5-4 x Know Your Enemy: Trump 2.0 and the Courts

Peter and Michael join the hosts of the podcast "Know Your Enemy" to discuss how Trump is likely to reshape the federal judiciary during his second term. They talk about some of Trump's judicial appointees as well as outgoing President Biden's successes and failures in the courts. You can subscribe to 5-4 Premium on Patreon, Apple Podcasts, or Spotify. 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. 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 BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @AywaRhiannon. Hosted on Acast. See acast.com/privacy https://acast.com/privacy for more information. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:05Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have annexed our civil rights like Trump's gonna annex Greenland.

• 0:13Michael Liroff?

  Yes.

• 0:14Peter Shamshiri?

  I'm Peter. I'm here with Michael.

• 0:16Michael Liroff?

  Hey, everybody. The Greenland thing is insane. It's incredible.

• 0:20Peter Shamshiri?

  I love it. I like that we had a really long debate, especially in scholarly circles, over like, how much of a fascist is Trump?

• 0:31Michael Liroff?

  Yeah.

• 0:31Peter Shamshiri?

  Because he's never like, he's never shown these grand imperial ambitions. And now he's just like, what are the weakest countries nearby?

• 0:41Michael Liroff?

  Yeah, let's retake the Panama Canal. That's ours.

• 0:44Peter Shamshiri?

  Yeah.

• 0:44Michael Liroff?

  Greenland, let's just buy it. I do think if you don't want him to buy Greenland, or take it over, or whatever, somebody should inform him that it's only 60,000 people and they're all Inuit.

• 0:58Peter Shamshiri?

  Right.

• 0:58Michael Liroff?

  They're all, it is 90% brown.

• 1:03Peter Shamshiri?

  He needs to watch that one scene from Mighty Ducks where the Iceland chick is like, no, Greenland is ice and Iceland is very nice. He's got it backwards.

• 1:12Michael Liroff?

  I do think it would help our country to have two senators from a place that is 60,000 people all Inuit. Like, that would be cool.

• 1:22Peter Shamshiri?

  That's true, but they're not gonna get senators, let's be honest.

• 1:25Michael Liroff?

  No, the best-case scenario is they end up like Puerto Rico.

• 1:29Peter Shamshiri?

  And then Panama Canal, I like the way that they talk about the Panama Canal because it's very American Euro way of talking about places where they're like, we built the canal. And by that, they mean like, we ordered people basically at gunpoint to build it for us. That's what they mean when they say, we built it.

• 1:46Michael Liroff?

  Yes.

• 1:48Peter Shamshiri?

  All right, so we're just coming back from the holiday break and we have one more week off. This is sort of a head fake, but we recorded an episode a couple of weeks ago with our friends at Know Your Enemy about Trump 2.0, about what to expect in the upcoming administration. And so we thought it would be a nice little treat for you folks. And we had a very good conversation with Matt and Sam, talked about some of Trump's appointees, some of Biden's many failures and a few successes in the courts. It was a good conversation.

• 2:26Michael Liroff?

  Yeah, it was a lot of fun. It was pretty wide ranging and I think we covered pretty much all the different ways, at least, you know, going in that we could think of where Trump intersects with the federal courts and ways that this was not adequately prepared for and what we might expect. It was fun. I recently re-listened to it and I laughed and also was reminded of some things that I had said and Peter said that make me very sad. And that is a, that's a five, four episode, isn't it?

• 3:06Peter Shamshiri?

  Classic, classic five to four. All right. We will be back with a case next week, Murphy v. NCAA, a case from a few years ago that functionally allowed states to legalize sports betting all across the country and ruin sports forever. That is, of course, unless the TikTok case drops and we decide to do an emergency episode, which I'll put at respectively 30 and 20% chances.

• 3:34Michael Liroff?

  Right. And Rhiannon's not here in the intro because she couldn't join us for the recording with Matt and Sam, but she will be back. Don't worry, relax.

• 3:44Peter Shamshiri?

  She's still part of the podcast.

• 3:45Michael Liroff?

  Calm down. Rhiannon will be back next week.

• 3:49Peter Shamshiri?

  Yeah. And stop complaining. Stop saying that the show sucks without Rhiannon.

• 3:54Michael Liroff?

  Yeah.

• 3:54Peter Shamshiri?

  Okay. We're good too.

• 3:55Michael Liroff?

  We see those comments and they hurt our feelings.

• 3:58Peter Shamshiri?

  Yeah, we're real people. So maybe think about that before you post. All right. Enjoy, folks.

• 4:05Michael Liroff?

  Welcome listeners to episode 106 of Know Your Enemy. I'm Matt Sibbin, your podcast co-host, and I'm here as always with my great friend, Sam Etherbell. Hey, Sam.

• 4:14Peter Shamshiri?

  Hi, Matt.

• 4:15Michael Liroff?

  How are you doing today?

• 4:16Speaker 02

  I'm good. We just recorded Frontburner.

• 4:19Speaker 03

  Yes. For our Canadian listeners, get excited. And Frontburner is, it's a great podcast, and I think it's like the most listened to politics, maybe, or news podcasts in Canada.

• 4:30Speaker 02

  It should be, if it's not. It's a great podcast. When we enjoyed being on it just now.

• 4:35Speaker 03

  Yes. Well, let's get to this episode. This is one that we had a lot of fun recording, even though the subject matter is a bit depressing. And listeners will be thrilled to know we had on as our guests, two of our friends from the Five to Four podcast, Peter and Michael. Reeannan wasn't able to join us, but Peter and Michael were great. And you won't be surprised with them as our guests that the topic was prospects for the Supreme Court, the federal courts more broadly, in Trump's second term, in his upcoming administration.

• 5:06Speaker 02

  Yeah. The combination of people I like so much who are charming to talk to, and in fact, quite funny, with this very, very depressing subject matter is a little bit of a whiplash, but I wouldn't have it any other way. It's hard to talk about these sorts of things without having at least a little bit of gallows humor. And they definitely brought that to the mix. But yeah, I mean, this was a great conversation. Just the kind of scene-setting episodes that we've been doing for what this new administration, the next four years, might be like. But in the context of the judiciary, of Trump's DOJ, what the Democrats should have done to prepare us better for what's coming down the pike. What the immunity case that made it so that Trump can be the president of crimes

• 5:51Speaker 02

  will mean for the next four years. All of that we get into with our very, very learned, law-knowing guests, Peter and Michael from Five to Four.

• 6:01Speaker 03

  Yes. We're very grateful that they were so generous with their time. And I'll just add, I feel like me and you, Sam, you know, we're hard to shake when it comes to things happening on the right. We've been following this stuff for a long time. And if we're not pessimists, we're at least realists. And I have to say, I left this conversation more depressed and worried than I entered it.

• 6:24Speaker 02

  Me too.

• 6:25Speaker 03

  And that's saying something.

• 6:26Speaker 02

  Yeah, sorry.

• 6:27Speaker 03

  Well, should we get to some housekeeping items?

• 6:29Speaker 02

  Yes.

• 6:30Speaker 03

  As always, we're grateful to our partners at Dissent. They sponsor the podcast. One thing they do for us is if you subscribe to Know Your Enemy on our Patreon page at patreon.com/KNOWYORENEMY. If you subscribe for $10 a month, you get access to all of our bonus episodes and a free digital subscription to Dissent and access to our Discord.

• 6:52Speaker 02

  Yeah.

