This is a subscriber-only episode about Biden's proposals for reforming the Supreme Court... will the hosts of 5-4 say "we do"?

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5-4 is presented by Prologue Projects. This episode was produced by Lena Richards. Leon Neyfakh and Andrew Parsons provide editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

Follow the show at @fivefourpod on most platforms. On Twitter, find Peter @The_Law_Boy and Rhiannon @AywaRhiannon. 

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Did the January 6th riot "obstruct an official proceeding"? That depends on how you interpret that very straightforward and unambiguous phrase.  

You can subscribe to 5-4 Premium on Patreon, Apple Podcasts, or Spotify. Now is a good time: We have an exclusive subscriber-only episode coming next week. 

5-4 is presented by Prologue Projects. This episode was produced by Lena Richards. Leon Neyfakh and Andrew Parsons provide editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

Follow the show at @fivefourpod on most platforms. On Twitter, find Peter @The_Law_Boy and Rhiannon @AywaRhiannon.

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Run a January 6th insurrectionist flag up the pole and see who salutes. Oh look! It's appointed-for-life Supreme Court Justice Samuel Alito!

Did you know that the majority of tickets to our DC and NYC shows were sold before the shows were even public? That's because our beloved Premium subscribers got first dibs. Plus they'll get to listen to the full version of this episode! If you're jealous, come on board at fivefourpod.com/support!

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5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

Follow the show at @fivefourpod on most platforms. On Twitter, find Peter @The_Law_Boy and Rhiannon @AywaRhiannon.

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Continuing its trajectory of abandoning tests that don't pass the vibe check, the Supreme Court ruled that states can prosecute crimes committed by non-Natives on Native land.  The holding overturns literally centuries of precedent and clears the way to eliminate tribal sovereignty all together.

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Live from the People's Parity convening in Washington, DC, we're talking about free speech and the right's obsession with cancel culture. We're digging into what speech the conservative legal movement thinks is worth protecting (such as the heavenbound prayers of a humble junior varsity football coach) and what speech is not (all other speech).

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Senator Elizabeth Warren, we can only assume against the advice of counsel, agreed to come on 5-4. We talked about the filibuster, the Democratic response to Dobbs, and Peter and Michael's beards.

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Imagine you are given a month and a half head start on a race. Do you A) start running, B) wait around until the official start time to run, or C) act surprised when the race starts and chastise any of your teammates who tell you that it's time to start running?  If you chose C, congratulations, you are the Democratic Party responding to the Dobb decision!

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John Roberts has decided that the standard for whether or not something is a "major question" is whether or not it "raises an eyebrow." But like, let's not beat around the bush, John - you can just say vibe check.

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In this case from the most recent term, the Court once again says we should look to history and tradition to determine what's appropriate. Which is gonna be a tough one to parse, because the founders didn't really give us a strong sense of how they felt about junior varsity football games at public high schools. Probably because none of those things had been invented yet.

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This episode contains descriptions of violence against a child that may be challenging for some listeners. Please take care while listening.

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The Supreme Court has released the long-awaited Dobbs v. Jackson Women's Health Organization decision. The news is bad.

Ruling in favor of Mississippi, the Court allows the state to ban nearly all abortions after 15 weeks. The opinion is written by Justice Samuel Alito, and is largely the same as the opinion that was leaked earlier this year. Alito writes, "The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives."

Roe v. Wade, precedent that has guaranteed privacy and bodily autonomy for half a century, is dead, imperiling the access to reproductive healthcare for millions of people.

We know this has been a hard week, but what makes it a little lighter for us is knowing that you all are out there. Thanks for being a listener.

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In this case the Court holds that you have no right to sue a federal official, even if a border agent trespasses on your property, knocks you to the ground, and calls the IRS on you for having the gall to file a complaint about it. So if you're keeping track at home, the Court is saying that First Amendment and Fourth Amendment don't actually mean anything.

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The hosts were recently guests on Know Your Enemy, talking about the origins of the conservative legal movement, and its decades-long campaign to overturn Roe v. Wade. This episode is part of a series they're calling "How They Did It," about the likely reversal of Roe. If you like this episode, you find Know Your Enemy wherever you get your podcasts.

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Brett Kavanaugh might have had a better shot at writing a reasonable decision if Arizona v. Navajo Nation revolved around beer rights instead of water rights, but instead the associate justice barfed up a garbled opinion about property rights.

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5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

Follow the show at @fivefourpod on most platforms. On Twitter, find Peter @The_Law_Boy and Rhiannon @AywaRhiannon.

