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

Peter, Rhiannon, and Michael talk about the memos leaked to the New York Times, Sotomayor v. Kavanaugh, and the potential Supreme Court vibe shift. Remember, you can always leak to 5-4! Thank you to our subscribers. 5-4 is presented by Prologue Projects. This episode was produced by Alli 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. Transcriptions of each episode are available at fivefourpod.com http://fivefourpod.com 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.

• 0:03Speaker 00

  Hey, everyone. This is Leon from Prologue Projects. On this week's episode of Five to Four, Peter, Rhiannon, and Michael are diving into some recent Supreme Court drama, namely the leak of some secret, decade-old memos to the New York Times. Back in 2016, the Supreme Court halted President Obama's Clean Power Plan in a five-to-four ruling that circumvented the authority of lower courts. The ruling has come to represent the birth of the modern shadow docket, which the court has been using routinely since the start of Trump's second term to bless various actions by the administration. Shadow docket cases are handled quickly and opaquely, without oral arguments or full opinions. The public is typically left to wonder why the court ruled one way or another.

• 0:45Speaker 00

  Thanks to the leaked memos published by the Times, we now have new insight into how the court justifies it. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:01Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have cratered our civil rights, like final exams cratering our listeners' careers. I'm Peter. I'm here with Rhiannon.

• 1:12Speaker 02

  Hey, everybody.

• 1:13Peter Shamshiri?

  And Michael.

• 1:14Michael Liroff?

  Yeah, why are you listening to us gossip about the Supreme Court when you should be studying, listener?

• 1:19Peter Shamshiri?

  We know that some of you are law students. It's late April, early May. When this drops, you're about to bomb, dude. You're about to fuck it up because you're listening to Five to Four. What are you doing? What are you doing? Oh, my God. You need to start freaking out. It is time to panic.

• 1:39Speaker 02

  What if you let the anxiety spike right now? Yeah.

• 1:42Michael Liroff?

  Yeah, just let it. Just let it take you.

• 1:44Peter Shamshiri?

  Here's some facts. It's too late to fix it.

• 1:50Speaker 02

  Not true. Not true. Y'all are gonna do great.

• 1:53Michael Liroff?

  By extension, it's too late to fix your career. It's over for you.

• 1:56Peter Shamshiri?

  Yeah.

• 1:57Michael Liroff?

  It's over.

• 1:58Peter Shamshiri?

  Start thinking about what you're gonna do to recover from the damage you're about to do.

• 2:02Speaker 02

  And there's no more space for a law podcast, so...

• 2:05Michael Liroff?

  Yeah.

• 2:06Peter Shamshiri?

  Yeah, that's right. You might think, well, maybe I go into law podcasting. No, bitch.

• 2:10Speaker 02

  Like, those three deadbeats did it?

• 2:12Peter Shamshiri?

  Yeah.

• 2:15Peter Shamshiri?

  We filled up the space entirely, between us and advisory opinions.

• 2:20Michael Liroff?

  The market is saturated.

• 2:25Peter Shamshiri?

  Today, we're talking about an interesting bit of reporting out of the New York Times. This is something that we would usually do as like a premium episode, but we thought, fuck it, right? Let's, let's just talk about this. About 10 years ago, the Supreme Court halted an Obama EPA policy without any briefing, without any arguments, without even letting the issue get properly litigated in the lower courts. This is often seen as sort of the spiritual beginning of what we now call the shadow docket, the emergency docket that has come under scrutiny in the past few years because the court has increasingly used it to decide politically charged cases without any briefing,

• 3:08Peter Shamshiri?

  without any argument, often without any written opinions. We previously did not know much about what happened with this particular case, but someone somewhere, some beautiful hero leaked internal court memos to the New York Times containing the discussions some of the justices were having, and it is very revealing stuff. Before we get into this, I want to say, you can leak this stuff to us instead of the New York Times, and it would be cool. I think we all agree it would be cool.

• 3:38Speaker 02

  Our DMs are open.

• 3:39Peter Shamshiri?

  We'll protect your identity or whatever, you know, whatever like the cool journalistic ethics thing is to do there.

• 3:45Michael Liroff?

  We're on Signal. We're on Signal.

• 3:47Peter Shamshiri?

  Yeah, no, hit us up on Signal or other secure channels. I'm sure there are others, but we'll take care of, we'll protect you. We'll go to jail before we out you to the DOJ. All right, so let's tee this up by explaining this case from 2016. Back during Obama's second term, the Environmental Protection Agency implemented the Clean Power Plan, which would require certain polluters to significantly reduce their carbon emissions by 2030. The plan gets challenged in court by some industry types. That court specifically, the D.C. Circuit Court of Appeals. The industry folks ask the court to put the implementation of the Clean Power Plan on hold while the case is being decided.

• 4:32Peter Shamshiri?

  The court says no, but that they will expedite the proceedings. The industry types then go directly to the Supreme Court and ask them to halt the regulation, and they did. If any of this sounds vaguely familiar, this ends up being West Virginia v EPA, a case that I believe we've covered. You know, it's about this EPA rule to limit emissions. So this is not the first time that the Supreme Court used their emergency docket, but it is in various ways unprecedented. It was the first time that the court had ever halted a federal agency regulation nationwide before a lower court had even reviewed the issue.

• 5:16Peter Shamshiri?

  This isn't a situation where the lower court ruled and the parties appealed exactly. The case was still pending in the lower court and the parties directly petitioned the Supreme Court to intervene and stop the regulation. This was all a little bit procedurally odd, right? The parties go to the lower court to try to halt the regulation, to have it paused, basically. Lower court says no, and they don't appeal directly, right? They just go to the Supreme Court and ask them to do what the lower court didn't. That's a minor item in some ways, but it creates a weird precedent where parties can essentially ignore the lower court, go straight to the Supreme Court, challenge the regulation

• 6:00Peter Shamshiri?

  there, and it makes the Supreme Court, at least theoretically, a sort of one-stop-shop for this sort of thing, right? And that's sort of what has happened. That's what has developed over the last decade, is that parties will just go to the Supreme Court as quickly as possible and be like, can you halt this regulation? Can you prevent the government from implementing this, right? Before lower courts have any time to act.

• 6:22Michael Liroff?

  Right. If you're a Republican and it's a Democrat.

• 6:25Peter Shamshiri?

  Well, you can ask. You can ask if you're a Democrat.

• 6:28Michael Liroff?

  Yeah.

• 6:28Peter Shamshiri?

  Before this, the emergency docket primarily used for death penalty cases, election issues, things that need input from the highest court possible very quickly, right? Not exclusively used for those things, but like those were some of the primary purposes. But from this point forward, in 2016, it's increasingly used as an arena for adjudicating federal policy.

• 6:54Speaker 02

  Yeah, and what you're saying, Peter, like this is like the start. This is the birth of it. So leaked memos. What did we actually learn? What are we talking about here? So on April 18th, the New York Times just released these memos. They were leaked to the Times. The headline reads, "Read the Supreme Court's Shadow Papers." So what are these memos? These are memos between Chief Justice John Roberts, Elena Kagan, Sonia Sotomayor, Stephen Breyer, Sam Alito, and finally Anthony Kennedy. And the fact of their communicating in memos is not abnormal. This is normal. Justices typically communicate with one another in written memos like this.

