The Tea: Leaks, Gossip, and More Supreme Court Drama

On this week's episode of 5-4, Peter, Rianan and Michael are diving into some recent Supreme Court de Raman, namely the leak of some secret decade old memos to the New York Times. Back in 2016, the Supreme Court halted President Obama's clean power plan in a 5-4 ruling that circumvented the authority of lower courts. 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. Shadow Docket cases are handled quickly and opaquely without oral arguments or full opinions. The public is typically left to wonder why the court ruled one way or another. Thanks to the leaked memos published by the Times, we now have new insight into how the court justifies it.

This is 5-4, a podcast about how much the Supreme Court sucks. Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have cratered our civil rights, like final exams, cratering, our listeners, careers, I'm Peter, I'm here with Rianan. Hey everybody.

And Michael.

“Yeah, why are you listening to us gossip about the Supreme Court when you should”

be studying listener? We know that some of you are law students, it's late April early May when the drops, you're about the bomb dude. You're about to talk about the bomb dude. You're listening to 5-4. What are you doing? What are you doing? Oh my god, you need to start freaking out. It is time to panic. What if you let the anxiety spike right now? Yeah, just let it take you. Here's some facts. It's too late to fix it. Not true, not true. Yeah, it's going to be

great. By extension, it's too late to fix your career. It's over. It's over. Start thinking about what you're going to do to recover from the damage you're about to do. And there's no more space for a law podcast. So yeah, that's right. You might think, well, maybe I go into law podcasting. No bitch. Like those three dead beats did it? No. We filled up the space entirely between us and advisory opinions. It's the margin. Today we're talking

about an interesting bit of reporting out of the New York Times. This is something that we would usually do is like a premium episode, but we thought fuck it, right? Let's let's just talk about this about 10 years ago, the Supreme Court halted an Obama EPA policy without any briefing, without any arguments, without even letting the issue get properly litigated in the lower courts. This is often seen as sort of the spiritual beginning of what we now

call the shadow docket. 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. We previously did not know much about what happened with this particular case, but someone somewhere, some beautiful hero, leaked internal court memos to the New York Times, containing the discussion

some of the justices we're having, and it is very revealing stuff. 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. I think we all agree would be cool. Our DMs are open. We'll protect your identity”

or whatever, you know, whatever, like the cool journalistic ethics thing is to do this. We're on signal. Yeah. Yeah. No, hate us up on signal. We're other secure channels. I'm sure there are others. But we'll take care of, we'll protect you. We'll go to jail before we out you to the, to the DJ. All right. So let's tee this up by explaining this case from

2016. 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. The plan gets challenged in court by some industry types that court specifically, the DC circuit court of appeals. The industry folks ask the court to put the implementation of the clean power plant on hold while the case is being decided. The court says no, but that they will expedite the proceedings. The industry types then go directly

to the Supreme Court and ask them to halt the regulation and they did. If any of the

“sounds vaguely familiar, this ends up being West Virginia, VEPA, a case that I believe we've”

covered. Yeah. You know, it's about this EPA rule to limit emissions. So this is not the

first time that the Supreme Court used their emergency docket, but it is in various ways

nationwide before a lower court had even reviewed the issue. This isn't a situation where the lower court ruled and the parties appealed exactly. The case was still pending in the lower court and the party's directly petitioned the Supreme Court to intervene and stop the regulation. This was all a little bit procedurally odd, right? The parties go to the lower

court to try to halt the regulation to have it paused basically. Lower court says no, and

they don't appeal directly, right? They just go to the Supreme Court and ask them to do what the lower court did it. 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. It makes the Supreme Court at least theoretically a sort of one stop shop for this sort of thing, right? And that's sort of what has happened.

“That's what 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? Can you prevent the government from implementing this, right? Before lower courts have any time to act. Right. If you're Republican and if you're a Republican, what you can ask, you can ask if you're a Democrat. Before this, the emergency docket primarily used for death penalty cases, election issues, things that need input from the highest court possible very quickly,

right? Not exclusively used for those things, but like those were some of the primary purposes, but from this point forward in 2016, it's increasingly used as a arena for adjudicating federal policy. Yeah, and what you're saying here, like this is like the start. This is the birth of it. So leaked memos. What did we actually learn? What are we talking about here? So on April 18th, the New York Times just released these memos. They were leaked to the

“times. The headline reads read the Supreme Court's shadow papers. So what are these memos?”