• 6:52Speaker 03

  So, uh, please consider doing that. Of course, for $5 a month, you get access to all of our bonus episodes. There's been some great ones lately, and we have some great ones cooked up. And Sam, you're gonna tell us about a special holiday offer.

• 7:07Speaker 02

  Well, a lot of you listeners have asked over the years, how do I gift somebody a Patreon subscription to Know Your Enemy? If I've got a, you know, a boyfriend, girlfriend, father, uncle, aunt, grandfather, son, daughter, who's desperate, who would love, who you know would love to have a year, say, of Know Your Enemy to listen to, and they just can't quite pull the trigger for themselves, and you wanna do that for them, a gift subscription to the, to the podcast. Now Patreon has made it extremely easy to do that. And so you can go on to the Patreon website, and if you're already a subscriber, click on gift, a subscription. I'll put a link to the gift subscription thing in the show notes.

• 7:52Speaker 02

  And so if you are looking for a great gift this holiday season, go ahead and, and buy a gift subscription to the bonus episodes of this podcast. Get it for all your family members, frankly. I mean, everybody would love it.

• 8:05Speaker 03

  That's right. Give your loved ones the greatest gift of all, me and Sam.

• 8:10Speaker 02

  Extremely depressing political content. As always, we wanna thank our intrepid producer, Jesse Brenneman. And we wanna thank Will Epstein, who does the music for the podcast. I had lunch with Will recently. We talked about the new Bob Dylan movie. It sucks, but more to say about that in the future.

• 8:28Speaker 03

  Yet again, I'm vindicated, my anti-Chalamet.

• 8:31Speaker 02

  Yeah, I know. I'm the Chalamet defender in our friend group, but he was not good, and the movie's not good, and what can you say?

• 8:40Speaker 03

  Well, here's one thing you can say. Let's get to our episode with Five to Four on the depressing topic of Trump 2.0, his courts, his judges, his Department of Justice, what we can expect.

• 8:54Speaker 02

  His beautiful judges.

• 8:55Speaker 03

  Yes. Strap in and get ready.

• 8:58Speaker 02

  Enjoy.

• 9:13Speaker 03

  All right, gentlemen. Well, let's get started. We're very pleased to welcome back to the podcast our friends from Five to Four, Peter the Law Boy and Michael. Welcome.

• 9:22Peter Shamshiri?

  Hello.

• 9:23Michael Liroff?

  Hello.

• 9:24Peter Shamshiri?

  I would love for you to record a take of that without saying the Law Boy.

• 9:29Michael Liroff?

  Leave it in. Leave it in.

• 9:30Speaker 02

  Peter, it's our podcast. We call you what we want to call you.

• 9:34Peter Shamshiri?

  Look, I tolerated it when you said, no Rhiannon. This is going to be boys only.

• 9:40Speaker 03

  We are missing Rhiannon, who couldn't join us, who frankly, you know, it made me not really want to do this because she is my favorite, but.

• 9:48Speaker 02

  She's everybody's favorite.

• 9:49Speaker 03

  We decided to soldier on with Peter and Michael. And I did look it up. And, you know, this is almost four years to the day after we recorded our first Know Your Enemy Five to Four crossover. It was December 20th, 2020.

• 10:04Peter Shamshiri?

  That's right. Wow.

• 10:05Speaker 03

  And to get us started, just kind of set the scene a little bit for listeners. We're recording this in mid-December, so Trump is not inaugurated yet. What kind of state is the federal judiciary in? What did Biden do or accomplish in that area? And kind of what is he handing off to Trump, so to speak?

• 10:24Michael Liroff?

  Well, you know, he accomplished a fair amount within the confines of like existing procedures. If you look at it as tinkering around the edges, he got a lot done. They confirmed a lot of judges and improved the demographics of the judiciary, a lot more women, a lot more people of color, and also a lot more people with varied backgrounds, public defenders, civil rights attorneys, things like that, that it's good to have them in judgeships. At the same time, he is leaving a lot of vacancies for Trump to fill. Most of those vacancies are at the district court level in red states because Democrats

• 11:08Michael Liroff?

  declined to scrap this arcane Senate procedure called the blue slip, which gives home state senators basically a veto over court nominees. It's something that's been ignored for appellate courts for six years now, but not for district courts.

• 11:26Speaker 02

  And that makes sense because usually when the Democrats operate in good faith on the basis of some kind of institutional norm, that really redounds to their benefit and the Republicans always respond in kind.

• 11:40Michael Liroff?

  For sure. It's a great plan.

• 11:41Peter Shamshiri?

  They're watering the tree of bipartisanship.

• 11:44Michael Liroff?

  So Trump is going to get to fill a lot of judgeships right off the bat. And then, of course, a lot of older Republican judges will almost certainly take senior status or out and out retire, giving him more vacancies to fill.

• 11:59Speaker 02

  And that's just for listeners, that's like, they're so old, they're worried they're going to die, they can keep working, but allow somebody else to take their actual place on the court?

• 12:09Michael Liroff?

  That's right. They have less regular schedule, but they still, they maintain basically benefits and because of the constitutional protection against a salary diminution, they get to keep making what they were making anyway while working less. So it's a pretty sweet gig. By the end of his term, if we assume politics all plays out normally, like we just have a normal four-year term, I don't think that's a safe assumption. But if we do assume that, likely the case that Trump will have appointed half the federal judiciary when all is said and done. And we might see at least one, maybe as many as three strategic or health-related retirements at the Supreme Court level, which means he could have ultimately

• 12:54Michael Liroff?

  appointed anywhere between four and six Supreme Court justices. I think those are plausible outcomes of a normal term for Trump. Very bracing to realize.

• 13:06Speaker 02

  I mean, this kind of came up over at the blue slip question. Are there other things that the Democrats ought to have been doing or doing now in the interregnum to fortify any kind of hope for liberal jurisprudence, progressive jurisprudence before Trump takes office? Like, if you guys could tell them what to do right now, what should they be doing?

• 13:29Peter Shamshiri?

  Well, right now, it's probably too late. But if you're stepping back a couple of years, the most obvious thing is pursuing judicial ethics, right? And taking it seriously and taking the violations of existing laws that have almost certainly happened seriously. I mean, Clarence Thomas violated an existing federal law almost certainly. I believe it's punishable with like, up to a year in prison. I wouldn't expect them to get him in prison for a year, but certainly some serious discussion of what actual prosecution would look like would have been helpful. I think that's the biggest, clearest ball drop at the Supreme Court level.

• 14:09Speaker 02

  Just to remind listeners, what was the, what was the thing he did?

• 14:12Peter Shamshiri?

  He did more than one thing, but Clarence Thomas has basically been accepting various bribe-adjacent gifts from conservative billionaires for many years and failing to disclose them as required by law.

• 14:28Michael Liroff?

  The other thing they could have done, that again, it's probably too late now to start in any serious way, or definitely too late now. Is that they could have been in line with the ethics stuff. They could have been talking about the need for reform in building public support and a political will for a broad court reform, not just the Supreme Court, but all the federal courts, right? That's something they could have done after Roe v. Wade got overturned. Just for example, there's an issue that's activating. The base is persuading moderate voters and you have a clear culprit, a clear villain that you can tie it to, the Supreme Court.

• 15:12Michael Liroff?