• 7:36Speaker 02

  This is how they discuss cases, discuss the arguments that they think are important. This is how they figure out where like the contours of the legal debate are amongst themselves. And they also try to write persuasively to like maybe get a swing vote like Anthony Kennedy to join up with either side. So what the unique thing is here is that memos are generally not released to the public. We don't usually see them. They're recorded, like they're archived, they're kept in the justices' papers. Usually, though, they're kept secret unless a justice decides, usually like upon retirement or or death or whatever, to release their own individual papers.

• 8:18Speaker 02

  So that's the unusual thing here is that in this case, on this shadow docket case that started the sort of like modern or more recent understanding of how the Supreme Court uses the shadow docket in these really political ways, it's that we have some of the justices' memos about this case leaked here to the Times. You know, other than like oral arguments, other than the literal written decisions of the Supreme Court, the public doesn't have access to this info. And then for this case, which is on the shadow docket, there wouldn't be oral arguments anyway because it's part of a case or in the procedure when the court is being asked

• 9:02Speaker 02

  to rule on something very quickly on an urgent basis. There aren't like full arguments in front of the court. So we wouldn't even have oral arguments to listen to anyway. And with the Shadow Duckett case, there isn't necessarily a written decision. So these leaked memos represent basically all that we know now about how the justices were thinking about this case.

• 9:27Peter Shamshiri?

  And we're going to go through what each justice said, why so much of it is so notable. But first, a quick overview of what plays out here. Roberts refers this matter to the court, and he says, hey, I think we should stay this regulation. Stephen Breyer responds disagreeing. Roberts responds to him. Kagan and Sotomayor weigh in on Breyer's side. Alito joins Roberts' side. And then finally, Kennedy, Anthony Kennedy, sides with Roberts, which really ends the issue because it's a five to four court. We don't have memos from the other justices. Very possible that the leaker didn't have access to them.

• 10:10Peter Shamshiri?

  Also possible that like they weren't interesting enough to include, although that seems less likely. And it's also possible that they just didn't weigh in on this issue, which I also find relatively unlikely. That's sort of the overview here.

• 10:23Michael Liroff?

  Right. And so we should talk about Roberts because he writes the most. He writes multiple memos. They are long, they are substantive, they are very bad, and he looks like shit. So it's worth, it's worth going through them. You know, he looks bad for a number of reasons, and we'll, we'll get into detail on all of them, but the high level picture is that they're very sloppy. He uses a wrong standard. He cites to like blog posts and interviews and things like that that are like not appropriate for Supreme Court decision making, right? But also, I think something that comes across is he's just kind of pissed about a previous

• 11:04Michael Liroff?

  case with a Mercury rule where, you know, the EPA had promulgated this regulation, the Supreme Court ultimately found it unconstitutional. But as it turned out, by the time the Supreme Court had reviewed it and held it unconstitutional, industry He had made such an investment in compliance that it was all but baked in to standard practice at that point. And Roberts is clearly livid, livid that they essentially didn't get to stop this, right? That like the Supreme Court was just too late in time to prevent the nasty libs from keeping mercury out of your drinking water or whatever, whatever the fuck this case was, right?

• 11:49Speaker 02

  Yeah, that's Michigan v EPA, which we've also done an episode on.

• 11:52Michael Liroff?

  Yeah. And so he's like, what, what's going on here is he's just like, I don't want that this to happen here. Like, yeah, just somebody who's very frustrated that they don't get a bigger or earlier say in policymaking and the shaping of the economy.

• 12:08Peter Shamshiri?

  Right.

• 12:08Michael Liroff?

  Right? Basically, because they're the court of final review and litigation takes a while. Building a record takes a while, going on appeal takes a while, taking things en banc. All that stuff takes a while. By the time it gets to the court, wow, industry will have complied with this and maybe started to shutter some coal plants and maybe started to build some solar plants.

• 12:29Peter Shamshiri?

  Right.

• 12:29Michael Liroff?

  And that he.

• 12:30Peter Shamshiri?

  Keep in mind that the lower court had expedited the proceedings. So like.

• 12:35Michael Liroff?

  Right. No, this is.

• 12:36Peter Shamshiri?

  This was going to be resolved in like three months.

• 12:39Michael Liroff?

  Right. And the government had, had created opportunities for extensions. Yeah, we'll, we'll get into this when we'll talk about irreparable harm. But there's, there's reasons to believe he's exaggerating the risks here regarding this. But that is, that's what he's, that's sort of what he's angry about.

• 12:56Peter Shamshiri?

  Yeah.

• 12:57Michael Liroff?

  We should get into the details of how he's sloppy. It starts with him invoking the wrong standard in regards to stays. He cites the cases that detail the standard for stays of lower court orders, lower court mandates. That's not what's being asked here, right? There is no lower court mandate for them to stay. They're being asked to stay in EPA policy.

• 13:19Speaker 02

  From going into effect. Yeah.

• 13:21Michael Liroff?

  Right.

• 13:21Peter Shamshiri?

  Right.

• 13:21Speaker 02

  Roberts is trying to use the standard that the Supreme Court would use in order to stop a lower court's stay from going into effect. You know, that standard where they like, talk about like, oh, would this cause like irreparable harm to one of the parties in the case, that, that kind of stuff, that that standard is about. Reviewing a lower court's ruling, which hasn't happened yet. And you see this in the memos. Kagan says, hold up, like, the standard that you're proposing, John Roberts, this would be an unprecedented use of that standard in a case like this, where there is no lower court ruling.

• 14:00Peter Shamshiri?

  Even calling it a stay, it's sort of awkward. It's like a, it's like a procedural artifact. Like, they're halting an EPA policy, right?

• 14:09Michael Liroff?

  Right. Based on nothing, based on, right? No judicial fact finding, no briefing, or the barest of briefing, no argument.

• 14:19Peter Shamshiri?

  There's no factual record at all.

• 14:21Michael Liroff?

  Based on just, you know, five conservatives' gut feeling that this is unconstitutional, they're saying the government can't do it. Right? Like, it's, it's very, it's just way out over their skis here. And Kagan objects, and Roberts, Roberts admits, he says, I recognize that the posture of this stay request is not typical, but review is sought of what has been described as, quote unquote, "the most expensive regulation ever imposed on the power sector." So, you know, this is, this is pretty extraordinary, but our buddies in industry don't want to shell out, so.

• 14:58Peter Shamshiri?

