[music]

00:09 Peter: Welcome to an emergency broadcast of 5-4. [chuckle] We are in hell. [chuckle]

00:21 Rhiannon: It's bad, guys, it's bad.

00:24 Peter: Today we are discussing the death of Ruth Bader Ginsburg, and the political chaos that is currently consuming us all. This is probably the most hopeless I've felt since Trump got elected, where you were just like, "Okay, here we go."

00:48 Michael: But I feel even less...

00:51 Peter: Objectively, there is less hope because Trump also was elected. Right?

00:54 Michael: Yes, right.

00:55 Rhiannon: Right, right, right. We're already in that context of a shit storm.

01:01 Michael: How I'm feeling is I've been up for about an hour, I haven't eaten anything and I am drinking a very large glass of... This is mostly tequila [laughter] with a little bit of Kahlua, a little bit of coffee and a little bit of soy milk. That's my breakfast, don't worry, I have a second waiting in the wings. [laughter] That's where I'm at emotionally.

01:30 Rhiannon: Right. I'm on the West Coast which means it's even earlier for me right now in the morning, and yeah, everything hurts, that's all.

01:39 Peter: So we want to talk a little bit about RBG's body of work, and a little bit more about the implications of her death and her failure to retire when she could have been replaced by a Barack Obama appointee. And I think we should give just a little bit of historical color here. So, in 2009, shortly after Barack Obama was inaugurated, the liberal Supreme Court Justice David Souter retired from the Court. In 2010, several months before the midterm elections, liberal Justice John Paul Stevens stepped down from his position on the Court. In 2018, shortly before that year's midterm elections, conservative Justice Anthony Kennedy did the same thing. And each of these Justices was doing something fairly obvious, they were choosing to retire when their political party had control of both the Presidency and the Senate, ensuring that their successor would be an ideological ally of theirs.

02:46 Peter: But in 2013 or so, when Ruth Bader Ginsburg was 80 years old and the Democrats controlled both the Senate and the Presidency, she chose to remain on the bench and publicly stated that she intended to do the job until she couldn't anymore. At the time, she was a two-time cancer survivor, having been diagnosed with colon cancer in 1999 and pancreatic cancer in 2009, and on September 18, 2020 at the age of 87, that pancreatic cancer killed her. And now, her spot on the Court will almost certainly go to a far right wing psycho appointed by Donald Trump.

03:27 Peter: Ruth Bader Ginsburg did a huge amount of good in her life, she was a trailblazer in her field, she is as close to single-handedly responsible for building up gender discrimination laws to where they are, as any one person could be, her jurisprudence on the Court was very strong, certainly one of the maybe most liberal two or three Justices of all time. But her decision to stay on the Court was devastating to the perseverance of left and liberal values in American politics and policy. That decision will likely eventually erode whatever legacy she has impressed upon American law, and it is the consequence of someone who, for whatever reason, failed to understand that the power she wielded should come with some affirmative obligation to the people that she wielded it over.

04:22 Rhiannon: Yeah. When I look back, obviously when all of us are looking back on Ruth Bader Ginsburg's life, it's a life of superlatives, right? Everyone I'm sure who is listening to this, has heard or read already various obituaries and news segments that are memorializing her life and legacy over the course of the past couple of days since she died, and so we don't want to spend too much time here with the sort of end-of-life tributes when I think other people are doing that much better than we can. But I do think...

04:53 Michael: Or want to.

04:54 Rhiannon: [chuckle] Right. But I do think that, nevertheless, a conversation about the end of her life and where we're left without RBG is incomplete if we don't at least go through some highlights of the amazing contributions that she did make. So just to start off, she was one of less than 10 women in a class of 500 men at Harvard Law, the first woman to be on two major law reviews after she transferred to Columbia Law School and joined the Law Review there. She was a mother in law school, I think that she had her first child the year before she went to law school, and while she was in law school her husband, Marty Ginsburg, was also in law school at the same time and she cared for him when he was diagnosed with testicular cancer. Now, in all of that, and she still graduated at the top of her class. So these are the accomplishments of an undeniably intelligent person, and that was before she even did anything in the law, before she even started her career. And then we get to her career. As a lawyer, she argued in front of the Supreme Court multiple times, she crafted the arguments, like Peter said, that became the basis for sex discrimination laws in this country.

06:03 Peter: Right. To give some color there, she struggled to find work in New York, just by being first in her class out of Columbia, but she landed a job with the ACLU, which is where she made her mark.

06:13 Rhiannon: Yeah, exactly. And she did, she made that mark using really a shrewd legal mind on cases in which she was insisting that laws that held women back were also damaging to men. She's well known for quoting the abolitionist, Sarah Grimké, in front of the Supreme Court. She said, quote, "I ask no favor for my sex, all I ask of my brethren is that they take their feet off our necks." And at the end of her oral argument for the last case that she argued in front of the Supreme Court, so before she was a Justice, a case in which she was challenging a law that made jury duty voluntary for women but not men, then Associate Justice William Rehnquist asked her, "So, you won't settle for putting Susan B. Anthony on the dollar then?"