These are memos between Chief Justice John Roberts, Alena Cagan, Sonia Sotomayor, Steven

Breyer, Sam Alito, and finally Anthony Kennedy, and the fact of their communicating in memos

is not abnormal. This is normal. Justice is typically communicating with one another in written memos like this. This is how they discuss cases, discuss the arguments that they think are important. This is how they figure out where like the contours of the legal debate are amongst themselves, and they also try to write persuasively to like maybe get a swing vote like Anthony Kennedy to join up with either side. So what the unique thing is here is that

memos are generally not released to the public. We don't usually see them. They're recorded like their archive to their captain, the Justice's papers, usually though their kept secret, unless a Justice decides usually like upon retirement or death or whatever to release their own individual papers. So that's the unusual thing here is that in this case, on this shadow docate case that started the sort of like modern or more recent understanding of how the Supreme

Court uses the shadow docate in these really political ways. It's that we have a sum of the Justice's memos about this case leaked here to the times. Other than like oral arguments, other than the literal written decisions of the Supreme Court, the public doesn't have access to this info. And then for this case, which is on the shadow docate, 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. There aren't like full arguments in front of the court, so we wouldn't even have oral arguments to listen to anyway. And with the shadow docate case, there isn't necessarily a written decision. So these leaked memos represent

basically all that we know now about how the Justice is we're thinking about this case.

And we're going to go through what each Justice said, why so much of it is so notable, but first a quick overview of what plays out here. Roberts refers this matter to the court,

“and he says, hey, I think we should stay this regulation. Steven Breyer responds disagreeing,”

Roberts responds to him, Kagan and Sotomayor weigh in on Breyer'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. We don't have memos from the other justices, very possible that the leaker didn't have access to them. Also possible that

possible that they just didn't weigh in on this issue, which I also find relatively unlikely. That's sort of the overview here. Right. And so we should talk about Roberts because he writes the most, he writes multiple memos, they are long, they are substantive, they are very bad, and he looks like shit. So it's worth going through them. He looks bad for a number of reasons, and we'll get into detail on all of them, but the high level picture is that they're very sloppy.

He uses a wrong standard. He fights to like blog posts and interviews and things like that

“that are like not appropriate for Supreme Court decision making. Right. But also, I think something”

that comes across is he's just kind of pissed about a previous case with a mercury rule where,

you know, 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 on constitutional industry had made such an investment in compliance that it was all but baked in to standard practice at that point. And Roberts is clearly livid, livid, that they essentially didn't get to stop this, right, that like the Supreme Court was just too late in time to prevent the nasty lives from keeping mercury out of your drinking water or whatever the fuck this case

was, right? Yeah, that's a Michigan BEPA, which we've also done in episode on. Yeah. 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. 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, basically because they're the court of final review and

litigation takes a while, building a record takes a while, going on a appeal takes a while, taking things and bunk, 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. Right. And that, keep in mind that the lower court had expedited the preceding. So like, right, no, this is this was going to be resolved in like three months. Right. And the government

had had created opportunities for extensions. Yeah, we'll get into this. We'll talk about a reputable harm. But there's, there's reasons to believe he's exaggerating the risk here,

“regardless, but that is, that's what he's, that's sort of what he's angry about. Yeah, we should get”

into the details of how he's sloppy. It starts with him invoking the wrong standard in regards to stays. He fights the cases that detail the standard for stays of lower court orders, lower court mandates. That's not what's being asked here. Right. There is no lower court mandate for them to stay. They're being asked to stay in EPA policy from feeling into effect. Yeah. Right. Right. Roberts is trying to use the standard that the Supreme Court would use in order to stop a lower

court stay from going into effect. 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 stuff, that that standard is about reviewing a lower court's ruling, which hasn't happened yet. 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. Even calling it a stay, it's sort of awkward. It's like a, 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 got feeling that this is unconstitutional. They're saying the government can't do it. Right. Like it's, it's very, it's just way out over their

skis here. And Kagan objects and, and Roberts Roberts admits he says I recognize that the posture of this stay 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. So, right, you know, this is, this is pretty extraordinary, but our buddies in industry don't want to shell out. So, yeah. 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. First, a lot of people are like nothing has

really changed here. Like this docket always existed, the emergency docket always existed in some form.