  Yeah. So this is interesting to me because it undermines two of the most common defenses of the Supreme Court's use of the shadow docket in recent years. First, a lot of people are like, nothing has really changed here. Like, this docket always existed, the emergency docket always existed in some form. Maybe they use it a little more, but like, this is a fake controversy, right? There's nothing sort of out of the ordinary here. And some people build on this by saying, this is really because you're seeing more executive action, because Congress is inactive, and blah, blah, blah, right? Then the second argument is that there's really nothing to worry about regardless, because this is all procedural shit. It's not political. The court, you know, is just

• 15:43Peter Shamshiri?

  doing balls and strike stuff, right? That classic defense of the Supreme Court where they're just like, "Well, look, this is all procedural stuff. You don't need to worry about it. It's not like hyper-political. That's just what the haters say." And then you have Roberts here, just being like, "Look, this is unusual procedurally, but we have to do it because the policy stakes are too high."

• 16:04Speaker 02

  Yes, like this total tell, right? He's saying like, that the basis of his argument, or the justification for why this is so important, and why the Supreme Court has to step in here, is that it's an extremely expensive regulation, that it's going to cost power plants, the power industry, money. That's Congress's power to decide. That's the EPA's, right?

• 16:26Peter Shamshiri?

  Right. It's very odd. It feels like an obsession with cost, that you would never see them do for like, "Oh, this is going to cause human suffering in the real world."

• 16:37Michael Liroff?

  Right. I think that's a good segue to talk about his irreparable harm analysis, because that's part of the decision-making, is when you stay in action, when you enjoin the government, things like that. Part of the analysis is, "Well, if we don't do this, will there be harm that can't subsequently be repaired?" Right? Typically, monetary outlays are not irreparable harm, because they can be repaired by giving people the money. You know? It's shocking. Money is fungible, and you spend $10 now, and you get $10 later, you're made whole.

• 17:17Speaker 02

  Yeah.

• 17:17Michael Liroff?

  So it's a weird thing to be focused on when you're talking about irreparable harm, is costs. Costs are, by definition, irreparable harm.

• 17:26Peter Shamshiri?

  But that's if you look at just dollars and cents. If you look at the love of the game, they want to blast coal fumes into the sky.

• 17:36Michael Liroff?

  Right.

• 17:37Peter Shamshiri?

  Right? And if you pause that, if you press pause, you say, "Hey, you can't do that for a few months." Those are birds that might live, right? Those are, those are streams that might run clear for a few months. And you can never get that back.

• 17:53Michael Liroff?

  That's right. Ostensibly, it's about preserving the status quo, but then the question is always, what is the status quo, right? Like Roberts is saying he wants to preserve the status quo of the structure of the energy sector, right? As if that is the only status quo that matters. And not like, for example, the fact that the regulation is in effect is the status quo. And so you're not preserving the status quo, you're upending it. Or the fact that X amount of coal is in the atmosphere. And if we don't stop coal plants from pumping more in, there will be more coal fumes in the atmosphere, upending the status quo of how hot it is, what, how unstable our climate is.

• 18:36Michael Liroff?

  No, we're not preserving the status quo of the climate, of the livability of our planet. We don't give a shit about that.

• 18:42Peter Shamshiri?

  Yeah.

• 18:43Michael Liroff?

  The only status quo we care about is how power companies allocate their resources between renewable energies and fossil fuels.

• 18:53Peter Shamshiri?

  Right.

• 18:53Michael Liroff?

  That's the only status quo he gives a shit about, which is really fucking just blatantly obvious and just sort of disgusting, right? And so, you know, in addition to this like shitty irreparable harm analysis, I also mentioned before, you know, he's citing to statements that like the EPA administrator like made off the cuff and he's basically citing like a BBC article, you know, and like a blog post that was like on the EPA's website.

• 19:22Peter Shamshiri?

  Yeah.

• 19:23Michael Liroff?

  And these are the things that he's like upset about, which feels very like, you know, he got some email, subject line, forward, forward, forward.

• 19:32Peter Shamshiri?

  So the BBC article was just in the, the industry brief or like one of the briefs. So there's no factual record, right?

• 19:40Michael Liroff?

  Right.

• 19:41Peter Shamshiri?

  The industry types are just like, well, look what the EPA is saying. And he's like, oh my God, look what the EPA is saying. But like, in theory, like the best practice would be that they don't consider stuff like this because it's outside of the factual record. And in fact, there is no factual record here.

• 19:55Michael Liroff?

  Right. Like a lower court might develop a record where it turns out what the EPA administrator said was wrong, like it was just, it was just incorrect.

• 20:02Peter Shamshiri?

  Right. I saw a defense of this on SCOTUS blog, which I will talk about a little bit later, but where someone was like, well, look, this is actually quite common. If you read memos, the justices will often consider things outside of the record. And I was just like, Well, that's worse than, right? It's a lot worse if it's not a one-off.

• 20:22Speaker 02

  They shouldn't be doing that.

• 20:23Peter Shamshiri?

  Like, and you just get this vibe. It's not just the BBC article aspect of it and the blog post aspect of it. But that's part of it. You just get this vibe that this is just like some people arguing via email, right?

• 20:38Michael Liroff?

  Yeah.

• 20:38Peter Shamshiri?

  And like, it's not very sophisticated. They don't really know what they're talking about. Like, they don't, no one understands these regulations or these industries. And they're just sort of like sniping off little rejoinders. And like, none of them are very compelling. It's, it's, and like, they don't, they just don't have their arms around these issues enough to be compelling. You're just like, this is the fucking Supreme Court. And I think this is like a huge element of what made this leak interesting. Cause we've seen memos before, but most of that is just justices making their memos public. And because of that, it's often favorable. They, they often look pretty good in these memos.

• 21:22Peter Shamshiri?

  And now you're seeing them hash out this contentious issue. And it's like, these are, these are, these are our top dogs here.

• 21:32Michael Liroff?

  Yeah.

• 21:32Speaker 02

  You can see that they're like stuck thinking about the procedure or like trying to shoehorn what they think about this case in their own minds into the procedural arguments, the precedence of, you know, of, of taking this case and making this decision in the procedural posture that it's in. And so they're making like procedural arguments, but you can tell behind it, they're thinking other things that they're not asserting, right? In the memos. So like on the point that John Roberts is making, making this big deal about the irreparable harm that will fall on to the power industry if they don't step in and stay this regulation. You know, the libs, I think, like, they have the correct argument, which is no irreparable harm

• 22:17Speaker 02

  is not going to happen. It's not asserted like super passionately or strongly or anything. Again, because I think they feel like there's Stuck on a few like bare facts, but Breyer, Kagan and Sotomayor, all three of them are like essentially in in a lib justice way, essentially like, wait a minute, what are you talking about? What is the irreparable harm? And they all bring up like, just, just like, basic facts about the process, about the procedural posture of the case, which is, as we've mentioned, the D C Circuit Court said they're going to rule on this on an expedited basis.

• 22:58Speaker 02

  You're waiting a matter of a few months before a ruling here from the lower court. And then the next thing, Kagan and Sotomayor both talk about this in their responses and their arguments against John Roberts, that even within the regulation, even with the plan or the rollout of the regulation, if it were to go into effect, the parties, the states can all ask for a two-year extension during which they don't have to do anything. They don't have to implement, they don't have to take any action under the new regulations. Private parties, so the, the, the power companies have six years

• 23:39Michael Liroff?

