00:03 Leon: Hey, everyone, this is Leon Nayfakh, host of Fiasco and co-creator of Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about what the Supreme Court might look like if Joe Biden becomes President.
00:17 [Archival]: Mounting pressure for Joe Biden from his basement to take a page from President Trump's campaign playbook, progressives urging him to release his Supreme Court nominee shortlist.
00:27 Leon: Instead of analyzing a specific case from Supreme Court history, they're looking into the future and asking how much would the Court's ideological makeup really change under a Biden presidency?
00:39 [Archival - Biden]: Look, the Supreme Court, more than any other institution, should reflect what the country looks like.
00:43 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.
00:54 Peter: Welcome to a very special episode of 5-4. We are not covering a case today, and this is the first in an ongoing series of non-case episodes. In the future, we might cover Supreme Court Justices, confirmation hearings, entire decades. And today, we're going to talk about what the Supreme Court would look like under Joe Biden, the presumptive Democratic nominee.
01:23 Rhiannon: Time out, Peter. Do you want to introduce us or...
01:27 Peter: Oh, yeah.
01:30 Rhiannon: Peter's knocked out of the round.
01:31 Peter: I am out of sorts.
01:32 Rhiannon: Unmoored, yeah.
01:33 Peter: Alright. I am Peter, Twitter's The_Law_Boy, I'm here with Rhiannon...
01:39 Rhiannon: Hi.
01:39 Peter: And Michael.
01:41 Michael: Hi, everybody.
01:42 Peter: And today, we are talking about what the Supreme Court would look like under Joe Biden. The Court has become a bit of a focal point on the left when discussing the election, in large part because Joe Biden is a particularly uninspiring candidate, and so people are just redirecting their attention to other branches of government.
[laughter]
02:06 Peter: More specifically, Biden is a centrist whose policies are more conservative than many on the left would like, and there is discussion on the left about the merits of not voting for someone like Biden. There's some debate about just what the gap between a Biden Court and a Trump Court would look like, and we want to talk about that a little bit. It is our position that the reality of this is unavoidable. The difference between a Court under Trump and a Court under Biden is significant. We're not trying to make some sort of moral argument here for voting for Biden, we're absolutely not endorsing him.
02:44 Rhiannon: Right.
02:44 Michael: No.
02:46 Peter: There is meaningful discussion to be had on the left about whether and to what extent the willingness of progressives to vote for centrists has over time pushed American politics further right and made Democrats the ineffectual directionless party that they are now. There are credible sexual assault allegations against Joe Biden and we're not under any fucking circumstances going to tell someone that that can't be your line, because the Court's too important. These are all moral and political and strategic questions that we're not weighing in on at this point. But we've had some people hit us up, asking, for example, if there would be any real difference between Trump and Biden with respect to the Court, or if Biden might nominate a Neil Gorsuch type, actual question we received.
[laughter]
03:39 Peter: Or whether there's any difference between a 7-2 majority and a 5-4 majority for the conservatives. And I'm sorry, but those questions are fucking ludicrous.
[laughter]
03:52 Michael: They are.
03:55 Rhiannon: Yeah, and when I was thinking about why we want to do this special kind of episode, I go back to what we said in the first episode of this podcast about why we're here and why we want to do this. I think I said in that first episode that the Supreme Court is a body of nine political beings, they're not objective, they're not without bias, and then over the course of this podcast season or whatever, we cover the cases in which it's clear that ideology took part in the Supreme Court Justices' decision-making. And it's easy, I think, to throw your hands up and say, "We've lost this institution, the Supreme Court, it's inherently reactionary. It'll never represent or be responsive to the needs of the people."
04:38 Rhiannon: But I actually think what I want people to kind of take away from this, maybe, is that the right in this country made the Supreme Court this way. Like this was a coordinated political campaign, they've strongly maintained it now for a few decades, and it was conservatives in this country making the Supreme Court look like it does today, and do what it does today. And that's had a massive impact on electoral politics, on corporate political legal institutions and on the lives of all of us, of millions of people.
05:12 Rhiannon: And so I think that for me, I'm not at a place where I just accept the Supreme Court is this lost institution, but instead I'm thinking about how the left should be taking seriously the Supreme Court as a front in the political battle, just like the other branches of government are. And I made a point in the Shelby County episode, which I think was cut for time, but...
[laughter]
05:38 Rhiannon: But I think that we on the left, sometimes we kind of circle the wagon and we brush off electoral politics as unimportant. But I think that when you see how the Supreme Court treats cases like Shelby County in cases about elections and voting, you can see that the conservative movement thinks that actually these things are extremely important. This is extremely important for the right, and they're fighting tooth and nail on it constantly, so what does that mean? I think it means that there's real power in it. I don't like Joe Biden, I don't like his policies, he is a man with like a peanut butter and jelly sandwich inside his head. But I think that what we'll talk about today is what he might do about the Supreme Court, and if that's just important information to a listener to take into account, I just think it's information that should be considered.
06:27 Michael: Right, and you know, we wouldn't have much of a show if the Supreme Court didn't matter, like these decisions are infuriating because they impact people's lives, they impact our country, they shape what is possible. It's a powerful institution, and you can't make progress unless you take control of it. And one of the ways the right wing has been able to control the Supreme Court and effectively use it as a lever of power is by treating it like it's on the ballot, every single election, and not just the Supreme Court, but all the federal courts, because they're lifetime positions. And so it is on the ballot every election, with all the caveats that Peter mentioned up top.
