2026-2027 Supreme Court Term Preview

It’s fall and you know what that means: a chill is in the air and in Sam Alito’s heart. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this episode ad-free and listen to Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5 to 4 is presented by Prologue Projects. This episode was produced by Allison Rodgers. Leon Neyfakh provides editorial support. 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.bsky.social. 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.

• 0:04Speaker 00

  Hey, everyone. This is Ally from Prolog Projects. On this week's episode of Five to Four, Peter, Rhiannon, and Michael are taking a look at the Supreme Court's upcoming term. As you'll hear, the cases on the docket don't all point in a single direction or reflect a cohesive political goal, like, for instance, the expansion of executive power. Nevertheless, most of the issues the court will be weighing in on—the Second Amendment, trans rights, voting rights—reflect longstanding conservative agenda items, showing the right is quietly advancing its project through the court while Trump gets all the media attention. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 0:49Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have shit all over our civil rights, like a high rocks competitor shitting all over herself. I'm Peter. I'm here with Michael.

• 1:02Michael Liroff?

  Hey, everybody.

• 1:03Peter Shamshiri?

  And Rhiannon.

• 1:04Speaker 03

  Hi.

• 1:05Michael Liroff?

  So what is this? I've seen this linked in several boys chats, you know, on text, and every time I'm like, I'm not clicking that.

• 1:13Speaker 03

  I got you. Step aside, boys. I have the full story here.

• 1:16Michael Liroff?

  Okay.

• 1:17Speaker 03

  So you don't want to hate on somebody so dedicated to the craft, dedicated to the mission, dedicated to this kind of, you know, physical feat, let's say.

• 1:25Peter Shamshiri?

  Should go without saying, in better shape than us, you know?

• 1:28Speaker 03

  Absolutely. I'm criticizing from my couch eating fettuccine Alfredo, okay? So this athlete does, in fact, as she's doing this high rocks, you know, fitness race—

• 1:37Peter Shamshiri?

  Which is like, it's like a multi-stage endurance race kind of thing, right?

• 1:40Speaker 03

  Yes, you're gonna do some burpees, you're gonna lift some stuff, you jump on things, and then you run a long time, you know? It's one of those guys. And so she does, in fact, shit herself. She shits herself a lot. It keeps coming. It's visible, and it's also getting on the track. It's getting on stuff.

• 2:01Michael Liroff?

  No, no.

• 2:02Peter Shamshiri?

  Well, this is the difference, I think, between this and the sort of standard marathon runner shits themselves—

• 2:09Speaker 03

  Yes.

• 2:10Peter Shamshiri?

  —narrative. So I guess marathon runners occasionally just poop their pants because God didn't intend for any of this.

• 2:17Michael Liroff?

  Yep.

• 2:18Peter Shamshiri?

  That's something we all accept. It's sort of like, sometimes it happens.

• 2:20Speaker 03

  Yeah.

• 2:21Peter Shamshiri?

  The difference here, as I understand it, Ree, is that this race involves, like, shared equipment.

• 2:26Speaker 03

  Yes, yes, that she's now dragging shit all over. And so, you know, I think she, again, God bless her and congratulations, I think that she actually finishes in one of the top spots, and she's like, hey, a win's a win.

• 2:39Peter Shamshiri?

  You better finish one of the top spots after that.

• 2:41Speaker 03

  I did this through everything, right? Meanwhile, other people in the race, in the competition, are like, hey, this stuff's covered in shit. I'm actually not gonna touch it. And they got disqualified.

• 2:54Peter Shamshiri?

  Right, no.

• 2:55Speaker 03

  And she didn't get disqualified for getting shit all over everything.

• 3:00Peter Shamshiri?

  Which actually makes it like, good strategy, right? If those are the rules, then like, the smart thing to do is to just like—

• 3:09Michael Liroff?

  Just burn all your energy early, shit all over everything, and everybody behind you gets disqualified. You're the only one who finishes.

• 3:16Peter Shamshiri?

  Eat a full pizza four hours before the race, and just take off, take off, and get ahead of everybody, and then just let it rip.

• 3:25Speaker 03

  Yeah, yeah. So I guess now, like, she's lost a brand deal or something like that, like, there have been some consequences. Maybe a win isn't quite just a win, but—

• 3:37Peter Shamshiri?

  Nike no longer wants to be associated with it. This is also one of those things, though, where I do believe she has committed a relatively horrible crime, but—

• 3:49Speaker 03

  True.

• 3:50Peter Shamshiri?

  —does she deserve what is coming? In terms of internet scorn and abuse? Hard to know. We'll see.

• 3:58Speaker 03

  Yeah.

• 3:59Peter Shamshiri?

  You know? It's like a Raygun situation, where it's like, I don't, I wouldn't describe myself as a supporter of her, but surely you can agree that the reaction was disproportionate.

• 4:08Speaker 03

  Yeah.

• 4:09Peter Shamshiri?

  I don't know, maybe it's a closer call here, where she sort of shits shit on shared fitness equipment.

• 4:14Speaker 03

  She shit on stuff, yeah.

• 4:16Peter Shamshiri?

  Yeah. Maybe in order to keep society working, once every decade, someone who shits on shared gym equipment needs to be publicly shamed across the globe, you know?

• 4:25Speaker 03

  Right, right.

• 4:26Peter Shamshiri?

