[SPEAKER_00]: Hey everyone, this is Leon from Prologue Projects.
[SPEAKER_00]: On this week's episode of Five to Four, Peter, Reannon, and Michael are diving into some recent Supreme Court de Ramah, namely the leak of some secret decadeled memos to the New York Times.
[SPEAKER_00]: Back in 2016, the Supreme Court halted President Obama's clean power plan in a five to four ruling that circumvented the authority of lower courts.
[SPEAKER_00]: The ruling has come to represent the birth of the modern shadow docket, which the court has been using routinely since the start of Trump's second term to bless various actions by the administration.
[SPEAKER_00]: Shadow docket cases are handled quickly and opaquely, without oral arguments or full opinions.
[SPEAKER_00]: The public is typically left to wonder why the court ruled one way or another.
[SPEAKER_00]: Thanks to the leaked memo is published by the Times, we now have new insight into how the court
[SPEAKER_00]: This is 5-4, a podcast about how much the Supreme Court sucks.
[SPEAKER_04]: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have created our civil rights, like final exams, cratering our listeners, careers.
[SPEAKER_04]: I'm Peter.
[SPEAKER_04]: I'm here with Reannon.
[SPEAKER_05]: Hey, everybody.
[SPEAKER_01]: And Michael.
[SPEAKER_01]: Yeah, while you're listening to us,
[SPEAKER_04]: We know that some of you are law students, it's late April, early May when the drops you're about the bomb, dude.
[SPEAKER_04]: You're about to blow it up because you're missing five to four.
[SPEAKER_04]: What are you doing?
[SPEAKER_04]: Oh my God, you need to start freaking out.
[SPEAKER_04]: It is time to panic.
[SPEAKER_05]: What if you let the anxiety spike right now?
[SPEAKER_04]: Yeah, just let it just let it take you.
[SPEAKER_04]: Here's some facts, it's too late to fix it.
[SPEAKER_05]: Not true, not true.
[SPEAKER_05]: Yeah, it's going to be great.
[SPEAKER_01]: By extension, it's too late to fix your career.
[SPEAKER_01]: It's over.
[SPEAKER_01]: Yeah.
[SPEAKER_01]: It's over.
[SPEAKER_04]: Start thinking about what you're going to do to recover from the damage you're about to do.
[SPEAKER_05]: And there's no more space for a law podcast.
[SPEAKER_05]: So.
[SPEAKER_04]: Yeah, that's right.
[SPEAKER_04]: You might think, well, maybe I go into law podcasting.
[SPEAKER_04]: No bitch.
[SPEAKER_05]: Like those three dead beats did it?
[SPEAKER_04]: No.
[SPEAKER_04]: We filled up the space entirely between us and advisory opinions.
[SPEAKER_04]: It's the margin that you left.
[SPEAKER_04]: Today we're talking about an interesting bit of reporting out of the New York Times.
[SPEAKER_04]: This is something that we would usually do as like a premium episode, but we thought fuck it, right?
[SPEAKER_04]: Let's let's just talk about this about 10 years ago the Supreme Court halted in Obama EPA policy without any briefing, without any arguments, without even letting the issue get properly litigated in the lower courts.
[SPEAKER_04]: This is
[SPEAKER_04]: Often seen as sort of the spiritual beginning of what we now call the shadow docket.
[SPEAKER_04]: Emergency docket that has come under scrutiny in the past few years because the court has increasingly used it to decide politically charged cases without any briefing, without any argument, often without any written opinions.
[SPEAKER_04]: We previously did not know much about what happened with this particular case, but someone somewhere, some beautiful hero, leaked internal court
[SPEAKER_04]: containing the discussion some of the justices we're having, and it is very revealing stuff.
[SPEAKER_04]: Before we get into this, I want to say, you can leak this stuff to us instead of the New York Times, and it would be cool.
[SPEAKER_04]: I think we all agree would be cool.
[SPEAKER_04]: our DMs are open will protect your identity or whatever you know whatever like the cool journalistic ethics thing is to do their signal yeah no hit us up on signal or others cure channels I'm sure there are others uh but we'll take care of we'll protect you uh we'll go to jail before we out you to the to the DJ
[SPEAKER_04]: Alright, so let's tee this up by explaining this case from 2016.
[SPEAKER_04]: Back during Obama's second term, the Environmental Protection Agency implemented the clean power plant, which would require certain polluters to significantly reduce their carbon emissions by 2030.
[SPEAKER_04]: The plan gets challenged in court by some industry types that courts specifically, the DC circuit Court of Appeals.
[SPEAKER_04]: The industry folks ask the court to put the implementation of the clean power plan on hold while the case is being decided.
[SPEAKER_04]: The court says no, but that they will expedite the proceedings.
[SPEAKER_04]: The industry types then go directly to the Supreme Court and ask them to hold the regulation and they did.
[SPEAKER_04]: If any of this sounds vaguely familiar, this ends up being West Virginia, VEPA, a case that I believe we've covered.
[SPEAKER_04]: Yeah.
[SPEAKER_04]: You know, it's about this EPA rule to limit emissions.
[SPEAKER_04]: So this is not the first time that the Supreme Court used their emergency docket, but it is in various ways unprecedented.
[SPEAKER_04]: It was the first time that the court had ever halted a federal agency regulation nationwide before a lower court had even reviewed the issue.
[SPEAKER_04]: This isn't a situation where the lower court ruled and the parties appealed exactly.
[SPEAKER_04]: The case was still pending in the lower court and the parties directly petitioned the Supreme Court to intervene and stop the regulation.
[SPEAKER_04]: This was all a little bit procedurally odd, right?
[SPEAKER_04]: The parties go to the lower court to try to halt the regulation to have it paused basically.
[SPEAKER_04]: Lower court says no, and they don't appeal directly, right?
[SPEAKER_04]: They just go to the Supreme Court and ask them to do what the lower court didn't.
[SPEAKER_04]: that's a minor item in some ways, but it creates a weird precedent where parties can essentially ignore the lower court, go straight to the Supreme Court, challenge the regulation there, and it makes the Supreme Court at least theoretically a sort of one-stop shop for this sort of thing, right?
[SPEAKER_04]: And that's sort of what has happened.
[SPEAKER_04]: That's what
[SPEAKER_04]: has developed over the last decade is that parties will just go to the Supreme Court as quickly as possible and be like, can you halt this regulation?
[SPEAKER_04]: Can you prevent the government from implementing this, right?
[SPEAKER_04]: Before lower courts have any time to act.
[SPEAKER_04]: Right.
[SPEAKER_03]: If you're Republican and if you're a Republican, what you can ask, you can ask if you're a Democrat.
[SPEAKER_04]: Before this, the emergency document primarily used for death penalty cases, election issues, things that need input from the highest court possible very quickly, right?
[SPEAKER_04]: Not exclusively used for those things, but like those were some of the primary purposes.
[SPEAKER_04]: But from this point forward, in 2016, it's increasingly used as a arena for adjudicating federal policy.
[SPEAKER_05]: Yeah, and what you're saying Peter, like this is like the start.
[SPEAKER_05]: This is the birth of it.
[SPEAKER_05]: So leaked memos.
[SPEAKER_05]: What did we actually learn?
[SPEAKER_05]: What are we talking about here?
[SPEAKER_05]: So on April 18th, the New York Times just released these memos.
[SPEAKER_05]: They were leaked to the Times.