  Yeah.

• 23:39Speaker 02

  before they have to do anything.

• 23:41Michael Liroff?

  Yeah.

• 23:41Speaker 02

  So Breyer, Kagan, Sotomayor, all three of them are like, what irreparable harm are you talking about? Nobody has to do anything.

• 23:51Michael Liroff?

  Right.

• 23:52Speaker 02

  At least until the D C Circuit Court of Appeals has a decision and not even for years afterwards.

• 24:00Michael Liroff?

  Yeah, and the reason those years work out like that is because the EPA isn't even requiring anything of private industry. They're requiring states to promulgate regulations that will then impact private industry. And the states can get a two-year extension to do that. So they would have two years. So. The private industry wouldn't even have their regulations that they need to comply with to worry about for two years and then would have lead time after that, which is why the idea that this needs to be done now, right now, you know, Roberts is like freaking out about is so laughable.

• 24:38Peter Shamshiri?

  Yeah, and my main complaint about the libs approach here is that they get into a fight about whether this would actually hurt industry and how much. And I do think they're right that like Roberts is like, look, the coal industry companies are saying that they might have to shut down plants if we don't do this. And then Breyer is sort of like, yeah, but given this is only going to take a couple of months to litigate, does that actually make sense? Like trying to be like,

• 25:07Speaker 02

  Yeah.

• 25:08Peter Shamshiri?

  Do you believe them though? Right?

• 25:09Michael Liroff?

  Yeah.

• 25:11Peter Shamshiri?

  But I think the actual point that should be made is the one that Michael you made, which is like, if you're weighing the harms on one side, the industry is saying, oh no, we're going to lose money, which they can just be paid back. And then on the other, it's damage to the environment, which can't be readily repaired. So like, only one side of this equation is going to suffer irreparable harm, right?

• 25:34Michael Liroff?

  Right.

• 25:35Speaker 02

  Yeah. Again, kind of getting stuck in the process and not really making the argument that they should make. All three of the liberals are, again, accurately pointing out how unprecedented a move this would be procedurally, right? Kagan says, like, the unique nature of the relief that is sought here gives me real pause. You know, Sotomayor says, this is unprecedented. Breyer says, this is unprecedented. This is acting way prematurely for the Supreme Court. Kagan says, you know, the Supreme Court is the court of final review, not initial review.

• 26:12Michael Liroff?

  Right.

• 26:13Speaker 02

  We don't review things as if we're the lower court, as if we're a district court, right? Like just getting an issue for the first time and being the first court that rules on something. So all three of them, like very insistent that like, hey, Chief Justice, like what you are proposing is pretty wild. This is crazy just procedurally. But again, it's like, you know, it's kind of these short. Paragraphs, you know, nothing really is more than two pages here. So that impact or like really how unprecedented it is and what the consequences would be of opening up this process on the shadow docket, like they don't engage that at all, at least not in these memos.

• 26:53Michael Liroff?

  Yeah.

• 26:54Peter Shamshiri?

  So Sam Alito weighs in on this too. A lot of his memo is just about the same, like, I believe the industry when they tell us that they're gonna suffer.

• 27:03Speaker 02

  Yeah, he says something like, I wholeheartedly passionately agree with everything that the chief justice said.

• 27:08Peter Shamshiri?

  I will suck on an exhaust pipe if I have to.

• 27:13Peter Shamshiri?

  But then he also says, quote, "A failure to stay this rule threatens to render our ability to provide meaningful judicial review and by extension, our institutional legitimacy, a nullity." So you know you're bullshitting when you say that your institutional legitimacy is completely dependent upon doing a thing you've literally never done before.

• 27:35Speaker 02

  Never unprecedented in the history of this Supreme Court.

• 27:38Peter Shamshiri?

  That feels like almost impossible as a matter of logic and theory.

• 27:42Peter Shamshiri?

  I'm not like a philosopher, but it doesn't feel like it's logically possible for that to be true.

• 27:48Michael Liroff?

  Yeah.

• 27:49Speaker 02

  Yeah, it's ridiculous.

• 27:50Peter Shamshiri?

  And then the final memo is just Kennedy weighing in in like a short paragraph from his little throne atop, atop of the five-four court, being like, I agree, I agree with Justice Roberts.

• 28:05Michael Liroff?

  Yeah.

• 28:06Speaker 02

  But it is such a tell what Kennedy says, just again, in a few short sentences, you know, he's saying like, yeah, I'm finally convinced I'm gonna come down on the side of the conservatives here and basically rule for the court because he makes it a five-person majority. He says, you know, in this memo, he's saying basically, I think what's gonna happen in four or six months is that a stay is gonna be issued. And, you know, the way this reads, very short few sentences here, the way this reads is he's either saying, we, the Supreme Court, are going to issue a stay in four or six months anyways, or he's saying, the lower court, which is taking

• 28:45Speaker 02

  Up this question on an expedited basis will issue a stay in a few months and then we'll be reviewing that anyways, like either way, either way, whatever he's saying, it's so ridiculous. Like, why are you predicting the future about what a lower court is going to do? And then about what the Supreme Court would do after that?

• 29:06Michael Liroff?

  Without a factual record, without, without knowing what the facts are.

• 29:09Speaker 02

  And inserting this court, inserting the Supreme Court into making the decision that you say the lower court is going to make, and in fact, according to all this history of process, the lower court needs to make in order for you to review it.

• 29:25Michael Liroff?

  Yeah.

• 29:25Peter Shamshiri?

  So those are the memos and obviously it's caused a stir. The New York Times piece is pretty critical of Roberts. They say that he bulldozed the court. They seem caught off guard by like the tone and tenor of the memos, right? They, they got a little bit five four pilled.

• 29:46Michael Liroff?

  Yeah, that's right.

• 29:47Peter Shamshiri?

  In reading the memos, they were like, wait a second, this is just a bunch of fucking idiots. Like, what's going on here?

• 29:53Michael Liroff?

  You, you got Adam Liptak to issue a correction and now he's like.

• 29:57Peter Shamshiri?

  I changed his whole life.

• 30:03Peter Shamshiri?

  I got, I got him to issue one official correction and he's like, you know what? I've been thinking about this all wrong.

• 30:10Peter Shamshiri?

  He's, he's wearing the eye descent shirt.

• 30:14Peter Shamshiri?

  I think there's a few things in this. One is that like the conservatives are just sort of like deferential to what the industry folks say in their briefing, right? The industry folks are like, we're going to be harmed. And they're like, oh, okay.

• 30:29Peter Shamshiri?

  Well, if you say so. And then they're just doing this half ass analysis. Roberts is getting the fucking standard wrong, right? And no one even notices, by the way. No, no one's like, that's not the standard. And.

• 30:43Peter Shamshiri?

  I think it just all feels so weirdly amateurish that if you thought highly of these folks, you might be like, huh, maybe I made a mistake in trusting them with our democracy.

• 30:56Speaker 02

  Yeah, maybe we're not sending our best.