out of the ordinary here. And some people build on this by saying, this is really because you're seeing more executive action because Congress is an active and blah, blah, blah. Right. Then the

second argument is that there's really nothing to worry about regardless because this is all procedural

“shit. It's not political. The court, you know, is just doing balls and strikes stuff, right?”

That classic defense of the Supreme Court where they're just like, well, look, this is all procedural stuff. You don't need to worry about it. It's not like hyper-political. That's just what the haters say. 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. Yes. Like, there's total tell, right? He's saying like the basis of his argument or the justification for why this is so important and why the 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 money. That's Congress's power to decide. That's the EPA's

right? Like, it's very odd. It feels like an obsession with cost that you would never see them do for

“like, oh, this is going to cause human suffering in the real world. Right. 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. Partial analysis is, well, if we don't do this, will there be harm that can't subsequently be repaired, right? Typically, monetary outlays are not irreparable harm because they can be repaired by giving people the money. You know, shocking money is fungible and you spend $10 now and you get $10 later,

you're made whole. Yeah. So it's a weird thing to be focused on when you're talking about irreparable harm is costs, costs are by definition of reprobable harm. But that's if you look at just dollars in sense. If you look at the love of the game, they want to blast coal fumes into

“the sky. Right. Right. And if you pause that, if you press pause, you say, hey, you can't do that”

for a few months. Those are birds that might live. Right. Those are, those are streams that might

run clear for a few months. And you can never get that back. That's right.

Well, ostensibly, it's about preserving the status quo, but then the question is always, what is the status quo? Right. Like, Roberts is saying he wants to preserve the status quo of the structure of the energy sector. Right. As if that is the only status quo that matters. And not like, for example, the fact that the regulation is in effect is the status quo. And so you're not preserving the status quo, you're upending it. Or the fact that 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. Upending the status quo of how hot it is, what, how unstable our climate is, no, we're not preserving the status quo of the climate of the livability of our planet. We don't give a shit about that. Yeah. The only status quo we care about is how power companies allocate their resources between renewable energies and fossil fuels. Right. That's the only status quo he

gives a shit about, which is really fucking just blatantly obvious and just sort of disgusting. Right. And so, in addition to this shitty irreparable harm analysis, I also mentioned before, he's citing to statements that the EPA administrator made off the cuff and he's basically citing a BBC article and a blog post that was on the EPA's website. And these are the things that he's upset about, which feels very like, you know, he got some email, subject line,

forward, forward. So the BBC article was just in the industry brief or like one of the briefs. So there's no factual record, right? But the industry texture just like, we'll look with the EPA saying, and he's like, oh my god, look with the EPA saying, but like, in theory, like, the best practice would be that they don't consider stuff like this because it's outside of the factual record. And in fact, there is no factual record here. Right. The lower court might develop the record,

where it turns out what the EPA administrator said was wrong. But it was just, it was just incorrect. Right. 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, the dresses will often consider things outside of the record. And I was just like, well, that's

Like, and you just get this vibe. It's not just the BBC article aspect of it and the blog post

aspect of it, but that's part of it. You just get this vibe that this is just like some people arguing via email, right? Yeah. And like, yeah. It's not very sophisticated. They don't really know what they're talking about. Like, they don't know what understands these regulations or these industries. 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. 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, uh, these are, or these are our top dogs here. Yeah. You can see that they're like stuck thinking about the procedure or like trying to shoehorn what they think about this case and their own minds into the procedural arguments, the precedents of, you know, of taking this case and making this decision in the procedural posture that it's in. And so they're making like

procedural arguments, but you can tell behind it, they're thinking other things that they're not asserting, right, in the memos. 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. Um, you know, the lips, I think like they have the correct argument,”