  All right, term preview episode, folks. It might have felt like the last Supreme Court term never ended, and that you got no respite at all, but actually you did. You might, you might not be aware that the Supreme Court has not technically been in, like, full session for a few months now. We are approaching the first Monday of October, and that means a new Supreme Court term, and that means a bunch of horrific new cases that you're about to learn about over the course of the next nine months, whether you like it or not. So we are here to cushion the blow, give you a little slice of what's coming, one by one. And, Michael, I'm gonna hand it off to you for the first case here.

• 5:06Michael Liroff?

  Yeah, and before we get into it, I want to say we're choosing mainly from cases from October, November, December. They've already been briefed, they've already been set for argument. There are cases they've accepted cert on that haven't been briefed or set for argument yet, and—

• 5:21Peter Shamshiri?

  And there will be cases that haven't made their way up to the court yet.

• 5:24Michael Liroff?

  As well as emergency applications and things like that. So there's just, there's gonna be so much more than this, but we're gonna start with this stuff. So first of all, we got Vera Montes v. Cook. This is the latest in a horrific line of Second Amendment challenges to gun laws. In particular, this is about AR-15-style rifles, semi-automatic weapons, what are colloquially called assault rifles. So Illinois, as well as Connecticut, California, New York, and about a dozen other states, all ban these sorts of weapons.

• 6:03Speaker 03

  Yeah.

• 6:04Michael Liroff?

  There is good reason to believe, and I believe some data suggesting that this has a good impact. It reduces the likelihood of mass shootings, it reduces the likelihood of school shootings. It has been a social good to have these bans in place. But Cuberto Vera Montes and Christopher Caya are not happy that they're barred from owning AR-15-style weapons, or AR-15 weapons themselves. And so they and some gun rights organizations have filed suit, saying this is a violation of the Second Amendment. This is, of course, the latest case since Heller finding a Second Amendment right, individual right, to owning firearms.

• 6:49Michael Liroff?

  And then, more recently, Bruin, which said that when you evaluate gun laws, you look into the history and tradition of gun regulation in this country in order to determine whether or not contemporary regulations are constitutional. This is concerning. This is concerning that the court is going to overturn yet more gun regulations. So this is a big one, it's one we're keeping an eye on, and one that I think you should be worried about.

• 7:18Peter Shamshiri?

  Yeah.

• 7:19Speaker 03

  Yeah, especially in a context of, like, when they're using this history and tradition evaluation. We know they're cherry picking history and tradition.

• 7:25Peter Shamshiri?

  Obviously.

• 7:26Michael Liroff?

  That's right.

• 7:27Peter Shamshiri?

  I can't remember if I mentioned this in Heller or Bruin or what, but my analysis has always been, the fact that an AR-15 is considered an arm, in the sense that the Second Amendment says "arms," is basically a, you know, a coincidence. It is so distant from what the founders thought of when they thought of arms, right?

• 7:48Michael Liroff?

  Right.

• 7:49Peter Shamshiri?

  A couple of well-trained operators right now could have wiped out the Continental Army and the militias, right? I mean, we're, it's absurd to think these are the same thing. But I'm excited to move on. We've been talking about AR-15 bans for, like, a decade now. It's time to get into medium-range artillery.

• 8:06Michael Liroff?

  That's right. I want a constitutional right to own a drone that could drop a bomb on something.

• 8:13Speaker 03

  Oh, I was thinking like cannons, but you guys were real intense with it, sure.

• 8:18Peter Shamshiri?

  The fact that, like, drone use is banned in so many places, you could actually make it more constitutionally viable if you put weaponry on it.

• 8:26Michael Liroff?

  Attached to guns, yes.

• 8:28Peter Shamshiri?

  Like, no, Your Honor, this isn't a civilian drone at all. This is actually a self-made predator drone.

• 8:35Michael Liroff?

  That's right.

• 8:36Speaker 03

  And therefore an arm, and therefore protected by the Second Amendment.

• 8:40Peter Shamshiri?

  Yeah, so I believe I am free to go. All right. Next up, another very big one, St. Mary Catholic Parish v. Roy. This is a challenge to Colorado's non-discrimination law in the context of religious schools and the state's universal preschool program. The state of Colorado has taxpayer-funded universal preschool, but maybe you're not eligible for those taxpayer funds if your school discriminates against LGBT children and families, right? But of course, religious schools not too happy about that. They want to suck on that government tip, but they don't want to owe anything to society.

• 9:24Michael Liroff?

  Right.

• 9:25Peter Shamshiri?

  That's not what it's about. So they are challenging this. They are saying that constitutionally, under the free exercise clause, they need an exemption. This is something we've talked about in many different contexts, right? The idea that a lot of modern free exercise jurisprudence is being done through a set of requests for exemptions from discrimination laws.

• 9:51Speaker 03

  Yeah.

• 9:52Peter Shamshiri?

  And this traces back to 1990. There's this big case, Employment Division v. Smith. And in that case, Justice Scalia actually came to the conclusion that any generally applicable neutral law is not going to violate free exercise. This was in the context of a couple of guys who were convicted of the use of peyote. And they said, hey, this is a religious thing, right? A Native American. This has religious connotations, so this should be protected free exercise. And the court said, no, the laws against that sort of drug use are neutral and they are generally applicable. They're not targeting your religion. They apply to everyone. So we are going to uphold

• 10:37Peter Shamshiri?

  them. And that was then the rule. We then saw a bunch of narrowing of that rule. Conservatives hated it. First, you saw the passage of RFRA, the Religious Freedom Restoration Act in the early 90s. That's something that like Bill Clinton championed. This had a lot of cross-aisle appeal. That was able to like basically get rid of that case in the federal context, but in the context of state laws, it still applies. So it's been narrowed even further by the court since then. If you want to get all legal nerdy, there's this doctrine called the most favored nation. And the idea is that a law can't prohibit religious activity if similar secular

• 11:16Peter Shamshiri?

  activity is allowed. So if you say, hey, this law is preventing me, a religious person, a religious organization, from doing this thing I want to do under my religion, but it's allowing a secular person to do a very similar thing, right?