[SPEAKER_05]: The headline reads, read the Supreme Court's shadow papers.
[SPEAKER_05]: So what are these memos?
[SPEAKER_05]: These are memos between Chief Justice John Roberts, Elena Cagan, Sonia, Sotomayor, Stephen Breyer, Sam Alito,
[SPEAKER_05]: And the fact of their communicating in memos is not abnormal.
[SPEAKER_05]: This is normal.
[SPEAKER_05]: Justices typically communicate with one another in written memos like this.
[SPEAKER_05]: This is how they discuss cases, discuss the arguments that they think are important.
[SPEAKER_05]: This is how they figure out where the contours of the legal debate are amongst themselves.
[SPEAKER_05]: and they also try to write persuasively to maybe get a swing vote like Anthony Kennedy to join up with either side.
[SPEAKER_05]: So what the unique thing is here is that memos are generally not released to the public.
[SPEAKER_05]: We don't usually see them.
[SPEAKER_05]: they're recorded like they're archived, they're kept in the justices papers, usually though they're kept secret unless a justice decides usually like upon retirement or death or whatever to release their own individual papers.
[SPEAKER_05]: So that's the unusual thing here is that in this case,
[SPEAKER_05]: on this shadow-docket case that started the sort of like modern or more recent understanding of how this Supreme Court uses the shadow-docket in these really political ways.
[SPEAKER_05]: It's that we have some of the Justice's memos about this case leaked here to the times.
[SPEAKER_05]: other than oral arguments, other than the literal written decisions of the Supreme Court, the public doesn't have access to this info.
[SPEAKER_05]: And then for this case, which is on the shadow docket, there wouldn't be oral arguments anyway because it's part of a case or in the procedure when the court is being asked to rule on something very quickly on an urgent basis.
[SPEAKER_05]: There aren't like full arguments in front of the court.
[SPEAKER_05]: So we wouldn't even have oral arguments to listen to
[SPEAKER_05]: And with the shadow duck at case, there isn't necessarily a written decision.
[SPEAKER_05]: So, these leaked memos represent basically all that we know now about how the justices were thinking about this case.
[SPEAKER_04]: And we're going to go through what each Justice said.
[SPEAKER_04]: Why so much of it is so notable.
[SPEAKER_04]: But first, a quick overview of what plays out here.
[SPEAKER_04]: Roberts refers this matter to the court, and he says, hey, I think we should stay this regulation.
[SPEAKER_04]: Stephen Breyer responds to SIGRIING.
[SPEAKER_04]: Roberts responds to him.
[SPEAKER_04]: Kagan and Sotomayor weigh in on Briar's side, Alito joins Robert's side, and then finally Kennedy Anthony Kennedy sides with Roberts, which really ends the issue because it's a five to four court.
[SPEAKER_04]: We don't have memos from the other justices, very possible that
[SPEAKER_04]: the leeker didn't have access to them also possible that like they weren't interesting enough to include all of that seems less likely and it's also possible that they just didn't weigh in on this issue, which I also find relatively unlikely.
[SPEAKER_04]: That's sort of the overview here.
[SPEAKER_01]: Right.
[SPEAKER_01]: And so we should talk about Roberts because he writes the most, he writes multiple
[SPEAKER_01]: You know, it's worth it's worth going through them.
[SPEAKER_01]: You know, he looks bad for a number of reasons and we'll get into detail on all of them.
[SPEAKER_01]: But the high level picture is that they're very sloppy.
[SPEAKER_01]: He uses a wrong standard.
[SPEAKER_01]: He sites to like blog posts and interviews and things like that that are like not appropriate for Supreme Court decision making, right?
[SPEAKER_01]: But also I think something that comes across is
[SPEAKER_01]: He's just kind of pissed about a previous case with a mercury rule where the EPA had promulgated this regulation, the Supreme Court ultimately found it unconstitutional, but as it turned out, by the time the Supreme Court had reviewed it and held it unconstitutional, industry had made such an investment in compliance that it was all but baked in to standard practice at that point.
[SPEAKER_01]: and Roberts is clearly livid, livid that they essentially didn't get to stop this, right?
[SPEAKER_01]: That like the Supreme Court was just too late in time to prevent the nasty libs from keeping mercury out of your drinking water or whatever the fuck, this case was, right?
[SPEAKER_05]: Yeah, that's a Michigan VEPA, which we've also done in episode on.
[SPEAKER_01]: Yeah.
[SPEAKER_01]: And so he's like, what's going on here is he's just like, I don't want that's this to happen here.
[SPEAKER_01]: Like, yeah, just somebody who's very frustrated that they don't get a bigger or earlier say in policy making and the shaping of the economy, right?
[SPEAKER_01]: Basically, because they're the court of final review and litigation takes a while, building a record takes a
[SPEAKER_01]: All that stuff takes a while, by the time it gets to the court, wow, industry will have complied with this, and maybe started to shutters some coal plants, and maybe started to build some solar plants.
[SPEAKER_01]: Right.
[SPEAKER_04]: And that's what you keep in mind, the lower court had expedited the preceding.
[SPEAKER_04]: So like, right, no, this is, this was going to be resolved in like three months.
[SPEAKER_01]: Right.
[SPEAKER_01]: And the government had,
[SPEAKER_01]: He had created opportunities for extensions.
[SPEAKER_01]: Yeah, we'll get into this.
[SPEAKER_01]: We'll talk about a reputable harm, but there's reasons to believe he's exaggerating the risks here regardless, but that's what he's angry about.
[SPEAKER_01]: We should get into the details of how he's sloppy.
[SPEAKER_01]: It starts with him invoking the wrong standard in regards to stays.
[SPEAKER_01]: He cites the cases that detail the standard for stays of lower court orders,
[SPEAKER_01]: That's not what's being asked here.
[SPEAKER_01]: There is no lower court mandate for them to stay.
[SPEAKER_01]: They're being asked to stay in EPA policy from going into effect.
[SPEAKER_05]: Yeah.
[SPEAKER_01]: Right.
[SPEAKER_05]: Right.
[SPEAKER_05]: Roberts is trying to use the standard that the Supreme Court would use in order to stop a lower courts stay from going into effect.
[SPEAKER_05]: You know, that standard where they like talk about like, oh, with this cause like irreparable harm to one of the parties in the case that that kind of
[SPEAKER_05]: that that standard is about reviewing a lower court's ruling, which hasn't happened yet.
[SPEAKER_05]: And you see this in the memos, Kagan says, hold up like the standard that you're proposing, John Roberts, this would be an unprecedented use of that standard in a case like this, where there is no lower court ruling.
[SPEAKER_04]: Even calling it a stay, it's sort of awkward.
[SPEAKER_04]: It's like a
[SPEAKER_01]: it's like a procedural artifact like they're halting an EPA policy right based on nothing based on right no of judicial fact finding no briefing or the barest of briefing no argument there's no factual record at all based on just you know five conservatives gut feeling that this is unconstitutional they're saying the government can't do it right like it's
[SPEAKER_01]: It's just way out over their skis here.
[SPEAKER_01]: And Kagan objects and Roberts, Roberts admits he says I recognize that the posture of this stave request is not typical, but review a side of what has been described as, quote unquote, the most expensive regulation ever imposed on the power sector.
[SPEAKER_01]: So, you know, this is pretty extraordinary, but our buddies in industry don't want to shell out.
[SPEAKER_04]: Yeah.