which is no irreparable harm is not going to happen. It's not asserted like super passionately or strongly or anything. Again, because I think they feel like they're stuck on a few like bare facts, but prior, Kagan and sort of my or all three of them are like essentially in, in a lib just this way, essentially like, we're in a minute, what are you talking about? What is the irreparable harm? And they all bring up like just just like 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. You're waiting a matter of a few months before a ruling here from the lower court. And then the next thing, Kagan and sort of my or both talk about this and 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,

the parties, the states, 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. So, Breyer, Kagan, sort of my or all three of them are like, what irreparable harm are you talking about? Nobody has to do anything at least until the DC circuit court of appeals

has a decision and it's not even for years afterwards. 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. So they would have two years. So 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. Yeah, 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. And I do think they're right that like, Robert's is like, look, the coal industry companies are saying that they might have to shut down plans if we don't do this.

And then briars sort of like, yeah, but given this is only going to take a couple months to litigate, does that actually make sense? Like trying to be like, yeah, do you believe them though,

“right? Yeah, yeah. 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,

it's damage to the environment, which can't really readily repaired. So like, only one sign of this equation is going to suffer irreparable harm, right? Right. Yeah. Again, kind of getting stuck in the process and not really making the argument that they should make all three of the liberals are,

“again, accurately pointing out how unprecedented a move this would be procedurally, right?”

Cagan says like, the unique nature of the relief that is sought here gives me real pause. You know, sort of my or says, this is unprecedented. Briar says, this is unprecedented. This is acting way prematurely for the Supreme Court. Cagan says, you know, the Supreme Court is the court of final review, not initial review. Right. 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. So all three of them, like, very insistent that, like, hey, Chief Justice, like, what you are proposing is pretty wild. This is crazy, just procedurally. But again, it's like, you know, it's kind of these short paragraphs, you know, nothing really is more than two pages here. 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. Yeah. So Sam Alito ways in on this to a lot

“of his memo is just about the same, like, I believe the industry when they tell us that they're”

going to suffer something, like, I wholeheartedly, passionately agree with everything that the Chief Justice said. I will suck on an exhaust pipe. Yeah. I have to. 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, a nullity." 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. Yeah. It's unprecedented. That feels like almost impossible

as a matter of logic and theory. I'm not like a philosopher, but it doesn't feel like it's logically possible for that to be true. Yeah. Yeah. It's ridiculous. And then the final memo is just Kennedy weighing in in like a short paragraph from his little throne at the top of the five-four court being like, I agree. I agree with Justice Roberts. Yeah. 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. He says, you know, in this memo, he's saying basically,

“I think what's going to happen in four or six months is that a state is going to be issued.”

And, you know, the way this reads very short few sentences here. The way this reads is, yeah. He's either saying, we, the Supreme Court are going to issue a state in four or six months anyways, or he's saying the lower court, which is taking up this question on an expedited basis, will issue a state 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. Without a factual record, without, without knowing what the facts are. And inserting this court, inserting the Supreme Court into making the decision that you say, the lower court is going to make. And in fact, according to all this history of process, the lower court needs to make in order for you to review it.

Yeah. So those are the memos, and obviously it's caused a stir. The New York Times piece is

pretty critical of robbers. They say that he bulldozed the court. They seem caught off guard by, like,

the tone and tenor of the memos, right? They got a little bit five four-pilled. And in reading the memos, they were like, wait a second. This is just a bunch of fucking idiots, like, what's going on here? You got Adam Liptack to issue a correction, and now he's like, I changed 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 wearing the eye to censure.

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? The industry folks are like,

doing this half-ass analysis, Robert is getting the fucking standard wrong, right? And no one