• 11:30Speaker 03

  Yeah.

• 11:31Peter Shamshiri?

  That sort of narrowed the rule quite a bit. And then the conservatives have grabbed onto that and just squeezed. So during COVID, you had the fight over religious gatherings, where there were laws being like, hey, no religious gatherings with this many people in this large of a space. And the court said, no, no, no, you can't do that because you're not treating grocery stores the same way as churches. Now, the thing about that is that grocery stores and churches aren't really similar. People don't stand in one place in a grocery store singing and talking, for example.

• 12:05Michael Liroff?

  Also, you buy necessary sustenance at grocery stores.

• 12:09Speaker 03

  Yes.

• 12:09Peter Shamshiri?

  Well, liquor stores were also part of it. All right?

• 12:12Michael Liroff?

  You buy necessary sustenance at liquor stores.

• 12:16Peter Shamshiri?

  Basically, they sort of started narrowing the idea of like, what's similar, right? What's really similar? And Alito, Gorsuch, Thomas, they've all signaled they want to get rid of this altogether. You had Fulton v. Philadelphia in 2021. And basically, we're at a point where like, if there's a law that inhibits religious activity and it provides for any exceptions whatsoever, then religious organizations are entitled to an exception. So Employment Division v. Smith, it's on its last legs. And the real question is, are they just going to put a bullet in its head? Because you know they're going to let these Catholic schools discriminate against gay families, like, right? But are they going to be like, Employment Division, we're scrapping it? Or are they going to pretend that this zombie

• 13:01Peter Shamshiri?

  precedent is still alive? I think that's sort of the fundamental question here.

• 13:05Speaker 03

  And what you see, like, especially out of Colorado, weirdly, they've got litigious fucking conservatives there, but they also have a state ledge that is effectuating passing non-discrimination laws. But you see this line of cases too, in recent years. There's Masterpiece Cake Shop, there's 303 Creative, there's the therapist doing conversion therapy case. You know, there's all these situations, especially free exercise, freedom of religion, freedom of speech, where the Supreme Court is using those to invalidate anti-discrimination laws, right? And like, what's coming, a lot of people are seeing is like, could they start invalidating federal non-discrimination statutes, Title VII, Title IX, the ADA, the Fair Housing

• 13:50Speaker 03

  Act? This is all coming into question.

• 13:52Peter Shamshiri?

  And what's the difference if everyone who wants to discriminate can just say, yeah, it's religious, right?

• 13:58Michael Liroff?

  I mean, yeah, I think the only real conclusion you can draw from this is just that the conservatives are like, yeah, of course, people should get to discriminate against gay people. They're fucking gross. They're wrong. They're sins against God.

• 14:10Peter Shamshiri?

  Part of the liberal response to these cases has always been, well, can you do it with race? And conservatives dodge it. Conservatives, I've never seen a conservative tackle this question head on. They'll usually just say, well, it's like a higher level of scrutiny. Or they'll be like, oh, how dare you compare the two, right?

• 14:27Michael Liroff?

  Right.

• 14:27Peter Shamshiri?

  Our righteous crusade against gays is nothing like the horrible crusade against racial minorities from the mid-century that my literal dad was involved in.

• 14:36Michael Liroff?

  Which is, of course, in the past.

• 14:38Speaker 03

  Yeah. And it's always a wink, wink, nod, nod, because they don't care. They don't think it's horrible. Yeah.

• 14:43Michael Liroff?

  Yeah.

• 14:43Speaker 03

  All right. Next up, still on a question of LGBTQ rights, there is a case at the court this term coming up, International Partners for Ethical Care v. Ferguson. Now, this has to do with access to medically necessary care for trans youth. So International Partners for Ethical Care, this is a nonprofit organization. They do anti-trans activism and, you know, they operate under this umbrella of parental rights. Basically, though, what they're doing is working to restrict access to gender-affirming care for trans kids.

• 15:20Peter Shamshiri?

  Your parental right to be transphobic, not your parental right to support your trans child, just to be clear.

• 15:24Speaker 03

  That's exactly right. So the state of Washington, a few years ago, found that there was a crisis of transgender youth homelessness. And they took steps to try and address this by updating laws to allow kids in shelters, we're talking about homeless children, you know, updated their laws to allow those kids to access healthcare, including gender-affirming care, without contacting their parents. You know, staff under this law, staff at these shelters still have to make a good faith effort to contact parents, and they can't withhold information from parents unless it would cause harm to the child. But, you know, again, Washington felt this was necessary to keep kids off the street, recognizing in passing these laws that LGBTQ youth are more than twice as likely to experience

• 16:10Speaker 03

  homelessness. They make up as much as 40% of all unhoused children. So in comes the transphobes, International Partners for Ethical Care, to sue the state of Washington here. And they're saying this infringes on their parental rights to care for, to raise children how they see fit. However, this case is actually not about the merits, but a question of standing. Do these parents, does this organization, International Partners for Ethical Care, do they have standing to actually sue here? We've been talking about standing a lot in the past couple of years. Our last case episode was about Trump's ballroom, right? And how the Supreme Court said that the National Trust for Historic Preservation did not have

• 16:55Speaker 03

  standing to sue to stop the ballroom from being constructed. Why? Because you have to be harmed to sue. You gotta be about to be harmed to sue. You know, there has to be an injury or imminent injury. So this case where the ethical parents are suing, it goes up to the Ninth Circuit, and a panel there said, for this plaintiff group, you don't have standing. You're saying your ability to parent has been constrained. That's not standing. And also, you're speculating that sometime in the future, your kid who you've ostracized in your home might run away. Remember, this law in Washington is about unhoused youth who are in shelters. These parents are just like, this affects my right to parent.

