Noem v. Vasquez Perdomo

Papers, please. The hallmark of fascist states of eras past and your favorite movie about authoritarianism is now also the official policy of the United States, with the Supreme Court’s blessing. But don’t worry, you (probably) won’t be stopped, unless you kinda look Hispanic or shop at Home Depot! I feel safer already. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. 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.

• 0:04Speaker 00

  Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, Peter, Rhiannon, and Michael are talking about Gnome v. Vasquez Perdomo, a recent case about federal immigration officers' use of race to detain people suspected of being undocumented. This past summer, the Trump administration directed ICE to ramp up deportations, leading agents in Los Angeles to detain people based on a variety of seemingly unconstitutional factors. Five people who had been detained by ICE sued the government, alleging violations of their civil rights. In yet another shadow docket decision issued without a majority opinion, the Supreme Court sided with the Trump administration.

• 0:44Speaker 01

  The Supreme Court has now given the green light for law enforcement to profile and detain Angelenos based on their race.

• 0:53Speaker 00

  This is Five to Four, a podcast about how much the Supreme Court sucks.

• 0:58Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have written off our civil liberties, like Donald Trump writing off a poem to Jeffrey Epstein. I had to force that one, folks, so that we could talk about the little poem that Donald Trump wrote to Jeffrey Epstein.

• 1:16Michael Liroff?

  With the horrific doodle.

• 1:18Peter Shamshiri?

  I'm here with Michael.

• 1:20Michael Liroff?

  Hey, everybody.

• 1:21Peter Shamshiri?

  And Rhiannon.

• 1:22Speaker 04

  Hello.

• 1:23Peter Shamshiri?

  It's very funny that Donald Trump, in his sort of public presence right now, is just like an angry dipshit, but secretly, he loves show tunes, and he writes little poems to his pedophile friends.

• 1:39Michael Liroff?

  Right.

• 1:40Speaker 04

  Yeah, he writes creepy, little gross poems.

• 1:42Peter Shamshiri?

  He loves art.

• 1:43Michael Liroff?

  Yeah. That's true.

• 1:46Speaker 04

  Real Renaissance man, yeah.

• 1:47Michael Liroff?

  Unfortunately, the poem is about their shared love of pedophilia. So that is a problem.

• 1:54Peter Shamshiri?

  All good art challenges you. You know what I mean? And that's what he's doing. He's challenging you.

• 2:03Speaker 04

  Oh, God.

• 2:05Peter Shamshiri?

  There's only so many jokes I can make about this.

• 2:07Speaker 04

  Yeah.

• 2:07Peter Shamshiri?

  Before we have to start just heavily cutting.

• 2:10Speaker 04

  Right.

• 2:11Peter Shamshiri?

  We don't want to get into it too much, but it is our opinion that Donald Trump is a lifelong pedophile.

• 2:18Michael Liroff?

  Yes.

• 2:19Speaker 04

  Yeah.

• 2:19Peter Shamshiri?

  And we think the evidence is really strong.

• 2:21Michael Liroff?

  Yeah.

• 2:22Peter Shamshiri?

  Okay.

• 2:22Michael Liroff?

  I'd go so far to say it's a fact. It's a fact I believe to be true.

• 2:26Peter Shamshiri?

  You could say it's our opinion that it's a fact.

• 2:29Michael Liroff?

  That's correct. That's right.

• 2:34Peter Shamshiri?

  Today's case, Gnome v. Vasquez Perdomo. This is a case from just a few days ago about-

• 2:41Speaker 04

  You're gonna get flamed for saying it like that. Vasquez.

• 2:43Peter Shamshiri?

  I felt it bad. I felt it come out bad as I said it. And I thought, maybe that wasn't as bad as it felt coming out.

• 2:50Speaker 04

  Vasquez.

• 2:51Peter Shamshiri?

  Vasquez. I couldn't decide whether I was doing ques or quez, and it just fucked up my whole rhythm.

• 2:59Peter Shamshiri?

  So this case is from just a few days ago about Trump's anti-immigrant crackdown in Los Angeles. As you probably know, Trump deployed federal troops to Southern California early this summer. As you also probably know, because we covered it in a recent premium episode, the federal troops appeared to be detaining people based entirely on their ethnicity and factors like whether they were near a Home Depot in apparent violation of various constitutional rights. So some folks sued, and a federal court enjoined the federal government from detaining people for discriminatory or arbitrary reasons. But the Supreme Court, in a move that we've now seen many times,

• 3:44Peter Shamshiri?

  intervened to lift that order, allowing the administration to continue discriminating in immigration raids.

• 3:51Speaker 04

  Yeah, listeners, we did an episode early August, I believe it came out, about the summer in Los Angeles, what that had been like, the militarization of immigration enforcement, the immigration raids that had taken place in Los Angeles, and the lawsuit that had been filed by the ACLU and others, and what that kind of told us about what had happened in Los Angeles this summer. So we talked in that episode about this case getting filed because ICE-

• 4:26Speaker 04

  Was doing super racist, you would think, completely illegal and unconstitutional stuff by admittedly, they said it themselves, stopping people who were Hispanic or Latino, or perceived to be, perceived to be Hispanic or Latino, stopping people who were speaking Spanish, and stopping people who were congregating around these locations that ICE was asserting were suspicious locations where undocumented immigrants hang out a lot at, like, for example, the Home Depot, or like parking lots where day laborers congregate while they're waiting

• 5:07Speaker 04

  for jobs, or construction sites, or car washes. The men who filed this lawsuit, some of them are undocumented, some of them are US citizens, had all experienced violent, aggressive detentions, some of them were jailed in the federal building basement in Los Angeles, and all of them had very similar stories. We remember this, the ICE agents, federal agents, often without badges, without identifying themselves, coming up, roughing up people, pushing them, hitting them, and then even for US citizens, sometimes detaining these folks, driving them around, taking them to

• 5:48Speaker 04

  different locations, and taking all of this time, even when people had produced their IDs, proof of their citizenship, taking them around and not releasing them for long periods. So, you can imagine, obviously, the constitutional violations that are inherent in these ICE activities. This went to the District Court for the Central District of California, and that judge, Judge Owusi Mensah Frimpong, issued an injunction, issued a stay, said the federal government cannot continue to conduct ICE raids like this in the Los Angeles area while this case is pending. Of course, the Trump administration, the government appeals that injunction,

• 6:32Speaker 04

  appeals that stay. And this is where we're at, at the Supreme Court, only on the issue of this stay.