“even notices, by the way. No one's like, that's not the standard. And I think it just,”

all feels so weirdly amateurish that if you thought highly of these folks, you might be like, maybe I made a mistake in trusting them with our democracy. Maybe we're not sending our best. There's sort of that implicit criticism in the Times piece. There's some explicit criticism in the Times piece, and it led to a lot of like chatter on line and criticism of Robert's and naturally, this has brought out the Robert's defenders, right? So I think we need to walk through

them because it's funny, because it's fun. Watching these folks try to defend it all, I have to say,

it's been very enjoyable. Yeah. I've really enjoyed it quite a bit. Yeah, all the Gullish

clownish little fools coming out to comment, to defend, you know, Daddy John Roberts, and how smart he is, a promising smart. Molly Hemingway, conservative author, I think she's editor-in-chief of the federalist, you know, Fox News contributor, talking head kind of, kind of gal. She tweeted her thoughts about the leak, and I think kind of, finally, she doesn't defend John Roberts. She attacks the leak implies that it is an ethical violation that whoever leaked the

memos should be reported to the bar, right, have an ethical inquiry into whether they, you know, failed in their professional responsibility as lawyers. Of course, we don't even have the person is a lawyer. I guess we assume that the person is a lawyer who leaked it because why also they have access to these things, but it's not necessarily that they are a lawyer. Anyways, Molly Hemingway's response is how dare you? Yeah. How dare you leak these things in which my

king, John Roberts, could be criticized. Right. Criticism of the leakers 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, right?”

And you're like, someone somewhere has violated an ethics rule, like who gives you shit? Who fucking cares? I mean, obviously our position is at leaking this sort of stuff is cool, that like, right, it's inexplicable to me that the shit isn't public, that they just get to hide their little internal memos forever. It's 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,

who cares? And also, if you think that this is all very inexpensive, that nothing untoward happened here, don't worry about it. Don't worry about it. Yeah. Yeah. The people upset about this are very funny. They're anxieties and their defenses in a way are showing all their cards, right? Like Josh Blackman over at the Volok conspiracy, which is a sort of conservative slash libertarian right-wing legal blog. He talks a lot about how he contrasts this to the dobs leak, right? The

the opinion 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. He's like, this is a 10-year-old case. Yeah. 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. If they're out of

it, it may boost their career. He's upset. He's upset that this is so effective at making the Supreme Court look like shit, right? Because the Supreme Court is their tool, their legitimating tool for enacting their policies. He's like, he's like, look, this makes us look bad, right?

“That's like, that's what he's upset about. He's upset that this makes us look bad and what's”

more, like, the leaker would probably be considered a hero for for doing it if they're ever showing a grotesque misunderstanding of liberal circles. Like, if like a right-winger leaked it for the benefit of the right-wing political project, yes, they would be handsomely rewarded. This person is going to be executed by hand by Barack Obama himself, if they ever find him. Another guy at Voluk, John Adler, like speculated a bit about who the leaker was and suggested

it might be Sonia Sotomayor, clerk, or even Sotomayor herself, based on very thin evidence,

was a photocopy of an unsurculated draft. Let's get dead wheeling on this. Yes, seriously.

Let's get bus out fucking Google Maps. There's all sorts of reasons to think this is bullshit, Steve Lottick pointed out that like the typo in the date suggests maybe it was February 6, not February 16th, which were put it on a Saturday, which means like, you wouldn't be surprised that like this is maybe being dashed off without a signature and then maybe just sent an email with typos because it's not a full work day with clerks in all that to proofread everything.

One possible explanation. There are many others, right? Another guy at Voluk, I'm just going to tell you, the title is "Court Leaks in Attorney Journalists," the professional ethics implications of making "Court Confidence" his public and he wants to go off on like why people should be

“disbarred for even publishing these things like for fuck the leaker. If you have to buy lying on this,”

it's such a hell. These guys are so fucking pissed about this. If you even write about this, maybe you should be disbarred and everybody involved should be disbarred. Again, this is just decade old memos about the issue that's like dead. Right. But it makes them look bad, right? And they admit that this is, this is fodder for Supreme Court reform, which they don't want. They don't want because it's a Supreme Court. Is there biggest tool for implementing

conservative policy and legitimating it? Or at least it used to be. They know they read the same polls we all do. They know Supreme Court's legitimacy is in the fucking shitter. Thanks mainly to 5 to 4. Yeah, mostly. Thanks for that. Yes.