07:15 Rhiannon: And the peanut butter and jelly thing.
07:16 Michael: And the peanut butter and jelly... Don't want to forget about that. It's not just that the conservative movement treats courts like they're on the ballot, they have an entire institution, a separate political machine that they've built over the course of our entire lives for years back into the early '80s that does nothing but recruit, train and install party loyalists in important judicial positions. And we're going to talk a little bit about that, but it's important to note up top, not just that this exists and that there needs to be a left answer to that and there currently is not, but that should impact how you think about judicial nominations, because whatever Biden's drawbacks may be, he's not fucking pulling anybody from that political apparatus, which is where all the Republican judges come from, is from the Federalist Society and from that machine and they're fucking ghouls.
08:16 Rhiannon: Yes.
08:17 Peter: So I think the first thing we need to talk about is what the Court looks like now, and what it might realistically look like, or what kind of opportunities for change or areas for change there are going to be over the next few years, and what that really boils down to is who's going to die? Who's going to die?
08:37 Rhiannon: Right, yeah.
08:38 Peter: And the natural first step here is RBG. Ginsburg is 87 years old, and I don't want to hear shit about her fucking workout routine, this woman is staring death in the eyes, okay.
[laughter]
08:57 Peter: Every day she wakes up and the grim reaper is the first thing she sees.
[laughter]
09:04 Peter: When she didn't retire in what, 2013, which would have been... She would have been fucking 80 years old and had a great opportunity to retire under a Democratic President, there was a spate of articles about her workout, there's a workout book, all these like things that seem to like lionize her physical fitness. If you have ever seen this woman, you immediately know that it's a lie, like she's working out, and if she stops, she will immediately die.
[laughter]
09:35 Michael: It's like a shark that has to keep swimming or whatever...
09:37 Peter: Right. People are like, oh... People are like, "Oh, she can plank longer than you can," and first of all, she can't. I looked this up and she can plank for 30 seconds. And people are like, wow, that's incredible. If you're listening to this podcast and you don't have a very debilitating disability, give planking three tries and you'll get to 30 seconds.
[laughter]
10:02 Peter: Second of all, I don't even know that she's using any core strength, I think it's maybe just like early onset rigor mortis.
[laughter]
10:11 Rhiannon: I've told you guys that I watched, I went to the Supreme Court, I watched oral argument in Whole Woman's Health, so this would have been spring 2016, and it's an abortion case, everybody's like, "Woo, woo, woo, what's the notorious RBG, like we're going to finally see her in action." Bitch, you can't see her, because she's fucking crumbling in on herself.
10:31 Peter: She's got that hunch. She's got that hunch.
10:32 Michael: Yes.
10:33 Rhiannon: She is so tiny, you cannot see her from the audience, and then when she speaks, it's like a 1000-year-old witch is speaking to you from above and her voice just sort of rains down on you and it's fucking terrifying. That's her power. She's a terrifying old woman right now.
10:50 Peter: Yeah, and I think all this to say, due respect to her jurisprudence, RBG is a lock to die in the next four years.
11:01 Rhiannon: Right, exactly.
11:02 Peter: A guarantee. Everyone else is up in the air to some degree, but RBG, there's no standard deviation you need to worry about, she's dead.
11:11 Rhiannon: Oh, my God.
11:14 Peter: So you've got Justice Breyer, 81 years old.
11:19 Michael: Also a liberal.
11:20 Peter: Also a liberal.
11:21 Michael: Not our favorite, but a liberal.
11:23 Peter: Yeah, not the most reliable, especially in criminal cases, but a liberal, for sure, one of the four. Four years at 81, oof, that's quite a distance to... You don't want to have to look at four years or four-and-a-half years when you're 81 years old and think, I gotta survive that. And now we get to the young guns on the Supreme Court, and we've got some conservatives. Alito and Thomas are 70 and 71 respectively. Roberts and Sotomayor, both 65, Kagan's like 60. No need to even worry about her, same with Kavanaugh and Gorsuch are like in their early 50s, right.
12:07 Michael: Mm-hmm.
12:07 Peter: You can pretty much ignore them in terms of this election. The real risks are RBG and Breyer, and I think Thomas a little bit, right?
12:15 Michael: Right.
12:15 Rhiannon: Yeah.
12:16 Peter: I think that Thomas, he's been on the Court for nearly 30 years now, he's only 71, but at the same time, he looks like shit. I think.
[laughter]
12:29 Peter: He's one of those guys that just doesn't look like they're moving a lot. He's just kind of sitting there. His diet consists of overstock from Jenny Thomas's various multi-level marketing schemes. She's got essential oils blasting all over the house with diffusers, and he's just sucking that in every day.
12:50 Rhiannon: Not to mention his open disdain for the job, he doesn't want to do it.
12:54 Peter: Oh, yeah. Absolutely. He might prefer to die.
[laughter]
12:57 Peter: And that's a factor. All that to say, it's not crazy to think that if Joe Biden got into office, that he could replace a conservative Justice.
13:09 Michael: I just want to say, I'm still holding out hope that we might have a well-timed Supreme Court COVID, like a Corona illness in January of next year.
13:20 Rhiannon: It could happen.
13:20 Michael: When there's a new winter flare-up...