07:00 Rhiannon: She would, of course, later be William Rehnquist's colleague when she became the Supreme Court Justice, and she famously would say years later that she would be happy only when there were nine women on the Court. So look, all that to say like Ruth Bader Ginsburg was an icon. She inspired generations of attorneys, she paved the way for women in this profession, and look, a woman or man, you can't point to a more successful and influential and powerful lawyer, she's up there with a tiny handful of people.

07:29 Peter: Yeah.

07:30 Rhiannon: So turning to her legacy, I'm feeling confused right now about why criticizing the choices that Ginsberg made towards the end of her life takes away from any of those accomplishments. We keep hearing that we need to give props, and I guess I don't understand how criticism of a very public choice that she made takes away from those accomplishments, I'm not dismantling sex discrimination law. So what does giving credit for the accomplishments do for us without the necessary criticism? Who does it serve if we don't talk about a grave mistake that she made. And by the same token, we don't do this criticism because it's fun for us to say bad stuff about a sweet old lady, it's because maybe if we're talking about these aspects of her public service, the areas in which she failed, maybe we can fucking learn from history for once. RBG, undeniably a big part of the reason women have sex discrimination laws they can rely on in this country, a big part of the reason why we have any abortion right to speak of anymore, she's a monumental figure, and she died in the most precarious and alarming political context possible, and that was by her own design.

08:44 Michael: Yes.

08:44 Rhiannon: And so if you want people to say that you are perfect when you die, you should let that go, 'cause no one's perfect. If you would like people to say that you served the public righteously and justly till the very end, then do that and that will be your legacy. Ruth didn't do that. So her legacy is tainted. And so I just think we need to unpack what bothers us so much about saying that. She held an immense responsibility because she lived a life where her job was public service, and in the end, she made a decision that didn't serve us well.

09:17 Peter: Right.

09:17 Rhiannon: She was a titan, she was a hero to many, and among her many incredible accomplishments, there was a big mistake. And I just want to emphasize that that failure doesn't mean that we despair forever. When we criticize someone, it doesn't mean like my point or my politics is about nihilism and nothing will ever be good, what's the fucking point? It's a criticism of choices, it's a recognition that where we are is the result of political and personal choices, particularly by those in power, and when we criticize, it's because there's a better way. People could have done different things and things would be better now, so actually, I think that's like a recognition about possibility and potential.

09:54 Michael: Absolutely. There's a very predictable response to what Rhiannon just said, and it's predictable because we've seen the response a number of times, and it's something like, "How could you have known?" or conversely, "What about fucking Merrick Garland? He's not on the Court. What about Mitch McConnell?" And so I just want to lay out a few things that are just facts. Yes, two Justices, liberal Justices retired in 2009, 2010 when the Democrats had 60 or 59 Senators after Scott Brown's election and the Presidency. They lost seats in 2010 in the Senate. Barack Obama won re-election in 2012, but they lost more seats in the Senate in 2012. They lost control of the House in 2010, and did not have control of the House after 2012. It was very obvious in 2013 that their hold in the Senate was precarious. They had lost seats in two straight elections, they had just lost control of another House of Congress in the last few years. Everybody knew Republicans could gain control of the Senate in any of the coming elections. And that Barack Obama was in his last term because he's term limited. As a result, there was very public pressure on her to retire.

11:17 Rhiannon: Yeah.

11:18 Michael: There were articles written about it, people asked her about it. She publicly commented on it. This was predictable at a point in time when she could have retired and a Democrat could have replaced her. That's just a fact. It is a historical fact.

11:34 Rhiannon: Yeah, and it's predictable... What I think is really important, it's predictable in sort of both aspects, the system and the political majority was about to be lost.

11:44 Michael: That's right.

11:44 Rhiannon: And everybody could tell that that was happening. And then also personally, she was 80 years old in 2013. Like Peter said, she had had cancer twice. What is...

11:54 Peter: Colon and pancreatic cancer. Those are like two of the worst.

11:58 Rhiannon: Yeah, it's awful, right?

12:00 Peter: I don't even know how she's like... She survived like 11 years of the pancreatic cancer at that age, which man, it must be nice to be rich.

12:05 Rhiannon: Yeah. [laughter] Great healthcare.

12:06 Peter: If I get pancreatic cancer, I'm gone in like six months.

[laughter]

12:09 Peter: The doctor's like, "Just... Yeah, just walk into a beautiful field and enjoy the rest of your days."

[laughter]

12:16 Rhiannon: Right. Right.

12:17 Michael: So when I say this was predictable, I mean, the current moment where she's being replaced by a Republican President with some right-wing goon. Obviously, Barack Obama wouldn't be President forever, obviously Democrats wouldn't hold the House forever. But even beyond that, our institutions are on the brink right now, like this... Sorry. [laughter] It's hard not to sound melodramatic when you talk about this stuff, but this might be the last free election in the country.

12:53 Rhiannon: Right.

12:53 Peter: Yeah.