  The next obvious thing is, well, okay, well, what are you going to do about it? Right? And that's got to be court reform. And the fact that they weren't willing to go there hampered their electoral pitch in the midterms. It made them worse advocates for abortion rights in 2024 as well, less credible on those issues. And it's, you know, it's something that they need to take seriously. That at the end of the day, what it means is that they need to stop pretending the only viable path here is to just win every election forever, because that's an infantile goal. And it's even more infantile as a means to achieve other goals.

• 15:56Speaker 02

  And they suck at it.

• 15:57Michael Liroff?

  It's unbelievable. Like, you have to have a real solution.

• 16:00Speaker 02

  It's a good point about abortion, because I may sometimes get frustrated when people say, well, you know, the Democrats didn't solve the abortion issue legislatively, so why should we vote for them now? It's like, well, they couldn't do that necessarily, given the composition of the legislative branches. But then they also don't mobilize people's discontent about the completely undemocratic nature of the Supreme Court, which has imposed a ruling on the public that many people in both parties do not approve of. So they have no credibility any which way.

• 16:34Peter Shamshiri?

  Another way to do it is to just be seen fighting. And this was a way to be seen fighting. And the Democrats sort of didn't do it. They just said, like, you know, put us in office over and over again. And come 2040, we're going to give you what you want.

• 16:49Speaker 03

  Change you'll eventually believe in. You know, one thing I wanted to ask was, sorry, I'm almost laughing saying this phrase, but the quality of Trump's nominees for some of these positions, because, you know, the Supreme Court nominees that Trump has selected, Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, right, like, they get a lot of attention and are litigated in the media, in the discourse, quite a bit. But I was thinking a very consequential appointee of Trump's, as it ended up happening, was Eileen Cannon in Florida. That was the, you know, Donald J. Trump versus the United States of America, you know, the classified documents he allegedly had at Mar-a-Lago, right, like, kind of taking those documents and hindering, you know, the investigation into them and what happened.

• 17:32Speaker 03

  We don't need to get into the specifics of that case, but that was an instance of Trump appointing someone who, I mean, just seems like a total MAGA judge, right, just like totally in the tank for Trump. And I thought that might be representative of kind of the kinds of people Trump appointed in his first term and, you know, who he might in his second term. And I wondered if you could just speak to that, like, not just at the highest level of the Supreme Court, but like, who are the types of lawyers that Trump is appointing or you expect him to appoint in some of the positions that might not get as much media attention?

• 18:06Michael Liroff?

  Yeah, you know, I mean, I'm glad you mentioned Eileen Cannon, because like, right now, I think a lot of people think if he has a vacancy in the Supreme Court, it'll be James Ho, who's kind of a nutbag in the Fifth Circuit. But I think it'll be Eileen Cannon. I think you look at his cabinet nominees, and he's clearly prizing, like, personal loyalty a lot, and I think nobody's proven it more than her. So I wouldn't be surprised if, within the next four years, we have a nomination fight over Associate Justice Eileen Cannon, and that is a scary thought. But also, the quality is going to be low. I wouldn't be surprised to see Jonathan Mitchell in the mix.

• 18:47Michael Liroff?

  He is the guy who wrote the Texas abortion bounty law. He argued a number of, like, the most high-profile cases before.

• 18:58Michael Liroff?

  The Supreme Court related to abortion.

• 19:01Speaker 02

  Well, for listeners, I'll just say that abortion bounty law, that was actually the last time we had Rhiannon on the podcast, right, was to talk about that. So if listeners miss Rhiannon in this conversation, as I'm sure they do, they can go back and listen to our conversation with her about that law, which apparently I'm learning now was written by this guy who could be in a high judgeship in the federal judiciary.

• 19:21Peter Shamshiri?

  Yeah, I think Michael's right that James Ho's chances at the Supreme Court are overrated right now, not because he's not a loyalist, but because he's a very weird looking guy.

• 19:33Michael Liroff?

  Yes.

• 19:33Peter Shamshiri?

  And I think Trump cares about that. I really think he does. I'm like half joking.

• 19:37Speaker 02

  No, no, he cares about that so much.

• 19:39Speaker 03

  James Ho is not from Central Casting.

• 19:41Peter Shamshiri?

  No, he's, he's deep in the extras.

• 19:44Speaker 02

  I was just writing about this today. Like, I talked to a lot of people about Pete Hegseth in the past couple of weeks because it was a surprise to a lot of people, even in Trump's inner circle, that he chose Hegseth, just because like he wasn't really on any of the lists. And it's just like, the simplest explanation is this guy looks like a movie star and he went to Princeton. And Trump cares very much about people who went to Ivy League schools and are handsome.

• 20:09Michael Liroff?

  Right. And he sees them on TV all the time.

• 20:11Speaker 02

  Yeah, he's movie, he's TV, he's Hollywood.

• 20:14Peter Shamshiri?

  And, you know, I think bigger picture, there is now a pool of loyalists to draw from that didn't really exist when Trump first got into office. I think it's important to realize that, to some degree, he views his Supreme Court nominees as a disappointment. They didn't rally behind him in 2020. And there's been some reporting that there's been a rift forming between Federalist Society types and like the more MAGA-brained, America First legal people. You know, eight years ago, there was no such thing as a Trump loyalist, exactly because no one's loyalty had been tested. And now it has. There are judges and potential judges who have demonstrated their commitment to Trump. And he's going

• 20:57Peter Shamshiri?

  to be prioritizing the selection of those people to judgeships, just like he will for cabinet positions.

• 21:02Speaker 03

  Yeah. I mean, since Sam mentioned the lists, you know, lists of names, was Pete Hegseth on the list? Department of Defense Secretary or not, famously, another list that was given to Trump was by Leonard Leo, right, in the Federal Society of Possible Nominees to Fill Supreme Court Vacancies. And since you mentioned that there's tension or, you know, differences emerging from the Federal Society as we've known it for the past couple of decades, like everything we've been hearing about with Project 2025, you know, the America First Policy Institute, is there anything similar kind of on the horizon when it comes to Trump's judicial nominees? Is there a MAGA wing now? And if so, kind of how does

• 21:44Speaker 03

  it relate to the Federal Society and Leonard Leo and all of their money?

• 21:48Michael Liroff?

  Well, I mean, I think one thing to realize is that this point, Trump has been the protagonist of Republican politics and arguably for all of American politics for almost 10 years now, right, since at least 2015. So a lot of mainstream Republican lawyers are just sort of by default Trumpists, right? They are MAGA.

• 22:14Speaker 03

  Now, at this point?

• 22:15Michael Liroff?

  Right, at this point. They have fully cooked their brains in Fox News and Newsmax and OANN. And it's less that like certain MAGA legal infrastructure has been built within or opposite to the Federal Society so much as like the Federal Society is just filled with MAGA people, right? They have made themselves MAGA. That's just the reality of American politics right now.

• 22:44Peter Shamshiri?

  Yeah. I think the other side of that is that there isn't, on the MAGA side, the same infrastructure that the Federalist Society had in 2016, right? I'm not sure how much that matters for the reasons that Michael's highlighting here. You know, I think in 2015, 2016, Trump was promising to appoint Federalist Society favorites because he wanted to win those folks over. And this was sort of something he didn't quite care about, right? It's not like he has strong opinions about constitutional law. He knew that he needed to win these people over. He needed to bring in certain elements of the establishment to his coalition. And that's why he did it. Now, everything within the

• 23:28Peter Shamshiri?

  Republican coalition is subjugated to him. And

• 23:32Peter Shamshiri?

  It's sort of unclear who exactly has his ear on these issues. But I would imagine that his first question at all times is who loves me? Who has proven that they love me? And that's who he's going to nominate to the federal courts.