13:22 Peter: Yeah, maybe the COVID tail smacks the Court. That'd be nice. FBI, ignore.
[laughter]
13:32 Peter: I think the other side of the Thomas thing, and then getting to the point that Rhi made about how sick he is of the job, I think if Trump is re-elected, there's a very good shot that Thomas retires.
13:41 Rhiannon: Right, right.
13:42 Michael: Absolutely.
13:43 Peter: With the sort of belief that he'd be replaced by a conservative Justice who he largely agrees with. And we mentioned this up top, but the difference between a 5-4 Court and a 7-2 Court, if two liberals drop, is basically a difference between five to 10 years of conservative dominance and 25 to 30. It means never winning a marginal decision, it means never getting the occasional win because you get one conservative who switches sides, and it also means... And this is important that the median vote shifts to the right, so what are now 6-3, 7-2, even 8-1 votes might attract another couple of votes, and suddenly those minority Justices are either A, in the majority or B, in a position where they can pitch to the remaining Justices and maybe get a couple more and start taking some of these really wildly fringe conservative positions into a place where they're more viable.
14:41 Michael: Right, and the other thing is when you've got a 7-2 Court and, like Peter's saying, the median vote changes, that doesn't just happen in a vacuum, cases don't just appear before the Supreme Court, there are conservative advocacy groups that make a point of bringing certain cases to make certain legal arguments and to ultimately make big changes in the law. And if you have six or seven conservatives on the Court, that changes the types of challenges you're willing to make, the types of risks you're willing to take, you'll be bolder. They'll be more aggressive than they would when it's 5-4 and they risk losing. All it takes is one Justice to think that it's a bridge too far and it's years of work down the drain. So...
15:28 Rhiannon: That's a really good point.
15:30 Peter: Yeah, and on the reverse side of this, on the more optimistic side of this, really not crazy to think that like Biden wins, replaces two liberal Justices and maybe a conservative, and you see the first liberal majority in decades.
15:49 Michael: Since the '60s, basically, right?
15:51 Peter: Yeah, yeah. I don't think it's very likely. Thomas would basically have to die in his mid-70s, but it's interesting to think about, and it's also just depressing how close we got if Hillary Clinton hadn't run the fucking worst campaign of all time to a considerable liberal majority. But yeah, again, it really is there as a legitimate possibility over the course of the next five years. But we have to add a couple of wild cards to this. First, Mitch McConnell. And this is the big caveat. There is a real chance that if the GOP retains the Senate, McConnell is just like, "Fuck it," and they never allow another Democratic Supreme Court Justice as long as they can stop it.
16:35 Peter: I don't know how likely it is, there's a real political calculus there, but I think given how little blow back there was for them for Gorsuch, it seems like there's a really good chance that they just do this indefinitely. It's just a matter of what they view the consequences as being, there's no question that Mitch McConnell doesn't have some sort of moral objection to doing it, right. So I think that that's really on the table, and we need to put that asterisk up there up top, you can't just talk about Joe Biden appointing a Supreme Court nominee. There are other factors involved here. In the case, though, that McConnell holds the Court hostage and Biden doesn't get to make any appointments, that's probably still better longer term than just Trump making immediate appointments, right.
17:23 Peter: I mean, there's pretty much no question, I think the short-term implications might be minimal, but longer term, you open up a lot of possibilities, possibilities that the next election is won by a Democrat and they can't hold the courts hostage any longer. Things like that, that make it sort of a clearly better scenario than just Trump having the Court.
17:44 Michael: Right, when we say the Court's on the ballot, that also means that the fucking Senate race in Montana matters, right. Colorado matters and Maine and all those contested seats, they all matter for this as well.
17:58 Rhiannon: Right.
18:00 Peter: And there's another caveat and another wild card, which is, does Joe Biden remember what the Supreme Court is?
[laughter]
18:08 Peter: I feel like that's a big one.
18:09 Rhiannon: Open question.
18:11 Peter: And Joe, if you're listening... You're listening to a podcast, Joe. You are safe. You're going to be fine.
[laughter]
18:22 Michael: Joe, if you're listening and you're confused about what you're hearing, this is God speaking to you. You need to eliminate the filibuster, expand the Supreme Court, and then nominate your good friends, the hosts of 5-4.
[laughter]
18:41 Peter: Hell, no. I don't care if the fate of the country relies upon it, I don't want to have to do a job of any sort, I shouldn't have... It seemed like I was going to qualify that. Alright, so let's get into some details about who Joe might nominate. And the best way to look at that, I think, is by kind of working our way through his history. I think all of us were sort of surprised going through his history, how sort of effective he seems to have been against conservative Justices, in a lot of ways, at least. He was a member of the Senate Judiciary Committee for a big chunk of his tenure as Senator, and he was the Chair of it from '87 through '95. That committee holds hearings on and investigates nominations to the Supreme Court. And so I want to kinda run through his votes, and we should note here that Supreme Court nominations weren't really contentious at all until about the mid-80s, when they started being contentious, and then it sort of ratcheted up to the current day, where every single one is sort of a battle.
