held that if States give secular private schools financial assistance, they have to provide the same assistance to religious schools. A lot of states have rules against funding religious activity for the purpose of avoiding having the excessive entanglements of the government and a religion, which is of course, the goal of the first amendment. But conservatives have steadily been rejecting that understanding of the first amendment and shifting toward a framework that is in some ways, almost completely inverted, where not only can states fund religious activity, but it's actually mandatory for them to do so.

24:00 Rhiannon: Yeah.

24:00 Peter: In another case, Our Lady of Guadalupe School v. Morrissey-Berru, I think that's how you pronounce it. The court held that anti-discrimination laws do not apply to teachers at religious schools. There's an exception to discrimination laws called the ministerial exception and the idea is simple. Religious institutions like churches are allowed to discriminate on the basis of gender, sex or LGBT status, for example, when they're hiring ministers or priests or some equivalent because they argue those things are essential to their religious practice and they should be allowed to hire representatives of their religion that reflect its values. And that's why it's legal for every Catholic priest to be a male or whatever. But that's always been limited to actual ministers and priests or people in similar positions.

24:48 Peter: And this opinion basically says that it applies to anyone employed by religious institutions, opening the door for religious schools and churches to discriminate against their staff even if those staff aren't in positions of any religious authority. So for example, if you are a Catholic school or a Catholic church and a janitor applies who is a gay man, this would allow them to freely say, "No, we don't hire gay people." Despite the fact that any other employer, a non-religious employer, would of course be violating employment discrimination laws by doing so.

25:26 Michael: Right.

25:26 Peter: And I think this brings us unfortunately, to voting rights. Maybe the single most consistent project of John Roberts himself. The slow sort of attack on voting rights as they exist in America and the genuine erosion of what I think is any real claim to us being the most democratic country in the world.

25:52 Rhiannon: Right, yeah. This is the biggest, smelliest, pile of shit in John Roberts' legacy among many piles of shit.

26:00 Michael: Right. There were four voting rights cases this term actually. Yeah, you might be surprised to hear that because there was only one that I think really people considered like a decision, and that was RNC v. DNC. We did an episode on it, and I'll recap that in a second. But the other three took place in what's called the Court's shadow docket, which is all the decisions they make without oral argument. They don't get as much press, and it's like, "Are we gonna hear this case or not, or is the decision just gonna stand, is this ruling gonna be put on hold, or is it gonna go into effect?" Things like that, and it can have massive consequences. I wanna focus on two of the four 'cause I think they're pretty significant. So the first again is RNC v. DNC, which was about the Wisconsin Primary, which was happening right in the middle of COVID.

26:51 Michael: And if you didn't hear our episode on that or you don't really remember it, the issue was that the Board of Elections was just overwhelmed with requests for absentee ballots. There was just a fact that there were gonna be thousands of people who didn't get their absentee ballots on time to vote. Wisconsin law required that the ballots be filled out and returned and received by election day, and there were people who clearly were not even gonna get their ballots by then. So a district court just extended the deadline. It said, "Okay, instead of having to receive it by election day, you just have to receive it within five days of election day." And giving basically a full extra business week to the Board of Elections and to voters to get their shit together and get their votes in.

27:35 Rhiannon: Seems reasonable.

27:36 Michael: And the Supreme Court said, "No, thank you. That's a little too friendly to voters." And so what they said instead was, "Your ballot needs to be post-marked by election day." This is precisely the thing that that fucking douche Adler might say is a minimalist approach to this, but actually this does more sort of violence to the election process than the district courts did. Because what happens is, a few days before the election, standards change, it did turn out to be the case that thousands of voters didn't get their ballots in time to get them post-marked by election day, also some people got their ballots and sent them in on time because they were received a day or two after the election, but since this comes on government issued, postage paid, reply mail, they didn't get post-marked, and so the Board of Elections didn't know what to do with them. So it was a big mess. Some people voted in person, who otherwise they didn't want to, a number of people got sick from COVID, thousands of people got disenfranchised, who didn't need to, as a result of this ruling. And the Court based it on this idea that you don't change the rules of an election very close to that election, which set aside the fact that they changed the rules again, even closer to the election, in a way that was more restrictive and more confusing. It's just ridiculous because that rule applies in ordinary times, but COVID is not exactly an ordinary time.

29:04 Rhiannon: Exactly.