• 6:39Peter Shamshiri?

  Right. So let's talk about the law a little bit. What's at issue here primarily is the Fourth Amendment, which protects against unreasonable searches and seizures, right? Basically saying if the government wants to seize your person or search you, or both, they need to meet a certain threshold. They need to actually have a reason of some sort, right? There are also a bunch of other constitutional provisions that are sort of implicated here, namely the Fourteenth Amendment, equal protection, which is not explicitly referenced in this decision and yet pervades it, in my view. So this is on the shadow docket, something we've seen before, and there is no written majority opinion.

• 7:24Peter Shamshiri?

  All of the conservatives are in the majority, but there's no majority opinion. Brett Kavanaugh writes a concurrence which no other justice joins. So he's sort of writing on his own behalf. We've said recently that it seems like the conservatives are avoiding providing written opinions whenever they can, presumably because it's just too embarrassing to have to explain yourself when you're just transparently doing whatever Donald Trump needs from you.

• 7:52Speaker 04

  Yeah.

• 7:53Peter Shamshiri?

  And maybe this is a good example of what we mean, because Kavanaugh tries to write an opinion defending the ruling, and it's deeply humiliating.

• 8:00Speaker 04

  It's on its terms wild.

• 8:03Peter Shamshiri?

  It's a shameful opinion. It is incredibly funny that he even tried.

• 8:08Speaker 04

  The optics of it, the optics, we know all six of you are in the majority. Why would you write a standalone concurrence?

• 8:16Michael Liroff?

  It's so bad.

• 8:17Peter Shamshiri?

  That means that he wrote it presumably thinking someone's going to join this, and this will be the majority opinion.

• 8:23Speaker 04

  Yeah.

• 8:24Peter Shamshiri?

  Perhaps, right? And all of the conservatives were like, no, Brett.

• 8:28Michael Liroff?

  It's so bad, too. Like, it's, it's embarrassing. Like,

• 8:34Michael Liroff?

  This is one of those things where you're like, you know, he has no friends on the court. Because if he did, one of them would be like, well, let's maybe tone this language down.

• 8:42Speaker 04

  Yeah.

• 8:42Peter Shamshiri?

  Right. They might, they would work with him to develop an argument that maybe they could join.

• 8:48Michael Liroff?

  Right. Exactly. Instead, they're like, let him go make a fucking ass of himself. Whatever.

• 8:53Speaker 04

  Yeah. And let's be clear, like, all the conservatives agree with what Brett Kavanaugh is saying.

• 8:58Michael Liroff?

  For sure.

• 8:59Speaker 04

  Like, they, they absolutely agree. They would sign on to it if it weren't so sort of like shockingly racist, which we'll get into in just a little bit. It's like the other five conservatives on the court at least recognize like, and we don't have to do a legal explanation for this. Like, let's not, right?

• 9:19Michael Liroff?

  Let's not put our name on something that's gonna look terrible.

• 9:23Speaker 04

  Yeah, we don't have to. So why would we, right? There is this hilarious part of this, which is like Brett Kavanaugh is the loser of the court socially. I just think this is funny. I think this is funny to think about. I think that it's obvious in a lot of ways, if you like, watch the court the way that we do. And this is such a good example. Like,

• 9:47Michael Liroff?

  Yeah.

• 9:47Speaker 04

  Brett Kavanaugh does not fit in. The other conservatives think he's a loser. And think he's annoying, like an annoying kid brother.

• 9:57Michael Liroff?

  Yeah, we were, we were talking about this before the episode. And I think that the types of guys they are, are so different. And I have very clear pictures of them because I went to a conservative college that heavily features both types of guys.

• 10:14Speaker 04

  Absolutely.

• 10:15Michael Liroff?

  Dartmouth had the Dartmouth Review, which is a conservative paper that gave us fucking Dinesh D'Souza and Ann Coulter, or Laura Ingraham, or one of them, or both.

• 10:27Peter Shamshiri?

  It was Ingram.

• 10:28Michael Liroff?

  It was Ingram, yeah.

• 10:32Michael Liroff?

  These fucking conservative nerds who wear bow ties and think like the sickest burn you could ever drop on someone is quoting them and putting the little, the little bracket sick after like this motherfucker.

• 10:47Speaker 04

  God.

• 10:47Michael Liroff?

  God didn't have good subject verb agreement. And then Kavanaugh was also very present in the fraternity system at Dartmouth of guys who like to funnel beers and drug women or otherwise sexually harass them. And these were not overlapping social circles and these were not people who liked one another at all. And, and maybe when he was younger Kavanaugh was one of the cool guys, but now he's in a social sphere where he's fucking marginalized where they're like, what a dumbass. Why, why are we stuck with this stupid piece of shit? It's incredible.

• 11:27Peter Shamshiri?