19:43 Peter: In '81, he voted yes on Sandra Day O'Connor, who I think it was a unanimous vote for yes. In '86 he voted no on Rehnquist as the Chief Justice. Rehnquist had originally been nominated to the Court in the early '70s, and was appointed as an Associate Justice, Reagan nominates him to be the Chief Justice. The reason that it was sort of contentious is that Rehnquist apparently tried to convince Justice Jackson in the early '50s to oppose Brown v. The Board of Education to side with the segregationists, and he claimed that it was just sort of an intellectual exercise when he was testifying to the Committee in what was almost certainly perjury. And that was one of the first modern era fights over a Supreme Court Justice. Biden opposes him in '86, votes yes for Scalia, a 98 to 0 vote in 1986, which, while a mistake in retrospect, it was uncontroversial in large part because it was considered a big deal to get an Italian-American on the Court. Not a joke, not a joke.
20:51 Peter: In '87, he opposes Robert Bork, maybe the nomination that led us to where we are in terms of how aggressive the fights can be over Supreme Court appointments.
21:03 Michael: Yeah, yeah, for our listeners who don't know, Robert Bork is just a fucking huge piece of shit, he's real garbage. In the mid-90s after his nomination had died and all that, he wrote a book called Slouching Towards Gomorrah: Modern Liberalism and American Decline. That's the type of guy that they were trying to put on the fucking Supreme Court. He's also been very, very influential in anti-trust law, which is all about how we handle monopolies or prevent monopolies, and I don't know if anybody has taken a peek out their window and noticed what the weather is like in terms of American capitalism and monopolies, but I don't think his theories of law have panned out too well.
21:53 Michael: So it wasn't just that Biden voted no, he played an instrumental role in killing Bork's domination, he helped recruit a few Republicans to make the no vote bipartisan, and just publicly grilled Bork on the right to privacy, which obviously is what underlies women's right to choose, have an abortion. In Supreme Court history that right goes back to a case called Griswold v. Connecticut, which was about regulating contraception and preventing people from getting contraception, and it was about married families having autonomy in the privacy of their bedroom. And Biden just grills Bork on this, and if you watch it... If you don't really know what's going on, it can be a little confusing, but if you know even a little, it's pretty clear that Biden's just trying to get Bork to come out and say women shouldn't have these rights.
22:48 Michael: And Bork is just like fucking dodging him, saying like look, yeah, I've openly criticized Griswold and by extension Roe v. Wade, but I've criticized the reasoning the Court used to get to these decisions. I'm not saying that necessarily the right does or does not exist, and that some point Biden calls him on it. He's like, look, you've been a law professor for a long time. You've been talking about this for a long time. Are you really telling me you've seen nothing in the Constitution one way or another to make this call?
23:20 Joe Biden: You're one of the most well-read and scholarly people to come before this Committee in all your short life. Have you come up with any other way to protect a married couple under the Constitution against an action by a government telling them what they can or cannot do about birth control in their bedroom? Is there any constitutional right anywhere in the Constitution?
23:43 Robert Bork: I have never engaged in that exercise. I have passed on. What I was doing was criticizing a doctrine the Supreme Court was creating, which was capable of being applied in unknown ways in the future.
23:55 Michael: This basically like killed Bork's nomination, being sort of exposed and clearly obviously just trying to avoid saying what was blatantly true. It ended it, which is good, 'cause he got replaced with fucking Kennedy who, for all his faults, and we've talked about him being an idiot, is much better than Robert Bork, and especially on both abortion and on gay rights.
24:20 Rhiannon: Yeah, you don't get the gay marriage decision from Bork. You don't get Bork riding for the majority there.
24:26 Peter: Yeah, I mean, gay marriage is illegal in this country, in many states without this happening.
24:31 Rhiannon: Right, yeah, yeah.
24:32 Peter: Alright, so Joe Biden votes no on Bork, he's instrumental in knocking Bork down. In Bork's place comes Anthony Kennedy, he votes yes on Kennedy, who was confirmed 97 to 0. He votes for Souter, Justice Souter, who ends up being a liberal, by the way, although he was a George Bush Senior nominee. Souter gets confirmed and then Clarence Thomas. Biden votes no on Thomas, but asterisk. He leads the hearings in his role as head of the Committee, and essentially just lets Republican Senators openly smear Anita Hill, who had accused, very credibly, in my view, Clarence Thomas of sexually harassing her at the EEOC. Biden voted no on Thomas, whatever. I think at the end of the day, his actions probably didn't have an effect on the outcome of Thomas's confirmation, just because things had sort of crystallized along party lines already at that point, but his actions at that hearing, nothing short of disgraceful, just a gross moral failure, really disgusting stuff.
25:43 Rhiannon: Right, yeah, exactly.
25:46 Peter: So 2005, Biden votes no on Chief Justice John Roberts.
25:52 Michael: Balls and strikes, Mr. Balls and Strikes.
25:54 Rhiannon: Yes, the umpire himself.
25:56 Peter: The umpire himself. The vote was 78-22, so there was some real Democratic opposition, but it wasn't a contentious one, I don't think anyone really thought that he would lose. Same year he votes no on Samuel Alito, the current sort of resident weirdo on the Court, I think.
26:14 Rhiannon: Resident dumbass.
26:17 Peter: After I think it's 2007, Biden's no longer a Senator, but he made statements opposing Gorsuch and Kavanaugh, and I think the bottom line here is you've got some real genuine dark spots in how we handle this stuff. His actual votes have been surprisingly strong, it's hard to imagine someone being much stronger, frankly. He's opposed just about every Republican nominee in the past 30 and change years, every Republican nominee since Souter. My guess is a big part of this is he's just sort of a party first guy.