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This week, the hosts use a variety of film and television references to try and capture the pure villainy of a recent ruling that allows candidates to "loan" their campaigns unlimited money and be paid back, with donor funds, AFTER they're elected. We're talking tie-a-damsel-to-the-tracks-twirl-your-mustache level.

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The hosts pound some brewskis with Supreme Court Justice Brett Kavanaugh.

Normally there would be no episode in the free feed this week, but we decided to do something special for ya. This episode was originally exclusively available to our Patreon members, but we're giving you a peek into the premium feed. If you enjoyed the episode and want to unlock more like it, like our just-released episode about Originalism, join our Patreon at $5 a month, at patreon.com/fivefourpod.

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This unanimous decision holds that cops who don't deal with traffic enforcement are allowed to tail you until you commit a minor offense, and then literally dive head first into your car to nab you on an unrelated drug charge. It's just another case in a long line of Supreme Court jurisprudence that is preferential to the "I Do What I Want" brand of policing … and completely antithetical to the Fourth Amendment.

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In this ruling from just last month, the Supreme Court ruled that Puerto Ricans are not entitled to equal protection under the Fifth Amendment because … unclear. Citizens who live in DC and the Northern Mariana Islands? Yes - equal citizens under the law. Puerto Ricans and Guamamians? Sorry, no, try again next century.

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A common criticism of 5-4 is that adjudicating is hard work, and the hosts have no experience. So to prove that no, judging is actually dummy easy and anyone can do it, in this live show, the hosts rule on disputes brought by the audience. They also talk about Oakland v. BP, in honor of their appearance at The New Parish in Oakland, AND make a very special phone call to everyone's favorite beer aficionado.

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In this emergency episode, the hosts are talking about what happens now that a draft of Dobbs v. Jackson Women's Health Organization decision has been leaked.  Roe v. Wade will almost certainly be overturned, and abortion will likely become illegal in almost half of the country. But other rights predicated on due process, like birth control, marriage equality, and desegregation, are at risk too.

To learn more about joining a network of lawyers for reproductive justice, visit https://www.ifwhenhow.org/. To donate to a coalition of more than 80 abortion funds, or donate to your local fund, visit https://abortionfunds.org/.  

If you or someone you know needs abortion access, visit https://www.ineedana.com/. To learn more about self-managed abortion at home, visit https://www.plancpills.org/.

To help Rachel fundraise $5,000 to end HIV/AIDS - but more importantly, to unlock the Snyder cut of this episode - visit http://tofighthiv.org/goto/racheldotbiz.

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In this case, the Supreme Court rules that a mother who is at risk of losing parental rights for her child is not entitled to a lawyer during the proceedings. This episode features discussions of families interacting with social services and the foster system. Please take care while listening.

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A difference of political opinion is when one person wants the coal industry to get tax breaks, but another person wants the oil industry to get tax breaks. Not wanting to be conscripted into an army to fight in a war against your will is NOT a political opinion. Therefore, it is totally fine for the United States - the nation that instigated the war mind you - to deny you an asylum hearing and send you back to face that certain fate.

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President Biden thought he could bury his weaksauce Supreme Court commission report by releasing it right before Christmas. Nice try Joey. We talked to commission member Kermit Roosevelt, of University of Pennsylvania Carey Law School, about being radicalized by his fellow liberals on the commission. Not because they're radical too, but because they're so institutionalist he got fed up.

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This week, 5-4 is inviting you to check out an episode of Damages, from the Critical Frequency Podcast Network.

Damages is a courtroom drama podcast that follows the well over 200 climate lawsuits currently active in courtrooms all over the world. Ranging from explanatory episodes to docuseries to narrative seasons, it’s a show about the quest for justice and a crime against humanity: the climate crisis. In this episode: a case on behalf of wild rice, or manoomin in the Ojibwe language. The rights of manoomin case was originally filed in an effort to stop construction of the Line 3 pipeline. That pipeline has been built, but the case is still active, and it could have major implications for other pipeline fights.

If you like Damages, you can find it https://www.drilledpodcast.com/damages/.

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In the movies, detectives trail a suspect until he messes up and throws his DNA-soaked paper cup into the trash. In real life, they just pretend like they don't understand the word "identify" in order to abuse the 4th Amendment.

If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support.

5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

Follow the show at @fivefourpod on most platforms. On Twitter, find Peter @The_Law_Boy and Rhiannon @AywaRhiannon.