  Yeah. And you, you can see the dynamics, the more time he spends on the court, like what I told you guys was that now you can see his Dobbs concurrence in almost a different light where, you know, he wrote a concurrence in Dobbs that we talked about at the time where that was sort of just like now abortion is up to the states and just like doing this really weird like law 101 sort of thing.

• 11:53Speaker 04

  I'm neutral on abortion.

• 11:55Peter Shamshiri?

  And.

• 11:56Speaker 04

  Yeah.

• 11:57Peter Shamshiri?

  At the time we're like, why did he write this? Was it like for the media or whatever? And that was sort of my theory, like, maybe this is just for the media to pick up on and law students that, you know, who maybe aren't so versed in the law or something. And it provides them with little talking points. But now I feel like my theory is that he was like, how about this guys? And then John Roberts, similar to an older brother, giving a younger brother a controller that's not plugged in was sort of like, oh, that would make a really good concurrence, Brett. Why don't you write that? Why don't you go over there and write that?

• 12:35Speaker 04

  We'll go ahead and file that as a concurrence. Sure.

• 12:38Peter Shamshiri?

  Why don't you go to your office and write that?

• 12:45Michael Liroff?

  That sounds so important. Don't leave it to your clerics.

• 12:48Peter Shamshiri?

  Yeah.

• 12:48Michael Liroff?

  You write that yourself.

• 12:49Peter Shamshiri?

  Yeah.

• 12:50Michael Liroff?

  You take some time. Spend some time by yourself with that.

• 12:54Peter Shamshiri?

  All right, let's talk about the content here, the substance. One of the first questions here, the first issues is whether the folks suing have standing to get an injunction. Kavanaugh says that they don't. And he cites an OG five to four case from like 2020, Los Angeles v. Lyons. The basic premise in Lyons was that a man was brutalized by police. He was put in a dangerous chokehold. He tried to get a court injunction preventing them from using the chokehold that they put him in because it's so dangerous. The court said, well, you don't have standing because even though we know LAPD uses this chokehold,

• 13:37Peter Shamshiri?

  you can't prove that they'll use it on you specifically in the future.

• 13:42Michael Liroff?

  Right.

• 13:43Peter Shamshiri?

  So Kavanaugh makes that same argument. He says, look, even if all of the stuff that ICE is doing is illegal, the plaintiffs can't show that it will be done to them again. And therefore, no injunction. Yes. Which, I mean, Lyons was a stupid ass case, but here it makes even less sense because like It's horrible. The court is holding that ICE can profile people based on their ethnicity.

• 14:07Michael Liroff?

  Right.

• 14:07Peter Shamshiri?

  And where they work, basically, right? Which we'll get to in a second. And these people fit that profile. The plaintiffs fit that profile.

• 14:15Michael Liroff?

  They're going to continue being visibly Hispanic.

• 14:19Peter Shamshiri?

  But Kavanaugh is still saying that they can't prove that it will happen to them again. Like, you're literally okaying a government policy of this happening to them over and over again.

• 14:31Michael Liroff?

  Yeah, if you're Hispanic presenting and you work at Home Depot, yeah, you, it's actually very possible, if not plausible or likely, that you will get profiled again. Because they're going back to fucking Home Depot.

• 14:44Speaker 04

  Yeah, what Brett Kavanaugh says about the standing question is what matters is the reality of the threat of repeated injury. He emphasizes reality, like saying, don't just allege, don't just imagine that maybe this will happen to you again in the future, right? But think about the people in this very case. We talked about it in the summer of LA episode. People in this very case were apprehended, taken in a federal vehicle, driven around, dropped back off at their workplace where they had been picked up, and another wave of a raid happened at the same location. This happened to plaintiffs in this case. Right.

• 15:27Speaker 04

  You're not like imagining that the threat might still exist as to people in Los Angeles or as to you personally. And then think, you know, this is what Peter and Michael, you're both referring to, like about the scale of it, right? Stops of this kind, meaning racist stops, stops on the basis of impermissible illegal factors like race, they are imminent. Right. If you say race and speaking Spanish are like legitimate grounds of a stop, and you just said that this administration is like, Brett Kavanaugh has this like whole inference throughout that like this administration is stepping up and doing immigration enforcement,

• 16:12Speaker 04

  not like the last administration. So Brett Kavanaugh is saying this is happening at like this huge scale because the problem of illegal immigration, he says, is so huge, right? And he's saying all of these arbitrary unfair factors can be used. The threat of the stops are absolutely imminent. Like this is ridiculous to be like, oh, well, you can't, you haven't shown enough evidence that actually this is going to keep happening. Yeah.

• 16:39Peter Shamshiri?

  Right. I mean, like we said in the Lions episode, it's stupid that you should have to show this, right? Like, we know that they have this policy. It's before the Supreme Court of the United States. Will you stop dicking around and just address the fucking question, right?

• 16:54Michael Liroff?

  Right.

• 16:54Peter Shamshiri?

  So now we get to the heart of it, the subject of racial discrimination. ICE and other agencies, apparently listening to Stephen Miller's commands,

• 17:03Speaker 04

  Yeah.

• 17:04Peter Shamshiri?

  has been targeting people who look ethnically Hispanic, Latino, who have weaker English and/or who are physically proximate to places that they think illegal immigrants stereotypically hang around, like Home Depot and car washes and mechanics, car mechanics, right? This all seems like a pretty cut and dry constitutional violation. But Kavanaugh says, quote, "Many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English. Therefore, race and language can be a relevant factor."

• 17:42Peter Shamshiri?

  He says this is, quote, "common sense."

• 17:44Michael Liroff?

  Of course. Yeah.

• 17:46Peter Shamshiri?

  Yeah. By the way, that's what racists always say after saying something racist, right? Like, this is common sense.

• 17:52Michael Liroff?