• 23:49Michael Liroff?

  Yeah, I mean, I wouldn't be surprised to see like every single lawyer involved in the planning of the fake electors scheme get some sort of nomination. Like, that's, that's not out of the question. And that's really depressing, but it's certainly within the realm of plausibility. That Cheeseborough, or however the fuck you pronounce his name.

• 24:08Speaker 02

  It's Cheese, it's Cheeseborough, like a town based on cheese.

• 24:13Peter Shamshiri?

  Dairy dominated hamlet.

• 24:14Speaker 02

  Matt's question is good about like, are there comparable institutions challenging the Federalist Society for dominance in the judicial sphere? In the way that these kinds of counter institutions of like Trumpist policymaking have been built over the past, you know, several years, like the ones he mentioned. But I think the reason that might not have happened or would not have been necessary is that like what those institutions represent in the policy space is like, we need people who are more on board with like aggressive trade policy. We need people who are more on board with, you know, the pretty thin version of industrial policy that's acceptable on the MAGA right.

• 24:57Speaker 02

  We need people who are even more aggressive on immigration. You know, we need this kind of suite of MAGA policy positions to be represented in the kind of think tank world in a way that they were not before. But do you need judges with like a kind of different ideological perspective other than, let's give the Republicans in power as much power as they can have? Like, is there actually a sort of difference in the ideology of pre-Trump conservative judges and post-Trump conservative judges?

• 25:27Peter Shamshiri?

  I think that there are. You know, I think that you see the same sort of rifts. You know, the independence of the judiciary cuts both ways. They can sort of get very unhinged very quickly. But if you're some like, 90s Republican who doesn't really like Trump's aesthetic. You can assert yourself from the federal bench. Those judges exist. You know, there's not a lot of them.

• 25:53Speaker 02

  And they're not congresspeople who have been losing their jobs.

• 25:56Peter Shamshiri?

  Exactly. They're not responsive to the conservative masses in the way that politicians are. So I think if anything, there are probably more stragglers from the MAGA movement on the federal bench than there are like in Congress, because in Congress, you have to suck up to the base if you want to stay there. Not necessarily true of the judiciary. That said, there are, you know, social and cultural pressures, not to mention that they are all like absorbing the same poisoned media. But I, you know, there are never Trump judges, or whatever you want to call that, like awful little movement now.

• 26:35Speaker 02

  The pathetic little movement.

• 26:36Speaker 03

  Yeah, I think, Michael, you described, you know, like the federal society has now become MAGA-fied, at least in large part, a lot of their, you know, members, the lawyers coming up through their pipeline by this point. I was wondering, I feel like someone like Justice Alito, has he become more like Fox News uncle-brained over the course of, you know, his time on the court? I mean, I know he never was great, but I do feel like during the Trump era, he's really kind of let it all hang out. I mean, you can point to his wife, you know, flying those flags, that kind of thing. But even just like his public appearances and the lectures and talks he gives, the tenor of them and their content. I was just wondering, like, what changes you saw during the Trump era of the conservative

• 27:20Speaker 03

  justices already on the court?

• 27:22Michael Liroff?

  Yeah, I mean, Alito, you called him like a Fox News-brained uncle, but I feel like he's the uncle who says Fox News is a globalist network. I get the real stuff from OAN.

• 27:36Michael Liroff?

  Yeah, he was never great, but it does feel like he has gotten worse. And it's hard to know if it's that he's more unrestrained and that this is how he's always felt. But he's been more committed to decorum and restraint. And like Trump has given so many conservatives sort of the freedom to let their freak flags fly. Right. It's very much like a white pride movement and, and maybe he's feeling that. Or if he has moved, right? That it's hard to know from the exterior, which is going on here. But it's definitely a change.

• 28:15Peter Shamshiri?

  Yeah. I mean, in my mind, he has moved in the same way that the median Republican has moved. We now see a sense of grievance in his writings that's just a little bit stronger than it used to be. You see the same thing with other members of the court. Gorsuch, a couple of years ago, said that COVID regulations were like the greatest peace time infringement on liberty in this country's history.

• 28:39Speaker 02

  In the country's history?

• 28:40Peter Shamshiri?

  In the country's history.

• 28:41Speaker 02

  A country founded with slavery.

• 28:43Michael Liroff?

  Yeah, I mean, obviously slavery, but also Gorsuch writes movingly about the history of oppression of native people. So like, how do you hold those two thoughts in your head at the same time? Like, how? How is that possible?

• 28:55Peter Shamshiri?

  Yeah. And I mean, I think the only real answer to that is that you're just absorbing right wing media all the fucking time. That's how you sort of get your brain into a place where that's just a thing that you can say out loud and feel like it's reasonable, feel like it's reasonable enough for the Supreme Court reporter. It's the sort of natural output of this media ecosystem. And that sort of thing makes me inclined to believe that they are shifting because of the media that they absorb, that it's just like anyone else, just like how everyone will say, I used to get along with my uncle and now he just screams about conspiracy theories and it's really sad. That's what's happening to these guys, too. They're not special.

• 29:36Speaker 03

  A while back, I was reading Strange Justice, Joe Abramson and Jane Mayer's book on Justice Thomas, right, in his confirmation hearings. And speaking of media intake, one of my favorite details from that book is that Clarence Thomas said, I don't even read the papers. I don't follow the news. And it said Ginny just kind of summarizes for him and tells him what's happening. And I thought, oh, that explains a hell of a lot.

• 29:59Peter Shamshiri?

  I like how that's obviously a lie and also not even a good lie. It just makes you seem like you're even crazier than you are.

• 30:07Speaker 02

  My extremely obviously and unapologetically crazy conservative wife is helping me filter the news.

• 30:15Michael Liroff?

  To remind your listeners, Ginny Thomas, the final weeks of Trump's first term was texting his chief of staff saying, I think the exact quote was, the Biden crime family is going to be living in a barge off of Gitmo, or something like that.

• 30:31Peter Shamshiri?

  She was, I guess, saying that to Clarence as well. And he was like, good to know.

• 30:34Speaker 03

  The exact text, the details really are remarkable here. So I want to read the full text. Biden crime family and ballot fraud co-conspirators, and then this is in parentheses, elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, et cetera, end parentheses, are being arrested and detained for ballot fraud right now and over coming days, and will be living in barges off Gitmo to face military tribunals for sedition. And then she adds, I hope this is true.

• 31:05Speaker 02

  That part of it's actually kind of sweet.

• 31:09Peter Shamshiri?

  Yeah. It's weird to always be talking about these guys in terms of their wives. There is sort of an element of like, how normal can you be when your wife is this crazy? And I think that's a discussion that's probably worth having. But also, you don't really need to have it because Alito's opinions and Thomas's opinions are increasingly unhinged. They are increasingly authoritarian. The way that Alito writes about the Biden administration's like piecemeal neoliberal reforms is as if Joseph Stalin has risen from the dead.

• 31:43Speaker 02

  Well, Peter, I just, I just want to put this out here. It does sound like you're taking an anti-wife guy position when it comes to the Supreme Court, and that's very disturbing.