12:54 Michael: I don't think that's an exaggeration. I think we are very clearly down like a path that a country like Turkey is on, and we're like a decade behind them and they are... It's a fucking joke. And that was predictable. And like, look, I think if you are upper-middle class or middle class or working class or whatever, and you work 50 hours a week and you're just trying to pay your rent and make your mortgage, I don't think it's incumbent on you to read Marx or Rawls or Dworkin or whatever, and keep up with every in and out of the ongoings of the legislature and the state Republican parties and all that shit. But do you know who that is fucking incumbent on? The most powerful people in the country who happen to be political activists like the Supreme Court Justices.

13:44 Michael: And do you know who is very well-positioned to see the direction of the country, are the Justices who were in dissent on Citizens United, talking about how this opened up our elections to purchase by corporations. It's Justices who were in dissent on Crawford v. Marion County, talking about how the Republican Party was disenfranchising voters on the basis of made-up laws that don't exist and voter ID laws. It's the Justice who was in dissent... Who wrote a powerful dissent in Shelby County v. Holder in 2013, of all years, about how the Republican Supreme Court Justices were gutting the Voting Rights Act and setting back our democracy decades.

14:26 Michael: There is nobody better positioned in this country to understand the risk that our democratic institutions faced at the time. The direction Republicans were going, gerrymandering was already ongoing, those cases were already in the courts, people were already talking about it eventually coming up to the Supreme Court. This was on their fucking radar and they were talking about it publicly in their decisions. And she still, understanding that, was like, "I'm gonna risk it. This is what's on the line, but I am so fucking important."

15:00 Peter: Yeah, and that is what she thought. This was being sort of debated on Twitter and such over the weekend, the extent to which this is just an ego thing. And she made comments that basically implied that she didn't feel like she was readily replaceable. There wasn't the talent to replace her, that is ego. And bullshit, absolute bullshit. There is no one in this country...

15:21 Michael: That is insanely insulting to Kagan and Sotomayor, I'm sorry. Deeply insulting. She's looking at the two people that the current President had just... At that time, the current President had nominated in the last few years and being like, "They don't measure up to me."

[laughter]

15:35 Peter: And just objectively, you could program a robot to get the right decisions in these fucking cases 98% of the time.

15:43 Rhiannon: Right, exactly.

15:43 Michael: I was gonna say they agree with her over 90% of the time.

15:46 Rhiannon: Right, right, right, exactly.

15:48 Peter: And the same thing is true of dozens of lower court federal judges.

15:51 Rhiannon: Exactly, exactly.

15:53 Peter: One thing I want to mention is there's this common refrain that, "This isn't really RBG's fault, this is a systemic issue." We shouldn't have a system that is reliant on whether or not a cancer-ridden, 87-year-old lives or dies. And that's true to a degree, but it is also the responsibility of people in her position to mitigate that problem by retiring when they are younger and when it is politically reasonable to do so. That's why so many Justices do it, that's why most Supreme Court Justices in the past 20 years have stepped down rather than died on the Court. I would never argue that this isn't a systemic problem, of course it is, of course it's bigger than RBG, but everything she needed to know to mitigate that problem, she knew in 2013 and 2014, and she didn't take advantage of it, she didn't do anything with it. She let her ego and her desire to remain on the Court for whatever reason carry the day. And now, Trump is poised to replace her with someone who will erase her legacy on the Supreme Court, erase.

17:02 Rhiannon: Yeah, exactly.

17:03 Peter: Every fucking thing that we managed to scrape out of the Supreme Court in the past 30 years, and there isn't much, because it's been a conservative-dominated institution, but everything we have managed to scrape out of the Court is at risk.

17:17 Rhiannon: Exactly.

17:18 Peter: Whatever tattered remains of abortion rights are there, God knows what they're gonna do on abortion, but it's not gonna be good, it's gonna be a fucking nightmare. Voting rights, already extremely tenuous, now basically doomed, it's endless. Another big thing is the Executive Branch discretion, the extent to which the Court is just deferring to the Executive Branch on what it wants to do, whether it be militarily, anti-terrorism efforts, anti-immigration efforts...

17:48 Rhiannon: Environmental efforts.

17:50 Peter: Right, environmental issues, you're going to see a functionally unchecked Executive Branch.

17:56 Michael: And if you think it's bad in Trump's first term, just imagine it in his third and fourth term.

18:01 Peter: Yeah, and the corollary is you will see a much more restrained congressional branch because conservatives don't believe that Congress should have that much power. They believe that the Executive Branch has also its discretion and that Congress doesn't.

18:12 Michael: I saw somebody say that the Supreme Court was basically becoming the legislative branch and Congress was becoming a reality TV show. And that's maybe an exaggeration...

18:21 Rhiannon: That's good.

18:22 Michael: But the dynamic is pretty spot on.

18:24 Peter: That sounds right, yeah.

18:26 Michael: Republicans are outsourcing all their unpopular policy goals to the Supreme Court.

18:33 Rhiannon: Yeah, yeah, and I want to make a point, I'm glad, Peter, that you brought up the systemic issues. We do not approach the death of RBG from a criticize this-person-only perspective. We criticize this system on the podcast every single episode. And it's a problem and we are constantly criticizing the problem of our system that results in two Presidents who lost the popular vote having appointed five out of nine Supreme Court Justices. That's a problem that our system can spit out that result for us.

19:09 Michael: Really quick, confirmed by Senators who collectively won fewer votes than they'll vote Senators.