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To review: If you are an anonymous donor, using your money to drown out the voices of everyone else in an election, that is free speech. If you are a citizen who wants to tell a cop to fuck off, that is NOT free speech. And if you are a tobacco company that wants to tell children about the rich, smooth taste of a product that will addict and kill them, that is free speech.

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In this case, eight Supreme Court justices felt like it was totally fine to let the state kill a man, even though his lawyer prepared exactly NOTHING to present mitigating factors during the sentencing phase of his trial.

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In this episode, the hosts discuss a series of cases from 1883 about the 13th and 14th Amendments, which ultimately ushered in the Jim Crow era.  And what's really fun (fun?), is that these holdings use some of the very same shitty justifications of racial discrimination that you'll find on Fox News to this very day. Time is a flat circle!

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In this long-anticipated episode we finally get into The Ginni Problem. New Yorker chief Washington correspondent Jane Mayer joins us to talk cults, insurrection, and other super normal Supreme Court stuff.

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The Supreme Court says there's simply no time before elections that are months away, to redraw racist Congressional district maps, that took all of one week to make initially.  If you're a fan of democracy that probably sounds bad, but listen, nothing in the Constitution explicitly says that fascism is expressly prohibited.

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Do you like reboots? You're gonna love The Lochner Era 2: Return of the Robber Barons! Featuring all of the union-busting, labor-exploiting, children-working-in-a-coal-mine of the original Gilded Age, but now with 100 percent more campaign spending by corporations!

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This episode contains references to physical abuse of children. Take care when listening.

The standing law on corporal punishment - physically punishing children - in schools, is that it's legal because 8th Amendment protections against cruel and unusual punishment only applies to CRIMES. Failure to get your keister in line mister, is not a crime, and therefore, punishable by beating.

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Racism equals bad so acknowledging race bad too so reverse racism real so white girl go to preferred school, yes?

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This long-lost amendment gives you rights that our founding fathers, even in their wildest dreams, couldn't enumerate. So that's kind of a problem for modern conservatives.

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In this ongoing case, the Court holds that requirements that employees mask and test weekly, or get vaccinated, cannot be enforced while a challenge makes its way through the judiciary. It's good news for … I don't know, hermits living in caves who never interact with humans, or people who are already dead? For everyone else, it's not so great.

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What to do if you get arrested (not legal advice™), why are the liberal justices just sitting back while conservatives devour the judiciary, and whether or not to vote for Biden - you've got questions, we've got … maybe not "answers," but definitely "responses."

If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support.

5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

Follow the show at @fivefourpod on most platforms. On Twitter, find Peter @The_Law_Boy and Rhiannon @AywaRhiannon.

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Go-go-gadget surveillance state! In this case the Court holds that cops can hover a helicopter over your house and peer into it without a warrant. That set a new standard for the Fourth Amendment - namely that it doesn't really exist, and if you wanted privacy then you should have been richer.

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This week, 5-4 is inviting you to check out an episode of Scene on Radio, from the Center for Documentary Studies at Duke University. Scene on Radio asks big, hard questions about who we are, and how we got this way. This season, "The Repair," they're focusing on the climate crisis, and in this episode they're looking at the creative ways we can use the law to protect nature and fend off climate change.

If you like Scene on Radio, you can find it wherever you get your podcasts.

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Welp, 2021 wasn't a banner year for reproductive rights, and 2022 is looking worse.

That's why it's worth revisiting this episode about Roe v. Wade. In this first episode of a two-part series, the hosts look at the legal and factual origins of Roe v. Wade. They also discuss how Roe was weaponized by the conservative legal movement to rally against an interpretation of the Constitution that allows for flexibility in favor of a far more rigid approach.

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In the second part of this two-episode series on abortion rights, the hosts discuss Planned Parenthood v. Casey, a 1992 case in which the Supreme Court made it easier for states to restrict abortion access so long as abortion regulations don't create an "undue burden." The vague standard set lawmakers on a new path of attacking abortion access, and fueled anti-abortion groups' efforts to spread stigma and misinformation, setting up Roe v. Wade for a death by a thousand cuts.

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We're sorry for bumming you out all year - but the antidote to a crumbling democracy is mutual aid! In this episode we've got some organizations that you can share your resources with, to help take the edge off of 2021's agony. Happy New Year! Better luck next year!