• 31:54Speaker 03

  Well, you know, since we're talking about Trump era shifts among conservative judges and legal thinkers, I wanted to kind of ask about that a little more specifically. You know, back in 2020, listeners to this podcast, some of you will remember who Adrian Vermeule is. He's a professor at Harvard Law School, was kind of a prominent Catholic integralist for a period of time before he, I don't even know if he's still on Twitter, I've been blocked for so long. So I don't know what his current social media habits are, but he was a kind of pugilistic, very out there Catholic integralist. And he also styled himself a critic of originalism, the kind of supposed legal theory, theory

• 32:35Speaker 03

  of constitutional interpretation that the Federal Society and the right have held up and, you know, claimed to be their ideal. And in a piece in The Atlantic in March 2020, Vermeule kind of took on originalism. And I believe this was on the heels of the Supreme Court case that said discrimination against trans people in the workplace was a form of sex discrimination. And so the response of someone like Vermeule was, well, you know, if the rule has led us to this place, of what use is the rule, kind of? So I'll just read from this piece. Vermeule writes, "Originalism comes in several varieties, blah, blah, blah, but their common core is the view that constitutional meaning was fixed at the time of the Constitution's enactment. This approach served legal conservatives well in the hostile environment in which

• 33:20Speaker 03

  originalism was first developed and for some time afterward. But originalism has now outlived its utility and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach, one might call it common good constitutionalism, should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate." So it's a kind of major Harvard Law professor, conservative legal thinker, saying, basically, originalism, it might have been good for a period of time, it served its purpose, but we need to move beyond it. And I kind of wonder what both of your takes

• 34:04Speaker 03

  are on that. Not so much about the cogency of Vermeule's argument, which, you know, we could debate, but in terms of conservative legal thinking and the kinds of arguments they're going to make, especially in relation to Trump and some of the cases that might come before him, was Vermeule picking up on something?

• 34:21Peter Shamshiri?

  I mean, Vermeule is basically saying, you know, what we say, which is that originalism is basically a vessel through which conservative ideology flows. And the purpose of it, very sort of expressly, is to advance conservative ideology. So why don't we just toss the veneer aside, right? What are we doing? Let's just move forward and expressly endorse the ideology that we all know we endorse. Of course, there are true believers in originalism. I believe that they are dummies and suckers, but they exist, and Vermeule is appealing to them to be like, you know, what do we really care about at the end of the day? And in a lot

• 35:01Peter Shamshiri?

  of ways, I don't really think it matters, because originalism has never been something that provided like an outward bound on conservative legal thought. It's really just an excuse to do what they want to do. And it's something that's very malleable. You know, the justices' knowledge of history is on par with anyone else who has access to Google. And that means that they can sort of reach the results that they want to reach. So I almost view this as just like conservatives arguing about whether or not they should lift the veil, right? Like, are we going to keep faking it or not? And I'm not sure that it matters substantively what they decide amongst themselves, honestly.

• 35:45Michael Liroff?

  Yeah, yeah, I agree. I feel like Vermeule essentially is doing a who are we kidding here? We know, we know what we're going for. I don't remember if he says this specifically in the column, but you know, the timing, I think strongly suggests that he understood that like, look, we have an iron grip on the Fifth Circuit. We've got a six, three super majority in the Supreme Court. We can do whatever we want in the courts now. And that is a very real politic sort of viewpoint. And he's not wrong. They can do whatever they want in the courts. It's not clear why they have to shed the originalist label, right?

• 36:26Michael Liroff?

  They're doing whatever they want. It hasn't substantively limited them once. They just did the immunity ruling, which is one of the most ahistoric, crazy rulings in Supreme Court history. It's like up there as like a top five worst ever. So they certainly don't feel substantively limited. That's not to say that the justices are all originalists. I don't think even half the Supreme Court conservative justices are originalist.

• 36:54Speaker 02

  Well, I mean, in the Bostock decision, really Gorsuch, you know, who made the difference, made it on a textual ground.

• 37:00Michael Liroff?

  Yes.

• 37:01Speaker 02

  Because obviously, it's not like the founders had transgender people in mind, but he read the statute in such a way on the basis of its text that necessitated this ruling from his perspective.

• 37:12Michael Liroff?

  Yeah, he basically said, look, you know, whenever you discriminate against a trans person, it basically takes the form of sex discrimination and this prohibits sex discrimination. So what are we doing?

• 37:23Speaker 02

  That's a too sophisticated level of thinking for this court.

• 37:26Peter Shamshiri?

  Vermeule was like, if this is what textualism has gotten, I said, now I have to work with a gay dude, then let's scrap the whole project.

• 37:33Speaker 02

  Michael, you said that at the time conservatives, they were in charge because they had control of the Supreme Court and the Fifth Circuit. What's the significance of the Fifth Circuit?

• 37:44Michael Liroff?

  So you know, the way the court, the federal courts are structured is like the district courts are everywhere. And then they're reviewed in this sort of geographic regional basis by the circuit courts of appeals. And so each circuit covers, you know, a few states. There are 11 geographic circuits and they're all sort of co-equal. So they, they run their little thief and the law can be different in different circuits. And that's one of the things the Supreme Court does is then try to harmonize them and say, well, this rule is right and this rule is wrong and the circuits have to now agree. So in Texas, you have the Northern District of Texas, which if you file a lawsuit there,

• 38:24Michael Liroff?

  you have something like a 93, 94% chance of getting like an extreme hack. Reed O'Connor, Matt Kaczmarek, these guys are like some of the hackiest right wing judges in the country. And they are reviewed by the Fifth Circuit Court of Appeals, which has a super majority of extreme right wing conservatives. And they are to the right of the Supreme Court. They are extremely to the right of the Supreme Court. And so what this does is it makes the Supreme Court effectively the leftward bound in the conservative legal movement because the craziest guy can file something in the Northern

• 39:05Michael Liroff?

  District, get a crazy judge, get it reviewed by the crazy judges in the Fifth Circuit, and then the Supreme Court can either dial it back 80% or send it back for reconsideration or just green light it, reify it and be like, yeah, the Fifth Circuit's right. And that's how law is made now.

• 39:24Speaker 02

  That's so encouraging.

• 39:25Michael Liroff?

  Yeah.

• 39:26Speaker 02

  And that's what you would know, listeners, very, very, very, very, very deeply in your bones if you listen to Five to Four all the time.

• 39:35Speaker 03

  Well, I think what follows from some of this discussion, especially how the justices and other judges, how they've responded to Trump, what they've become, what they're saying now. I wanted to ask specifically about the immunity case that came before the Supreme Court this summer, Trump versus the United States. Just to kind of bring everyone along, could one or both of you tell us what exactly the Supreme Court decided in the immunity case and kind of what does it mean?

• 40:03Peter Shamshiri?

  At a high level, the case is about criminal immunity for presidents, which had never been the precise subject of a Supreme Court opinion. Obviously, this stems from Donald Trump's various crimes. And what the court held was that he is, and all presidents are, immune for their official acts. What exactly the scope of an official act is, is somewhat unclear. But a lot of people very quickly said, well, does that mean that if he, you know, in his official capacity decides to deploy the military domestically, that there's no chance of criminal prosecution for that?

• 40:46Peter Shamshiri?

  The majority didn't really provide a compelling response to that, to say the least, which had a lot of people concerned. And on top of that, it's really important to stress that this is made up. This is not something that's like in the Constitution. It's something that they are sort of extrapolating from the separation of powers to basically say, well, the president needs some leeway here. Like, if we want an effective executive branch, then he can't be subject to criminal penalties for all sorts of conduct. We need to insulate him from that. That's sort of like the philosophical, theoretical basis for this. But it's not something that's in the Constitution.