29:05 Michael: And so if you compare that to this case, Raysor v. DeSantis in Florida, the court goes the exact opposite way. And you gotta bear with me for a sec 'cause the procedural history kinda matters here. So the State of Florida for a very long time had a law that said convicted felons lose their right to vote forever, as a relic of Jim Crow. And in 2018, the voters of Florida resoundingly rejected this, like something like 65%, a crazy number in modern day to get that many people behind it saying, "No. Once people have completed their term, they should be able to vote again, they should be able to re-enter society." And immediately, the Republicans in charge of the State House passed a law saying, "Well, okay, sure, but completing their terms doesn't just mean that they're out of jail, it doesn't mean that they've finish their period of parole, it also means that they've paid all their fines and fees, and restitution, and all that." Which is a problem for a number of reasons, that sounds a lot like a poll tax.

30:11 Rhiannon: Right.

30:11 Michael: And so it was challenged in court.

30:13 Peter: Another reason we should add is that Florida has absolutely no understanding or a record of how much most of these people actually owe. So there's literally no way for them to satisfy this requirement and gain the right to vote.

30:26 Michael: Exactly.

30:26 Rhiannon: Right. And just to add to it, even if they did have specific records showing exactly what you owed once you get out of prison, you still have some fines and fees from your case or whatever, there is no recognition that this obviously disproportionately affects the poor. If you can't afford to pay your fines and fees, you can't vote, and that's not how we do things in this country, supposedly.

30:48 Peter: Well, yeah. [chuckle]

30:49 Michael: Right, [chuckle] so right. Yeah, so back in October 2019, a district court heard this, and was like, "It looks like you guys are gonna win. There's a due process concern here." Florida said they don't think they'll know fully who does and does not owe fines and how much they owe till 2026, at the earliest.

31:07 Rhiannon: That's just wild.

31:09 Michael: And in addition, there's the fact that two similarly situated people, same offence, same sentence, completed it, one who has money and one who does not, one of them gets the right to vote, one does not, and that sounds a lot like a poll tax, which is illegal, and so he issues what's called a preliminary injunction, which means that for the time being, Florida is not allowed to enforce this law, and these 800,000 people affected by this, they're eligible to vote. It's a huge number in a big, important state. And that gets appealed and the Eleventh Circuit Court of Appeals says, "We agree. This looks unconstitutional. This is the standard. This is how it should be reviewed legally." So the District Court has a trial. There's a lot of fact finding. And it says, "Look, I was right. This is really fucking unconstitutional." And enters permanent injunction saying, "This law is dead." State of Florida appeals that and the Court of Appeals just sits on it for months. And then, not even three weeks before the registration deadline, without opinion, says, "We're putting that on hold and we are reinstating the voting restrictions." A massive upheaval.

32:24 Michael: There have been thousands of people, possibly tens of thousands, if not hundreds of thousands of people who have registered to vote in the last nine months, who maybe intend to vote. And now, the court is saying, "Well, you might be registered to vote, but you currently are not eligible." This comes up to the Supreme Court and they have to decide, well, is the ruling in effect or not? Are the restrictions in place or not? And if you go back to the principle we talked about, do you change the rules up right before the election? It seems pretty clear that the status quo for nine months, which was that this law is not in effect, should be maintained. But instead, the court agreed with the Eleventh Circuit and reimposed these voting restrictions. And so now, there's just a class of people who don't know whether or not they can vote. They might not know this opinion happened. They registered to vote. They might just think that's it. I get to vote.

33:17 Rhiannon: Exactly.

33:18 Michael: Or they might know about this decision, but not know whether or not they owe anything.

33:22 Rhiannon: Right.

33:23 Michael: And if you vote and you're not eligible, that's a felony in Florida. It can be a mistake on your part. You can say that Florida never told me I owed any fines. I registered to vote legally. I did everything right, and that's still a felony. So this is a... It's a disaster, 800,000 people being denied the right to vote that the people of Florida overwhelmingly said to have that right, in the most confusing and difficult way possible, pretty much at the last minute. And this isn't just for a primary in August, although it is for that, very possible that this is in place in November for the presidential election, which is important, I think. And so, you can see the through line here, there's nothing principled about this. The through line is that it should be as hard to vote as possible. That's what Roberts and the conservatives believed. And this case was 54, of course, much like the Eleventh Circuit, the Supreme Court didn't bother justifying this absurd ruling. The other two cases are both pretty bad too, but they're less sort of egregious. One is a Texas restrictive absentee balloting law that the District Court said, "It's COVID, you can't be this restrictive about who can and can't go to absentee." Supreme Court said, "Fuck that. They can be as restrictive as they want. It doesn't matter if you're immunocompromised. You have to go vote in person."