• 30:59Peter Shamshiri?

  There's sort of that implicit criticism in the Times piece. There's some explicit criticism in the Times piece, and it led to a lot of chatter online and criticism of Roberts. And naturally, this has brought out the Roberts defenders, right? So I think we need to walk through them because it's funny, because it's fun. Watching these schmucks try to defend it all, I have to say, it's been very enjoyable. I've really enjoyed it quite a bit.

• 31:29Speaker 02

  Yeah, all the ghoulish, clownish little fools coming out to comment, to defend, you know, Daddy John Roberts and how smart he is. I promise he's smart. Molly Hemingway, conservative author, I think she's editor in chief of The Federalist, you know, Fox News contributor, talking head kind of gal. She tweeted her thoughts about the leak. And I think, kind of funnily, she doesn't defend John Roberts, she attacks the leak, implies that it is an ethical violation, that whoever leaked the memos should be reported to the bar, right? Have an ethical inquiry into whether they, you know, failed in their professional

• 32:14Speaker 02

  responsibility as lawyers. Of course, we don't even know if the person is a lawyer. I guess we assume that the person is a lawyer who leaked it, because why else would they have access to these things? But it's not necessarily that they are a lawyer. Anyways, Molly Hemingway's response is, how dare you?

• 32:30Peter Shamshiri?

  Yeah.

• 32:31Speaker 02

  How dare you leak these things in which my king, John Roberts, could be criticized?

• 32:37Peter Shamshiri?

  Right. Criticism of the leaker is always the most boring

• 32:40Speaker 02

  Yeah.

• 32:41Peter Shamshiri?

  type of criticism, because it's just like, we just found out about these like behind the scenes deliberations in this relatively important case, even if you don't care about the environment, right? And you're like, someone somewhere has violated an ethics rule. Like, who gives a shit? Who gives a shit? Who fucking cares? I mean, obviously, our position is that leaking this sort of stuff is cool, that like,

• 33:04Michael Liroff?

  Right.

• 33:05Peter Shamshiri?

  It's inexplicable to me that this shit isn't public, that they just get to hide their little internal memos forever. It's why? Why?

• 33:12Michael Liroff?

  Right.

• 33:13Peter Shamshiri?

  Why aren't we allowed to see it? It's obscene. But like, even if you think they deserve this privacy or whatever, at most, it's like, okay, who cares? And also, if you think that this is all very inoffensive, that nothing untoward happened here, don't worry about it. Don't worry about it.

• 33:29Speaker 02

  Yeah.

• 33:29Michael Liroff?

  Yeah. The people upset about this are very funny. Their anxieties and their defenses, in a way, are showing all their cards, right? Like Josh Blackman over at the Volokh Conspiracy, which is a sort of conservative slash libertarian, right-wing, legal blog. He talks a lot about how he contrasts this to the Dobbs leak, right? The, the opinion that was overturning Roe v. Wade, where he's like, whether you think that was a conservative trying to lock in votes, or a liberal trying to shift votes, that leak was clearly about affecting a case that it was like pending. And he's like, this is a 10-year-old case.

• 34:10Speaker 02

  Yeah.

• 34:10Michael Liroff?

  He says, "Remember, the movement is being led by people intent on showing that the Supreme Court is a failed and illegitimate institution that must be reformed from the outside. If they're out it, it may boost their career." He's upset, he's upset that this is so effective at making the Supreme Court look like shit, right? Because the Supreme Court is their tool, their legitimating tool for enacting their policy. And he's like, he's like, "Look, this makes us look bad." Right? Right? That's like, that's what he's upset about. He's upset that this makes us look bad. And what's more, like, the leaker would probably be considered a hero for, for doing it if they're, if they're ever out.

• 34:52Peter Shamshiri?

  Showing a grotesque misunderstanding of liberal circles. Because like, if like, a right-winger leaked it for the benefit of the right-wing political project, yes, they would be handsomely rewarded. This person is going to be executed by hand by Barack Obama himself, if they ever find him.

• 35:15Michael Liroff?

  Another guy at Volokh, John Adler, like speculated a bit about who the leaker was and suggested it might be Sonia Sotomayor clerk, or even Sotomayor herself, based on very thin evidence, basically that there's a typo in Sotomayor's memo and she didn't sign it. So he suggests maybe this was a photocopy of an uncirculated draft.

• 35:41Peter Shamshiri?

  Let's get Ed Whelan on this.

• 35:43Michael Liroff?

  Yeah, seriously. Let's get bust out fucking Google Maps.

• 35:50Michael Liroff?

  There's all sorts of reasons to think this is bullshit. Steve Lattick pointed out that like the typo in the date suggests maybe it was February 6th, not February 16th, which would put it on a Saturday, which means like you wouldn't be surprised that like this is maybe being dashed off without a signature, or maybe just sent an email with typos, because it's not a full workday with clerks and all that to proofread everything. One possible explanation. There are many others, right? Another guy at Volokh, I'm just gonna tell you, the title is Court Leaks and Attorney Journalists: The Professional Ethics Implications of Making Court Confidences Public. And he wants to go off on like why people should be disbarred for even publishing these things.

• 36:35Michael Liroff?

  Like, fuck the leaker. If you have a byline on this. It's such a tell. Yeah, these guys are so fucking pissed about this, that they're like, if you even write about this, maybe you should be disbarred. And everybody involved should be disbarred.

• 36:50Peter Shamshiri?

  Again, this is just decade-old memos about an issue that's like dead.

• 36:54Michael Liroff?

  Right. But it makes them look bad, right? And they admit that this is fodder for Supreme Court reform, which they don't want. They don't want, because the Supreme Court is their biggest tool for implementing conservative policy and legitimating it, or at least it used to be. They know, they read the same polls we all do. They know the Supreme Court legitimacy is in the fucking shitter. Thanks mainly to Five to Four.

• 37:22Peter Shamshiri?

  Yeah, mostly us.

• 37:23Michael Liroff?

  Take full credit for that. Yes.

• 37:29Speaker 00

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• 38:39Peter Shamshiri?

  Now, one interesting media player here is SCOTUSblog. SCOTUSblog is really like the preeminent source for Supreme Court coverage. It's a great source for Supreme Court content, generally. If you're like hunting for briefs, they have everything. But not long ago, it was bought by The Dispatch, a right-wing media outfit. Like, Jonah Goldberg runs The Dispatch, that's how right-wing. These are like National Review, Weekly Standard alumni. Yeah. Now, there were multiple commentary pieces about this in SCOTUSblog, all defending Roberts, I think. They just changed their web format, and it is impenetrable, so I'm

• 39:21Peter Shamshiri?

  not actually sure that I found all the commentary. It's, they've, they've made it much worse. Minor logistical concern I have. I have a couple of highlights from these posts. One is from Tara Lee Davis, and she's talking about the memos, and like, how the Justices sort of ultimately decided in this case. She says, whatever you think of the outcome, the memos do not show a court plucking a result out of the air. They show justices citing precedent, applying the four factor framework and debating whether to wait for the D.C. Circuit to act. Of course, one can disagree with the precedents the justices invoked or with how they applied them, but the deeper question, why the court granted the ask and why at that moment, the memos do not resolve.