• 41:28Peter Shamshiri?

  It's not something that you can even find easily implied from the Constitution. It's just something that the conservatives thought would be good. And I think it's that sort of combination that makes it so awful. Like, A, it's just whole cloth bullshit. And B, the potential consequences are pretty obviously severe. Like, any child could tell you severe. So I think those things together make it basically... Historically bad. I want to say worst of the century, but I'm not ready to go there with Bush v. Gore, but it's top two.

• 42:04Michael Liroff?

  Yeah, it's not even like you can make the argument that the people who drafted the Constitution didn't consider this possibility. They put immunity in there for legislators in a very specific case, which is the speech and debate clause, which means when they're speaking to their legislative body, they cannot be held criminally liable for anything they say or do. That is an explicit grant of immunity in the Constitution for a separate branch of government in a very narrow circumstance. And the fact that they didn't bother to do

• 42:42Michael Liroff?

  that in any circumstance for the executive branch is an extremely strong textual indicator that they didn't intend for him or her to have any criminal immunity at all.

• 42:54Speaker 02

  You mean that the founders didn't want the president to be Mr. Crimes, who can do any crimes?

• 43:00Michael Liroff?

  They did not. It is an egregious, egregious ruling. It's got no basis as anything. It is essentially an amendment to the Constitution. They have added something to the Constitution and something that is wildly unpopular and serves only the ends of a handful of only the most corrupt people, right? Because as we've seen with like Biden, he's not sending out SEAL Team Six to take a hit out on Alito or Trump because he's a quote unquote good dude supposedly, and he would never abuse those powers. So the only people who benefit from this are truly corrupt assholes.

• 43:42Speaker 02

  Well, let's dig into it a little bit more. What do we imagine this totally unfounded change in constitutional law granting Trump, because we can say now, Trump, it's not a president, it's Trump, criminal immunity from official acts. What kinds of things can he do? What kinds of things might we imagine he will do?

• 44:05Peter Shamshiri?

  I think it's probably worth noting that A lot of the forward-looking, "what could he do" stuff is less important than what this decision did do, which was functionally get him off the hook for January 6th, and therefore allow him to fairly easily win the election. You know, it's hard to sort of imagine what might have happened if he was being prosecuted during the election. But it's not just the decision. The Supreme Court stalled for six months on this, and that time was very useful to Donald Trump. And I think, in that sense, you can say that the primary damage that this decision is likely to do has already been done.

• 44:49Peter Shamshiri?

  Now, in the event that Donald Trump says, "I want to deploy the military against domestic protesters," for example, which we know is something that he has floated in the past, this is a decision that basically makes him immune for that. You don't want to catastrophize too much and just imagine every possible disaster scenario, but those are the sorts of things that are on my mind when I think about the immunity case.

• 45:13Michael Liroff?

  Yeah, and I want to put a fine point on that. It's literally a crime for the president to deploy the military on US soil to enforce the laws, right? Like, there's the Posse Comitatus Act, which reads in full, "Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws, shall be fined under this title or imprisoned, not more than two years or both." And that was passed in 1878 after Reconstruction, so it's got pretty stellar originalist cred.

• 45:57Michael Liroff?

  It is also functionally useless, because this would be not only an official act, and so would at least get presumptive immunity, but according to the opinion, the core presidential powers get absolute immunity, and Commander in Chief is a core presidential power. So, there's nothing- To stop Trump from doing that, from deploying the military to round up immigrants to execute his 20 million deportations. And when that generates a lot of public protests, there's nothing to stop him from then using the military to patrol the streets of big blue

• 46:37Michael Liroff?

  cities to quell those protests. Like, the guardrails between where we are now and a truly authoritarian state are extremely few, and a lot of them rely on Brett Kavanaugh or John Cornyn, like, doing the right thing. And I just don't feel good about that.

• 47:03Speaker 02

  Well, I want to underscore that for a minute because I feel like oftentimes on the podcast, in my writing, and the kind of conversations Matt and I have, we're not the most alarmist about like, does Trump want to be a dictator? Like, will he immediately, you know, establish martial law and do what somebody like Curtis Yarvin would want him to do on the day of his inauguration? And become a dictator. But what you're describing, Michael, is that the things that they've already promised to do, you actually can see a conceivable path where the actions and reactions to those things, and because of the legal environment that's put in place by this immunity ruling in particular, but also the all the judges who are less likely to constrain him, sets up a

• 47:46Speaker 02

  situation where you can conceive of it happening without it being Trump's, like, master plan to become an authoritarian.

• 47:53Michael Liroff?

  Right. It's just a very simple, okay, they want to do this, so they do this, and that creates this incentive and this reaction, and on and on. You follow the chain down, and all of a sudden, you know, the big question in the midterms isn't what was the Dems messaging strategy? It's like, will there be turnout in the cities when there are tanks in the street?

• 48:13Speaker 02

  Can all the anti ICE protesters even vote because they're imprisoned?

• 48:18Michael Liroff?

  Right.

• 48:18Speaker 02

  That reminds me, because you mentioned the kinds of things that Trump has promised to do with regard to deportations, I feel like it's worth talking about as a specific case. Like, one of the first things Trump tried to do was the Muslim ban. Honestly, I was just talking to people about this recently. Like, it was crazy, the experience of being at JFK that night when it was announced and there was people coming in and then the courts decided that night to enjoin the Muslim ban directive. And it really felt like, perhaps like, delusionally, like this, this real, like, resistance moment, like, of, whoa, OK, the guardrails are still there, the courts can see that this was insane,

• 49:02Speaker 02

  maybe only because it was so hastily and badly articulated. But the point is, those kinds of guardrails that existed for some of the most egregious things he wanted to do and his people wanted to do with regard to immigration and deportation, is that all gone?

• 49:19Michael Liroff?

  Yeah. Immigration has classically been the area where the courts are the most hands-off. They've always, throughout American history, have given the executive and Congress both pretty wide leeway.

• 49:31Speaker 02

  The Muslim ban was just so racist that they had to stop it, initially.

• 49:36Michael Liroff?

  Initially, all they had them do was, like, refashion it in a way that they could feel OK about. But, I mean, one of the classic immigration cases you read about in law school is about a law called the Chinese Exclusion Act, and it's upholding that law, you know? Like, I don't think I need to get into the details about how horrifically racist it was and how bad it was that the court upheld it.

• 50:01Peter Shamshiri?

  Yeah, I think, you know, there will be points of friction, because there always are. But the Muslim ban is a really useful frame through which to think about the Supreme Court's place in the ecosystem right now, because they've spent the last few years as, like, the most powerful actor within the Republican Party, right? Everyone else was functionally out of power. And now they're going to be subjugated to Donald Trump. So, like, what's their role? I think if you look at it cynically, it's to legitimize what Trump is doing. You know, when the Muslim ban was first announced, every legal commentator and Politico was just rolling their eyes and talking about how it was outrageously unconstitutional and could never be implemented.

• 50:45Peter Shamshiri?

  But then some lawyers hammered it out in a more palatable form. They went back and forth with the Supreme Court until they basically said, all right, you can do it this way, right? The institution is a vessel through which Trump's extremism can be laundered. And I think that's one function that they will serve. The other is that they are able to discipline their political opponents, right? There will be federal judges that attempt to halt Trump's actions and programs. There will be blue state governors that try to get in the way of mass deportation. And the Supreme Court will be there to step in with like, you know, high-handed opinions about the importance of our constitutional order and federal supremacy, even though they've been spending the last four years talking about the importance of states' rights. But what shape exactly those cases take, well, I think we'll mostly have to wait and see.