34:44 Rhiannon: Yeah.

34:44 Michael: And in Alabama, very similarly, laws that restricted absentee voting required people to go get their photo ID, copied and notarized in order to vote absentee. The District Court said, "Look, you shouldn't have to do that and you should be able to take your ballot and just drop it off curbside if necessary so you don't have to go into the polling station." The Supreme Court said, "No, thanks." So the thought of this stuff is, it's not hard to predict, just like in Wisconsin, there're gonna be thousands of people disenfranchised and there are gonna be a lot of people who get sick and a lot of people who have to choose between risking getting sick or voting, and either way, that's a choice they shouldn't be put to.

35:22 Rhiannon: Exactly.

35:23 Michael: But that's their project. This is where he's one of his... At his most radical.

35:27 Peter: Yeah, absolutely, and it's important to contextualize the voting rights cases because it does not matter how many shallow victories Roberts hands the left if he continues to tack right on voting rights, because if he does that enough, all of the political branches of government will steadily fall more and more into Republican hands. The laws will become increasingly conservative, and it won't matter what the Supreme Court says because the political branch of the government will be pushing right. So Roberts' tiny steps left, weighed against the massive leap right that he's facilitating with the voting rights cases. I mean, it's obvious what the real outcome is here, and to say that he is moving the court overall left, is just an incredibly simplistic sort of tunneled way of thinking.

36:17 Rhiannon: Yeah.

36:18 Peter: Alright, let's go to a fucking ad.

0:36:20.7 Peter: So my final thought on Roberts, before we move into the non-Roberts part of the wrap-up here, we're coming to a place where his ability to sit on the fence is likely to be tested. Trump is running Secret Federal Police in American cities against the will of state and local governments. His political party has engaged in an electoral strategy that is heavily reliant upon voter suppression. Trump talks about that fairly openly. And all of this creeping fascism is likely to be before the Supreme Court next year in some form or fashion. So my main response to people who, for some reason, believe that John Roberts has the intellectual clarity or moral courage or desire to stand it down is, we'll fucking see, right?

37:09 Rhiannon: Right, yeah.

37:10 Peter: Give it a year and then write your article in The Washington Post about how you think John Roberts is our savior.

37:16 Michael: Right.

37:16 Rhiannon: And something we haven't mentioned is particularly this term, Roberts' strategic consolidation of power in himself over the course of the term and across opinions and cases. So Roberts has placed himself in the majority of the vast number of cases, this term.

37:37 Michael: Right. I forgot the precise number but it's like 62 out of 64.

37:40 Rhiannon: Right.

37:41 Michael: Or we have 65. It's like almost all of them.

37:44 Rhiannon: Right, you can count on one hand, the number of cases that he's not in the majority on.

37:49 Peter: Yeah.

37:49 Michael: Yeah.

37:49 Rhiannon: And that's significant because the rule at the Supreme Court for who writes a decision is that when the Chief Justice is in the majority, the Chief Justice decides which Justice will write that majority opinion. And that means that indirectly, he is wielding power and control over how these majority opinions are written, even when he doesn't assign the case to himself. He is not choosing Justice Sotomayor to write the majority opinion in the case that protects DACA. It's not a mistake. It's not random, they didn't rock-paper-scissors it, so that Justice Gorsuch is writing the majority opinion. In Bostock v. Clayton County, the justices that he's choosing to write certain opinions, are going to write, say a narrower holding, a narrower rule, a more conservative angle on what you might call a liberal win.

38:43 Peter: Right. So we should talk about some non-Robert stuff. A lot of people asked us to talk about McGirt v. Oklahoma, where Gorsuch joined the liberals to hold that large portions of eastern Oklahoma remain an Indian reservation for purposes of federal law. That does not mean that half of Oklahoma belonged to the tribes. It does mean that it's a separate jurisdiction for the purpose of certain federal laws.

39:08 Rhiannon: Yeah, and it's a big win for Indian law for Indian country.

39:12 Peter: It is, and ironically may the most caveat-free win for the liberals, of the entire term. And Roberts wasn't part of the majority, and in fact, Roberts writes the Dissent, which is basically a full endorsement of scrapping treaties the government entered into with the tribes because they'd be too difficult and complicated to maintain. Just an intellectually bankrupt position.