• 40:06Peter Shamshiri?

  So like, as long as they cite some precedent and like go through the motions of debating it, she's okay with it? And also, she's like, they apply the four factor framework, but she does not mention or perhaps not notice that it's the wrong framework, that it's that they're doing the wrong analysis.

• 40:24Speaker 02

  She's arguing against a position that doesn't exist.

• 40:29Peter Shamshiri?

  Right.

• 40:30Speaker 02

  Right? Like, the memos don't reveal that the Supreme Court justices don't debate the issues, cite precedent. That's not what the memos reveal, and nobody's saying that. Nobody's saying like, the judges aren't talking about the law here. What the memos reveal, to anybody with a brain, to anybody who's literate, other than Jill or whatever you just said her name is.

• 40:54Peter Shamshiri?

  Tara Lee.

• 40:55Speaker 02

  Okay, Tara Lee.

• 41:03Speaker 02

  Well, Jill, Nicole, Tara Lee.

• 41:05Michael Liroff?

  The image that fucking pops into my mind is just like a white box with like, factory made, like, you know, cake with, with black icing on it.

• 41:13Peter Shamshiri?

  Yeah.

• 41:13Michael Liroff?

  When I hear Tara Lee.

• 41:14Peter Shamshiri?

  Yeah.

• 41:16Speaker 02

  Well, yeah, Jill, Nicole, Tara Lee, whatever she's saying, like, she doesn't get this, but, but you're arguing, you're making an argument scrambling, scrambling to make an argument that's like, no, no, no, no, they're legitimate. No, no, no, they're doing exactly what they're supposed to be doing. No, no, no, they're acting like judges. And nobody's saying they're not acting like judges. We're saying they're being stupid.

• 41:38Peter Shamshiri?

  Yeah, right.

• 41:39Speaker 02

  In acting like judges. And we can see behind these sort of bare, very shallow procedural arguments, we can see behind these things into what they actually think on these issues.

• 41:53Peter Shamshiri?

  This is like watching someone pretend to type on a keyboard and being like,

• 41:57Michael Liroff?

  Right.

• 41:58Peter Shamshiri?

  They're working. Don't worry. They're working.

• 42:01Speaker 02

  Yes.

• 42:02Peter Shamshiri?

  There's another piece by Stephanie Barclay that basically makes this argument that's like, well, this has happened before. This isn't the first time. This isn't the beginning of the shadow docket. But her examples are all off the mark. She cites a case from 2013 where the court said the government can't enforce a regulation against one particular party, which is different from what happened in this case, where it was the regulation in full being halted, right? But also, like, who gives a shit if this has like actually happened before, right?

• 42:34Speaker 02

  Yeah.

• 42:34Peter Shamshiri?

  I've seen this argument pop up in different forms where people are like, well, the court has done similar things here, here, and here. And you can like, there's some, you can dredge up some similarities between this and what the court has done in the past, of course, right? It doesn't really matter. You know, it's a, it's sort of a spectrum, right? It's a spectrum of behavior that we're concerned about. Steve Vladek wrote that whole book about the shadow docket, and he writes about this where he's sort of like, you know, there's not a definitive time where you can say, oh, we crossed the threshold and it's the shadow docket now. And it used to just be this really normal emergency docket.

• 43:16Peter Shamshiri?

  That's not what's happening. It's about like how this emergency docket is being used. And you see these sort of patterns emerging, right? And this is this one moment in history where people are like, yeah, this looked like maybe it was sort of spiritually the beginning of this, right?

• 43:30Speaker 02

  Yeah.

• 43:32Peter Shamshiri?

  The last SCOTUS blog piece I want to talk about, and I want to be clear, this is not all of them. It's by Jack Goldsmith, a name I've seen before, but I don't have any recollection of him, Michael.

• 43:43Michael Liroff?

  Oh, he wrote the warrantless wiretapping memo in the Bush administration.

• 43:48Speaker 02

  Well.

• 43:48Michael Liroff?

  Ah, yes.

• 43:50Speaker 02

  Well.

• 43:51Michael Liroff?

  But is nonetheless beloved by liberal legal types because then he resigned after the torture memo. He's like, warrantless wiretapping, I'm good. Torture, that's a step too far. And people are like, wow, he's so principled.

• 44:06Peter Shamshiri?

  Hero.

• 44:07Michael Liroff?

  Hero. He was also, he was also one of the guys on Biden Supreme Court Reform Commission, who wrote like a statement being like, I do not agree that we did not say fuck Supreme Court reform in our, in our report. Like, wrote a separate statement. He's such a loser.

• 44:26Speaker 02

  The safe face. Yeah.

• 44:29Peter Shamshiri?

  Goldsmith says, quote, "Without any support in the documents, Cantor and Liptak say the Chief Justice seemed, quote, 'angry and irritated in the memos,' and they portray him as an almost bad faith actor."

• 44:43Michael Liroff?

  Yes.

• 44:44Peter Shamshiri?

  Right. So when Roberts halts a federal regulation based on like a hunch about what will be good for business, right?

• 44:52Michael Liroff?

  Right.

• 44:52Peter Shamshiri?

  That's like proper decision making. But when some journalists try to read between the lines to interpret Roberts' tone or whatever, they've crossed the line. It's game over for these motherfuckers. How dare they? How dare they?

• 45:08Peter Shamshiri?

  He says, "They mentioned that the Chief Justice's legal analysis for the order rested in part on the major questions doctrine that, quote, 'in the years since has played an increasingly important role in the court's work.' Since their central message is that the conservative majority led by the Chief Justice is unprincipled and outcome-driven, they might have mentioned that two months ago, he wrote an opinion for three conservative justices that invoked major questions to strike down President Trump's signature tariff policy." So the entire argument here is, you think they're conservative, but what if I have one case where they ruled against President Trump?

• 45:46Speaker 02

  Right.

• 45:47Michael Liroff?

  Where they also happen to side with industry. Again, again, it's incredible.

• 45:52Speaker 02

  And it's like, he's, yeah. And he's like citing, he's like saying like, they're citing the major questions doctrine, which has been used to decide really important cases. It's a doctrine that John Roberts made up.

• 46:05Michael Liroff?

  Right, right.

• 46:06Speaker 02

  It's, the major questions doctrine is John Roberts' baby that came from his stupid head, that John Roberts has now used many times, right? Like,

• 46:18Peter Shamshiri?

  I just don't like, I feel like I keep saying this on the show, but like, it's wild how many times you'll see this if you're looking for it. When there's 10 cases and they rule against Trump on one.

• 46:32Michael Liroff?

  Right.

• 46:32Peter Shamshiri?

  That doesn't, like, that doesn't just negate the other nine.

• 46:35Michael Liroff?

  Right. When he's winning 90% of the time, we know what that means.

• 46:40Speaker 02

  Yeah.

• 46:41Michael Liroff?