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check out this limited time offer, get Hewell today for 15% off at Hewell.com/54. An enter promo code 54. That's 54. All spelled out. New customers only. Thank you to Hewell for supporting 54. Now, one interesting media player here is Skoda's blog. Skoda's blog is really like the pre-eminent source for Supreme Court coverage. It's a great source for Supreme Court content, generally. If you're like hunting for briefs, they have everything, but not long ago is bought by

the dispatch, a right wing media out of it. Like Jonah Goldberg runs the dispatch. That's how right wing. These are like national review, weekly standard alumni. 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. So I'm not actually sure that I found all the commentary. They've made it much worse, minor, logistical concern I have. I have a couple of highlights from

these posts. One is from Teralee Davis, and she's talking about the memos and like how the

justices sort of ultimately decided in this case. She says, whatever you think of the outcome,

the memos do not show a court plucking a result out of the air. They show justices citing precedent applying the forefactor framework and debating whether to wait for the DC circuit to act. Of course, one can disagree with the precedents the justices invoked or with how they applied them. But the deeper question, why the court granted the ask and why at that moment the memos do not resolve. So like as long as they cite some precedent and like go through the motions

of debating it, she's okay with it. And also she's like they apply the forefactor framework, but she does not mention or perhaps not notice that it's the wrong framework that they're doing the wrong analysis. She's arguing against a position that doesn't exist. Right. Like the memos

not what the memos reveal and nobody's saying that. Nobody's saying like the judges aren't talking

“about the law here. 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. Okay. Okay, Terrily. Will Jill Nicole Terrily? Just an image that fucking pops into my mind is just like a white box with like factory made like you know cake with black icing on. Yeah, when I hear Terrily. Well, yeah, Jill Nicole Terrily, 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. No, no, no, they're doing exactly what they're supposed to be doing. No, no, no, no, they're acting like judges. And nobody's saying they're not acting like judges. We're saying they're being stupid. Yeah. Right. In acting like 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. This is like watching someone pretend to type on a keyboard and

being like, they're they're working. There's another piece by Stephanie Barkley that basically

makes this argument that's like, well, this has happened before. This isn't the first time. This isn't the beginning of the shadow docket. But her examples are all off the mark. She cites a case from 2013 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. But also, like, gives a sheet of, this is like, actually happened before, right? Yeah. 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. And you can, like, there's some, like, you can drag up some similarities

between this and what the court has done in the past. Of course, right? It doesn't really matter.

You know, it's, it's a, it's sort of a spectrum, right? It's a spectrum of behavior that we're concerned about. Steve Vladik wrote that whole book about the shadow docket. And he writes about this where he's sort of like, you know, there's not a definitive time where you can say, oh, we cross the threshold, then it's the shadow docket. Now, and it used to just be this really normal emergency docket. That's not what's happening. It's about, like, how this emergency docket is being used.

And you see these sort of patterns emerging, right? And this is this one moment in history where

“people are like, yeah, this looked like maybe was sort of spiritually beginning of this, right?”

Yeah. The last scotist blog piece I want to talk about, and I want to be clear, this is not all of them. It's by Jack Goldsmith, a name I've seen before, but I don't have any recollection of him. Oh, he wrote the weren't list wire tapping memo in the Bush administration. Well, yes, well, but is nonetheless beloved by liberal legal types, because then he resigned after the torture memo. He's like, weren't list wire tapping. I'm good. Torture, that's a step

too far in people are like, wow, he's so principled. Hero. Hero. He's also one of the guys, Biden Supreme Court Reform Commission who wrote like a statement being like, I do not agree that we did not say, fuck Supreme Court Reform in our report. Like, it's just wrote a separate statement. Oh, he's such a loser. Just safe face. Yeah. 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. Yes. Right. So when Roberts holds a federal regulation based on like a hunch about what will be good for business, right? Right. 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 the line. It's game over for these motherfuckers. How dare they? How dare they? 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.”

Since their central message is that the conservative majority led by the chief justice is unprincipled and outcome driven. 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

if I have one case where they rule against President Trump? We're they also happen to decide

with industry. Again. Again. It's incredible. It's like he's, yeah. And he's like siding. 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. Right. Right. It's the major”

questions doctrine is John Roberts' baby that came from his stupid head that John Roberts has now used many times. Right. Like it. 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. Right. That doesn't like that doesn't just negate the other nine. Right. When he's winning time, we know what that means. Yeah. Which is he sticks to the law.