39:35 Rhiannon: Yeah, and don't call him a minimalist. He's writing to completely dismantle, literally hundreds of years of law.

39:42 Peter: Right, and we have to say something. In our Epic Systems episode, just a couple of episodes ago, we made fun of Gorsuch's tedious writing and we wanna issue a partial retraction because McGirt was very well-written, poignantly written. It caused me to go back to make sure that Epic Systems was as bad as I remembered, and it was... [laughter] Now I'm just trying to figure out why. Obviously, part of it is just bias. When you read something you agree with, you're like, "Yeah, this is good," and when you disagree, you think it's worse. But it's more than that. I really think that Gorsuch really cares about tribal law issues. He's just passionate about it, and you can feel it in his writing, whereas Epic Systems is just very outcome driven. He wanted to reach a conclusion and he found some technicalities to get them there.

40:29 Michael: Yeah, no, the opinion comes from a place of real empathy, which comes through, and I also think that if he listens to our episode and he's like "What? I got to step it up."

40:39 Rhiannon: Absolutely. Yeah. For sure.

40:40 Peter: That's right.

40:41 Michael: "They're dragging me."

40:42 Rhiannon: For sure. He said, "Oh my God, The Law Boy, he doesn't like me."

40:47 Peter: Yeah, that's what he calls me, he calls me The Law Boy. So, some other trends this term, one I wanna point out is that Thomas really seems to have just fallen into the role of an Alito-style doctrinaire conservative. He was long viewed as conservative, and maybe even particularly conservative but also sort of quirky and with a lot of very odd beliefs about retracting huge swaths of precedent and etcetera. Now he seems very just standard bare. And part of that, is because he is increasingly sort of polarized from a political perspective.

41:30 Michael: He's been watching too much of Fox news.

41:31 Peter: Yeah. The other part though, is that the standard conservative legal line is much farther right than it was 10 or 20 years ago, and so he's starting to look like he's one of them, when in fact what's really happened is he's dragged them in his direction.

41:47 Rhiannon: Right, that's exactly right.

41:49 Michael: Absolutely.

41:49 Rhiannon: He's not so much a fringe legal freak.

41:51 Michael: And this goes back to an earlier point Peter made about the difficulty in statistically measuring a specific justice is like adrift left or right. If Thomas is dragging the entire conservative legal institution to the right and Roberts is standing still, then Roberts isn't moving left, the ground is just moving underneath him. And it's just more extreme decisions and more extreme arguments coming before him.

42:23 Peter: That's right.

42:23 Rhiannon: Beautiful.

42:25 Peter: And we should also mention Ruth Bader Ginsburg made a public statement a couple of weeks back that her cancer has returned and she is undergoing chemotherapy. And we've occasionally gotten some shit because we rag on RBG a lot and have made cracks about her health, and I wanna say something about that. We've made our general position on her tenure clear. Her failure to retire before 2014 was incredibly reckless and may well have put the court at risk for a generation. Her health situation is sad. When she dies, it will be sad but our analysis of powerful people at the end of their lives should involve more than a pat on the back for having achieved success.

43:12 Peter: They deserve scrutiny and they deserve to have a light shined on their failures. Those should be the wages of power, and when someone in her position can do something as selfish and dangerous as she did, when she decided to stay on the court into her 80s and receive almost nothing but praise and admiration, that's a sincere failure of public accountability. So you can feel free to tell us that seeking some catharsis by being a little mean to her is in bad taste, but we're not the ones who bet the well-being and dignity of millions on our own health.

43:43 Rhiannon: That's exactly right. And she can be a feminist icon. Ruth Bader Ginsburg is the person who changed Sex Discrimination Law by and large, in the United States, and that's incredible. But today, for me and a lot of people like me who live in the Fifth Circuit and incredibly conservative federal appeals court district, it's not empowering that, my right, my access to reproductive justice and reproductive choice rests on a dying woman who is 90 years old. That's not Yes, Queen! Feminism and Ruth Bader Ginsburg for all of her public service and for everything that she's done for particularly women and the liberal side of the law, has not earned just 100% praise from the public. That's not how her position works and that's not how her public service works.

44:37 Michael: And just a reminder that since they have life terms, they have life tenure. This is the only way to have accountability.