  Yeah. You just don't walk into the majority black neighborhoods. It's dangerous. It's common sense. Everybody knows that.

• 17:58Peter Shamshiri?

  Common sense.

• 17:59Speaker 04

  Yeah, he's really pushing the fear mongering about illegal immigration, so-called illegal immigration. He starts this absolutely silly concurrence by saying that, like, illegal immigration in this country is happening at extraordinary numbers. He says that in the LA region alone, there are 2 million illegal immigrants. These are, of course, his words. Out of about 20 million people who live in the Los Angeles region, he says this is 10%. 10% of people in LA are here undocumented. He says 15 million immigrants

• 18:40Speaker 04

  are undocumented in the United States. And he's got to get the jab in about the Biden administration. He says, quote, "Many millions of those illegal immigrants illegally entered or illegally overstayed just in the last few years."

• 18:58Michael Liroff?

  Whoa.

• 18:58Speaker 04

  Right?

• 18:59Michael Liroff?

  You might be wondering, dear listener,

• 19:03Michael Liroff?

  What has he cited to for that 2,010% number? And the answer is nothing.

• 19:08Speaker 04

  Nary a footnote.

• 19:10Michael Liroff?

  There's no footnote, there's no citation, there's nothing. He just says it, he just says it.

• 19:15Peter Shamshiri?

  Common sense, baby.

• 19:16Speaker 04

  Yeah, I looked it up and I found, let me cite, I actually have the report open.

• 19:23Speaker 04

  I looked it up and like, who knows the geographic region that he's defining as the Los Angeles area? But the USC Equity Research Institute estimated that something like 900,000. People are undocumented in the greater Los Angeles area. This is less than half of what he cited. So yeah, no citation, can't check him.

• 19:45Peter Shamshiri?

  No. Kavanaugh is making this argument that like, it's okay to discriminate here because illegal immigrants are in fact disproportionately of Hispanic descent. But the point of discrimination law is that that does not matter.

• 20:02Michael Liroff?

  No.

• 20:02Speaker 04

  Yes.

• 20:03Peter Shamshiri?

  The law protects your individual right to be treated fairly, not to be discriminated against. You don't sacrifice your liberty because people of your demographic group are committing crimes, even if that's true. I always use the example of like, imagine a fictional incredibly treacherous race and it is, it is a conservative pipe dream about an evil race. Or they are genetically predisposed to crime.

• 20:30Michael Liroff?

  Let's call them Persian.

• 20:32Peter Shamshiri?

  We'll call them Southern Slavs.

• 20:38Peter Shamshiri?

  And this race is to a man prone to crime. They all commit crimes with one exception.

• 20:45Speaker 04

  Yeah.

• 20:46Peter Shamshiri?

  A genetic defect has rendered one man immune to the criminal predisposition of his demographic.

• 20:56Speaker 04

  Yes.

• 20:58Peter Shamshiri?

  Discrimination law should protect that man.

• 21:00Speaker 04

  Yes.

• 21:00Peter Shamshiri?

  In my view.

• 21:01Speaker 04

  This is the point.

• 21:02Peter Shamshiri?

  You cannot actually have functional anti-discrimination law if that man is not protected.

• 21:07Speaker 04

  Right? Yes.

• 21:07Peter Shamshiri?

  This is the whole point. Like discrimination does not become legal when the stereotypes are true or something. Or like the more true the stereotypes are, the more legal it becomes. And I'm not even saying they are true in this case. That's why I'm using the hypothetical Southern Slav.

• 21:25Speaker 04

  This is what individual liberty means.

• 21:28Michael Liroff?

  Right.

• 21:28Speaker 04

  This is a legal system that ensures individual liberty.

• 21:34Michael Liroff?

  Mm hmm. That's what the individual in individual liberty means.

• 21:38Speaker 04

  Yes.

• 21:38Michael Liroff?

  It means it adheres to you as an individual, regardless of your demographics, that there are certain things the government cannot do to you. Right? They cannot search you unreasonably. Like, that is what the Fourth Amendment says. And it doesn't matter where you live. It doesn't matter what you look like. It has to be reasonable. And usually that means it has to require a warrant or probable cause. That's what individual liberty is. And similarly, that's what due process is about.

• 22:11Speaker 04

  Yes, this is the point of due process. Yes.

• 22:14Michael Liroff?

  Is to make sure that every individual is being treated properly and getting their liberties respected.

• 22:20Speaker 04

  Right.

• 22:21Peter Shamshiri?

  I'll also add that Kavanaugh is doing a classic racist guy trick. And once you see this trick in one place, you will see it everywhere. He is saying undocumented immigrants, illegal immigrants, are disproportionately Hispanic.

• 22:34Michael Liroff?

  Mm hmm.

• 22:35Peter Shamshiri?

  Okay? But are Hispanic people disproportionately illegal immigrants? That is the actual question you should be asking. And I'm not saying that the answer to that question matters. I'm saying that he's asking the easier question to avoid having to ask the harder one, which is, is the median person that fits this description actually likely to be an undocumented immigrant?

• 22:59Michael Liroff?

  Right, right. What's the risk of false positives of your racial profiling? In this county, something like over 40, approaching 50% of residents. Are Hispanic.

• 23:09Speaker 04

  Right.

• 23:09Michael Liroff?

  So even if it's bullshit, 10% statistic was correct, which it's not.

• 23:14Peter Shamshiri?

  Right.

• 23:14Michael Liroff?

  You're still gonna have a huge number of false positives because guess what? People fucking go to Home Depot and people work at Home Depot.

• 23:22Peter Shamshiri?

  Right.

• 23:22Michael Liroff?