[SPEAKER_04]: So this is interesting to me because it undermines two of the most common defenses of the Supreme Court's use of the shadow docket in recent years.
[SPEAKER_04]: First, a lot of people are like nothing has really changed here.
[SPEAKER_04]: Like this docket always existed, the emergency docket always existed in some form.
[SPEAKER_04]: Maybe they use it a little more, but like this is a fake controversy, right?
[SPEAKER_04]: There's nothing
[SPEAKER_04]: This is really because you're seeing more executive action because Congress is an active and blah, blah, blah, blah, right?
[SPEAKER_04]: Then the second argument is that there's really nothing to worry about regardless because this is all procedural shit.
[SPEAKER_04]: It's not political.
[SPEAKER_04]: The court, you know, is just doing balls and strike stuff, right?
[SPEAKER_04]: That classic defense of the Supreme Court, where they're just like, well, look, this is all procedural stuff.
[SPEAKER_04]: You don't need to worry about it.
[SPEAKER_04]: It's not like hyper-political.
[SPEAKER_04]: That's just what the haters say.
[SPEAKER_04]: And then you have Roberts here just being like, look, this is unusual, procedurally, but we have to do it because the policy stakes are too high.
[SPEAKER_05]: Yes, like this total tell, right?
[SPEAKER_05]: He's saying like the basis of his argument or the justification for why this is so important and why this Supreme Court has to step in here is that it's an extremely expensive regulation that it's going to cost power plants the power industry.
[SPEAKER_05]: Money.
[SPEAKER_05]: That's Congress's power to decide.
[SPEAKER_05]: That's that's the EPA's right like it's right.
[SPEAKER_04]: It's very odd It feels like an obsession with cost that you would never see them do for like.
[SPEAKER_04]: Oh, this is going to cause human suffering in the real world.
[SPEAKER_01]: Right
[SPEAKER_01]: I think that's a good segue to talk about his irreparable harm analysis because that's part of the decision making is when you stay in action, when you enjoy the government, things like that, party analysis is, well, if we don't do this, will there be harm that can't subsequently be repaired, right?
[SPEAKER_01]: Typically, monetary outlays are not irreparable harm,
[SPEAKER_01]: You know, shocking money is fungible and you spend $10 now and you get $10 later, you are made whole.
[SPEAKER_01]: So it's a weird thing to be focused on when you're talking about a reprobable harm is costs costs are by definition of reprobable harm.
[SPEAKER_04]: But that's if you look at just dollars and cents.
[SPEAKER_04]: If you look at the love of the game, they want to blast.
[SPEAKER_04]: coal fumes into the sky, right?
[SPEAKER_04]: And if you pause that, if you press pause, you say, hey, you can't do that for a few months.
[SPEAKER_04]: Those are birds that might live, right?
[SPEAKER_04]: Those are those are streams that might run clear for a few months.
[SPEAKER_04]: And you can never get that back.
[SPEAKER_01]: That's right.
[SPEAKER_01]: ostensibly it's about preserving the status quo, but then the question is always, what is the status quo, right?
[SPEAKER_01]: Like Robert just wanted saying he wants to preserve the status quo of the structure of the energy sector, right?
[SPEAKER_01]: As if that is the only status quo that matters.
[SPEAKER_01]: And not like, for example, the fact that the regulation is in effect is the status quo.
[SPEAKER_01]: And so you're not preserving the status quo.
[SPEAKER_01]: You're upending it.
[SPEAKER_01]: Or the fact that,
[SPEAKER_01]: X amount of coal is in the atmosphere and if we don't stop coal plants from pumping more in there will be more coal fumes in the atmosphere up ending the status quo of how hot it is what how unstable our climate is.
[SPEAKER_01]: No, we're not preserving the status quo of the climate of the livability of our planet.
[SPEAKER_01]: We don't give a shit about that.
[SPEAKER_01]: Yeah.
[SPEAKER_01]: The only status quo we care about is how power companies allocate their resources between renewable energies and fossil fuels.
[SPEAKER_01]: Right.
[SPEAKER_01]: That's the only status quo he gives a shit about, which is
[SPEAKER_01]: really fucking just blatantly obvious and just sort of disgusting, right?
[SPEAKER_01]: And so, you know, in addition to this like shitty irreparable harm analysis, I also mentioned before, you know, he's citing to statements that like the EPA administrator like made off the cuff and he's basically citing like a BBC article, you know, and like a blog post that was like
[SPEAKER_01]: And these are the things that he's upset about, which feels very like, you know, he got some email, subject line, forward, forward.
[SPEAKER_04]: So the BBC article was just in the industry brief or like one of the briefs.
[SPEAKER_04]: So there's no factual record, right?
[SPEAKER_04]: But the industry teacher just like, well, look with the EPA saying and he's like, oh my god, look with the EPA saying.
[SPEAKER_04]: In theory, like the best practice would be that they don't consider stuff like this because it's outside of the factual record.
[SPEAKER_04]: In fact, there is no factual record here.
[SPEAKER_04]: Right.
[SPEAKER_01]: The lower court might develop the record where it turns out what the EPA administrator said was wrong.
[SPEAKER_01]: Right.
[SPEAKER_01]: It was just incorrect.
[SPEAKER_04]: Right.
[SPEAKER_04]: I saw a defense of this on Scotus blog, which I will talk about a little bit later, but where someone was like, well, this is actually quite common if you read memos.
[SPEAKER_04]: The Justices will often consider things outside of the record.
[SPEAKER_04]: And I was just like,
[SPEAKER_04]: Well, that's worse than, right?
[SPEAKER_04]: It's a lot worse if it's not a lot off.
[SPEAKER_04]: They shouldn't be doing that.
[SPEAKER_04]: Like, and you just get this vibe.
[SPEAKER_04]: It's not just the BBC article aspect of it and the blog post aspect of it, but that's part of it.
[SPEAKER_04]: You just get this vibe that this is just like some people arguing by email, right?
[SPEAKER_01]: Yeah.
[SPEAKER_01]: And like, yeah.
[SPEAKER_04]: It's not very sophisticated.
[SPEAKER_04]: They don't really know what they're talking about.
[SPEAKER_04]: And they're just sort of like sniping off little rejoiners and like none of them are very compelling it's it's and like they don't they just don't have their arms around these issues enough to be compelling you're just like this is the fucking Supreme Court and I think this is like a huge element of what made this leak interesting because we've seen memos before but most of that is just just as is making their memos public.
[SPEAKER_04]: And because of that, it's often favorable, they often look pretty good in these memos, and now you're seeing them hash out this contentious issue, and it's like, these are our top dogs here.
[SPEAKER_03]: Yeah.
[SPEAKER_05]: You can see that they're like stuck thinking about the procedure or like trying to shoehorn what they think about this case in their own minds into the procedural arguments, the precedence of taking this case and making this decision in the procedural posture that it's in.
[SPEAKER_05]: And so they're making like procedural arguments, but you can tell behind it, they're thinking
[SPEAKER_05]: So like on the point that John Roberts is making making this big deal about the irreparable harm that will fall onto the power industry if they don't step in and stay this regulation.
[SPEAKER_05]: You know, the lips I think like they have the correct argument which is no irreparable harm is not going to happen.
[SPEAKER_05]: It's not asserted like super passionately or strongly or anything.
[SPEAKER_05]: again, because I think they feel like they're stuck on a few bare facts, but fryer, kagan, and sort of my or all three of them are like essentially in a lib just this way.