19:15 Rhiannon: Yes. Extremely important, right, right. And so we're calling that out all the time, and so I don't want to seem like this is "only Ruth fucked up and it would be perfect otherwise." But that's not our point at all. And I feel really compelled to respond to those who are saying that criticism of RBG purely comes out of sexism, that it's because she's a woman and that male justices wouldn't be getting the same criticism at the end of their lives or whatever. I just want to say personally, I actually have learned a lot about a public accounting of a Supreme Court Justice's life and career from John Paul Stevens, from Thurgood Marshall, from Justice Blackmun, from Justices who were on the Court for a long time, and then at the end of their careers looked back and publicly talked about mistakes that they made, challenges that they faced.

20:10 Rhiannon: To me, it's more dehumanizing and it's more sexist to say, "She was a lady Supreme Court Justice, she was a bad bitch, she was HBIC, and so let her rest in peace." Rather than say, "No, the titans of our legal world, the powerful people who took part in shaping these decisions and making these calls for all of us, we hold their feet to the fire even at the end of their careers," and they do it too, because they recognize that their careers were part of this process and part of a political reality for all of us.

20:48 Michael: Yeah, and that she had a lot to offer post-retirement.

20:51 Rhiannon: Yes, yes.

20:52 Michael: And that we are robbed of, right?

20:54 Rhiannon: Yup.

20:54 Michael: That we do not get now. I mean, maybe she has papers, Felix Frankfurter has all these papers that we can read and we can... And he took copious notes and you can read about the decision-making process from judicial conferences and stuff, and that's awesome, but... And for the most part, it relies on Justices in their retirement phase talking and writing and reflecting and we're robbed that. And the other thing I want to say to Rhiannon's point is also, fuck you, Stephen Breyer, fuck you too. And Ruth Bader Ginsburg died, obviously. And it's awful in general, it's awful on her level, on a personal level, because she was a wonderful icon and an important trailblazer, and everything we've said, and it's awful on a national and global level because of its implications, for literally the state of the world, and Stephen Breyer isn't dead, he's alive and kicking it on the Court, good for him. But he also should have retired in 2013 and 2014, he wasn't quite as old...

22:00 Peter: Yeah, he's about five years younger.

22:01 Rhiannon: Than Ruth.

22:01 Michael: And he didn't really have cancer twice, you can kind of see the calculation on his part, in him saying, "Well, I'm not as similarly situated." But you know what? Fuck you too, you're 75, it's time to like... At the time, right?

22:15 Rhiannon: Right, right. Back then.

22:16 Peter: If you're over 70 and there's a situation where you're basically nearing in on a potential six years of not having the Presidency or Senate, which is I think what you're looking at in 2013-2014, yeah, the correct thing to do is to retire.

22:31 Michael: You just gotta fucking go.

22:31 Rhiannon: Yeah, yeah.

22:31 Michael: You gotta go gracefully, that's it.

22:32 Peter: And I've heard people point out that it's sort of sexist that people talk about RBG's decision much more than Breyer's, I think there's probably something to that, but I also think like, A, yes, he was five years younger and didn't have cancer, but also there's no cult of personality around Breyer, he doesn't have a fan club. He's incredibly mediocre.

22:50 Rhiannon: Right, right. He doesn't have a rap nickname.

22:52 Peter: Right. And if you're us, you take the harsher position on RBG in large part because there doesn't seem to be an adequate public accounting of her failure, I don't think that's as likely to exist for Breyer, I guess we'll see when he dies. But part of the reason we sort of reflexively say, "Wait, she fucked up," and have to make an episode about how badly she fucked up, is because it's just not being discussed enough, at least in the legal academia, legal journalist circles that control the narrative on stuff like this.

23:21 Rhiannon: Exactly.

23:22 Michael: Yeah, a prominent law professor, Josh Chafetz, has been tweeting about it and getting a lot of heat for it. And fucking keep speaking truth to power, man. It's awesome. The other thing I want to say is Breyer owns responsibility for his decision not to retire, which was fucking stupid and selfish.

23:42 Rhiannon: He's publicly said he should have or?

23:44 Michael: No, I'm just saying in my perspective, Breyer owns responsibility for that.

23:48 Rhiannon: Oh, okay. Right.

23:49 Michael: Ginsburg owns responsibility for her stupid and selfish decision not to retire, but I think Breyer owns a little responsibility for Ginsburg's as well, I think there's a dynamic there where it's understandable if you're Ruth Bader Ginsburg to be like, "Look, Stephen Breyer's fucking 75, and people aren't calling for him to step down." And there were, there were a few.

24:11 Rhiannon: There were, yeah.

24:11 Michael: But it wasn't nearly as loud, it wasn't nearly as prominent.

24:14 Rhiannon: Sure.

24:14 Michael: And I can be like, "Well, fuck you, if he's staying, I'm staying." Like that, I get that. I don't think it's right, I think it's very self-involved, but I get it. And maybe her position would be a lot more tenuous in 2013 and 2014 if Breyer had done what was obviously necessary and correct and stepped down. So fuck you too, dude, I blame you as well. Jesus Christ! Fuck these people.