Here are links to the organizations that we talk about in this episode:

The Legal Aid Society of New York City - https://legalaidnyc.org/ (Peter)

International Refugee Assistance Project - https://refugeerights.org/ (Michael)

Texas Harm Reduction Alliance - https://www.harmreductiontx.org/ (Rhiannon)

Housing Justice for All - https://housingjusticeforall.org/ (Peter)

Lutheran Immigration and Refugee Service - https://www.lirs.org/ (Michael)

Jane's Due Process - https://janesdueprocess.org/ (Rhiannon)

Louisiana Center for Children's Rights - https://lakidsrights.org/ (Peter)

Advocates for Children of New York - https://www.advocatesforchildren.org/ (Michael)

Texas Fair Defense Project - https://www.fairdefense.org/ (Rhiannon)

Rivers & Birds - http://www.riversandbirds.org/ (Michael, a gunner)

Follow Peter (@The_Law_Boy), Rhiannon (@AywaRhiannon) and Michael (@_FleerUltra) on Twitter.

Learn more about how you can help get the Judiciary Act passed at https://demandjustice.org/podcast.

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This week, 5-4 is inviting you to check out an episode of The Politics of Everything, from The New Republic:

Today’s youth are overwhelmingly left-wing. So who are the young conservatives? On this episode of The Politics of Everything, hosts Laura Marsh and Alex Pareene talk to Sam Adler-Bell, a writer and the host of the podcast Know Your Enemy, about an energetic cohort who call themselves the New Right. They differ in many ways from the median right-wing voter. They hate the Republican establishment. Their heroes are illiberal authoritarians. Are they going to remake conservatism?

If you like The Politics of Everything you can find it wherever you get your podcasts.

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On the 12th day of Christmas, the Warren Court gave to us:

Loving Day on June 12th;

11 December 1952 - final day of argument in Brown v. Board of Education of Topeka;

Nationalization of the first ten amendments;

Nine concurring justices;

(8-1 in Reynolds v. Sims);

Seven birth control pills a week;

Sixth Amendment right to counsel;

Five Miranda rights;

Fourth Amendment protections;

Three expansions of due process;

Brown v. Board of Education II;

And one man, one vote.

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Let us now bow our heads in observance of this episode about why the Supreme Court thinks it's OK for a government to have prayer before public meetings, but NOT OK for the town to manage who gives that prayer or what they pray about. Amen.

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Learn more about how you can help get the Judiciary Act passed at https://demandjustice.org/podcast.

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Robert Bork, a Regan nominee to the Supreme Court, showed the depth of his reactionary views during his confirmation hearings, and as a result, was voted down. That kicked off three decades of conservative whining and moaning and retribution, which continues to haunt us today.  This is why we drink.

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What's the return on investment on not having an asthma attack? If you can't count it, it doesn't count, according to the majority in this 5-4 ruling, which turned back EPA rules on mercury emissions from power plants. As a result, the power industry won't be burdened by those costly regulations, so you can breathe easy. LOL.

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Rhi got locked up. The food was bad, the comrades were immaculate, and while the friendless centrist pundits on Twitter were wrapping themselves in knots to try to argue protests aren't speech, the kids were keeping the focus where it belongs: On Gaza.

If you don't think laws are real either you can get a sick shirt about it from Shout Your Abortion: https://shout-your-abortion.square.site/shop/apparel/3

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5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

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Senator Sheldon Whitehouse (D-RI) joins us to talk dark money, judicial nominations, and whether the Democrats have any hope of getting things done without filibuster reform.

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ERRATUM:

At 17:10 Senator Whitehouse refers to a study of 78 Roberts court era decisions. He incorrectly states that 72 of the cases advance Republican and/or corporate interests. The number is 73 cases, or 92 percent.

FURTHER READING:

"A Conservative Activist's Behind-the-Scenes Campaign to Remake the Nation's Courts" - Washington Post

"Inside the Koch-Backed Effort to Block the Largest Election-Reform Bill in Half a Century" - The New Yorker

"One unnamed donor gave $17 million to the Leo-affiliated Judicial Crisis Network to block the nomination of Judge Merrick Garland and to support Gorsuch; then a donor — perhaps the same one — gave another $17 million to prop up Kavanaugh."

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A foreign "prisoner of war" can communicate with their family. An American "traitor" can argue their case in court. An American "enemy combatant" can do neither, according to the Supreme Court, creating a third category of prisoner with very few legal rights. America immediately post-9/11 was very chill and normal.

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Oof, this is a tough one: Protect the Constitutional rights of actual people, or clutch the vague concept of "federalism" in my grubby little hands like Gollum with that ring. TBH probably gonna go with my precious. 

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