[SPEAKER_05]: Essentially, like, wait a minute, what are you talking about?
[SPEAKER_05]: What is their irreparable harm?
[SPEAKER_05]: And they all bring up, like, just just like,
[SPEAKER_05]: basic facts about the process, about the procedural posture of the case, which is, as we've mentioned, the DC circuit court said they're going to rule on this on an expedited basis.
[SPEAKER_05]: You're waiting a matter of a few months before a ruling here from the lower court.
[SPEAKER_05]: And then the next thing, Kagan and Sotomayor,
[SPEAKER_05]: both talk about this in their responses and their arguments against John Roberts that even within the regulation, even with the plan or the rollout of the regulation, if it were to go into effect.
[SPEAKER_05]: The parties, the states,
[SPEAKER_05]: can all ask for a two-year extension during which they don't have to do anything, they don't have to implement, they don't have to take any action under the new regulations, private parties, so the power companies have six years before they have to do anything.
[SPEAKER_05]: So briar kgan, sort of my or all three of them are like, what irreparable harm are you talking about?
[SPEAKER_05]: at least until the D.C.
[SPEAKER_05]: Circuit Court of Appeals has a decision and not even for years afterwards.
[SPEAKER_01]: Yeah, and the reason those years work out like that is because the EPA isn't even requiring anything of private industry, the requiring states to promulgate regulations that will then impact private industry and the states can get a two-year extension to do that.
[SPEAKER_01]: So they would have two years.
[SPEAKER_01]: The private industry wouldn't even have their regulations that they need to comply with to worry about for two years and then would have lead time after that, which is why the idea that this needs to be done now, right now, you know, Robert's is like freaking out about is so laughable.
[SPEAKER_04]: Yeah, and my main complaint about the Libs approach here is that they get into a fight about whether this would actually hurt industry and how much.
[SPEAKER_04]: And I do think they're right.
[SPEAKER_04]: Roberts is like, look, the coal industry companies are saying that they might have to shut down plans if we don't do this.
[SPEAKER_04]: And then Briar is sort of like, yeah, but given this is only going to take a couple months to litigate, does that actually make sense?
[SPEAKER_03]: Like trying to be like, yeah, do you believe them though, right?
[SPEAKER_03]: Yeah.
[SPEAKER_04]: But I think that the actual point that should be made is the one that Michael you made, which is like, if you're weighing the harms on one side, the industry is saying, oh, no, we're going to lose money, which they can just be paid back.
[SPEAKER_04]: And then on the other, it's damage to the environment, which can't be readily repaired.
[SPEAKER_04]: So like, only one sign of this equation is going to suffer irreparable harm, right?
[SPEAKER_04]: Right.
[SPEAKER_05]: Again, kind of getting stuck in the process and not really making the argument that they should make.
[SPEAKER_05]: All three of the liberals are, again, accurately pointing out how unprecedented a move.
[SPEAKER_05]: This would be procedurally, right.
[SPEAKER_05]: Kagan says like the unique nature of the relief that is sought here.
[SPEAKER_05]: gives me real pause.
[SPEAKER_05]: You know, Sotomayor says this is unprecedented.
[SPEAKER_05]: Breyer says this is unprecedented.
[SPEAKER_05]: This is acting way prematurely for the Supreme Court.
[SPEAKER_05]: Cagan says, you know, the Supreme Court is the court of final review, not initial review.
[SPEAKER_05]: we don't review things as if we're the lower court, as if we're a district court, right, like just getting an issue for the first time and being the first court that rules on something.
[SPEAKER_05]: So all three of them, like very insistent that like, hey, Chief Justice, like what you are proposing, is pretty wild.
[SPEAKER_05]: This is crazy, just procedurally.
[SPEAKER_05]: But again, it's like, you know, it's kind of
[SPEAKER_05]: paragraphs, you know, nothing really is more than two pages here.
[SPEAKER_05]: So that impact or like really how unprecedented it is and what the consequences would be of opening up this process on the shadow docket, like they don't engage that at all, at least not in these memos.
[SPEAKER_04]: So Sam Alito weighs in on this to a lot of his memo is just about the same like I believe industry when they tell us that they're going to suffer something like I wholeheartedly passionately agree with everything that the chief right I won't suck on an exhaust pipe I have to
[SPEAKER_04]: But then he also says, quote, a failure to stay this rule threatens to render our ability to provide meaningful judicial review and by extension, our institutional legitimacy, annality.
[SPEAKER_04]: So, you know you're bullshitting when you say that your institutional legitimacy is completely dependent upon doing a thing you've literally never done before.
[SPEAKER_04]: It's unprecedented.
[SPEAKER_04]: That feels like almost impossible as a matter of logic and theory.
[SPEAKER_04]: I'm not like a philosopher, but it doesn't feel like it's logically possible for that to be true.
[SPEAKER_04]: Yeah.
[SPEAKER_04]: Yeah, it's ridiculous.
[SPEAKER_04]: And then the final memo is just Kennedy weighing in in like a short paragraph from his little throne at the top, at the top of the five four court being like, I agree.
[SPEAKER_04]: I agree with just this Roberts.
[SPEAKER_01]: Yeah.
[SPEAKER_05]: But it is such a tell what Kennedy says, just again, in a few short sentences, you know, he's saying like, yeah, I'm finally convinced I'm going to come down on the side of the conservatives here and basically rule for the court because he makes it a five-person majority.
[SPEAKER_05]: He says, you know, in this memo, he's saying basically,
[SPEAKER_05]: I think what's going to happen in four or six months is that a stay is going to be issued.
[SPEAKER_05]: And you know, the way this reads very short few sentences here, the way this reads is he's either saying we the Supreme Court are going to issue a stay in four or six months anyways.
[SPEAKER_05]: or he's saying the lower court, which is taking up this question on an expedited basis will issue a stay in a few months and then will be reviewing that anyways, like either way, either way, whatever he's saying, it's so ridiculous, like why are you predicting the future about what a lower court is going to do and then about what the Supreme Court would do after that.
[SPEAKER_05]: Without a factual record, without without knowing what the facts are.
[SPEAKER_05]: and inserting this court and inserting the Supreme Court into making the decision that you say, the lower court is going to make.
[SPEAKER_05]: And in fact, according to all this history of process, the lower court needs to make in order for you to review it.
[SPEAKER_04]: Yeah.
[SPEAKER_04]: So those are the memos, and obviously it's caused a stir.
[SPEAKER_04]: The New York Times piece is pretty critical of robbers.
[SPEAKER_04]: They say that he bulldozed the court.
[SPEAKER_04]: They seem caught off guard by like the tone and tender of the memos, right?
[SPEAKER_04]: They got a little bit five four-pilled.
[SPEAKER_04]: and reading the memos they were like wait a second this is just a bunch of fucking idiots like what's going on here you you got Adam Lipptack to issue a correction and now he's like I change his whole life I got him to issue one official correction and he's like you know what I've been thinking about this all wrong he's he's wearing the eye to censure
[SPEAKER_04]: I think there's a few things in this one, is that like the conservatives are just sort of like deferential to what the industry folks say in their briefing, right?
[SPEAKER_04]: The industry folks are like, we're going to be harmed and they're like, oh, okay.
[SPEAKER_02]: Okay.
[SPEAKER_04]: If you say so, and then they're just doing this half-ass analysis, Robert is getting the fucking standard wrong, right?