• 17:40Speaker 03

  And it's like, this doesn't apply to you or your children.

• 17:43Peter Shamshiri?

  Are they saying it makes them like, likely to run away? Like, it incentivizes it or something?

• 17:47Speaker 03

  Yes.

• 17:48Peter Shamshiri?

  Yeah.

• 17:48Speaker 03

  It's part of their thing.

• 17:49Peter Shamshiri?

  Yeah. Kids love that. Kids love to be homeless, you know, for the benefits.

• 17:52Speaker 03

  Right.

• 17:53Peter Shamshiri?

  For the sick benefits of being a teenager, a teenager without a home.

• 17:58Speaker 03

  Right.

• 17:59Peter Shamshiri?

  Who can resist?

• 18:00Speaker 03

  It's ridiculous. So the Ninth Circuit said, this is not injury. You have not suffered an injury. You are speculating about maybe some remote possibility of suffering an injury under these Washington state laws. You do not have standing. But in all the cases we've talked about with standing under this court, right? They're finding standing for who they want to have standing for, for who they want to be able to sue. In this instance, our prediction, for the International Partners for Ethical Care and these transphobic parents. And they're blocking others from having standing, or they're not finding that others have standing who they don't want to be able to sue. So, you know, not much more to say about that, but it's going to be, it's going to be harmful.

• 18:44Michael Liroff?

  We talked about, you know, there's nothing appealing about running away. And it usually only happens for kids who are very desperate. But let's be real, a lot of these kids are unhoused, not because they ran away, but because they were kicked out.

• 18:58Peter Shamshiri?

  Right.

• 18:58Michael Liroff?

  And the idea that after being kicked out of their home because of their identity, those parents then still get to reach out and prevent them from acting on that identity, from getting care for their trans identity. It's so fucking monstrous, like, top to bottom monstrous. These are, these are very, I think these are evil people. I think they're just the fucking scum of the earth.

• 19:26Peter Shamshiri?

  We do have a solution for these types of people, but we can't talk about it on the podcast.

• 19:32Speaker 03

  Yeah.

• 19:32Peter Shamshiri?

  Because it's too cool.

• 19:34Speaker 03

  It's private convo.

• 19:35Peter Shamshiri?

  Catch us in the DM FBI.

• 19:46Michael Liroff?

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• 20:29Michael Liroff?

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• 22:59Michael Liroff?

  So next up, we have a voting rights case, because what's a Supreme Court term without, you know?

• 23:05Peter Shamshiri?

  You gotta, you gotta have one.

• 23:06Speaker 03

  Yes.

• 23:06Michael Liroff?

  You gotta have one, at least.

• 23:08Peter Shamshiri?

  It's like every year for, for Christmas, my mom used to put Hershey Kisses in the stocking, you know? And that's, that's what they do with voting rights cases.

• 23:17Speaker 03

  Every year, a term is being announced, and you're gonna have a voting rights case. You're welcome.

• 23:22Michael Liroff?

  This is RNC v. Mi Familia Vota. This is about state law in Arizona that requires proof of citizenship, documentary proof of citizenship, in order to register to vote. Now, the thing is, Arizona is subject to this law called the National Voter Registration Act, as passed in 1993. Most states are subject to it. The only exemptions are if you don't require voter registration at all, which is North Dakota, or five other states that allow same-day registration. So you can go to the polls on Election Day and register to vote. A handful of states do that. The other 44 states and the District of Columbia are all subject to this law, which,

• 24:07Michael Liroff?

  among other things, requires that they make voter registration available when you get a driver's license. So you can check that little box that says I want to register to vote, too, and it's done. So requiring documentary proof of citizenship is an additional hurdle to registering to vote that is, you know, in conflict with this law. Arizona is also subject to a consent decree, which is a settlement of litigation where they agree to do certain things, in this case, related to this law and not requiring, you know, proof of citizenship. So the question is, can they do this? Can they?

• 24:51Michael Liroff?

  There are criminal penalties for, for people who violate this law. And you have a question of, well, does the National Voter Registration Act sort of supersede this state law? Does the consent decree prevent the state law from going into effect, et cetera, et cetera? So this is the big case. Arizona is a classic hotbed of voter suppression these days. It's not the first voter case we've had out of here, and I doubt it'll be the last. They have an absolutely insane Republican Party. So, you know, it's not hard to imagine the court ruling for the RNC here, which could

• 25:35Michael Liroff?

  make it much easier to suppress the votes of minorities and lower-income people in Arizona. Yay.

• 25:44Peter Shamshiri?

  All right. Sorry if that was depressing. Let's talk about climate change.

• 25:49Speaker 03

  Yeah, pick us up, Peter. Pick us up.

• 25:52Peter Shamshiri?

  Now, climate change doesn't, like, often come to the Supreme Court in this format because it is legal. It is legal to boil the earth. Technically, there's no law against it, and nominal efforts to fight it at most over the last several decades. Usually, this shit comes to the court in the form of EPA regulation gets knocked down.

• 26:14Speaker 03

  Yeah, administrative state stuff.

• 26:17Peter Shamshiri?