  Which is, he sticks to the law very, very rigorously, of course.

• 46:45Peter Shamshiri?

  Right. This is just like, I don't know, like, if, like, every person has, like, one issue where they're not, like, aligned with their party or their ideological cohort or whatever, right?

• 46:54Michael Liroff?

  Right.

• 46:55Peter Shamshiri?

  You wouldn't be like, oh, AOC's not a Democrat, like, not on the left because she has this one position, right? It just doesn't make sense. No one thinks about the world this way. It's nonsense.

• 47:07Speaker 02

  Yeah.

• 47:07Michael Liroff?

  Right.

• 47:08Speaker 02

  Yeah, they really tie themselves up in knots defending the conservative justices whenever even the slightest, like, peek into how they operate is revealed, you know? While we're on the topic, this feels like kind of gossipy. It's a gossipy episode, right? We're talking about leaked memos. We're not supposed to see this. There's been some other Supreme Court drama, actually, over the past month or so, maybe even less. Seems like the justices are kind of out and about, various justices making speeches and appearances, and there's been some controversy. Let's start with a little bit of a Sotomayor versus Kavanaugh drama.

• 47:49Speaker 02

  Sonia Sotomayor made an April 7 appearance at the University of Kansas Law School. She spoke to students. She was asked questions. She did Q and A, you know, justices, this isn't, like, infrequent. Justices do this. And she started to talk about, or she's asked a question about Kavanaugh's concurrence in Noem v. Vasquez Perdemont. We did an episode, right? This is the case where essentially the Supreme Court lets ICE continue to detain people, stop people, you know, investigate whether or not folks are US citizens or not on the basis of, like, racist standards, right? This is where ICE was saying like, yeah, we stop people because they're speaking Spanish.

• 48:32Speaker 02

  Or we stop people because they're in the Home Depot parking lot. And the Supreme Court okayed this and Kavanaugh had that really crazy concurring opinion. He didn't even have to write it, but he was basically saying, you know, like these racist tools to stop folks. That's totally fine. He's saying, you know, if you're stopped by ICE, it's not that big of a deal. It's not that disruptive to somebody's day. These don't take very long. Just prove you're a US citizen and ICE lets you go, right? And so Sonia Sotomayor in this appearance in Kansas is asked a question about this concurring opinion by Kavanaugh. And Sotomayor says that like, this guy doesn't really understand how these stops actually affect people's lives.

• 49:16Speaker 02

  And she goes on, she says, this opinion is written by, quote, "A man whose parents were professionals probably doesn't really know any person who works by the hour."

• 49:28Speaker 02

  Which, no, wait a minute, wrong. Sonia, Brett Kavanaugh knows the guy who does his landscaping.

• 49:34Peter Shamshiri?

  So true.

• 49:36Speaker 02

  He knows somebody who works on hourly wages. But, um, okay, I, I mean, this is hilarious.

• 49:42Peter Shamshiri?

  Straight up cool as hell.

• 49:44Speaker 02

  Yeah.

• 49:44Peter Shamshiri?

  Coolest thing Sotomayor has done in a few years for sure. Possibly ever.

• 49:49Speaker 02

  Yeah, this fucking rocks. Uh, she's being a girl's girl. But, uh, the quote gets out.

• 49:56Peter Shamshiri?

  Of course it gets out.

• 49:58Speaker 02

  A couple of weeks later, Sonia Sotomayor issues an apology. She says, quote, "At a recent appearance, I referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate. I regret my harmful comments. I have apologized to my colleague." Boo. Tomato, tomato, tomato.

• 50:18Peter Shamshiri?

  We were talking about this and at first I was like, oh, she apologized. That's so annoying because like she fucking cooked him, right? And now I've come around and I think this is funnier. It's funnier to be like, he's a soft little bitch. He doesn't know one, know anyone who has a real job and he has no idea what he's talking about.

• 50:37Speaker 02

  This silver spooned looking ass loser.

• 50:40Peter Shamshiri?

  And then everyone's like, oh my God, you shouldn't really speak like that. And she's like, you know what? You're right. I'm sorry.

• 50:45Michael Liroff?

  Right.

• 50:45Peter Shamshiri?

  That's funny. That's, that's just good shit.

• 50:47Michael Liroff?

  Doesn't even, doesn't, she, she calls them, she calls the comments harmful. She says she regrets making them, but she doesn't take back the substance. She doesn't say she was wrong. She doesn't say she was off base.

• 50:58Peter Shamshiri?

  And how could she?

• 50:59Michael Liroff?

  Sorry you heard that. Sorry it hurt your feelings, buddy.

• 51:01Speaker 02

  Yeah. Sorry I said you went to Yale twice. Sorry I said you went to that prep school, that Georgetown, whatever Catholic prep school where all the fucking rich psycho boys go. Sorry, sorry.

• 51:15Peter Shamshiri?

  This is funny. I will say, it is relatively uncommon to see someone take a public shot at another justice specifically, right?

• 51:26Speaker 02

  Yes.

• 51:26Michael Liroff?

  Yes.

• 51:27Peter Shamshiri?

  I'm sure that like Scalia got close to this at some point. Certainly he was insulting in opinions, right? But this is unusual for Supreme Court justices. And yeah, I don't know. Maybe things are bubbling over a little bit, right? Our producer was like, is there a vibe shift going on within the Supreme Court? And maybe the answer is yes, right? Maybe these old norms are melting away because everyone is starting to hate each other so fucking much that they just can't stand it.

• 51:57Speaker 02

  Right.

• 51:57Michael Liroff?

  Right. Speaking of things bubbling over, the soup that is Thomas's brain seems to have bubbled over and fully exited his head.

• 52:07Peter Shamshiri?

  So before, before you get into this, Michael, I want to say, I have very intentionally avoided reading exactly what Thomas said so that I can be surprised on this podcast. So I don't know.

• 52:18Michael Liroff?

  I'm so excited. So just recently at the University of Texas in Austin.

• 52:26Peter Shamshiri?

  Uh huh. Ree, specifically not invited to this, right? Is that?

• 52:31Michael Liroff?

  Was Rihanna the only person in the entire staff of the law school who was not invited to this, to this speech?

• 52:37Speaker 02

  So, look, there might be a reason, like a sort of legitimate reason, which is like, whether or not I'm listed as faculty or staff on certain lists, but every faculty member at the University of Texas School of Law got an invitation to Clarence Thomas's appearance on campus, and I did not.

• 52:57Michael Liroff?

  Which is a shame because I would have loved to see your live reactions to this speech.

• 53:04Michael Liroff?

  Where he blames like every social ill of the 20th and 21st century on the rise of progressivism. I'm just going to quote him. At the beginning of the 20th century, a new set of first principles of government was introduced into the American mainstream. The proponents of this new set of first principles, most prominently among them, the 28th president, Woodrow Wilson, called it progressivism.

• 53:29Peter Shamshiri?

  Dude, okay, this is, this is deep cut, right wing shit.

• 53:34Michael Liroff?

  Yeah. Every progressive favorite president.