[SPEAKER_04]: And no one even notices
[SPEAKER_04]: I think it just all feels so weirdly amateurish that if you thought highly of these folks, you might be like, huh, maybe I made a mistake in trusting them with our democracy.
[SPEAKER_05]: Maybe we're not sending our best.
[SPEAKER_04]: There's sort of that implicit criticism in the Times piece.
[SPEAKER_04]: There's some explicit criticism in the Times piece.
[SPEAKER_04]: And it led to a lot of like chatter on line and criticism of Roberts and naturally, this has brought out the Roberts defenders, right?
[SPEAKER_04]: And so I think we need to walk through them because
[SPEAKER_04]: It's funny because it's fun watching the schmucks try to defend it all.
[SPEAKER_04]: I have to say it's been very enjoyable.
[SPEAKER_04]: I've really enjoyed it quite a bit.
[SPEAKER_05]: Yeah, all the Gullish clownish little fools coming out to comment to defend daddy John Roberts and how smart he is.
[SPEAKER_05]: I promise he's smart.
[SPEAKER_05]: Molly Hemingway, conservative author, I think she's editor and chief of the federalist, Fox News contributor talking head kind of
[SPEAKER_05]: kind of girl, she tweeted her her thoughts about the leak and I think kind of finally she doesn't defend John Roberts.
[SPEAKER_05]: She attacks the leak implies that it is an ethical violation that whoever
[SPEAKER_05]: leaked the memos should be reported to the bar, right, have an ethical inquiry into whether they failed in their professional responsibility as lawyers.
[SPEAKER_05]: Of course, we don't even have the person is a lawyer.
[SPEAKER_05]: I guess we assume that the person is a lawyer who leaked it because why also they have access to these things.
[SPEAKER_05]: But it's not necessarily that they are a lawyer.
[SPEAKER_05]: Anyways, Molly Hemingway's response is
[SPEAKER_05]: in which my king, John Roberts, could be criticized.
[SPEAKER_04]: Right.
[SPEAKER_04]: Criticism of the leak, or as always, the most boring type of criticism because it's just like, we just found out about these, like, behind the scenes deliberations in this relatively important case, even if you don't care about the environment.
[SPEAKER_04]: Right.
[SPEAKER_04]: And you're like, someone somewhere has violated an ethics rule.
[SPEAKER_04]: Like, who gives you shit?
[SPEAKER_04]: I mean, obviously our position is that leaking the sort of stuff is cool that like, right, it's inexplicable to me that this shit isn't public, that they just get to hide their little internal memos forever, it's why why why why aren't we allowed to see it it's obscene, but like even if you think they deserve this privacy or whatever at most, it's like, okay, okay, and also if you think that this is all very inexpensive that nothing untoward happened here,
[SPEAKER_04]: Don't worry about it.
[SPEAKER_04]: Yeah.
[SPEAKER_01]: Yeah.
[SPEAKER_01]: The people upset about this are very funny.
[SPEAKER_01]: They're anxieties and their defenses in a way are showing all their cards, right?
[SPEAKER_01]: Like Josh Blackman over at the Volok conspiracy, which is a sort of conservative slash libertarian right wing legal blog.
[SPEAKER_01]: He talks a lot about how he contrasts this to the dobs leak, right?
[SPEAKER_01]: The
[SPEAKER_01]: that was overturning Rovi Wade where he's like, whether you think that was a conservative trying to lock in votes or a liberal trying to shift votes, that leak was clearly about affecting a case that it was like pending.
[SPEAKER_01]: He's like, this is a 10-year-old case.
[SPEAKER_05]: Yeah.
[SPEAKER_01]: He says, remember, the movement is being led by people intent on showing that the Supreme Court is a failed and illegitimate institution that must be reformed from the outside.
[SPEAKER_01]: He's upset that this is so effective at making the Supreme Court look like shit, right?
[SPEAKER_01]: Because the Supreme Court is their tool, they're legitimating tool for enacting their policy.
[SPEAKER_01]: And he's like,
[SPEAKER_01]: He's like, look, this makes us look bad, right?
[SPEAKER_01]: That's what he's upset about.
[SPEAKER_01]: He's upset that this makes us look bad.
[SPEAKER_01]: And what's more, like, the leaker would probably be considered a hero for doing it if they're ever.
[SPEAKER_04]: Showing a grotesque misunderstanding of liberal circles.
[SPEAKER_04]: Like, if like a right winger leaked it,
[SPEAKER_04]: for the benefit of the right-wing political project.
[SPEAKER_04]: Yes, they would be hand some leave rewarded.
[SPEAKER_04]: This person is going to be executed by hand by Barack Obama himself, if they ever find him.
[SPEAKER_01]: Another guy at Volic, John Adler,
[SPEAKER_01]: like speculated a bit about who the leaker was and suggested it might be a sonio sort of my or clerk or even sort of my or herself based on very thin evidence basically that there's a typo in sort of in sort of my or's memo and she didn't sign it.
[SPEAKER_01]: So he suggests maybe this was a photocopy of an uncirculated draft.
[SPEAKER_01]: We all in on this.
[SPEAKER_01]: Yes, seriously.
[SPEAKER_01]: Let's get both out fucking Google Maps.
[SPEAKER_01]: There's all sorts of reasons to think this is bullshit.
[SPEAKER_01]: Steve Vladik pointed out that like the typo in the date suggests maybe it was February 6th, not February 16th, which were put it on a Saturday, which means like you wouldn't be surprised at like,
[SPEAKER_01]: This is maybe being dashed off without a signature and maybe just sent an email with typos because it's not a full work day with clerks in all that to proofread everything.
[SPEAKER_01]: One possible explanation.
[SPEAKER_01]: There are many others, right?
[SPEAKER_01]: Another guy at Volk, I'm just going to tell you
[SPEAKER_01]: The title is Court Leaks in Attorney Journalists, the professional ethics implications of making court confidence as public.
[SPEAKER_01]: And he wants to go off on why people should be disbattered for even publishing these things.
[SPEAKER_01]: Like, for fuck the leaker.
[SPEAKER_01]: Like if you have a buy line on this, yeah, he's guys are so fucking pissed about this, that they're like,
[SPEAKER_01]: if you even write about this, maybe you should be disparate.
[SPEAKER_01]: And everybody involved should be disparate.
[SPEAKER_01]: Again, this is just decade old memos about the issue that's like dead.
[SPEAKER_01]: Like, right.
[SPEAKER_01]: But it makes them look bad, right?
[SPEAKER_01]: And they admit that this is this is fodder for Supreme Court reform, which they don't want.
[SPEAKER_01]: They don't want because it's a Supreme Court.
[SPEAKER_01]: Right.
[SPEAKER_01]: Is there a biggest tool for implementing conservative policy and legitimating it?
[SPEAKER_01]: They know they read the same polls.
[SPEAKER_01]: We all do they know it's been of course the jitter disease in the fucking shitter Thanks mainly to five to four.
[SPEAKER_01]: Yeah, yeah for that.
[SPEAKER_01]: Yes
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[SPEAKER_04]: Now, one interesting media player here is Skoda's blog.
[SPEAKER_04]: Skoda's blog is really like the pre-eminence source for Supreme Court coverage.
[SPEAKER_04]: It's a great source for Supreme Court content generally.
[SPEAKER_04]: If you're like hunting for briefs, they have everything.
[SPEAKER_04]: But not long ago is bought by the dispatch, a right-wing media outfit, like Jonah Goldberg runs the dispatch, that's how right-wing.