• 51:31Michael Liroff?

  Right. A lot of the friction is going to be less about the specific substance of what Trump is doing and more about the presentation and whether they have wrapped it up in the right sort of legalistic paper, you know, to make it look good. And I think with immigration, I think you're going to see probably a heavy lean in on national security as well, because that's the other place where judges love to turn their brains off. And you already see it with like James Ho talking about how immigrants basically constitute an invasion, which allows for like the suspension of birthright citizenship and things like that.

• 52:12Michael Liroff?

  So I wouldn't be surprised to see some sort of executive order from Trump declaring some sort of national emergency or something like that, invoking his emergency powers, calling it an invasion, and there being a lot of litigation around those issues, the extent of the president's emergency powers and whether or not this constitutes a national emergency. And it'll probably happen in the Northern District of Texas, amongst other places, but it will definitely happen there and get a panel of crazies in the Fifth Circuit. And then we get to see what, you know, Amy Coney Barrett thinks.

• 52:51Speaker 03

  Michael, you invoking kind of national security and earlier Commander in Chief. I do want to refer listeners to our bomb power episode with Eric Baker. Basically, you listen to that episode, you're not surprised at all leaning on the Commander in Chief, national security, kind of responsibilities. But since you mentioned like some possible tensions and how, you know, certain issues are presented, say, to the Supreme Court by a Trump administration. I was wondering if a Republican-appointed, Trump-appointed even, Supreme Court Justice were going to push back or be surprisingly like Gorsuch on Native American rights, right? Like surprisingly decent on something. Is there any sense you have of will any of the Republican judges be possibly occasionally

• 53:35Speaker 03

  a thorn in Trump's side?

• 53:37Peter Shamshiri?

  Really hard to predict because it depends what Trump does and what gets brought up to the Supreme Court. But one thing to remember is like, the Supreme Court can essentially say yes or no. That means sometimes they're going to say no, you know? And this is something that will always cause liberal legal commentators to be like, the system's working, right? Because the Supreme Court says you can't just get rid of birthright citizenship with an executive order or whatever. I would imagine that what we're going to see is the right word bounds tested, right? That's what the funnel from the Northern District of Texas to the Fifth Circuit to the Supreme Court does, right?

• 54:18Peter Shamshiri?

  It pulls the law to the right as far as they can bring it. Because the movement is generally speaking to the right of the Supreme Court, that means that they're going to take some losses. But in the meantime, they are pulling it as far as they can. I would imagine, if I had to guess, that they don't win on birthright citizenship if they try to claim that there is an invasion that sort of invalidates birthright citizenship as we understand it. I would imagine that they are going to take the occasional loss on administrative state stuff because one really big thing to keep in mind, to sort of go on a tangent, is a lot of people in Trump's orbit are eager to ...abolinate executive power under Trump.

• 55:04Peter Shamshiri?

  The executive branch has many people within it that are not directly under the president's control.

• 55:09Speaker 02

  Are you perhaps thinking of the deep state?

• 55:11Peter Shamshiri?

  The deep state, the $65,000 a year bureaucrats that constitute the deep state. I mean, you have administrative law judges not currently fireable by the president. You have various quasi legislative bodies, agencies within the executive branch that also have a legislative function. So like back in the 30s, FDR was trying to fire the head of the FTC and the Supreme Court said that he did not have the unfettered authority to remove him. A lot of conservatives believe in what's called the unitary executive theory, meaning that the president has full authority over the executive branch and everyone within it. This is like a big Scalia hobby horse. Now Thomas is on it and the Roberts Court has been sympathetic in some regards, skeptical in others.

• 55:55Peter Shamshiri?

  But like Trump has talked about firing Jerome Powell, the head of the Fed, which you could not currently do, but if you believe in this theory of the Constitution, then he should be able to. I would imagine that a lot of these things get tested, that they are going to try to reorder the administrative state at the bureaucratic level. There are a bunch of people within the executive branch who are essentially career civil servants, right? The jobs function like any other and they stay on board across all these different administrations. Late in his first term, Trump issued the Schedule F executive order, basically attempting to have a lot of those jobs designated as political appointees, right? Just wipe out the civil service and replace it with the patronage system. I don't think the Roberts Court buys this in full, but I don't know exactly where they land either.

• 56:39Speaker 02

  Schedule F did go into effect. Is it a matter of them trying to extend the logic of that executive order to the entire civil service?

• 56:47Peter Shamshiri?

  Yes. Schedule F was relatively tame.

• 56:50Speaker 02

  You could reclassify certain civil service jobs as political appointees instead.

• 56:54Peter Shamshiri?

  Yeah, and he was asking the heads of cabinets to basically identify the positions in question. But there are, of course, people within the conservative legal movement who want these bureaucrats completely removed and replaced. Just how far they go and how far- The court allows them to go is sort of up in the air right now. But that's one of those areas where I would expect at least some friction. Right. It's really hard to predict how much because you don't really know exactly how these issues are going to manifest.

• 57:23Michael Liroff?

  Yeah, I do think it's hard to predict because we don't know the precise shape of the challenges. But I will say, like, understanding the the individual sort of quirks of the justices. Like Gorsuch is a self righteous prick. And that can be very annoying when he's on the conservative side because I mean that in like the truest sense, like he is super self righteous. He thinks he's right and he's like, this is the right thing and we live with the consequences. And if that means scrapping the entire New Deal, so be it. But that also means when he's like, if that means we have to honor a treaty that we signed 150 years ago with a native tribe.

• 58:06Michael Liroff?

  We honor it. I don't care if it's politically inconvenient, you know, like it can be beneficial as well when his instincts take him somewhere good. He's not afraid of big political fallout. That comes with that sort of righteous feeling. Whereas Roberts cares more about the image of the institution. Like he thinks their victories only last so long as the public believes in the institution working apolitically. He's, I think, very disconnected from the public because he's clearly marinating in right wing news as well.

• 58:44Speaker 02

  Or he might be marinating in some like centrist news that depicts him as like the voice of reason and order.

• 58:52Michael Liroff?

  Well, I mean, I think he's the source of a lot of that centrist news. Clearly him or a clerk's, he gives permission to speak to a certain cadre of reporters. And then get soft glow profiles in in return.

• 59:06Peter Shamshiri?

  But I think you're right, Michael, that there is recent evidence that he is a little bit out of touch. The reporting seemed to show that he was surprised that the immunity decision didn't go over well from a PR perspective.

• 59:19Speaker 02

  That is nuts.

• 59:20Michael Liroff?

  Yes.

• 59:21Peter Shamshiri?

  And, you know, he thought that just saying like, well, this applies to all presidents would sort of make it seem nonpartisan, as if we're the dumbest fucking people alive, right? As if like, we can't read between the lines there. So there are some indications that he's like, a very talented PR guy, but then there's also indications that he's not quite as good as he thinks he is.

• 59:41Speaker 02

  I have a question that I hope won't open too big of a can of worms, but I realize that one of the differences in the ways that the executive might relate to the civil service, one of the ways that Congress might relate to the agencies, is the Supreme Court decision that ended, Chevron deference. So maybe for our listeners, if you could describe what that is, what happened in this decision, and what it might mean for how Trump and his ideologically aligned appointments to these agencies who want to use the levers of power to enforce their moral orthodoxy or whatever.