Very, very rigorously, of course. 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 cohere or whatever. Right. Right. He wouldn't be like, oh, AOC's not a Democrat. Like not on the left

“because she has this one position. Right. It just doesn't make sense. No one thinks about the world”

this way. It's nonsense. Yeah. Right. Yeah. They really tie themselves up and not defending the conservative justices. 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 a gossipy. It's a gossipy episode. Right. We're talking about leaked memos. We're not supposed to see this. There's been some other Supreme Court drama. Actually, over the past 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. Let's start with a little bit of a Sotomayor versus Kavanaugh drama. Sotomayor made an April 7 appearance at the University of Kansas law school. She spoke to students. She was asked questions. She did Q&A, you know, justices. This isn't like infrequent. Justices do this. Yeah. And she started to talk about or she's asked a question about

Kavanaugh's concurrence in Nome V. Vasquez, Pedro de Amal. We did an episode. Right. This is the case where essentially the Supreme Court lets ICE continue to detain people, stop people, you know, investigate whether or not folks are U.S. citizens or not. On the basis of like racist standards, right? This is where ICE 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. And the Supreme Court

okay this and Kavanaugh had that really crazy concurring opinion. 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.

He's saying, you know, if you're stopped by ICE, it's not that big of a deal. It's not that disruptive to somebody's day. These don't take very long. Just preview your U.S. citizen and ICE lets you go, right? And so sort of has sort of my aura in the appearance. And Kansas is asked a question about this concurring opinion by Kavanaugh. And sort of my heart says that, like, this guy doesn't really understand how these stops actually affect people's lives. 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 hour, which no, wait a minute, wrong Sonja, Brett Kavanaugh knows the guy who does his landscaping. So true. So true. He knows somebody who works at hourly wages, but um, okay, I mean, this is hilarious. Straight up cool as hell. Yeah, cool thing, so that my aura is done in a few years for sure, possibly ever. Yeah, this fucking rocks, she's being a girl's

girl, but the quote gets out. Of course it gets out a couple weeks later, Sonja's sort of my aura issues and apology. 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. I regret my harmful comments. I have apologized to my colleagues. Boom. To Mito to Mito to Mito. We were talking

about this. And at first I was like, oh, she apologized. That's so annoying because like she

“fucking cooked them, right? And now I have come around. And I think this is funnier. It's funnier”

to be like, he's a soulful little bitch. He doesn't know what, no, anyone who has a real job and he is no idea what he's talking about. He's silver spooned, looking as loser. And then everyone's like,

But that's fine. That's good. That's good. And doesn't even, doesn't, she, she, she calls him,

“she calls the comments harmful. She says she regrets making them, but she doesn't take back”

the substance. She doesn't say she was wrong. She doesn't think she was up, because I was like, sorry, you heard that. Sorry, you heard your feelings, but yeah. Sorry, I said you went to Yale twice. Sorry. I said you went to that prep school that George town, whatever, Catholic prep school where all the fucking rich psycho boys go. Sorry. Sorry. This is funny. I will say it is relatively uncommon to see someone take a public shot at another justice specifically. Right. Yes. I'm sure that

like Scalia got close to this at some point. Certainly he was insulting in opinions. Right. But this is unusual for Supreme Court justices. And yeah, I don't know. Maybe things are bubbling over a little bit. Right. Our producer was like, is there a vibe shift going on within the Supreme

Court? And maybe the answer is yes. Right. 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. Right. Speaking of things bubbling over, the soup that is 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. I'm so excited. So just recently at the University of Texas in Austin. Right. Specifically,

not invited to this, right? Is that what's really the only person in the entire staff of the law school who is not invited to this? 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, which is a shame because I would have loved to see your

life reactions to this speech. 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. At the beginning of the 20th

century, a new set of first principles of government was introduced into the American mainstream,

the proponents of this new set of first principles. Most prominently among them, the 28th president,

“Woodrow Wilson called it progressiveism. Dude, okay, this is the elite cut right wing shit, right?”