[SPEAKER_04]: These are like national review, weekly standard alumni.
[SPEAKER_04]: Now, they were multiple commentary pieces about this in Skoda's blog, all defending Roberts, I think they just changed their web format and it is impenetrable.
[SPEAKER_04]: So I'm not actually sure that I found all the commentary, they've made it much worse, minor logistical concern, I have a couple of highlights from these posts.
[SPEAKER_04]: and she's talking about the memos and like how the justices sort of ultimately decided in this case.
[SPEAKER_04]: She says whatever you think of the outcome, the memos do not show a court plucking a result out of the air.
[SPEAKER_04]: They show justices setting precedent, applying the forefactor framework and debating whether to wait for the DC circuit to act.
[SPEAKER_04]: Of course,
[SPEAKER_04]: One can disagree with the precedence the justice is invoked, or with how they applied them.
[SPEAKER_04]: But the deeper question, why the court granted the ask and why, at that moment, the memos do not resolve.
[SPEAKER_04]: So, like, as long as they cite some precedent and like go through the motions of debating it, she's okay with it.
[SPEAKER_04]: And also, she's like, they apply the four-factor framework, but she does not mention, or perhaps not notice that it's the wrong framework that they're doing
[SPEAKER_05]: she's arguing against a position that doesn't exist.
[SPEAKER_04]: Right.
[SPEAKER_05]: Like the memos don't reveal that the Supreme Court justices don't debate the issues site precedent.
[SPEAKER_05]: That's not what the memos reveal and nobody's saying that.
[SPEAKER_05]: Nobody's saying like the judges aren't talking about the law here.
[SPEAKER_05]: What the memos reveal to anybody with a brain, to anybody who's literate, other than Jill, or whatever you just said her name is.
[SPEAKER_05]: Oh, dearly.
[SPEAKER_05]: Oh, OK, dearly.
[SPEAKER_01]: Well, Jill, Nicole, dearly.
[SPEAKER_01]: Just an image that fucking pops into my mind is just like a white box with factory made cake with black icing on.
[SPEAKER_01]: Yeah.
[SPEAKER_01]: When I hear dearly, it's just,
[SPEAKER_05]: Well, yeah, Jill Nicole Terry Lee, whatever she's saying, like she doesn't get this, but but you're arguing, you're making an argument scrambling, scrambling to make an argument that's like, no, no, no, they're legitimate.
[SPEAKER_05]: No, no, no, they're doing exactly what they're supposed to be doing.
[SPEAKER_05]: No, no, no, no, they're acting like judges.
[SPEAKER_05]: And nobody's saying they're not acting like judges.
[SPEAKER_05]: We're saying they're being stupid.
[SPEAKER_05]: uh yeah right in acting judges and we can see behind these sort of bare very shallow procedural arguments we can see behind these things into what they actually think on these issues.
[SPEAKER_04]: This is like watching someone pretend to type on a keyboard and being like they're working.
[SPEAKER_04]: There's another piece by Stephanie Barkley that basically makes this argument that's like, Well, this has happened before.
[SPEAKER_04]: This isn't the first time.
[SPEAKER_04]: This isn't the beginning of the shadow
[SPEAKER_04]: where the court said the government can't enforce a regulation against one particular party, which is different from what happened in this case where it was the regulation in full being halted, right?
[SPEAKER_04]: But also, like, gives a shit if this is like, actually happened before, right?
[SPEAKER_04]: Yeah.
[SPEAKER_04]: I've seen this argument pop up in different forms where people are like, well, the court has done similar things here here and here.
[SPEAKER_04]: And you can like, there's some, you can drag up some similarities between this and what the court has done in the past.
[SPEAKER_04]: Of course, right?
[SPEAKER_04]: It doesn't really matter.
[SPEAKER_04]: You know, it's, it's a, it's sort of a spectrum, right?
[SPEAKER_04]: It's a spectrum of behavior that we're concerned about.
[SPEAKER_04]: Steve Latic wrote that whole book about the shadow docket.
[SPEAKER_04]: And he writes about this where you sort of like, you know, just that there's not a definitive time where you can say,
[SPEAKER_04]: we cross the threshold and it's the shadow docket now and it used to just be this really normal emergency docket.
[SPEAKER_04]: So that's not what's happening.
[SPEAKER_04]: It's about like how this emergency docket is being used and you see these sort of patterns emerging, right?
[SPEAKER_04]: And this is this one moment in history where people are like, this looked like maybe was sort of spiritually the beginning of this, right?
[SPEAKER_04]: Yeah.
[SPEAKER_04]: Uh, the last scotist blog piece I want to talk about, and I want to be clear.
[SPEAKER_04]: This is not all of them.
[SPEAKER_04]: Um, it's by Jack Goldsmith, a name I've seen before, but I don't have any recollection of him.
[SPEAKER_01]: Oh, he wrote the, uh, weren'tless wire tapping memo in the Bush administration.
[SPEAKER_03]: Well, yes.
[SPEAKER_01]: Well, but is nonetheless beloved by liberal legal types, because then he
[SPEAKER_01]: I'm good, torture, that's a step too far and people are like, wow, he's so principled.
[SPEAKER_01]: You're a hero.
[SPEAKER_01]: He's also one of the guys, Biden Supreme Court reform commission who wrote a statement being like, I do not agree that we did not say fuck Supreme Court reform in our report.
[SPEAKER_01]: Like, it's a wrote a separate statement.
[SPEAKER_01]: He's such a loser.
[SPEAKER_04]: Goldsmith says, quote, without any support in the documents, canter and lip-tax say the chief justice seemed, quote, angry and irritated in the memos, and they portray him as an almost bad faith actor.
[SPEAKER_04]: Yes.
[SPEAKER_04]: Right.
[SPEAKER_04]: So when Roberts halts a federal regulation based on like a hunch about what will be good for business.
[SPEAKER_02]: Right.
[SPEAKER_04]: Right.
[SPEAKER_04]: That's like proper decision making, but when some journalists try to read between the lines to interpret Roberts tone or whatever, they've crossed a line this is game over for these motherfuckers.
[SPEAKER_04]: How dare they.
[SPEAKER_04]: He says, they mentioned that the chief justice is legal analysis for the order-rested in part on the major questions doctrine that, quote, in the years since has played an increasingly important role in the court's work.
[SPEAKER_04]: Since their central message is that the conservative majority led by the chief justice is unprincipled and outcome driven.
[SPEAKER_04]: They might have mentioned that two months ago, he wrote an opinion for three conservative justices that invoked major questions to strike down President Trump's signature tariff policy.
[SPEAKER_04]: So the entire argument here is you think they're conservative, but what if I have one case where they rule against President Trump?
[SPEAKER_05]: right where they also happen to you side with industry again again it's a correct but it's like he's yeah and he's like citing he's like saying like they're citing the major questions doctrine which has been used to decide really important cases it's a doctrine that John Roberts made up
[SPEAKER_05]: Right, it's the major questions doctrine is John Robert's baby that came from his stupid head that John Robert's has now used many times, right?
[SPEAKER_04]: Like, I just don't like, I feel like I keep saying this on the show, but like it's wild how many times you'll see this if you're looking for it when there's 10 cases and they rule against Trump on one
[SPEAKER_01]: Right.
[SPEAKER_04]: That doesn't like that doesn't just negate the other nine.
[SPEAKER_01]: Right.
[SPEAKER_01]: When he's winning the game for a second at this time, we know what that means.