24:41 Peter: So I guess we should talk about what happens next. There are more knowledgeable people than us when it comes to the sort of prognosticating about Senate procedures and shit like that, but I think in broad terms, the next steps are fairly clear. Mitch McConnell has two options, one is to ram through a nominee before the election, and there's some risk that comes with that, right? There are bunch of close Senate races, and people might not like him ramming it through, and it might harm the Republicans in those races. I will say that I'm a little bit skeptical that they would care about that, mostly because they suffered zero electoral consequences from the Neil Gorsuch-Merrick Garland debacle, might be a little different this close to the election.

25:25 Peter: The other option is for them to wait out the election and risk having to ram through an appointment in a lame duck session if Biden wins. That sort of takes away the election risk, but then you definitely look a little bit slimier on the back end. Again, I don't know that they care about that either, so either way, all of the downsides are things that would matter much more to someone with shame, and they don't have that. So yeah.

25:49 Rhiannon: Exactly, exactly.

25:50 Michael: Right. I think the biggest disincentive for them right now is a credible threat to completely restructure the Supreme Court should Democrats gain power, right?

26:02 Rhiannon: Yeah, so in that lame duck session potentially, if Biden won the election, Biden could be threatening credibly, say, to pack the Court or do other things that would pressure the Senate.

26:15 Michael: Yeah.

26:16 Peter: When we say pack the Court, we mean expand its size via legislation, which is what it requires, it doesn't require a Constitutional amendment, just add four seats to the Supreme Court and Biden nominates, and the Democratic controlled Senate confirms all those four and all of a sudden there are 7 out of 13 Justices rather than 3 out of 9, who are appointed by Democrats and we have a majority. So that's the credible threat. Look, if you fucking do this, we're just gonna nuke the thing and rebuild it in a way that's not so profoundly unfair.

26:47 Michael: Yeah, which is why Republicans have to be really careful not to let everyone vote in this election.

26:52 Peter: That's right, that's right.

26:53 Rhiannon: That's right, that's right.

26:55 Michael: That's right, yeah.

26:56 Peter: We live in hell. Okay. So the question of who replaces Ginsburg is, it's tough to answer, but there does appear to be a clear frontrunner, and that is Amy Coney Barrett.

27:09 Rhiannon: Boo! Huge fucking boo!

27:11 Peter: She is a Court of Appeals judge on the Seventh Circuit, appointed to that position by Trump. She is 48-years-old, former...

27:17 Rhiannon: Ay-ay-ay.

27:18 Peter: Scalia clerk, a full-fledged fucking psycho. She's got those Michele Bachmann eyes. You guys, you know about that?

[laughter]

27:25 Rhiannon: Oh, yeah.

27:26 Peter: Her eyes at rest are like mine if someone jumped out of my closet at 3:00 AM.

[laughter]

27:36 Rhiannon: There's a dead person inside of Amy Coney Barrett and it's scaring her very much.

27:41 Peter: That's right. Yeah, there's gonna be a Karen on the Court. I think that's the best way to put it.

27:45 Rhiannon: Yes, that's right.

[laughter]

27:46 Michael: Yes. Yeah, that's right.

27:48 Rhiannon: A superlative first Karen on the Court.

27:50 Michael: Isn't she like a trad Karen, she's like a hardcore Catholic Karen.

27:54 Peter: So first of all, a huge darling of the Federalist Society. The reason that she's considered the frontrunner in large part, like yes, there's her age. There's the fact that she's a woman. But also a couple years ago, people wanted her appointed to the Court, and Trump reportedly said that he was saving her for the Ginsburg seat.

28:12 Michael: Which again, if you didn't think this was predictable, fucking eat shit. Obviously, even dumbass barely sentient Donald Trump...

28:19 Rhiannon: Yeah, he gets it.

28:20 Michael: Was like, "Yeah. She's probably not gonna make it through my term. I am definitely gonna get to replace her."

28:26 Rhiannon: "I got a girl lined up to replace the dumb old girl that's there right now."

28:32 Peter: So yeah, in 2017, the New York Times reported that Coney Barrett belongs to a Catholic-adjacent group that calls itself People of Praise, which has its members swear a lifetime loyalty oath to the group. It assigns each member a same-sex advisor, which until recently were for the women in the group called hand maidens. So...

[laughter]

28:54 Michael: Oh, fuck!

28:54 Peter: Get ready. Get fucking ready.

28:58 Rhiannon: I have no comment, really.

29:00 Peter: But she's gonna be the first person to ask for the Senate Judiciary Committee's manager during the appointment process, during the nomination process.

29:08 Michael: If there is a nomination process. There's actually already been calls in some little disturbed corners of right-wing Twitter, which is basically the mainstream of conservative policy...

29:17 Rhiannon: Yeah, that's right. Yeah, that's right.

29:19 Peter: Yeah, are you referring to the White House Press account?

[laughter]

29:21 Michael: That, like the Kavanaugh nomination process was so contentious that they should just skip all that and go straight to a vote. Trump should nominate someone, and they should just vote on it.