44:46 Rhiannon: Exactly.

44:47 Michael: Politicians are doing that, you can throw the bums out, at least in theory, but if a Justice is fucking up is imperiling her own legacy, the only way you can hold them accountable is just telling them, they're an idiot.

45:02 Rhiannon: Is by saying it.

45:03 Michael: That they're gambling with everybody's rights,'cause we can't do anything else, that's all you can do.

45:09 Peter: First of all, it's obvious that we're a little harder on her than we otherwise might be because she is ostensibly an ally. She's quite far left as far as Justices go, but the reason she has given for her decision to stay on the court, are basically that she feels she should do it until she cannot. And I don't know how to describe that other than somewhere between naivete and just raw idiocy.

45:31 Michael: Or extreme narcissism.

45:34 Rhiannon: Extreme narcissism, cynically, right? To think, "I'm the person for the job and nobody else can do it as good as me, even in this state, forever."

45:42 Peter: Yeah, but I have a ton of faith that she's gonna keep doing hardcore workouts. That should be enough to keep her alive through her 19th cancer of the past decade, or whatever the fuck this is.

45:54 Rhiannon: Keep up the planks girl, proud of you.

45:57 Michael: Our producer is unhappy with that joke.

[laughter]

46:02 Peter: I have some communication with RBGs trainer, and he told me that she did five reps of holding her head up with her neck, just this morning.

[laughter]

46:14 Rhiannon: Yes, get it on Instagram girl.

46:16 Peter: Anyway, I will say this though, if she survives and Biden is elected and she dies or retires, we will do an episode about her and it will be mostly nice. If she dies and Trump replaces her, on my dying breath, I will never say a nice thing about that woman.

46:35 Rhiannon: It's, "Fuck RBG till I die."

46:42 Peter: I have one more thing to say about this term, and it implicates the next term. One interesting development in the court is that the Trump administration, frequently a party before the Supreme Court, of course, has at several points in the last several years, expressly lied to the court about what their motivations were for certain laws. We talked about this in Trump v. Hawaii, the Muslim-ban case, now there it was sort of... It's a little gray almost.

47:10 Peter: We believe, of course, he's motivated by discriminatory animus towards Muslims, but there was a case last year regarding the Census, and if you'll recall, the Trump administration tried to add a citizenship question to the census. And they claimed that they were doing so to help enforce the Voting Rights Act, which if you're familiar with the Trump administration, you can immediately read that as a lie, because they have never once tried to enforce the Voting Rights Act.

47:38 Rhiannon: No, yeah.

47:39 Peter: What they were actually doing, as several commentators pointed out at the time almost certainly, was preparing for an argument that the amount of Congressman that each state gets should be determined based on the amount of citizens in the state. Now, until now, it's been about the amount of persons in the state, which is the word used in the Constitution. This means that what they were actually doing last year when they claimed that they were trying to enforce the Voting Rights Act with this information was flatly lying to the Supreme Court.

48:15 Peter: And there is a real question in the next term when this case is heard about whether the court chooses to address that, to address the fact that the Trump administration has several times now been flagrantly dishonest with the court. And this is probably the most explicit and I sort of think that Roberts has a little too much pride to let it completely slide. I believe that he will hedge, I believe that he will create space for the Trump administration to work, but I really believe that he is gonna be a little bit offended. But the real boundaries of just how clearly and obviously the Court will allow the Trump administration to lie to it, is gonna be a big part of the next term. In conclusion, Supreme Court bad 2020, Supreme Court term also bad, if this is the only part of the episode you hear, you're up to speed.

49:09 Rhiannon: Right, you got it. [laughter] Now get out there.

49:18 Peter: Alright, next week, Milliken v. Bradley, a case about segregation and busing in the '70s, special guest, I might pronounce this wrong, Leon Neyfakh.

49:30 Rhiannon: I don't know, who is that guy?

49:33 Peter: Our friend, Leon. He's hopping on the show to talk about segregation. To all of our listeners, well, first of all, follow us on Twitter @fivefourpod, and good luck avoiding getting captured by Secret Federal Police for the next several weeks. That's a thing. Lay low. Lay physically low. If you stand still, cops cannot see you. That is a fact about that.

[laughter]

50:10 Michael: 5-4 is presented by Westwood One and Prologue projects. This episode was produced by Katya Kumkova, with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

50:28 Leon: From the Westwood One Podcast Network.