[SPEAKER_01]: Yeah.
[SPEAKER_01]: Which is he sticks to the law very, very, very rigorously, of course.
[SPEAKER_04]: right this is just like I don't know like if like every person has like one issue where they're not like aligned with their party or their ideological cohort or whatever right he wouldn't be like oh AOC's not a democrat like not not on the left because she has this one position right it's it just doesn't make sense no one thinks about the world this way it's nonsense
[SPEAKER_05]: Yeah.
[SPEAKER_05]: Right.
[SPEAKER_05]: Yeah.
[SPEAKER_05]: They really tie themselves up and not defending the conservative justices.
[SPEAKER_05]: Whenever even the slightest like peek into how they operate is revealed, you know, while we're on the topic, this feels like kind of gossipy.
[SPEAKER_05]: It's a gossipy episode, right?
[SPEAKER_05]: We're talking about leaked memos.
[SPEAKER_05]: We're not supposed to see this.
[SPEAKER_05]: There's been some other Supreme Court drama.
[SPEAKER_05]: Actually, over the past,
[SPEAKER_05]: month or so, maybe even less, seems like the justices are kind of out and about various justices making speeches and appearances and there's been some controversy.
[SPEAKER_05]: Let's start with a little bit of a sort of my or verses, Kavanaugh drama.
[SPEAKER_05]: Sonia Sotomayor made an April 7th appearance at the University of Kansas Law School.
[SPEAKER_05]: She spoke to students.
[SPEAKER_05]: She was asked questions.
[SPEAKER_05]: She did Q&A, you know, justices.
[SPEAKER_05]: This isn't like infrequent.
[SPEAKER_05]: Justices do this.
[SPEAKER_05]: And she started to talk about or she's asked a question about cavenons, concurrence in gnome v vascas pedodemol.
[SPEAKER_05]: We did an episode, right?
[SPEAKER_05]: This is the case where essentially the Supreme Court,
[SPEAKER_05]: Let's, I continue to detain people, stop people, you know, investigate whether or not folks are US citizens are not, on the basis of like racist standards, right?
[SPEAKER_05]: This is where I was saying, like, yeah, we stop people because they're speaking Spanish or we stop people because they're in the home depot parking lot.
[SPEAKER_05]: and the Supreme Court, okay, this, and Kavanaugh had that really crazy concurring opinion.
[SPEAKER_05]: He didn't even have to write it, but he was basically saying, you know, like these racist tools to stop folks, that's totally fine.
[SPEAKER_05]: He's saying, you know, if you're stopped by ice, it's not that big of a deal.
[SPEAKER_05]: It's not that disruptive to somebody's day.
[SPEAKER_05]: He's don't take very long just premiere of you as soon as in an ice, let's you go, right?
[SPEAKER_05]: And so, Stolenia's sort of my war in the disappearance, and Kansas is asked a question about this concurring opinion by Kavanaugh.
[SPEAKER_05]: And Stolenia says that, like, this guy doesn't really understand how these stops actually affect people's lives.
[SPEAKER_05]: And she goes on, she says the opinion is written by quote, a man whose parents were professionals probably doesn't really know any person who works by the
[SPEAKER_05]: Hmm, which no, wait a minute, wrong, Sonia, Brett Kavanaugh knows the guy who does his landscaping.
[SPEAKER_05]: So true.
[SPEAKER_04]: So true.
[SPEAKER_05]: He knows somebody who works out hourly wages, but um, okay, I mean, this is hilarious.
[SPEAKER_04]: Straight up cool as hell.
[SPEAKER_04]: Yeah.
[SPEAKER_04]: Cool thing.
[SPEAKER_04]: So now my aura is done in a few years for sure, possibly ever.
[SPEAKER_05]: Yeah.
[SPEAKER_05]: This fucking rocks, uh, she's being a girl's girl, all blitz.
[SPEAKER_05]: the quote gets out.
[SPEAKER_04]: Of course it gets out.
[SPEAKER_05]: A couple weeks later when you're sort of my or issues in a apology.
[SPEAKER_05]: She says quote at a recent appearance I referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate.
[SPEAKER_05]: I regret my harmful comments.
[SPEAKER_05]: I have apologized to my colleagues.
[SPEAKER_05]: boo, tomato tomato tomato.
[SPEAKER_04]: We were talking about this and at first I was like, oh, she apologized.
[SPEAKER_04]: That's so annoying because like she fucking cooked them, right?
[SPEAKER_04]: And now I've come around and I think this is funnier.
[SPEAKER_04]: It's funnier to be like, he's a soft little bitch.
[SPEAKER_04]: He doesn't know what, no, any one who has a real job and he has no idea what he's talking about.
[SPEAKER_05]: He's silver spooned, looking as loser.
[SPEAKER_04]: And then everyone's like, oh my god, you shouldn't really speak like that.
[SPEAKER_04]: And she's like, you know what you're right.
[SPEAKER_04]: I'm sorry.
[SPEAKER_04]: Right, that's funny.
[SPEAKER_01]: That's just, it doesn't even, does it?
[SPEAKER_01]: She calls him, she calls the comments harmful.
[SPEAKER_01]: She says she regrets making them, but she doesn't take back the substance.
[SPEAKER_01]: She doesn't say she was wrong.
[SPEAKER_01]: She doesn't think she was about to push like, sorry, you heard that.
[SPEAKER_01]: Sorry, you heard your feelings, but yeah, sorry.
[SPEAKER_05]: I said you went to Yale twice.
[SPEAKER_05]: Sorry.
[SPEAKER_05]: I said you went to that prep school.
[SPEAKER_05]: George town, whatever Catholic prep school, we're all the fucking rich psycho boys go.
[SPEAKER_05]: Sorry.
[SPEAKER_04]: This is funny.
[SPEAKER_04]: I will say it is relatively uncommon to see someone take a public shot at another justice specifically, right?
[SPEAKER_04]: Yes.
[SPEAKER_04]: I'm sure that like Scalia got close to this at some point.
[SPEAKER_04]: Certainly he was insulting in opinions, right?
[SPEAKER_04]: But this is unusual for Supreme Court justices and yeah, I don't know.
[SPEAKER_04]: Maybe things are bubbling over a little bit, right?
[SPEAKER_04]: Our producer was like, is there a vibe shift going on within the Supreme Court?
[SPEAKER_04]: And maybe the answer is yes, right?
[SPEAKER_04]: Maybe these old norms are melting away because everyone is starting to hate each other so fucking much that they just can't stand it.
[SPEAKER_05]: Right.
[SPEAKER_01]: Right.
[SPEAKER_01]: Speaking of things bubbling over the soup that his Thomas's brain seems to have bubbled over and fully Exited his head So before before you get into this Michael, I want to say I have very intentionally avoided reading exactly what Thomas said so that I can be surprised on this podcast So I don't know
[SPEAKER_01]: So just recently at the University of Texas in Austin right specifically not invited to this right is that was really the only person in the entire staff of the law school who is not invited to this
[SPEAKER_05]: So look, there might be a reason, like a sort of legitimate reason which is like whether or not I'm listed as faculty or staff on certain lists, but every faculty member at the University of Texas School of Law got an invitation to Clarence Thomas's appearance on campus and I did not.
[SPEAKER_01]: which is a shame because I would have loved to see your life reactions to this speech.
[SPEAKER_01]: Where he blames like every social ill of the 20th and 21st century on the rise of progressivism, I'm just going to quote him.