29:35 Peter: Okay, can we talk about what is easily the funniest right-wing reaction two years out from Kavanaugh? Which is like, "Look, they're just gonna accuse everyone of rape, so let's preliminarily just say we're not going to play that game." They believe that the Kavanaugh thing was just left-field like, "No, they're just making up rape accusations, and they're gonna do it again like this." It's like the most...

29:57 Michael: It's like a new playbook that we didn't even think of.

30:00 Rhiannon: Exactly, exactly.

30:00 Michael: Before Gorsuch. Right. Or we would have definitely accused Gorsuch of rape, and there's no way that the accusations against Kavanaugh, like fucking villain in every '80s movie about college. Like the biggest college douche in every movie you've ever seen.

30:21 Rhiannon: Exactly.

30:21 Michael: That the accusations that he raped someone would be like unfounded.

30:24 Rhiannon: No, that's left-wing radical strategy.

30:26 Peter: They also believe that it was like proven false, like that.

30:30 Rhiannon: God!

30:30 Peter: I don't understand where exactly that comes from, but that's definitely their position.

30:34 Rhiannon: Yeah, so those are the issues with a Kavanaugh-type nominee. The issues with a Coney Barrett-type nominee is that she would be calling 911 during confirmation hearings to report difficult questions.

[laughter]

30:49 Michael: Calling on...

30:49 Rhiannon: These people are attacking me.

30:51 Michael: Kamala Harris.

[laughter]

30:51 Peter: Calling on Kamala Harris for asking aggressive questions on the Judiciary.

30:55 Peter: There's a black woman talking very aggressively to me.

31:00 Michael: I feel very threatened!

31:00 Rhiannon: That's right.

31:01 Peter: Oh, my God!

31:02 Michael: The smart money's on Coney Barrett. Everybody says it. There's this report of Trump. But like I said this on Twitter and I want to say it here, that I don't think we should rule out Justin Walker. I think there are very good reasons that he's a dark horse.

31:17 Rhiannon: Tell us about him, Michael.

31:18 Michael: He's even younger than Coney Barrett. He's like in his 30s still, right? Or is he 40?

31:23 Peter: No, he's 14-years-old.

[laughter]

31:27 Michael: But this guy, he's made the news many times. Once because the American Bar Association was like, "This guy is just not qualified...

31:35 Peter: To be a federal judge?

31:36 Michael: At all to be a district judge, 'cause he's never heard a case," and it's like a joke. Within a year, he was, or maybe within 18 months or whatever, he's now up for the Circuit Court of Appeals. I think he actually just got confirmed for that in the last few months, so he moved up very quickly. We've talked about him on the podcast before for writing an absolutely insane opinion striking down some basic pandemic regulations that limited the ability for churches to have meetings on Sunday. That sounded like he was saying essentially that like, "God thinks churches should meet. [chuckle] And who the fuck is this Governor for thinking otherwise?"

32:22 Rhiannon: Exactly. If you don't know this guy, it's okay. Everybody actually knows him. Think back to seventh grade when there were rumors that one of the very disturbed children in your class spent the weekend trying to light his cat on fire. That's Justin, Justin Walker, yeah.

[laughter]

32:40 Michael: Yeah. The reason why I think we can't rule him out, is because we seem to live in a world where the worst possible scenario happens reliably, and I think he is the worst possible scenario. But also, there are a lot of other reasons, like for one, he was a Mitch McConnell aide, and Mitch McConnell loves him, and he's clearly been on McConnell's fast track. If Ginsburg didn't die and Trump won a second term, he was the next, like after a few years on the circuit court. McConnell loves him. Liberals hate him, which is a fucking...

33:12 Peter: That's their mandate, yeah.

33:14 Michael: End in itself for the conservatives. Yeah, right? It would drive people nuts.

33:16 Rhiannon: Absolutely. That's a win for them.

33:18 Michael: There are very good sort of... Like resentment, retributive, on that angle, it just makes so...

33:26 Rhiannon: Vindictive, yeah.

33:27 Michael: Vindictive, that's the word, yes.

33:29 Michael: Okay, I actually think you're wrong about this, about what the most vindictive thing is, and here's why. I don't know that it'll be Coney Barrett, but I think that it will be a woman because Republicans love to play that sort of identity politics gotcha, right?

33:43 Rhiannon: Yeah, yeah, yeah, yeah.

33:43 Peter: And so they did this with Thurgood Marshall's seat...

33:45 Michael: That's true, that's true.

33:46 Peter: First black Supreme Court Justice, famously liberal, famously centralized racial relations in his analysis and his experience of discrimination, and the GOP replaced him with Clarence Thomas, which I am positive they thought was hilarious, like...

34:02 Rhiannon: Yes, yes.

34:03 Peter: 'Cause they view identity politics purely like checking a box...

34:06 Rhiannon: Exactly.

34:07 Peter: And having no other value. And so they're like, "Look what we're doing, and we can do it too." And...

34:11 Michael: That's true. That's a fair point.

34:12 Peter: They're gonna appoint a woman who believes that uteruses are the exclusive jurisdiction of state governments, and they're gonna flaunt the fact that she's a female in front of you with the sole purpose of mocking any sincere desire that you have for inclusion and representation.

34:29 Rhiannon: Yeah.