  Who live here legally, they go to 7-Eleven, right? And half of them are fucking Hispanic, four out of 10 of them are Hispanic, like.

• 23:30Speaker 04

  Yeah, this goes back to the imminence as well. Like the potential harm is not just to undocumented people or people, right? Like committing immigration crimes. The plaintiffs here are citizens. They were detained under these unfair standards that ICE is using to detain people. And it continues to be imminent if Brett Kavanaugh and the conservatives are saying this is fine.

• 23:53Michael Liroff?

  Right.

• 23:53Speaker 04

  To millions of people in Los Angeles and of course, across the country.

• 23:58Peter Shamshiri?

  Now, this case is about the Fourth Amendment primarily. But like I mentioned, the equal protection clause, which directly prohibits discrimination, sort of is just in your mind throughout it, right? I'm gonna read a little quote from a Supreme Court case where they said, "The quote, 'core purpose of the equal protection clause,' quote, 'is doing away with all governmentally imposed discrimination based on race.'"

• 24:30Speaker 04

  Hmm.

• 24:30Peter Shamshiri?

  Do you know what that is from?

• 24:32Speaker 04

  What case, Peter? What's that from?

• 24:34Peter Shamshiri?

  That's from Students for Fair Admissions v. Harvard. The fucking affirmative action case.

• 24:40Speaker 04

  Yes. The case that did away with affirmative action. Yes.

• 24:43Michael Liroff?

  Right.

• 24:44Peter Shamshiri?

  When we're talking about affirmative action, can schools consider race in admissions? No, the core purpose of the equal protection clause is doing away with all governmentally imposed discrimination based on race.

• 24:59Michael Liroff?

  Yeah.

• 25:00Peter Shamshiri?

  What happened?

• 25:01Michael Liroff?

  I have it on good authority from John Roberts himself that the way to stop discriminating on race is to stop discriminating on race.

• 25:09Peter Shamshiri?

  Powerful.

• 25:10Michael Liroff?

  He wrote that in, what was that? That was Parents Involved.

• 25:13Peter Shamshiri?

  That was Parents Involved. Yeah. Parents Involved, 2007.

• 25:17Speaker 04

  Yeah, I think the affirmative action case and just broadly what the conservative vision is of what the Constitution protects against in terms of racism, right? This, this very formal, any classification that's based on race is unconstitutional. And this is what they weaponize, of course, in order to do things like dismantling affirmative action or dismantling any sort of policy or practice that is, you know, trying to rectify past racial injustice or to try to make things more racially fair. Of course, you know, their big argument on affirmative action, the conservatives,

• 25:56Speaker 04

  is absolutist, formalist argument about racial classifications that they, you know, must be done away with in whatever form is really important in the affirmative action context because what universities argued for years is we're not using race in affirmative action. We're not using it as like some deciding factor. It's not even going to tip the scales. It's not going to make the difference because it's used as a factor of a factor, right? Like it's, it's not even a priority or, or a main consideration when we're looking at admissions. And the Supreme Court says, no, absolutely not. Any fucking classification is unconstitutional, you freaks.

• 26:35Peter Shamshiri?

  Race cannot weigh anything in your analysis.

• 26:38Speaker 04

  Right. Here Brett Kavanaugh and the conservatives, right, are completely ignoring that there is explicit racial classification being used by federal agents to stop and detain people. And the way Brett Kavanaugh brushes this off is by saying, well, all a federal officer, all an officer has to have to do an investigatory stop to detain somebody is reasonable suspicion. And reasonable suspicion is specific articulable facts that a law enforcement agent can articulate to describe why they had some amount of suspicion of criminal activity.

• 27:19Speaker 04

  And reasonable suspicion is assessed, is evaluated in totality of the circumstances. Brett Kavanaugh is saying this to hand wave that race is a factor being used here.

• 27:30Peter Shamshiri?

  Right. He's saying, well, it can be one factor of several.

• 27:33Speaker 04

  It can be a factor. It can be a factor here.

• 27:36Peter Shamshiri?

  Which, by the way, his citation for that is like a case from 1975. It's like a throwaway line from some garbage ass case from 1975.

• 27:46Michael Liroff?

  Of course.

• 27:46Speaker 04

  Yeah.

• 27:46Peter Shamshiri?

  The real holding of that case is that race cannot be the sole factor. And here, he's like, well, it could be one of these holistic factors, right?

• 27:57Speaker 04

  Right.

• 27:57Peter Shamshiri?

  But these plaintiffs don't actually have the other factors.

• 28:01Speaker 04

  Yeah.

• 28:01Peter Shamshiri?

  Right?

• 28:01Speaker 04

  Yeah.

• 28:02Peter Shamshiri?

  Like, several of these plaintiffs are American born, which means like, they're not speaking like, broken English or something like that.

• 28:09Speaker 04

  Right.

• 28:09Peter Shamshiri?

  They're just Hispanic and like, maybe working in a job that these people think is like suspicious or whatever. So like, I guess two factors, but like, it's really close to one factor.

• 28:20Michael Liroff?

  Some of the plaintiffs were just getting coffee.

• 28:23Peter Shamshiri?

  Right.

• 28:23Michael Liroff?

  Before work, and I guess they were getting coffee somewhere near where day laborers maybe wait for work or something.

• 28:30Peter Shamshiri?

  Right.

• 28:30Speaker 04

  Yeah.

• 28:30Peter Shamshiri?

  So like, it's hard to imagine that when the Supreme Court in 1975 said, you can't use race as like your actions, like the basis for your suspicion.

• 28:41Speaker 04

  Right.

• 28:41Peter Shamshiri?

  What they actually meant was like, well, if it's race plus being 20 feet away from a day laborer.

• 28:49Speaker 04

  Right, exactly.