26:49 Peter: I think he's also been a hard-liner on Roe v. Wade, frankly, I think that's a big part for him. And, of course, it's probably worth noting, Biden's in the White House when Obama nominates Sotomayor and Kagan. Kagan, very sharp, I think maybe the sharpest member of the Court.
27:08 Michael: Good writer.
27:08 Peter: Great writer. Reliable liberal left vote on the big issues, but she can be wishy-washy, strong tendencies towards formalistic reasoning, for sure. Sotomayor may be in pure jurisprudential terms the strongest Supreme Court Justice in history.
27:24 Michael: She's my favorite.
27:25 Rhiannon: Yeah, she's great.
27:27 Peter: And I think we can mostly ignore Merrick Garland in this conversation. He was a pathetic and embarrassing attempt by Obama to nominate someone who the Republicans would approve. But I do want to note that I am a little bit haunted by the prospect that Biden would nominate Garland to like fulfill Obama's legacy. He was once asked about it and said that he was open to it, probably a meaningless statement, someone's like, are you open to doing this? And he's like, yeah, sure. But yeah, if he did that, I cannot tell you how much it would just fucking flip my brain on its ass. I'm no longer doing the podcast, I'm going full Che Guevara if he does that shit.
[laughter]
28:14 Michael: Yeah, the one thing that gives me some confidence is his pledge, right. He has publicly stated and reiterated that he would nominate the first black woman to sit on the Supreme Court, which I mean, it's a very Joe Biden thing to say, to make that sort of campaign pledge. But...
28:37 Peter: Like it's completely separate from ideology, right? You know what I'm going to do? You ever seen a black lady up there? Yeah, you're gonna.
28:42 Michael: Yeah, I don't know if you guys saw this, but Jonathan Turley, the biggest fucking hack law professor, wrote an article criticizing Biden about this pledge, calling it affirmative action and being like the Supreme Court...
28:56 Peter: Hell, yeah.
28:57 Rhiannon: Oh, my God.
28:58 Michael: Affirmative action, unconstitutional and blah blah blah, all this shit. And one of his arguments about why this is like a bad pledge is because there are not many black women judges, and so I think about how narrow the pool is he has to choose from.
29:13 Peter: How many beautiful and brilliant white men are you passing up on?
29:15 Rhiannon: Right, yeah.
29:16 Peter: That's the real argument, right, Jonathan Turley, fucking full grown adult putting on floaties before he goes in a kiddie pool.
29:29 Michael: In any event, there's a clear favorite here, which is Ketanji Brown Jackson, who is an Obama nominee, she's 49, which makes her a great Supreme Court age, old enough to have history and experience, but young enough that she'll be on the Court for 30-plus years. She's in the DC District Court, which is not quite as prestigious as the DC Circuit Court, but still is right there at the heart of the most prestigious area of federal law.
30:01 Rhiannon: Definitely.
30:01 Michael: You know, she was fully vetted by the Obama administration already, she was only one of five people to interview for this spot that ultimately Merrick Garland got. She's really smart. She's like the classic Supreme Court pedigree, a Harvard Harvard grad, magna cum laude undergrad, cum laude at Harvard Law School, clerked for Breyer at the Supreme Court. Twice received unanimous Senate approval both for the Sentencing Commission and then for her District Court spot. And in something that would make the left a little happy, she has two years as a Federal Public Defender.
30:39 Rhiannon: Represent, hello.
30:42 Michael: To the extent there'd be any formal knock on her experience, it would be that she didn't have a appellate experience as a judge, but she did work in appellate work, both in private practice and as a federal defender, so...
30:54 Peter: Oh, so they're going to like find the worst person she defended as a public defender.
30:58 Rhiannon: Oh, right, yeah.
31:01 Michael: Oh, absolutely.
31:01 Peter: They're going to go nuts.
31:02 Michael: But this is someone that I think if Democrats have 50 votes in the Senate, they'll get 50 and the VP and it'll be fucking awesome. The idea of her as a Supreme Court Justice gives me a little hope for the future, the tiniest, tiniest little bit of hope, but there's a little bit.
31:19 Peter: Yeah, even like just fantasizing about this sort of stuff, where it's just like, maybe, you know. But again, she's gotta be top of the list if Biden's promising a black woman.
31:27 Rhiannon: For sure.
31:29 Michael: And he's already interviewed and fully vetted this person, like that's... It feels like she's gotta be there. There have been a number of names thrown about. Of them, the few that seem most plausible to me are Sherrilyn Ifill from the NAACP Legal Defense Fund, and this California Supreme Court Justice, Leondra Kruger, who's pretty young, but she clerked for Stevens at the Supreme Court in the past, and clearly she's at the highest court in one of the biggest states. It's something that we said that the promise is stupid, but looking at the available candidates is actually heartening.
32:06 Peter: Yeah, it's quite interesting and good that he said he would nominate a black woman, only because there are so few options realistically that we can actually look at them and evaluate them in advance.
32:19 Michael: Well, it would be cool.
32:21 Peter: It's a good-looking field, frankly. Yeah, of course, he'll probably just do fucking the Condoleezza Rice.