  This one's sort of novel. Let's say you thought, hey, I would love to sue an oil company for doing climate change. How do you do it, right? There's no law, generally speaking, that says, like, can't do oil shit. Quite the opposite. Plenty of permissions in our laws for companies to drill for oil, et cetera. Boulder City and Boulder County, Colorado, put together a sort of network of tort claims. And, like, they involved nuisance, trespass, civil conspiracy, deceptive trade practices, all sort of like targeting the idea that these companies are engaged in harmful and deceptive practices contributing to climate change.

• 27:00Peter Shamshiri?

  They sued Suncor and ExxonMobil. This is a strategy that was used against Big Tobacco very effectively in the 90s. You know that these companies are causing big, widespread harm, but there's no statute that allows you to target it super directly. So you have to be creative. With Big Tobacco, there were cases surrounding, like, Medicaid and the, the fact that they were making people less healthy, and then that would raise costs for everyone else. And you also had tort claims like this one. So Big Tobacco responded, saying, hey, no, these claims are precluded by federal law. You have federal laws like the Clean Air Act.

• 27:44Peter Shamshiri?

  Those are the laws that sort of control this area and should preclude these state claims. Preclusion is just the idea that in some areas of the law, federal law is supreme to state law. So if there's a federal law governing that area of the law, then you generally can't sue under state law, right? You're trying to interfere with federal law too much, and so they say it's precluded. So the question is, are these claims precluded, even though they are garden-variety tort claims? So not to get too doomer on this podcast, but I'm trying to think of a case that has a confluence of things the conservatives dislike more than this one.

• 28:27Peter Shamshiri?

  Activist tort claims.

• 28:29Speaker 03

  Yeah.

• 28:29Peter Shamshiri?

  Targeting oil companies.

• 28:31Speaker 03

  Mm hmm. Caring about climate change.

• 28:34Peter Shamshiri?

  You're talking about John Roberts's friends at ExxonMobil right now.

• 28:38Speaker 03

  Yeah, yeah. Come off it.

• 28:40Peter Shamshiri?

  You're talking about the owners of the yachts that Sam Alito and Clarence Thomas vacation on.

• 28:47Michael Liroff?

  Alito, I think, has documented investments in oil companies, right? Significant ones.

• 28:51Speaker 03

  Yeah, I think Exxon.

• 28:53Peter Shamshiri?

  That's a lingering thing in this case, which is that, like, Alito, as far as we know, still has oil company investments and has not recused himself from this case.

• 29:03Michael Liroff?

  Yeah, that's right.

• 29:03Peter Shamshiri?

  God, I love being in the game, dude. It's so good. It's so funny. It's so funny that he's just like, "Trust me. Trust me, I'll be unbiased."

• 29:12Speaker 03

  Yeah. It's good stuff. Everybody having fun. I'm having so much fun.

• 29:15Peter Shamshiri?

  These term previews are so fucking brutal.

• 29:17Speaker 03

  I'm having so much fun. I say through clenched teeth, I'm white knuckling the desk in front of me. So the next case, y'all, is called Nielsen v. Watanabe. This is an Eighth Amendment case. The Eighth Amendment protects you from cruel and unusual punishment, unless it doesn't. You know what I mean? So let's talk actually about some important civil rights precedent. The court, a couple of times in the past, you know, it's just a sprinkle that they do something good. We've talked about this case Bivins. This is a Supreme Court decision from the early 70s that says that when federal officials violate your constitutional rights, at least under the Fourth Amendment,

• 29:59Speaker 03

  you have a private right of action against those federal officials. You can sue them for damages. You can file a lawsuit against them for money because your Fourth Amendment constitutional rights were violated. And that case, you know, then, about a decade later, was extended to Eighth Amendment violations. That's a case called Carlson. But conservatives hate this. They don't care about violations of individual rights under the Fourth and Eighth Amendments. They certainly don't want there to be a remedy for it when it happens, right? What Bivins does, what Carlson does, is gives you a remedy when your Fourth or Eighth Amendment rights are violated. You have a remedy for it. The Supreme Court said in the past, "You should be made whole. You can sue for damages." Conservatives hate this, right?

• 30:44Speaker 03

  Just to take a quick step back and to say two sentences about this, you know, conservatives care a lot about the Second Amendment, not to say that there's a private right of action for suing for damages when your Second Amendment rights are violated, but it is really important that, like, we think about sort of systemically that, at a time, for a time, the Supreme Court saw Fourth Amendment violations and Eighth Amendment violations as important enough to affirmatively create a remedy for people when those rights are violated. Now flip it. When conservative justices are looking at this, they don't give a fuck at all about the Fourth Amendment or the Eighth Amendment, so they don't want there to be a remedy.

• 31:22Speaker 03

  Back in 2022, I don't remember the case name, but Gorsuch said that Bivins, for example, he called it, quote, "a misstep." So they want to get rid of these precedents. Let's talk about what happened here in terms of this Eighth Amendment violation. Kekai Watanabe was incarcerated in federal prison in 2021 when he was brutally assaulted during a fight. His back was broken. Bone chips entered soft tissue in his lower back. But instead of taking him to a hospital, instead of getting him or providing him necessary medical treatment, federal prison guard, a paramedic in the federal prison system, Francis Nielsen, told Watanabe to stop being a crybaby,

• 32:07Speaker 03

  and he didn't do anything about Watanabe's very serious injuries. Instead, actually, this eventually led to Watanabe being put into solitary confinement for two months without medical treatment. And so, under Bivins, it's progeny Carlson, Watanabe sued. He has a private right of action against the prison guard Nielsen because his Eighth Amendment rights protecting him from cruel and unusual punishment had been violated. But Nielsen, this guard, he's represented by former Assistant Solicitor General Jeffrey Lampkin, and their argument, of course, is that Bivins, Carlson, these should be overturned outright. And so what would happen if the Supreme Court agrees with that pretty sick argument?