• 1:00:18Michael Liroff?

  So Chevron deference is based on a case from 40, 50 years ago. Basically, like, administrative agencies are these sort of quasi-legislative, quasi-executive institutions. And they can promulgate regulations which generally have the force of law. And the question is, well, what happens when there are ambiguities around the laws that created the agencies and whether their regulations are, in fact, legal exercises of their power? And Chevron deference just said, look, if there's ambiguity, we defer to the agency's interpretation because the agency's the expert in its own. Organizing statutes, right? It knows its stuff.

• 1:01:03Michael Liroff?

  That's the whole point. And it's a judicially modest opinion about the court's role in this power sharing agreement between the executive branch and the legislative branch. And so, ending Chevron deference is an assertion of authority by the Supreme Court.

• 1:01:21Peter Shamshiri?

  Yeah. Previously, they were focusing on putting the brakes on regulation. And the end of Chevron deference is very useful for that, because it just strips power away from the agencies. They obviously still have that goal, but with this added goal of centralizing control under Trump and more actively using the administrative state to advance right-wing objectives, right? So like, the FCC going after media licenses, maybe. I'd be a little bit worried about the IRS and who they're going to audit. You have potential FTC heads talking about how they're going to prioritize being anti-trans somehow at the FTC. So I think what we're likely to see is a very distinctly different approach to the

• 1:02:06Peter Shamshiri?

  administrative state, because they are now going to be weaponizing it, right? So we'll see where this leads. I think, in a nerdy sense, it's interesting, but I don't want to say interesting, because it's more like it's awful. It's interesting in the sense that like, it would be interesting to watch a meteor hit the Earth.

• 1:02:21Speaker 02

  Well, it is. I think what you're saying that is interesting is that there was a long time where the conservative legal movement and really the conservative political establishment wanted to get rid of Chevron so they could destroy the administrative state. And it kind of arrived at this moment where there are more people in the MAGA movement and in Trump's White House, some of them who have been appointed, who actually are like, wait, we actually want the agencies to be able to do whatever they want.

• 1:02:50Peter Shamshiri?

  Yeah, absolutely. Obviously, their ideal version of American government involves a very robust and active anti-immigration apparatus, right? That includes functions within the administrative state. Part of how they square that is because some of these functions are traditionally more deferred to than other. There's like, like Michael mentioned, immigration is traditionally an executive function and therefore courts tend to back off a little bit. But you have things like the FCC, the IRS, these sorts of agencies, not traditionally super active in the way that Trump wants them to be. We will see where that leads them, but they certainly don't have any trouble being hypocrites about this stuff.

• 1:03:32Speaker 03

  Well, you know, some of those comments lead directly to maybe a final question. And it's kind of a more specific version of some of what you were describing. You know, these past couple of weeks, we've seen who Trump is going to nominate for cabinet positions, you know, to staff his administration. And I just was thinking, you know, we've been talking mostly about the courts, right? But as a part of the functioning of justice, such as it is in the United States, you know, there's the FBI, there's the Justice Department. And I'm just kind of wondering if someone like Kash Patel ends up running the FBI and someone like Pam Bondi is the Attorney General, or people like them are in positions of that kind of responsibility. I'm thinking especially Patel at the FBI. How do you see that playing out?

• 1:04:16Speaker 03

  First of all, I know that's a speculative question, but maybe even more importantly, like, how do you see people in those kinds of positions like that interacting with the courts and the, in the legal system?

• 1:04:26Peter Shamshiri?

  There's a very interesting question here because it's very obvious that they are interested in retaliatory prosecutions and investigations. I mean, Kash Patel is basically a former lib who has shifted to Trump's side based entirely on grievance, based on his negative experiences in his mind with the workings of the federal bureaucracy. So I would imagine that we are about to again see the outer limits of this tested. I can't tell whether Bondi is worse than Matt Gaetz, for example, or whether it's all sort of a wash. I think Bondi is a lock to go through. Patel, not so much.

• 1:05:09Peter Shamshiri?

  I think that what we are likely to see Is a surprising amount of cooperation from the federal courts in this respect because there is not really a framework in place to stop it. A lot of what holds DOJ independence together, right? The idea that like the DOJ should be in, to some degree, separate from the president is just norms. A court can't say necessarily, hey, this prosecution seems a little bit unfair, right? Are you just pursuing this for political purposes? That's not in almost any case, a question that a court can ask. So I think that for the most part, courts are going to step aside here, which is obviously a big concern.

• 1:05:51Peter Shamshiri?

  Now, it won't happen in every case, because some cases, for example, you might have free speech concerns, where there might be some fighting around the margins. But if you're just talking about targeting a political opponent and trying to dig up some dirt, I don't see the court standing up to that.

• 1:06:07Michael Liroff?

  Yeah. And to that point, worth noting that in the immunity ruling, the majority went out of its way to say that the president talking to the DOJ is like a core power for which he has absolute immunity.

• 1:06:22Peter Shamshiri?

  Oh, yeah, I forgot about that. I forgot that John Roberts already basically said DOJ independence is fake, by the way.

• 1:06:28Michael Liroff?

  Yes.

• 1:06:29Speaker 02

  That's amazing.

• 1:06:30Michael Liroff?

  And the other thing I'll say to your listeners is, you know, that Trump said that people who criticize the Supreme Court should be imprisoned. And so pray for us.

• 1:06:41Speaker 02

  Now, you're asking our listeners to pray that you will will not be imprisoned.

• 1:06:44Michael Liroff?

  However, they feel, just keep us in your hearts regardless.

• 1:06:49Peter Shamshiri?

  I have repeatedly said on the podcast that I have been joking that this has all been a joke, that we're doing satire of a left-wing podcast.

• 1:06:59Michael Liroff?

  That's right.

• 1:07:00Peter Shamshiri?

  And I think any reasonable juror would agree.

• 1:07:02Speaker 03

  Well, that was a very joyful and hopeful note to close on, talking about Cash Patel running the FBI and Pam Bondi presiding over the Department of Justice. So thank you, guys, for making me feel even more depressed than I was entering this conversation.

• 1:07:17Peter Shamshiri?

  It's the only thing we're truly great at.

• 1:07:19Speaker 02

  Is there literally anything that people who are concerned about the future of the judiciary and the composition of it under Trump 2.0, is there anything they can do besides listen to your podcast?

• 1:07:31Speaker 03

  Listen to ours.

• 1:07:33Michael Liroff?

  Yeah, I mean, I think like the answer is that if you want better courts, we need a better Democratic Party, and that means different leadership and serious primary challenges and all that. But, you know, I think we have to at least brace ourselves for the possibility that these will seem like quaint questions in a few years, you know?

• 1:07:55Speaker 02

  Yeah. Well, thanks, guys. That really was uplifting.

• 1:07:58Peter Shamshiri?

  This is a conversation we have at the end of every episode where we're like, is there something positive we can say? And then we just sort of trail off and say goodbye.

• 1:08:06Speaker 02

  But I loved having you both on the podcast. This was really fun.

• 1:08:09Peter Shamshiri?

  Always a pleasure, guys. Thanks for having us.

• 1:08:11Michael Liroff?

  So much fun. Thank you so much.

• 1:08:13Speaker 03

  Yeah, thank you both for being so generous with your time. Listeners, don't forget to subscribe and listen to Five to Four if you don't already. And thanks again, guys. Listeners, we'll catch you next time.

• 1:08:24Speaker 02

  Bye.