[laughter]
32:32 Peter: So I think one general point to keep in mind is that, unlike in other policy areas, there isn't a large amount of distance between the left and more centrist Democrats on Supreme Court nominations, I think historically, and realistically looking forward. And that's not to say that there's no gap, but you have a fairly small pool of potential nominees to draw from, and a lot of center-left judges are falling on largely the correct side of things, even if you're farther left than them, and as a result, I don't think it's very realistic to expect that someone like Bernie Sanders would nominate a Justice substantially to the left of Sotomayor, for example. I don't think that a nominee like that really exists.
33:18 Peter: What he would likely do is avoid picking someone like Kagan, who's on the right side of things 98% of the time, but is again, just a little too formalistic, a little too friendly with certain establishment interests, but for the most part, the distance, this isn't something like healthcare policy, where the gap between the left and the center left is enormous, right? It's just a lot tighter for a lot of almost logistical reasons, I think. There isn't a real big left legal movement to draw from, and also it's... A lot of Supreme Court decisions are binary. Are you on this side, are you on that side? And a lot of the more center-left nominees are going to end up on the correct side, even if we think they could push it farther.
34:06 Rhiannon: Right. Yeah, I think that's absolutely right. And when we say that the Supreme Court is on the ballot realistically, we also mean that the lower courts are on the ballot too. The entire federal judiciary, so the system of federal appellate courts and district courts, and that's actually where the vast majority of law is made, right, so really consequential decisions that will shape millions of lives in the aggregate, those cases and that law is being created without any Supreme Court review. Just to get an idea, in federal district court, every year, there are about 300,000 cases.
34:44 Rhiannon: Now, if you go up to the federal circuit courts, the appellate courts, those have 50,000 cases, and in fact, Justice Sotomayor, when she was a federal circuit court judge, she says, famously, that the appellate courts, the federal circuit courts, that's where the law is really made in this country. So compare that, hundreds of thousands of cases at the district court level every year, 50,000 circuit court cases each year, compared with 70, just 70, Supreme Court opinions each year.
35:15 Michael: Literally dozens. Dozens of...
35:18 Rhiannon: Right, so a huge impact on the law and therefore on people and our daily lives are happening actually at the lower court level, so we kinda have to think about how that's working too.
35:29 Michael: Yeah, my personal experience, I only briefly worked for a judge for a few months, but I got to speak directly with them about the decision-making process, and I can say with confidence that they don't care about the possibility of being overturned or anything like that. Generally speaking, they'll try to follow the law, but they do what they think is right and fuck it, the vast majority of stuff that they do can't even be reviewed, or if it does, it's going to happen down the road when that ship has already sailed in a sense, right? And then, like Rhiannon said, on top of that, the next level up is where the big binding decisions get made anyway. That's where all the big picture law gets decided is at the circuit level.
36:16 Peter: And if you think that federal judges are constrained by the Supreme Court in some real way, maybe an instructive read would be that psychotic decision out of Kentucky concerning a stay-at-home order that may have restricted church attendance or church gatherings. A judge absolutely fucking went off about how an order saying that church gatherings that can only occur with people in their cars was a violation of the First Amendment, fucking quoting like the Bible and shit in his decision. True psycho shit, misrepresenting the facts in a way that is just so deep and complete that it's not even worth bothering with what he was saying, but these people wield real power, they feel righteous and they are absolutely willing to flex that muscle.
37:09 Rhiannon: Yes. That's absolutely right. Look, I live in Texas, my access to abortion care over the next 10 years, these choices about who is taking the bench in the Fifth Circuit, that kind of stuff, it matters a whole fucking lot. So talking about what President Trump, how he has influenced the federal bench so far, currently 25% of the judges active on the federal bench are Trump appointees, so the right Republicans are taking judges and judicial nominations very seriously. And it must be because it's fucking hugely important, and even before Trump, the numbers were clear on this.
37:51 Rhiannon: So in the final two years, for example, in the final two years of the Obama presidency, Republicans controlled the Senate and Obama successfully appointed only two federal appellate judges. One of those judges, Stoll, was confirmed to a really highly specialized court that only deals with patent law. By contrast, 10 such judges were confirmed during the same period in the George W. Bush presidency, even though that was during a period when Democrats controlled the Senate, So it's clear that the Republicans take this process really seriously and are going to be sort of staunchly fighting on it. Trump said on the campaign trail, he did an interview with Breitbart Radio, that all of his judicial nominations are going to be chosen by the Federalist Society, and so that brings us...
38:47 Peter: It's so fucking wild to see someone like Trump even talking about the Federal Society. How much fucking power do these people have that this guy, who obviously has no idea what they are or what they stand for, is out there, like, yeah, whatever they say, I'll do it.
39:00 Rhiannon: Yeah, exactly, just giving them a blank check almost for packing the federal judiciary with their cronies, So that kind of brings me to thinking about two things. One is what does a really conservative federal bench look like at the lower courts, the district courts, and the appellate courts, and then also, who the fuck is the Federalist Society? So a couple of cases that have happened in the past year. Last year, the Fifth Circuit held that the police are immune from lawsuit when they pick up a mentally disabled homeless man who had recently been released from a state mental health facility, the police drove that man to the county line, so that he would be out of their jurisdiction, they dropped him off on the side of the highway at night time. That man was shortly thereafter hit by a motorist and killed, and in a split court decision, with the deciding vote cast by Judge Don Willett, a Trump appointee, they held that the police are not liable for their behavior.
40:05 Peter: He wrote that opinion with one eye on the fucking LSU game on TV, fucking freaks.