• 28:50Michael Liroff?

  Right.

• 28:50Speaker 04

  I do want to unpack the reasonable suspicion standard a little bit and the way that Brett Kavanaugh talks about it, because he's trying to like bludgeon you with logic. Like you said, Peter, he's saying like, well, of course, race and ethnicity, that's just logical, that that is relevant to a suspicion that somebody might be undocumented, right? But reasonable suspicion as a standard is either meaningful, it either means something, or it's meaningless. And like, it's like, what is the purpose of reasonable suspicion? It forces law enforcement to have to articulate facts, to have to have some amount of facts that give rise to suspicion. And what is the use of the word reasonable here?

• 29:32Speaker 04

  Using somebody's race is legally unreasonable. This is like imbued, this pervades, like you said, Peter, the entire opinion, it pervades the entire constitution, it actually pervades the entire history of the United States. Using somebody's race as determinative of criminality is not legally reasonable. That is why.

• 29:58Speaker 04

  You know, we have multiple amendments in the Constitution, right? And so he thinks he's being clever by trying to make it seem like so obvious. Like, of course, you could use race in reasonable suspicion. But it's it's in complete, complete denial of like this really, really foundational constitutional concept that like, that we have and that like is imbued throughout the amendments, whether it's the Fourth Amendment or anywhere else, right? Imagine gun ownership, individual gun ownership. And somebody said, well, we can use race as one factor to like, let somebody buy a gun.

• 30:39Michael Liroff?

  School shootings are predominantly done by by white teenage males. So we should probably just not let white men own guns.

• 30:48Speaker 04

  Yes.

• 30:49Peter Shamshiri?

  I mean, you know, domestic violence by men. I mean, violent crime in general is something that adheres basically to young men, specifically more than any other group or demographic, right? And you just can't imagine

• 31:02Speaker 04

  Right.

• 31:02Peter Shamshiri?

  a world where the court would ever accept that.

• 31:04Speaker 04

  Absolutely.

• 31:05Peter Shamshiri?

  They would be appalled. I mean, they won't even let you get like a slight disadvantage going into college.

• 31:12Michael Liroff?

  There's a, there was an if, I think it was Hobbes on if books could kill on your other podcast, Peter. One of the early episodes said that there was like a a thought experiment that was like, you know, like the most effective crime policy you could do would just be to imprison boys when they turned like 14 and then let them out when they turned like 28 or whatever. And that would be really effective for controlling crime. It's still not a good policy or one you should do, right? And and it's one that the Constitution protects against.

• 31:44Speaker 04

  You would think, right? Yeah, right.

• 31:46Michael Liroff?

  In any event, I do want to, I want to say explicitly, though, that like, they're not being hypocrites. They just believe in a racial caste system, right? They're just Confederates, right? I I think on the podcast before, I've called them neo Confederates. But I think at this point, we can just call them, they're Confederates. They're fucking, these motherfuckers love Robert E. Lee. These motherfuckers want a segregated society.

• 32:13Speaker 04

  Yeah.

• 32:13Michael Liroff?

  They want a racial underclass with fewer rights.

• 32:18Speaker 04

  Yeah.

• 32:18Michael Liroff?

  And so it's not hypocritical at all.

• 32:34Peter Shamshiri?

  All right, let's move on in this argument, the next portion. Kavanaugh is weighing the burden imposed on people who are detained and interrogated by federal agents, right?

• 32:47Speaker 04

  This is wild. This is wild, guys.

• 32:49Michael Liroff?

  This is the one that made me so fucking angry. I mean, this whole opinion made me angry, but this is the one.

• 32:53Peter Shamshiri?

  This is part of the Fourth Amendment analysis, right? It's like, well, how much of an imposition

• 32:57Speaker 04

  Yes.

• 32:58Peter Shamshiri?

  is this on the citizen, right? On the person. What Kavanaugh says is, quote, "The interests of individuals who are here illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law."

• 33:14Michael Liroff?

  Oh, my God.

• 33:15Peter Shamshiri?

  That is not an especially weighty legal interest.

• 33:19Speaker 04

  This is wrong, you guys.

• 33:20Michael Liroff?

  Everything about this is wrong.

• 33:22Speaker 04

  If you are a law student listening.

• 33:23Peter Shamshiri?

  This makes no sense. If being suspected of violating the law forfeits your Fourth Amendment rights, then there are no Fourth Amendment rights.

• 33:33Speaker 04

  Right.

• 33:34Peter Shamshiri?

  Constitutional rights apply whether or not you violated the law. That is a huge part of the point. It's like a really big part of the point.

• 33:42Michael Liroff?

  Right.

• 33:43Peter Shamshiri?

  It's not like if they're a criminal, then they don't have any interest in like the Fourth Amendment. No, it protects everybody. There's no carve out for fucking, for people who commit crimes. It doesn't matter if you're a murderer. You still have Fourth Amendment rights. You don't get to be like, well, the police didn't need a warrant because this guy was covering up a murder.

• 34:02Speaker 04

  Yeah.

• 34:03Peter Shamshiri?

  You don't get to say that. That's not how it fucking works.

• 34:06Michael Liroff?

  Right.

• 34:07Peter Shamshiri?

  He pairs this with what's from a recent Amy Coney Barrett holding where she said, when you're doing this injunction analysis, you're trying to figure out which party is irreparably harmed. And she said, when you halt a government policy, the government is always

• 34:27Speaker 04

  Yes.

• 34:27Peter Shamshiri?

  irreparably harmed.

• 34:28Michael Liroff?

  Right.

• 34:29Peter Shamshiri?

  Right?

• 34:30Michael Liroff?

  This was in the birthright citizenship case.