34:29 Michael: Do we have a fair accounting of Coney Barrett's like voting rights jurisprudence? Because they were gonna have a woman speak at the RNC who literally wanted to eliminate one person, one vote, and felt like household voting was the way to go, which is essentially a way for letting husbands vote for their wives as well, right, well...

34:52 Rhiannon: Yikes, I hadn't heard that, Jesus.

34:54 Michael: Yeah, she's literally on record being like, "A household should only have one vote." So like, I don't know, Coney Barrett, who knows, but it's not out of the question for the modern Republican Party to weaken the ability of women to vote.

35:08 Peter: Yeah, we'll see what her handmaiden advisor tells her to do.

35:16 Rhiannon: Oh, God. Yeah.

35:22 Michael: Right.

35:22 Peter: Oh, God. Things are going down hill really fast.

35:22 Michael: I feel like this is a good point for me to say something that has been on my mind for the last 24 hours...

35:26 Rhiannon: Tell them.

35:27 Michael: Which is like, we talk about this in a 6-3 Court rather than a 5-4 is very scary. Neil Gorsuch being the median vote is very scary, for all the obvious reasons, but this just feels bigger to me than that, it feels bigger even than just like voting rights. This feels like fucking like a flashpoint in history, like the assassination of Franz Ferdinand, you know what I mean?

35:51 Rhiannon: Yeah.

35:52 Michael: It feels like there're gonna be massive repercussions for this one way or another. Either it's like literally Republicans have such a stranglehold on the Court that maybe they steal this presidential election, give up entirely on democracy, and our country slides very quickly into some sort of authoritarian regime, which obviously as the most powerful military and most powerful country in the world in the history of man, has massive implications, or there's a very remote, but still plausible possibility, that there's enough of a Democratic wave, right? That they can't fucking steal it. And Joe Biden is President, and they take over the Senate, and they grow some fucking balls, and make DC and Puerto Rico a state, and expand the Court, and whatever, blah, blah, blah, and we come back from the brink, right?

36:50 Michael: We're not quite yet at the point where this is irreversible, but it's like an increasingly distant possibility. Coming back from this is increasingly difficult, like the necessary conditions for undoing this are like a massive recession like in 2008, which delivered a massive electoral victory and 60 Senate votes, or possibly a pandemic with hundreds of thousands of dead, millions dead across the globe, which could possibly deliver Joe Biden and the Senate to the Democrats, but that's the scope here of Ruth Bader Ginsburg's decision not to retire.

37:35 Rhiannon: That's the scale, right.

37:36 Michael: At the end of the day, to undo this, we're talking about global level disasters. That's the balance, that's fucking it.

37:47 Rhiannon: Yeah.

37:47 Peter: Remember in the late '90s when we were all worried about asteroids, were you guys worried about an asteroid hitting the Earth in the late '90s?

37:54 Rhiannon: I was.

37:54 Michael: Yeah, there were two movies in the same year.

37:57 Peter: Yeah.

37:57 Rhiannon: Yeah, yeah, I definitely was.

37:57 Michael: Right? There was fucking Deep Impact and Armageddon.

38:00 Rhiannon: Volcanoes, asteroid, Dante's Peak, bugged me up.

38:02 Michael: There were two movies in the same year, yes.

38:04 Peter: Yeah, I feel like in retrospect, that's a good way to go, if scientists were like, "This one's coming for us, we've got four days." I'd be like, "Oh, that was close." We almost had to play out history.

[laughter]

38:19 Michael: You know, in Independence Day the people who were dancing and celebrating under the alien spaceship before it annihilates everyone, like if we knew they were gonna annihilate everyone...

38:28 Peter: That's what it would be like now, yeah.

38:28 Michael: I'd be out there under the spaceship.

38:30 Rhiannon: Oh, yeah.

38:31 Peter: "Thank you." Just like a...

38:33 Michael: Yay, let's fucking go, let's go. Here comes the end of human civilization, you fucking did it, guys.

38:40 Peter: Alright, we should turn back to Ruth. This podcast is generally speaking about the extent to which the Court is influenced by political ideology and the extent to which the practice of law serves to hide that reality.

38:55 Rhiannon: Yes.

38:55 Peter: Ruth Bader Ginsburg failed to reckon with the fact that the Court is an ideological institution and that the practice and interpretation of law is ideological, and if she understood that, truly, she would have understood the threat posed by someone like Donald Trump being able to name her successor. And if she admitted to herself that this is about ideology, then she would have to admit to herself what these stakes are, and that comes with the understanding that a massive burden rests on her shoulders.

39:23 Rhiannon: Yes.

39:23 Peter: She never acted like that was true, she made a bunch of public statements where her failure to grasp the stakes was very palpable. In a 2014 Reuters interview, she said that the issue of when she retired was "a question for her own good judgment." That statement just reflects like a complete abdication of the responsibility she had, right?

39:42 Rhiannon: Exactly.

39:42 Peter: The Supreme Court impacts millions of people, she doesn't get to hide from that. She doesn't get to frame it as if it's a personal matter. In the same interview, she was asked about the calls for her to step down and be replaced by Obama, her response was to ask rhetorically who could have been nominated that people would rather see on the Court than her. And putting aside how insanely narcissistic you'd have to be to think that you are literally unmatched across the legal field, the answer would be like any intelligent left liberal legal professional who's not in their 80s would be better.