• 32:52Speaker 03

  Well, it's a legal regime in which a person who is intentionally injured by a federal agent's violation of their constitutional rights, that person has no remedy for damages. They can't be made whole. And before we move on to the next case, we've talked a lot about how, what is a right without a remedy? If you don't have a way to be made whole after your rights are violated, then what does the right actually mean? So this is, you know, continuation of them essentially ineffectuating, especially the Eighth Amendment here. But if they overturn Bivins, that's ineffectuating the Fourth Amendment, too.

• 33:30Michael Liroff?

  So.

• 33:32Peter Shamshiri?

  What do you got, Michael? Anything good happening?

• 33:34Speaker 03

  Bring us up, Michael. Michael, you got this. Bring us up.

• 33:37Michael Liroff?

  Sorry, guys. Another...

• 33:41Michael Liroff?

  Another bad one. This one's about the Department of Labor v. Sun Valley Orchards. Sun Valley Orchards decided to screw their workers. Guest workers on visas and domestic workers alike just didn't pay them wages or didn't pay them enough. The Department of Labor had a whole administrative process, found them in violation of the law, and ordered them to pay back wages. Sun Valley sued, and they said, "The Department of Labor can't do this because this is adjudicative." This is the realm of the judicial branch. It's not for Congress. It's not for the executive. It's certainly not for these hybrid legislative slash executive agencies.

• 34:26Michael Liroff?

  There was a very similar case to this called SEC v. Jarkesy. Just recently, we covered that case where the conservatives found that it's unconstitutional for, you know, a non-Article III court to take on these sorts of cases.

• 34:44Peter Shamshiri?

  They're trying to strip away the ability of administrative agencies to enforce the law. Part of the enforcement apparatus is that these agencies have these, basically, little mini-court systems where they can adjudicate certain things that are within their prerogative. You know, the conservatives have ideological objections to this. They don't want administrative agencies to have this type of power, but they've made this argument that this is, you know, this usurping judicial power, essentially.

• 35:11Michael Liroff?

  And here, the argument is that only an Article III court with a jury can impose monetary remedies, which is what's at stake here. So concerning case, another attack on the administrative state, which almost always seems to go against the administrative agencies. The conservatives love stripping them of power.

• 35:32Peter Shamshiri?

  Administrative agencies have no power, but the president, who sits atop them...

• 35:38Michael Liroff?

  Is just...

• 35:39Speaker 03

  Has all the power.

• 35:40Peter Shamshiri?

  Extremely king-like.

• 35:41Speaker 03

  Super.

• 35:42Michael Liroff?

  It's crazy.

• 35:43Speaker 03

  Going back, like, okay, what, the Department of Labor's power to adjudicate proceedings seeking monetary remedies. Remember what Michael just said about who is suing? It is guest workers and domestic workers on farms who are suing to get back wages. They weren't paid for their work. That's what they're suing about. And so this question about, "Oh, well, does the Department of Labor have the power to adjudicate these claims when there's a monetary remedy?" Don't let the legalese, like, disconnect from what they're actually deciding.

• 36:14Michael Liroff?

  This is a corporation that screwed its workers.

• 36:17Speaker 03

  Yeah.

• 36:17Peter Shamshiri?

  A lot of these bad faith employers have a lot of these workers in, like, a hostage situation because of the Trump administration.

• 36:24Speaker 03

  Yes.

• 36:25Michael Liroff?

  Right.

• 36:25Peter Shamshiri?

  Let's rip through the last few here.

• 36:28Speaker 03

  Yeah.

• 36:28Peter Shamshiri?

  Crowther v. Board of Regents of the University System of Georgia. This is about Title IX. Title IX, of course, about sex discrimination in schools that receive federal funding. The question here is whether there's a private right of action in Title IX, whether someone can sue for being, for example, fired due to what they believe is sex discrimination the same way that you could sue under Title VII. This particular case involves two people. One, a Georgia Tech women's basketball coach, who was terminated in March 2019.

• 37:07Peter Shamshiri?

  She was fired shortly after filing an internal complaint against Georgia Tech alleging sex discrimination. So she's saying, "Hey, I have a Title IX claim here." Then you also have a men's rights situation. A professor, Thomas Crowther, who sued for sex discrimination after he was alleged to have engaged in sexual harassment. This is at Augusta University. There was an investigation that found that he had violated the university's sexual harassment policy. The university decided not to renew his contract, and he said that the investigation was biased against him as a male. So he says, "Hey, Title IX discrimination case."

• 37:52Peter Shamshiri?

  And the question here isn't, "Were these two discriminated against?" It's, "Can you sue as an individual who is discriminated against under Title IX?" The men's rights thing is interesting here, but you have to imagine that the court's goal in granting cert here is to squash these types of claims, right?

• 38:11Speaker 03

  Yeah, they don't want the private right of action for discrimination.

• 38:15Michael Liroff?

  It's almost certainly why these groups are coming out and pushing men's rights issues, right? To sort of ideologically cross-pressure the justices.

• 38:24Peter Shamshiri?

  Yeah. A lot of the times, you'll see, like, activist organizations target cases where you have a case brought by a woman, a case brought by a man. That way, there's no, like, built-in ideological headline. But yeah, I mean, this is, I think, just another way for them to flick away liability.