• 34:31Peter Shamshiri?

  Kavanaugh cites that and you have this sort of like Duality, like the yin and yang of like,

• 34:37Michael Liroff?

  Right.

• 34:38Peter Shamshiri?

  First of all, the government is always harmed.

• 34:40Speaker 04

  Yes.

• 34:40Peter Shamshiri?

  When you stop them from doing what they want. Second of all, someone who's committing a crime allegedly is never harmed.

• 34:48Speaker 04

  Doesn't have constitutional rights.

• 34:50Peter Shamshiri?

  They don't have any constitutional rights.

• 34:51Speaker 04

  Right, there's no harm.

• 34:52Peter Shamshiri?

  It doesn't make any fucking sense. It's incoherent. It's, it's antithetical to the entire concept of rights.

• 34:57Speaker 04

  Yes.

• 34:58Michael Liroff?

  Yeah, it is. The move he's pulling here is so fucking dishonest because the analysis is not, what are the interests of people committing crimes, right? He even says it like two sentences earlier. He says, you have to balance the harms to the regulated and negatively affected parties, which is not just people here without documentation. It's the plaintiffs in this case who are American fucking citizens. It's lawful permanent residents.

• 35:25Peter Shamshiri?

  Well, he, he addresses them separately. Although that doesn't actually make sense because the agents don't know in advance whether someone's undocumented, but whatever. So he addresses them separately. He says, as for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are US citizens or otherwise legally in the United States.

• 35:55Michael Liroff?

  Wrong.

• 35:56Peter Shamshiri?

  Now, let me regale you with the story.

• 35:59Speaker 04

  Yes.

• 36:00Michael Liroff?

  Yes.

• 36:00Peter Shamshiri?

  From this actual case.

• 36:02Speaker 04

  Yes.

• 36:02Michael Liroff?

  Yes.

• 36:03Peter Shamshiri?

  One of the plaintiffs in this case is a US citizen born in LA. ICE shows up at his workplace, asks if he's a citizen. He says yes multiple times. They asked what hospital he was born in.

• 36:16Michael Liroff?

  Yeah.

• 36:16Peter Shamshiri?

  And when he could not recall, they racked a rifle, slammed him against a fence and twisted his arm behind his back. They finally get his ID, at which point they let him go, but they confiscate the ID.

• 36:28Michael Liroff?

  Right. He took his ID and never gave it back.

• 36:31Peter Shamshiri?

  Another citizen in this lawsuit who runs a car wash showed ICE agents his ID. They still arrested him and brought him to a warehouse for questioning. These are examples from the case.

• 36:45Speaker 04

  Yeah.

• 36:46Peter Shamshiri?

  Which Kavanaugh ignores completely.

• 36:50Peter Shamshiri?

  In favor of just making up a scenario where everything goes really smoothly?

• 36:55Michael Liroff?

  Right.

• 36:55Speaker 04

  And making up a standard that doesn't exist in the law. The, the question about whether reasonable suspicion and an investigatory stop and detaining a person, whether or not it's brief, has nothing to do actually with whether or not it's constitutional, right? It doesn't matter how brief the detention is. An investigative stop is a detention of the person that is a seizure under the Fourth Amendment. It must be reasonable. This is what the Constitution says. This is longstanding Supreme Court jurisprudence. In the state of Texas, there are pretty strong rules, right? The state of Texas, there are pretty strong rules agreed upon by courts across the state

• 37:36Speaker 04

  that a police officer cannot just say, hey, stop, I'm making you stop without reasonable suspicion. It doesn't matter how long it is.

• 37:46Michael Liroff?

  Right.

• 37:46Speaker 04

  It's lying on multiple levels by Brett Kavanaugh.

• 37:49Michael Liroff?

  There is a reason why even brief investigatory stops, asking for identification, are features of authoritarian regimes and

• 38:01Speaker 04

  Yes.

• 38:02Michael Liroff?

  strongly disfavored, if not outright prohibited in American law, right? This didn't come out of fucking nowhere, right? Like Kavanaugh's literally saying, what's the big deal? If you're a citizen, you just give them your ID.

• 38:16Peter Shamshiri?

  What's the big deal? If you're innocent, we should be able to search your house. It's, it's the same shit.

• 38:21Michael Liroff?

  Right. It's fucking crazy.

• 38:23Speaker 04

  Yeah.

• 38:24Michael Liroff?

  The papers please regime is fine. That's what he's arguing. He's arguing that if they had the manpower for it, they could, because the imposition on everyday citizens is so minor, according to him, they could just

• 38:38Speaker 04

  Yeah.

• 38:39Michael Liroff?

  post someone at every fucking corner in every city in this country and demand identification from anyone they felt like at any point, for any reason. That's the logical extension of his reasoning here. It's fucking insane.

• 38:54Speaker 04

  Yeah.

• 38:55Michael Liroff?

  It's totally nuts and it's totally wrong.

• 38:58Speaker 04

  I think this goes back to like the racist logic thing that you were talking about, Michael. Like he's bludgeoning us with like a, a sort of, um, like a, a sort of Uh, like sassy logic of like, yeah, of course, and just kind of like hand waving, like, just accept it, just accept what I'm saying kind of thing. But this is like a mask off of the racist logic of the United States, I think. In maybe like the most clear way we've seen at the Supreme Court in a while, like almost as explicit it can get, right? It's only reasonable, he's talking about like reasonable, reasonable suspicion, you know, it's reasonable for these agents to take these things into account when deciding

• 39:43Speaker 04

  in their fucking roving patrols, who to stop and who to, who to arrest and who to detain. It's only reasonable, like so obvious in the way that he wants it to be, that you would use race like this if you live in a white supremacist exclusionary society.