40:10 Rhiannon: And just last month, March 2020, in an Eleventh Circuit decision, another Trump judge, Kevin Newsom, he sides with the prison in a case of an incarcerated trans woman who challenged the prison's refusal to provide her with medically necessary gender-affirming healthcare. So these Trump nominees to the bench have a real effect on real people's lives and the law that affects all of us every single day. Now, where are these judges coming from? They're coming from the fucking Federalist Society. We've mentioned the Federalist Society before.
40:49 Peter: Yeah, I want to explain why we're going to dive in to the Federalist Society a bit more here, and it's because if Trump is re-elected, these are the people who have almost direct control over who gets nominated to federal court positions in this country. When you're talking about who controls the courts, right, obviously the President can nominate, and when you have a Republican in office, the standard move is to simply defer to the Federalist Society, and Trump's going to be even more deferential, and has been even more deferential than your average president, because he has zero interest in doing any evaluation himself, obviously.
41:28 Peter: So what we're talking about here is the other side, what the court will look like if Trump maintains control. I think that's important to get into, because when you're talking about someone like Biden, obviously you are talking about the lesser of two evils, but it is worth noting just how grossly evil the other side happens to be with respect to the courts.
41:54 Rhiannon: Yeah, if you went to law school or you're in law school, you know who the Federalist Society is, they have Chick-fil-A at their events on law school campuses.
42:04 Peter: Only because it's illegal to serve the flesh of minorities.
[laughter]
42:12 Rhiannon: If you didn't go to law school, you're smarter than all of us, so good job. But the Federalist Society is like the College Republicans, but for lawyers, and the student chapters, they host meetings and debates on conservative legal issues. I checked the Federalist Society website today, and some of the banner headlines that are kind of like swiping through the top of the website, one of them is a historical perspective on state power and civil liberties during COVID, and another one, there was a...
42:47 Peter: Fucking losers.
42:49 Rhiannon: Yeah. And the other one was a policy paper titled Do Voter ID Requirements Safeguard the Election Process?
42:58 Michael: Of course they'll have voter ID.
43:00 Peter: These fucking kids wear suits to go vote.
43:03 Rhiannon: Yes, yes. That's right.
43:03 Peter: The worst type of person.
43:05 Rhiannon: Yeah, nationally, the Federalist Society enjoys really massive political influence because their membership is huge, and judges like to be members of totally heinous organizations that call themselves apolitical. All five conservative Justices on the Supreme Court right now are current or former members of the Federalist Society.
43:24 Peter: I mean, it's important to remember this isn't a student organization, this is a massive organization with deep roots in government power that has a student outreach branch. But the Republican presidents speak at their events. They are an institution designed from the bottom up to control an entire branch of government to the best of their ability.
43:48 Rhiannon: Absolutely, and they are intentional and strategic and they're resourceful, right, so a former Federalist Society Executive Vice President says he endorses the network theory of society, saying it's less about who gets... It's less about...
44:05 Peter: I don't know what it is yet, but I'm upset already.
44:07 Michael: I don't like it.
44:09 Rhiannon: It sounds fucking awful. It's less about who gets what job and more about building a community that can be self-perpetuating, self-sustaining and self-driving. They not only network in their events with judges, they network like horny adolescents online, but they also have what's been called a supply and demand relationship between the judges and the network. So the Federalist Society has recognized early on, and before I think the Democratic Party or any sort of left reaction could build strength, they recognized early on that judges, conservative judges, are going to need scholarship and arguments that extend Federalist Society principles into new areas.
44:53 Rhiannon: So Steven Teles, he's the author of The Rise of the Conservative Legal Movement. He said that where new legal theories depart from the status quo, judges need those legal theories to be vetted and legitimized through public debate, they require targeted cases, raising questions that provide an opening to move the law, and without professors and lawyers in the network filling that demand, conservative judges wouldn't be able to do that. So the Federalist Society is intentional and strategic about setting up this broad network nationwide, where judges are getting conservative arguments from professors and these networking events, and they go hand in hand supporting each other.
45:34 Rhiannon: So a good example in the news, and I think it even made mainstream news, was this Harvard law student named Chance Fletcher, who...
45:42 Rhiannon: You could stop there. That's all you... That name.
45:46 Michael: He... In the middle of a class on Zoom pulled out a fucking gun, like a handgun, and was cocking it and opening and looking down at the barrel and cleaning it, and obviously kids were distracted by this and some were upset and... The thing is, this guy is not just a member of the Federal Society, although of course he is, he's the president of Harvard's chapter of the Federal Society, he has a cushy clerkship already lined up with a prominent Republican circuit court judge, I believe. This guy has his future already mapped out, and if he wasn't already like a favorite to eventually be a Supreme Court clerk and a conservative academic or even a conservative judge, this story will make him one.
46:36 Michael: And that's how this shit works, they love antagonizing liberals. They love like needling liberals. And this story has made his name and you can see it already, there are people who circled the wagons around him, who've said that this was punching down, talking about a student's behavior in a national magazine or online blog, whatever, like Slate, is inappropriate. You can see the conservative media apparatus rallying around this kid, and this guy is going to be fucking making decisions about women's reproductive rights in a few years, about that.