• 38:42Speaker 03

  Yeah.

• 38:43Peter Shamshiri?

  And then they can do it in a case where they're like, "And by the way, we also ruled against a man."

• 38:47Speaker 03

  Yeah, yeah. I'm not sure the men's rights aspect of this is going to be convincing enough for them, right? It's too big.

• 38:53Peter Shamshiri?

  It is funny to get accused of sexual harassment and be like, "Well, you're just doing this because I'm a man."

• 39:01Peter Shamshiri?

  It's like, sort of, you know?

• 39:03Speaker 03

  And that's against the law.

• 39:07Peter Shamshiri?

  You're right that it's gendered, in a way.

• 39:09Speaker 03

  Yeah, yeah. Okay, flying through another one that's just kind of like, interesting. A lot of people are saying this is kind of easily predictable. I'm not so, so sure, but anyways, we should mention it. Keon v. Florida. This is a question, in front of the court this term, about the size of a criminal jury. Can a criminal jury be less than 12 members? So, this man, Keon, was tried for serious felonies, convicted of serious felonies in Florida. And Florida law allows, even on felony cases, for the jury to be six people.

• 39:51Speaker 03

  And so, Keon sued immediately, said, wait a minute. My right to a jury, which is guaranteed by the Constitution, of course, gives me the right to a 12-person jury, not a six-person jury. Now, there's some precedent on this that actually does allow a jury that is fewer than 12 people. That's a case called Williams from 1970 that allows this, and allows it specifically in Florida. Like, this has been challenged in Florida before. Back then, Justice Thurgood Marshall dissented and said, no, a jury of 12 is required. And since then, a bunch of professors, a lot of legal scholarship has said the same, talking about when the Constitution, when the Bill of Rights were drafted, the drafters

• 40:34Speaker 03

  understood a jury to mean 12 people. When they say, a right to a trial by jury, they're talking about a 12-person panel there. And so, a lot of folks have said this. Gorsuch has said this in 2020, when talking about another jury issue where Louisiana was allowing non-unanimous jury verdicts. That law in Louisiana was overturned, and Gorsuch kind of alluded to, and also, you know, this is because 12 people are required on a jury.

• 41:06Peter Shamshiri?

  Right.

• 41:06Speaker 03

  So, I think a lot of people think that, like, this one is kind of open and shut, that like, there's even conservatives who agree here that it's a 12-person jury. Alito definitely does not, though. So, you wonder about where Thomas is. You just wonder, then, about where Amy Coney Barrett is, and like, what that group, in the end, is gonna end up looking like. Yeah, exactly.

• 41:27Peter Shamshiri?

  If it comes out like, 6 to 3, then you can imagine that, like, by the year 2150, we're down to just like, a jury's one dude.

• 41:35Speaker 03

  Yeah, exactly, exactly. Yeah.

• 41:38Peter Shamshiri?

  You pick one guy, and he decides.

• 41:42Michael Liroff?

  So, let's end, actually, on a fun note. This is a fun one.

• 41:46Peter Shamshiri?

  Okay.

• 41:47Speaker 03

  Yeah.

• 41:47Peter Shamshiri?

  Is this a gag you're pulling, or is this real?

• 41:49Michael Liroff?

  This is real, and it might even be a good outcome. This case is Jopi v. Alaska. This is about someone whose plane was taken via criminal forfeiture for illegally transporting a six-pack of beer. So, we've talked about civil forfeiture before on the podcast. Criminal forfeiture is very similar. You may have seen it in popular media before. You know, in The Wolf of Wall Street, an FBI agent meets with Leonardo DiCaprio on his boat, and is like, this boat's really beautiful, I'm gonna be the most popular guy on the FBI when I seize it.

• 42:25Speaker 03

  Yeah.

• 42:25Michael Liroff?

  You know?

• 42:25Speaker 03

  Yeah. The stuff you have that is related to the crimes you allegedly commit can be taken by the government.

• 42:32Michael Liroff?

  Right. That's, that's the general idea.

• 42:34Speaker 03

  Yeah.

• 42:34Michael Liroff?

  There is a question, though, whether criminal forfeiture can amount to an excessive fine under the Eighth Amendment. Now, interestingly enough, the controlling precedent on this was written by Clarence Thomas in 1998, siding with the liberals in the United States v. Bajakacian, where he found, like, a $350,000 fine excessive for a currency reporting failure. He's also, we've talked about this before, signaled skepticism of civil asset forfeiture. This is an issue that he sort of is skeptical of in general.

• 43:11Peter Shamshiri?

  Like, what, just so, if you do human trafficking on a yacht, you can take the whole yacht?

• 43:17Peter Shamshiri?

  Just, just spitballing hypotheticals here.

• 43:22Michael Liroff?

  Gorsuch, Justice Gorsuch, has also, at times, been sort of seen as sort of libertarian a little bit, or siding for the little guy versus the government. He wrote a book about how there are too many laws coming out of Washington, you know, federal laws, as the case may be.

• 43:38Peter Shamshiri?

  Shut your mouth, by the way. You know? You're a Justice of the Supreme Court. He's like, there's too many laws, just do your fucking job, dude.

• 43:44Speaker 03

  Shut the hell up, nobody asked you.

• 43:46Peter Shamshiri?

  I do relate to that, though. They're like, your job is interpreting the law, and you're like, you know what there's just too much of?

• 43:52Michael Liroff?

  Yeah.

• 43:55Michael Liroff?

  Really need to simplify this.

• 43:56Peter Shamshiri?

  That's like me, like, just like, there's too many Supreme Court cases, dude. What if there was just a few?