40:15 Rhiannon: Exactly.

40:15 Peter: Not a hard rhetorical question, you know.

40:17 Rhiannon: Right, right.

40:17 Michael: There's a concept in sports that I feel like is worth mentioning here, which is called value over replacement.

40:22 Rhiannon: Yeah, yeah.

40:24 Michael: Which is, it's not just like your raw production. If we could replace you with the average player...

40:30 Peter: How much do we lose?

40:31 Rhiannon: Exactly.

40:32 Michael: And what's the difference? Right. And so what's Ruth Bader Ginsburg's value over a replacement player for the last seven years? And it's zero. It's zero. Like anyone who could replace her that Obama would have nominated and a Democratic Senate would have confirmed, would have voted roughly exactly the same.

40:51 Peter: Yeah.

40:51 Rhiannon: Exactly.

40:52 Michael: There's maybe, maybe five decisions that would have gone differently, and they probably would have gone differently in a way that would make liberals happy and her joining the conservatives. My point is, she risked a lot to gain nothing.

41:08 Rhiannon: Yes.

41:08 Michael: We've talked a lot about the risk and about the downside risk of like if she dies, well, you know, there's a Republican in power, like the risks of that. But what's the gain? What did we say the gain... The answer is nothing.

41:19 Rhiannon: Right, right. Exactly.

41:21 Michael: That's the answer. I'm sorry, but we have gained...

41:23 Peter: Absolutely.

41:24 Michael: Nothing over a generic liberal judge being in her place for the last seven years.

41:29 Rhiannon: Exactly, and I...

41:30 Michael: So I'm a little heated.

41:32 Rhiannon: I love it, Michael. You talk your shit, king. I think we get here because of a philosophy of sort of foundational politics of indispensability and of individualism. Ruth Bader Ginsburg believed she was the only one who could do that job. And she forgot that it was movements and organizations and colleagues and mentors and strategy that got her to where she was, including the wins that we give her as part of her legal career, right? It wasn't just Ruth Bader Ginsburg. And that's all in addition to her undeniable intelligence and drive and unique abilities as a lawyer. And I think that disconnect sort of becomes the foundation for a politics that puts you in the center rather than the people you got into the career to serve and it's a politics...

42:22 Michael: That's right.

42:22 Rhiannon: That use your own accomplishments as the end goal of history, as the end goal of fights for justice of legal reform of democracy.

42:30 Michael: Fuck, yeah.

42:31 Rhiannon: And in the end, that kind of framework means that her failing body was at the center of a really scary political moment, because now the autonomy and the politics of millions of bodies hang in the balance.

42:44 Peter: Yeah, absolutely. So let's wrap up, 'cause I've got... For the next seven hours, I've got it calendared it off to be screaming into a pillow.

42:51 Rhiannon: That's right. Yeah, yeah, we need to get to that.

42:54 Peter: And the response of legal journalists and academics to her death has been sort of predictably targeting the positives of her legacy and largely ignoring or even being outright dismissive of the impact of her choice to stay on the bench on that legacy. Many people have gone a step further and been openly hostile towards the idea that we could or should create criticize Ginsburg right now. So I think one thing that we probably have made clear, but let's just hammer home, there is no cogent and coherent defense of her decision to remain on the bench through 2014. None.

43:27 Rhiannon: Period.

43:27 Peter: You will not hear one.

43:28 Rhiannon: Period.

43:29 Peter: This was a seat that could have been filled with a liberal Justice for the next 20 to 30 years, and instead it will belong to a radical conservative for that time because of Ginsburg's decision.

43:37 Rhiannon: Yeah, exactly.

43:37 Peter: There's nothing more to it. So to everyone who asks that we show her more respect or deference or just give her her due credit and move on, like I want to ask those people, "What is it you think we should ask of the powerful? What obligations do you believe the most powerful people in the world should have to the rest of us?" You can applaud people who wield power responsibly if you'd like, but people who wield it irresponsibly need to be criticized, right? Power isn't a reward for doing or being good. It's a responsibility.

44:07 Rhiannon: Exactly.

44:07 Peter: It should be a burden. It should be uncomfortable to have. Ginsburg put herself in a position where the question of whether she lived or died weighed heavily on the lives of people in this country. I said this the last time we talked about Ginsburg, more or less. But the most influential people in the world don't get to use their deaths to insulate themselves from scrutiny. It was reported that she said on her deathbed that her "most fervent wish is that her replacement is not appointed until after the inauguration." I'll give her the benefit of the doubt and say that I don't think she's dumb enough to believe that anyone in the modern Republican Party, let alone Donald Trump or Mitch McConnell, would ever honor that wish. But it is a bit unfortunate, to say the least, that the first time RBG showed a glimmer of awareness of the significance and precariousness and political import of her position was right before her death. I mean, we maybe could have used that sort of foresight when it might have meant something, Ruth.

45:00 Michael: Right.

45:00 Rhiannon: That's it.

[music]

45:10 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.

[music]

45:42 Leon: From the Westwood One Podcast Network.