47:13 Peter: And I want to say two things about that. One is, your point that they thrive on the antagonism. You can see it in Kavanaugh's appointment, they love that he fought back and he was screaming at his hearing, and just getting emotional, and accusing the fucking Clintons of being involved, which is insane. And they loved that shit, and that's how their politics work too, I think. Anyone who looks at someone like Trump knows that his real appeal to his base is that he's antagonistic towards the people they hate, and it's important to realize there's no part of the conservative movement where that stops, that is the motivation for reaction. You see people rising up and trying to seize their own power and you fight against it and antagonize and defeat them. That is the purpose of reactionary ideology.
48:09 Michael: Yeah, we're not just full of shit or talking out our ass when we say they love antagonizing people. And an example is that the University of Connecticut's Federal Society, a chapter had their own Pride Day where they had custom hoodies with a rainbow on it, made to look like a gay pride flag. But it was Federalist Society Pride, where they would all wear it around with no other purpose, there's nothing to be accomplished here except to try to provoke people who care about things like LGBT Pride. That's it. There's nothing legal here going on, there's no even real political end that they're advocating for, it's just fucking needling their enemies, who happen to be apparently just gay people.
49:02 Michael: But that's who they are. They're fucking ghouls. And that's who runs the federal courts right now, which I very much would like to see changed, personally. This is just me...
49:16 Rhiannon: Thanks, Michael.
49:17 Michael: I'm getting a little drunk and angry now. The Federal Society fucking gets me heated.
49:20 Rhiannon: Things are bad and I want them to be different.
49:22 Michael: Fuck the Federal Society.
49:25 Peter: And look, to tie this back in. The point that we're making is not about Joe Biden in particular, right? It's that when it comes to the courts, the other side is horrific and truly monstrous, and we have always made fun of formalistic reasoning. I promise you, that as useful as formalism is to the Federal Society, they understand our point fundamentally, because their ends are not about legal reasoning, their ends are about conservative domination of politics. They do not give a fuck about textualism or originalism or anything like that, except in so far as those things are means to the end of subjugating the left movement and endorsing and emboldening reactionary movements in our society.
50:20 Michael: And this is an important thing to remember too, is if you ever hear anyone describe the Federal Society in any other way, you see someone defending Chance Fletcher online, if you see a talking head describing the Federal Society as anything other than a Republican party apparatus, make a mental note to never listen to anything that person has to say about anything ever. There are enough experts on any legal subject that you don't need to listen to fucking idiots who are going to enable this sort of bullshit and in the process legitimize it. Like fuck those people, they're not worth your time.
51:04 Rhiannon: And pretending like it's objective. Pretending like these are principles that, I don't know what the fuck they said, like free speech shit or whatever, and that it doesn't have anything to do with actually hurting minorities.
51:20 Michael: Right. Look, at the end of the day, it's like it's an organization that just wants to fucking stick it to people they hate.
51:27 Rhiannon: Exactly, yeah.
51:28 Peter: But to kind of circle back to this election and what it means. The number of left projects that can be stalled, hampered or outright dismantled by conservative courts is endless, the Green New Deal, Medicare for All, prison reform, immigration reform, LGBT rights, abortion, there are viable conservative legal arguments waiting in the wings to undermine and destroy all of them. Biden himself is not going to do much for a single one of those projects, because he's built an entire career on doing the right thing 20 years after everyone else realizes that it's the right thing to do. But the implications for the longer term left project of losing the courts in this way are stark. And, again, to repeat what we said up top, we're not trying to push you to vote for Joe Biden, what we'd like to do here is give some clarity as to the stakes with respect to the Court.
52:28 Michael: Yeah, and if you can't bring yourself to vote for Joe Biden, but this stuff still seems important, you can donate $5 to Sarah Gideon to beat Susan Collins in May. There are competitive races for the Senate, that will help shape the Court just as much as the President or nearly just as much, in Arizona, in Colorado, in Iowa, in Montana, in Maine, in Alabama. There are things you can do other than voting for Joe Biden, if you don't feel like that's something you can do to help on these issues.
52:58 Rhiannon: Good point.
53:00 Peter: Right. I'm very empathetic towards people who are just like, "Fuck this, I want to sit out. The centrists and this party have done nothing for us." It's been depressing to watch opportunities to turn the courts in this country left, slip away, but it's also been depressing to watch the Democrats trot out this fucking milquetoast centrist platform and these tepid candidates at a time where our country needs actual leadership. The stakes are high and difficult to quantify on both sides, and we're not going to sit here and tell people that we have the answer, and that there's one definitive correct thing to do. I really don't think there is. That's why I don't live in a swing state, I do it on purpose so that I don't have to make these sorts of decisions. The only definitive thing I can say on this topic is that if you are on the left, it's a mistake to be dismissive about the importance of the Supreme Court, and of courts generally. They stand between us and progress, they stand between us and justice.
53:56 Peter: That doesn't mean you have to vote based on the Court, but it does mean that your vision of politics and power needs to account for it.
54:03 Michael: That's right.
54:05 Rhiannon: Woo.
54:06 Michael: That's right.
[music]
54:15 Peter: Alright, next week is Clapper v. Amnesty International. If you're politically conscious and you hear Amnesty International and a case name, you know it's about to get rough. It's a mass surveillance case, it's going to be a banger.
54:36 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.
55:03 Peter: Oh, maybe a quick outro. Joe, take your earphones out. Joe, it's okay. Your family is here, Joe. You're going to be President, Joe, you're doing so great.
55:19 Leon: From the Westwood One Podcast Network.