[SPEAKER_01]: At the beginning of the 20th century, a new set of first principles of government was introduced into the American mainstream.
[SPEAKER_01]: The proponents of this new set of first principles most prominently among them, the 28th president,
[SPEAKER_01]: Called it progressiveness of dude.
[SPEAKER_04]: Oh, this is this is cheap cut right wing shit Favorite president there's like a sack of right of right wingers that will start talking about Woodrow Will soon all of a sudden and you're like what the fuck are you talking about dude?
[SPEAKER_04]: But because of his sort of loose association with early 20th century progressivism, they're sort of going through this effort to like make Wilson part of the foundation of progressivism, of modern progressivism.
[SPEAKER_04]: I was unaware of this until like, I was living in DC during the initial Tea Party rallies in like, oh, not.
[SPEAKER_04]: I remember just like walking by some of the protests and talking to some people and just like I'm going to go talk to these lunatics and most people were chill, but I remember one guy ranting about Woodrow Wilson for a long time and I was like, what are you talking about, dude?
[SPEAKER_04]: And then later, I think I might have told you guys this, but later I asked him to bum a cigarette and he's like, I'll give it to you, but I'm giving this to you of my own volition.
[SPEAKER_04]: Like he was like he was like because we had been talking about like taxation or something.
[SPEAKER_01]: He was like, I like because like I Like not because I have to but because like I want to like on my own village and I was like, okay, you don't have to do I don't need this figure it actually this is my Tom is also names four historical figures that he says were quote unquote intertwined with the rise of Progressiveism see if he can guess any of the four
[SPEAKER_04]: OK, I'm going to go with what's your face planned parenthood?
[SPEAKER_04]: Sanker.
[SPEAKER_04]: Yeah, sanger.
[SPEAKER_04]: That would have been my first guess.
[SPEAKER_04]: This is all in that early.
[SPEAKER_04]: That same phase.
[SPEAKER_04]: He takes some historical, OK, he's bouncing around 10 poorly.
[SPEAKER_04]: Yeah.
[SPEAKER_04]: OK, it's a range.
[SPEAKER_04]: I'm going to, I'm going to just go ahead and say Lenin.
[SPEAKER_04]: Someone, someone in the Soviet sphere.
[SPEAKER_01]: So we got Margaret Sanker and Lenin.
[SPEAKER_05]: I'm feeling, I'm feeling a little JFK, I feel like he's putting something on the Kennedy's here.
[SPEAKER_04]: All right.
[SPEAKER_04]: Hold on.
[SPEAKER_04]: Let me get one more out there.
[SPEAKER_04]: Fuck.
[SPEAKER_04]: I'm going to miss something.
[SPEAKER_04]: I'm going to miss something obvious.
[SPEAKER_04]: I can feel it.
[SPEAKER_04]: I don't think he has the audacity to say FDR, but that would be like my actual guess, but I'm going to go FDR.
[SPEAKER_04]: Yeah.
[SPEAKER_01]: You guys went over four.
[SPEAKER_01]: Damn.
[SPEAKER_04]: I want to say I was spiritually correct with Lenin.
[SPEAKER_04]: That's basically all.
[SPEAKER_05]: He's a rebellious fear.
[SPEAKER_05]: Yeah, yeah.
[SPEAKER_04]: Oh my god.
[SPEAKER_04]: He thought he thought it was intentionally being like, well, obviously I didn't say Hitler.
[SPEAKER_04]: Oh my god, dude, that's so fucking funny.
[SPEAKER_04]: I love that sort of my aura.
[SPEAKER_04]: I had to apologize because she was like Brett Kevin was a little out of touch.
[SPEAKER_04]: And Clarence Thomas right afterwards is like, my colleagues are Hitler.
[SPEAKER_04]: They are each, they are each like a mouth.
[SPEAKER_01]: It's incredible.
[SPEAKER_01]: It's so good.
[SPEAKER_01]: Yeah.
[SPEAKER_01]: I don't think there's much more to be said.
[SPEAKER_01]: He says this isn't a tack on the declaration of independence and the founding principle.
[SPEAKER_01]: Yes, yes, yes.
[SPEAKER_01]: Of our country.
[SPEAKER_01]: But I mean, that's got to, that's the high point.
[SPEAKER_01]: That's the high point of Stalin.
[SPEAKER_05]: He said Stalin Hitler, Mao, and Hu.
[SPEAKER_04]: Mussolini and this is for shy a few years back for if books could kill i read liberal fascism and this is the the links between Mussolini and the left I mean it's it's gibberish it's truly gibberish like he's like all of these guys
[SPEAKER_04]: all of like the actual fascists, right?
[SPEAKER_04]: Like the first thing they do is just go union bashing, like a rest socialist.
[SPEAKER_04]: It's like it's like incomprehensible when you actually understand what happened.
[SPEAKER_04]: But yeah, they love it.
[SPEAKER_04]: They love to say Mussolini was was a secret lip.
[SPEAKER_01]: It's literally the first line in the poem, right?
[SPEAKER_01]: First, they came for this socialist.
[SPEAKER_04]: Yeah, believe it might be trade unionists, but it's one of the two.
[SPEAKER_04]: I mean,
[SPEAKER_04]: Oh shit, God, it's so good.
[SPEAKER_04]: He is a dipshit dude.
[SPEAKER_04]: It's so funny how fucking stupid Clarence Thomas is.
[SPEAKER_04]: Remember?
[SPEAKER_04]: Remember it like I like how we're having this whole like everyone's like, oh my god, the leaked memos The the court looks so dumb and then Clarence Thomas is like Progressives are sort of like Hitler and Mussolini Just like just like the dumbest Facebook post you've ever seen he's just saying it publicly and people are like fascinating stuff from Clarence Thomas Who thinks that Barack Obama is sort of like Mao
[SPEAKER_01]: Yeah, our producer says, first they came for the communists, first they came for the communists.
[SPEAKER_04]: Okay.
[SPEAKER_01]: Perfect.
[SPEAKER_04]: Yeah.
[SPEAKER_04]: That's so funny.
[SPEAKER_04]: It's so funny to do like Hitler was actually progressive or whatever.
[SPEAKER_04]: That when you're when you're like a full adult, like you're a serious ostensibly serious kind of guy.
[SPEAKER_04]: One of the most powerful men in the country.
[SPEAKER_04]: Yeah.
[SPEAKER_04]: This is the thing about Jenny's presence in his life.
[SPEAKER_04]: It's always been there.
[SPEAKER_04]: If you were willing to look, you know?
[SPEAKER_04]: If you knew where to look, we knew that Clarence Thomas's brain was fucking fried up.
[SPEAKER_04]: Wow.
[SPEAKER_04]: Good stuff.
[SPEAKER_04]: Next week, Breck to the Abrams in a case about a little doctrine called harmless error.
[SPEAKER_04]: The idea that if a court makes a harmless mistake when it's prosecuting you, then your prosecution still stands.
[SPEAKER_04]: Follow us on social media at 549 subscribe to our patreon patreon.com slash 549 all spell that for access to premium and free episodes, special events, our slack, all sorts of shit we'll see you next week.
[SPEAKER_01]: Five to four is presented by prologue projects.
[SPEAKER_01]: This episode was produced by Allison Rogers.
[SPEAKER_01]: The on-nafoc provides editorial support.
[SPEAKER_01]: Our website was designed by Peter Murphy.
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