• 44:01Speaker 03

  But you do wonder about how much they care on these facts, on these funny facts, right? Michael, you said, like, this is about, you know, this happens in Alaska, the guy is transporting a six-pack of beer in his...

• 44:16Peter Shamshiri?

  Transporting.

• 44:17Speaker 03

  Yeah.

• 44:17Peter Shamshiri?

  It's very funny to describe it like this. Yeah, he had a six-pack.

• 44:20Speaker 03

  Right, he just has a six-pack of beer with him on his plane as he's flying around Alaska. He's criminally charged for it, because I guess, you know, there's municipalities in Alaska that are dry, whatever.

• 44:31Peter Shamshiri?

  You're not allowed to be cool in Alaska.

• 44:34Speaker 03

  They're harshing his mellow in Alaska. And then, the law enforcement also took the plane.

• 44:40Peter Shamshiri?

  Right.

• 44:40Michael Liroff?

  Yeah, they're like, that's ours, that's ours now.

• 44:42Speaker 03

  And so, you do wonder, to the extent these, some of the conservative justices have the libertarian streak, right? Like, how much they're gonna care over, like...

• 44:51Peter Shamshiri?

  Yeah. And I'll say this.

• 44:52Michael Liroff?

  Right.

• 44:53Peter Shamshiri?

  Man, if, if I, if I lived in Alaska, get me a plane and a six-pack, I'm just gonna be circling.

• 45:01Speaker 03

  That's all I do, if I'm in Alaska.

• 45:03Peter Shamshiri?

  100%, just cracking a cold one, 20,000 speed up.

• 45:09Michael Liroff?

  Before we finish, I should mention what the actual constitutional question is here. Clarence Thomas's rule in that 98 decision was that a fine is excessive if it's grossly disproportionate to the gravity of a defendant's offense. And this has created an actual circuit split. The question is, is it the specific offense, like transporting a six-pack of beer? Or is it the category of defenses, like transporting alcohol or controlled substances across, you know, municipal borders? Right? Which sounds a lot more serious.

• 45:44Peter Shamshiri?

  Man, what dumbass circuit said it was the category?

• 45:47Speaker 03

  Yeah.

• 45:48Peter Shamshiri?

  That rule sucks. I don't even understand it as a principle. Like, yeah, it was a six-pack of beer, but what if it was 25 pounds of heroin? It's like, whoa, that's a good point.

• 46:00Michael Liroff?

  Exactly.

• 46:01Peter Shamshiri?

  That fucking sick circuit is like, huh. Never thought of it like that.

• 46:05Michael Liroff?

  So, that's the question, and this is a very funny case to be bringing that question. And I do think there's a chance for what we would consider, I think, a good outcome here. So, a good note to end on.

• 46:18Speaker 03

  Yeah, this guy Jopi is flying, you get to...

• 46:20Michael Liroff?

  Give him his plane back.

• 46:22Speaker 03

  Yes, give him his plane back. But, but the vibes coming off of this guy, we need to find an interview or something, right? His wife is like, oh my god, he's so fucking annoying. He's like, I'm taking my case to the Supreme Court, baby. They can't do this, they gotta give me back my plane, and I have a right to beer, anyway, you know?

• 46:41Peter Shamshiri?

  Yeah, he's asking for, like, a 30 rack as restitution, you know? I mean, like, no, no attorney's fees, just give me that 30. Give me a 30 in Natty Light. I'm headed up higher than ever.

• 46:58Peter Shamshiri?

  All right. Well, those are the horrors to come, folks. We're gonna be hitting on at least five of these cases. Could be more, could be more. And of course, there are, as we mentioned, cases that will pop up over the course of the term. They'll, they'll grant cert on new cases, but this is, this is the shit as we see it. I mean, the big sort of wild card these days is like, what's Trump gonna do? That's gonna just find its way up to the Supreme Court very quickly. So, you can basically be assured that that'll happen three or four times in the next year on major issues.

• 47:31Speaker 03

  Yeah, that's gonna be sprinkled in, for sure.

• 47:33Peter Shamshiri?

  Yeah, in the meantime, they're, they're on their sort of regular bullshit, right? AR-15s, discriminating against gay people, doing climate change, taking guys' planes. It's just, all the usual stuff.

• 47:48Speaker 03

  Yeah.

• 47:52Peter Shamshiri?

  All right, folks, next week, we're taking a week off, but as an apology, we're gonna, in two days, drop a little bonus-free episode for you, an interview with Nico Buie and Daphna Ranon about their new book, Supremacy. Pretty good discussion we had with them. And then we'll be back with our seminal, award-winning SCOTUS at 250 series, where we discuss the history and state of the Supreme Court in broad terms, looking back on 250 years of America. We're the only people doing analysis at this level. Hence the awards.

• 48:33Speaker 03

  In my head, the awards in my head, yeah.

• 48:35Peter Shamshiri?

  Follow us on social media, at 54pod, subscribe to our Patreon, patreon.com/54pod, all spelled out for access to premium and ad-free episodes, special events, our Slack, all sorts of shit.

• 48:50Peter Shamshiri?

  I'll see you in a couple weeks.

• 48:51Speaker 03

  Bye, y'all.

• 48:52Peter Shamshiri?

  Bye, everybody.

• 48:55Michael Liroff?

  Five to Four is presented by Prologue Projects. This episode was produced by Alison Rogers. Leon Nafok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

• 49:19Speaker 04

  But the whole thing hinges around that six-pack of beer. I'm not doing this for me personally now, I'm doing it for the country.