• 53:37Peter Shamshiri?

  There is like a sect of right, of right wingers that will start talking about Woodrow Wilson all of a sudden. And you're like, what the fuck are you talking about, dude? But because of his sort of loose association with early 20th century progressivism, they're sort of going through this effort to like, make Wilson part of the foundation of progressivism, of modern progressivism. I was unaware of this until like, I was living in DC during the initial Tea Party rallies in like 09. I remember just like walking by some of the protests and talking to some people. And I was just like, I'm going to go talk to these lunatics. And most people were chill, but I remember one guy ranting about Woodrow Wilson for a long time. And I was like, what are you talking about, dude?

• 54:22Peter Shamshiri?

  And then later, I think I might have told you guys this, but later I asked him to bum a cigarette. And he's like, I'll give it to you, but I'm giving this to you of my own volition. Like, he was like, he was like, because we had been talking about like taxation or something. And he was like, I like, because like I, like, not because I have to, but because like I want to, like my own volition. I was like, okay, you don't have to do, I don't need a cigarette, actually. This is fine.

• 54:46Michael Liroff?

  Thomas also names four historical figures that he says were quote unquote intertwined with the rise of progressivism. See if he can guess any of the four.

• 54:56Peter Shamshiri?

  Okay, I'm going to go with, um, what's her face, Planned Parenthood.

• 54:59Michael Liroff?

  Sanger?

• 55:00Peter Shamshiri?

  Yeah, Sanger. Um, that would have been my first guess. This is all, this is all in that early, that same phase.

• 55:06Michael Liroff?

  He takes some, uh, historical.

• 55:10Peter Shamshiri?

  Okay, he's bouncing around temporarily?

• 55:12Michael Liroff?

  Yeah.

• 55:12Peter Shamshiri?

  Okay.

• 55:13Michael Liroff?

  It's arranged.

• 55:13Peter Shamshiri?

  I mean, all right, I'm gonna, I'm gonna just go ahead and say Lenin. Someone, someone in the Soviet sphere.

• 55:21Michael Liroff?

  So we got Margaret Sanger and Lenin. Reed, you want to give us some, some guesses?

• 55:25Speaker 02

  I'm gonna say, I'm, I'm feeling, I'm feeling a little JFK. I feel like he's putting, he's putting something on the Kennedys here.

• 55:33Michael Liroff?

  All right.

• 55:33Peter Shamshiri?

  Hold on, hold on, let me get one, let me get one more out there.

• 55:38Peter Shamshiri?

  Fuck, I'm gonna miss something. I'm gonna miss something obvious. I can feel it.

• 55:43Peter Shamshiri?

  I don't think he has the audacity to say FDR, but that would be like my actual guess. But I, so I'm gonna go FDR.

• 55:48Speaker 02

  Yeah.

• 55:49Michael Liroff?

  You guys went 0 for 4.

• 55:50Peter Shamshiri?

  Damn.

• 55:50Michael Liroff?

  They are Stalin, Hitler, Mussolini, and Mao.

• 55:57Peter Shamshiri?

  I want to say, I was spiritually correct with Lenin. That's basically Stalin.

• 56:01Speaker 02

  He said Soviet sphere. Yeah, yeah.

• 56:04Peter Shamshiri?

  Oh, my God. See, I was like, he's not, it's not, like, I was intentionally being like, well, obviously I didn't say Hitler, right?

• 56:14Peter Shamshiri?

  Oh, my God, dude. That's so fucking funny. I love that Sotomayor had to apologize because she was like, Brett Kavanaugh was a little out of touch. And, and Clarence Thomas, right afterwards, is like, my colleagues are Hitler.

• 56:32Peter Shamshiri?

  They are each, they are each like Mao.

• 56:39Michael Liroff?

  It's incredible. It's so good. Yeah.

• 56:46Michael Liroff?

  I, I don't think there's much more to be said.

• 56:48Peter Shamshiri?

  That's so good, dude.

• 56:48Michael Liroff?

  He says this is an attack on the Declaration of Independence and the founding principles.

• 56:52Peter Shamshiri?

  Yeah, yeah, yeah.

• 56:53Michael Liroff?

  Of our country. But, I mean, that's, that's got, that's the high point. That's, that's the high point.

• 57:00Speaker 02

  You said Stalin, Hitler, Mao, and who?

• 57:02Peter Shamshiri?

  Mussolini. And this is, for sure, a few years back, for If Books Could Kill, I read Liberal Fascism. And this, the, the links between Mussolini and the left.

• 57:18Peter Shamshiri?

  I mean, it's gibberish. It's truly gibberish. Like, he, like, all of these guys, all of like, the actual fascists, right? Like, the first thing they do is just go union bashing.

• 57:33Michael Liroff?

  Right.

• 57:34Peter Shamshiri?

  Like, arrest socialists. It's like, it's like incomprehensible when you actually understand what happened. But yeah, they, they love it. They love to say Mussolini was, was a secret lib.

• 57:44Michael Liroff?

  Isn't that literally the first line in the poem, right? First they came for the socialists?

• 57:48Peter Shamshiri?

  Yeah, I believe, it might be trade unionists, but it's one of the two. I mean,

• 57:57Peter Shamshiri?

  oh shit. God, it's so good. He is a dipshit dude. It's so funny how fucking stupid Clarence Thomas is. Remember, remember, like, I like how we're having this whole, like, everyone's like, oh my God, the leaked memos, the, the court looks so dumb. And then Clarence Thomas is like, progressives are sort of like Hitler and Mussolini. Just like, just like the dumbest Facebook post you've ever seen. He's just saying it publicly. And people are like, fascinating stuff from Clarence Thomas, who thinks that Barack Obama is sort of like Mao.

• 58:38Michael Liroff?

  Our producer says, first they came for the communists.

• 58:41Peter Shamshiri?

  First they came for the communists. Okay.

• 58:44Michael Liroff?

  Perfect. Perfect. Yeah.

• 58:47Peter Shamshiri?

  Yeah, that,

• 58:50Peter Shamshiri?

  dude, that, that's so funny. It's so funny to do, like Hitler was actually progressive or whatever, that, when you're, when you're like a full adult, like, you're a serious, ostensibly serious kind of guy.

• 59:03Michael Liroff?

  One of the most powerful men in the country.

• 59:05Peter Shamshiri?

  Yeah. See,

• 59:08Peter Shamshiri?

  this is the thing about Jenny's presence in his life. It's always been, it's always been there. If you were willing to look, you know? If you knew where to look, we knew that Clarence Thomas's brain was fucking fried up.

• 59:24Peter Shamshiri?

  Well, good stuff.

• 59:28Peter Shamshiri?

  Next week, rec to be Abramson, a case about a little doctrine called harmless error. The idea that if a court makes a harmless mistake when it's prosecuting you, then your prosecution still stands. Follow us on social media, at 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. We'll see you next week.

• 1:00:02Michael Liroff?

  Bye, everybody.

• 1:00:03Speaker 02

  Bye, XOXO, gossip girls.

• 1:00:06Michael 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.