Yeah, every progressive favorite president. There's like a sacked of right of right wingers that we'll start talking about Woodrow, what Wilson all of a sudden and you're like, what the fuck are you talking about, dude? 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. I was unaware of this until like I was living in DC during

the initial tea party rallies in like, oh, nine. I remember just like walking by some of the protests and talking to some people and just like, I'm gonna go talk to these lunatics and most people are chill, but I remember one guy ranting about Woodrow Wilson for a long time and I was like, what are you talking

“about, dude? 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. He was like, because we had been talking about like taxation or something. He was like, I was like, because like, not because I have to, but because like I want to, like, my own volition. I was like, okay, you don't have to do. I don't need a cigarette, actually. This is my Thomas also names four historical figures that he says were quote unquote intertwined

with the rise of progressivism. See if he can guess any of the four. Okay, I'm going to go with

what's your face, plan parenthood? Sanker. Yeah. Sanger. That would have been my first guess.

This is all, this is all in that early. That same phase. He takes some historical, okay, he's bouncing around 10 poorly. Yeah. Okay. It's a range. I'm going to, I'm going to just go ahead and say Lenin. Someone, someone in the Soviet sphere. So we got Margaret Sanger and Lenin. You want to give this some guesses? I'm going to say, I'm feeling, I'm feeling a little JFK. I feel like he's putting something on the candidates here. All right. Hold on. Let me get one, let me get one more out there.

Fuck. I'm going to miss something. I'm going to miss something obvious. I can feel it.

that's how I'm going to go FDR. Yeah. You guys went over four and are stalling Hitler, Mussolini, in mouth. I want to say, I was spiritually correct with Lenin. That's basically the one. You think that would be a sphere? Yeah. Yeah. Oh my god. I was like, he thought it's not,

“like I was intentionally being like, well, obviously I didn't say Hitler, right?”

Oh my god. Dude, that's so fucking funny. I love that sort of my work. I had to apologize because she was like Brett Kavanaugh's a little out of touch and and Clarence Thomas right afterwards is like,

my colleagues are Hitler. They are each, they are each like, mouth. It's incredible. It's so good.

I don't think there's much more to be said. He says this isn't a tack on the declaration of independence in the founding principle. Yes. Yeah. Yeah. Yeah. Oh my country. But I mean, that's, that's got it. That's the high point. That's the high point of stalling. He said stalling Hitler, Mau and Hill. Mussolini. Mussolini. And this is, for sure, a few years back for, if books could kill, I read liberal fascism. And 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, all of like the actual

fascists, right? The, like, the first thing they do is just go union bashing, right? Like,

a rest socialist. It's like, it's like incomprehensible when you actually understand what happened.

“But yeah, they, they love it. They love to say Mussolini was, was a secret lip. It's literally the”

first blind in the poem, right? First, they came for this socialist. Yeah, believe it might be trade unionists, but it's one of the two. I mean, oh shit. Oh my god. It's so good. He is a dipshit dude. It's so funny how fucking stupid player in his Thomas is remember? Remember, like, I, I like how we're having this whole, like, everyone's like, oh my god, the leaked memos, the, the, the court looks so dumb. And then Clarence Thomas is like, "Gressives 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.”

Our producer says, first they came for the communists. First they came for the communists. Okay. Perfect. Perfect. Yeah. That, that's so funny. It's so funny to do, like Hitler was actually progressive or whatever, that when you're, when you're like a full adult, like you're a serious, ostensibly serious kind of guy. One of the most powerful men in the country. Yeah. See,

this is the thing about Jenny's presence in his life. It's always been there. If you were

willing to look, you know, if you knew where to look, we knew that Clarence Thomas's brain was fucking fried up. Wow. Good stuff. Next week, brec to be Abramson, a case about a little doctrine called harmless error. The idea that if a court makes a harmless mistake when it's prosecuting you, then your prosecution still stands. Follow us on social media at five or five subscribe to our patreon patreon.com slash five four pod all spell that for access to premium and and free

episodes, special events, our Slack all sorts of shit. We'll see you next week. Bye, everybody. Bye. Gossip Girls. Five to four is presented by prologue projects. This episode was produced by Allison Rogers. The onnafoc provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips and Y and our theme song is by Spatial Relations.