• 40:00Michael Liroff?

  Right.

• 40:00Speaker 04

  In which like your membership in the in-group and in which the decisions about who is to be kept safe and who's in the out-group and who's suspicious and who's perceived as dangerous and who's a threat to the in-group, that that all makes sense when race actually is.

• 40:18Michael Liroff?

  Right.

• 40:19Speaker 04

  A primary factor in making those decisions, right? And that is what Brett Kavanaugh is most logical about here and fucking stupid enough to write.

• 40:28Michael Liroff?

  Yeah.

• 40:28Peter Shamshiri?

  This is what he can't avoid. Under his logic, a completely law-abiding Hispanic citizen, or someone who's perhaps just swarthier than average. Who works a certain type of job, has lesser constitutional rights.

• 40:49Michael Liroff?

  Yep.

• 40:49Peter Shamshiri?

  Than a white person in the same situation, right?

• 40:53Speaker 04

  Yes.

• 40:53Peter Shamshiri?

  That is the inescapable conclusion, the direct output of his logic. It doesn't matter what else he says, that is a fact of this decision.

• 41:04Michael Liroff?

  Yeah, he talks a lot about. You know, the majority of undocumented migrants, which he calls illegals, of course, illegal aliens throughout the opinion, are Hispanic. But what happens when Trump decides to say that it's the policy that they're cracking down on, I don't know, the Haitian migrants who were eating the dogs and the cats? They're going to be predominantly black. What happens then? You might not know this, but there are black people in Latin America. There are a lot of them. What about that? Like, are we not going to go after them? You know, Trump has already floated the idea of Asian undocumented immigrants becoming

• 41:44Michael Liroff?

  a target for deportation, which is also a massive population, the Asian population in a lot of states, especially California. There's absolutely no reason why this has to stop with Latino-presenting people. Like, none.

• 42:00Speaker 04

  Oh, certainly not. Yeah.

• 42:02Michael Liroff?

  There's no, like, practical reason. There's no logical reason. And there's certainly no indication from the Supreme Court that they have any interest in stopping this being expanded to other racial and ethnic categories. So, like, it is what it is. It's the silent, except for this fucking one dumbass writing his little 10-page shit opinion, the silent blessing of a racial caste system. It's what it is.

• 42:34Peter Shamshiri?

  The last thing we should mention is that at one point Kavanaugh talks about the alleged use of excessive force by police, which is technically a separate legal issue. And what he says is, quote, "To the extent excessive force has been used, the Fourth Amendment prohibits such action, and remedies should be available in federal court."

• 42:55Michael Liroff?

  Hmm.

• 42:56Peter Shamshiri?

  This is cute because the conservatives on the court have actually made it incredibly hard to sue federal officials for constitutional violations. And the last time it came to the court, in Hernandez v. Mesa, Kavanaugh voted against holding federal officials accountable.

• 43:12Speaker 04

  Right. They said that family cannot sue.

• 43:14Peter Shamshiri?

  Right.

• 43:15Michael Liroff?

  And that was the CBP guy who just shot a kid?

• 43:18Peter Shamshiri?

  Yeah, a Border Patrol guy just shot a child across the border.

• 43:23Michael Liroff?

  Right.

• 43:24Speaker 04

  Yep.

• 43:25Peter Shamshiri?

  Killed him. And I guess Kavanaugh is being honest because he says remedies should be available in federal court.

• 43:34Peter Shamshiri?

  He does not say that they are, right? He's like, remedies should be available.

• 43:38Speaker 04

  Yeah.

• 43:38Peter Shamshiri?

  They're not.

• 43:39Speaker 04

  I agree. Remedies at law. Interesting.

• 43:45Peter Shamshiri?

  Couldn't agree more.

• 43:47Michael Liroff?

  So there is a dissent authored by Sonia Sotomayor, which Kagan and Jackson joined. I didn't love this dissent, if I'm going to be honest. It pulls punches. For example, at one point, she says, "The government claims," without citation, "that there are 2 million undocumented migrants in, you know, LA County."

• 44:11Speaker 04

  Yeah.

• 44:11Michael Liroff?

  She doesn't mention that fucking Kavanaugh wrote that in his opinion right then. Like, if you're going to talk about how that's a bullshit statistic, or imply it's a bullshit statistic, and knock someone for just stating it outright without citation, how do you not mention that fucking Kavanaugh did? Like, right there.

• 44:30Speaker 04

  That's why you're saying it.

• 44:31Michael Liroff?

  Yeah.

• 44:32Speaker 04

  Right.

• 44:32Michael Liroff?

  It's also very, like, clinical, you know, which I think oftentimes can be a positive adjective. Like, you're doing something very clinically. You're like, sort of taking them apart clinically. And I think that's

• 44:44Speaker 04

  Sharp, yeah.

• 44:45Michael Liroff?

  what she's doing. But I don't think this is an issue that calls for, like, a clinical, step-by-step deconstruction of the government's arguments and Kavanaugh's reasoning. Like, that's not what this case calls for, in my opinion. Which made me just wonder who her audience was for this. And I've been thinking about it a lot. And obviously, we're recording this just 24 hours after this came out. So I haven't had, like, a ton of time to really chew on it. But my best and most charitable guess at this is that her audience is district court judges. And her thinking is, there's no majority opinion here for them to follow. And so I'm going to lay out

• 45:31Michael Liroff?

  the reasons why they shouldn't follow this. And they can continue to put sand in the gears of things. And they can use a lot of the logic I offer here. And I don't know. I don't know how I feel about that. I don't want to say that is without value, but it feels like

• 45:51Michael Liroff?

  If that's the approach we're going for, then like maybe KBJ or Kagan should have written a separate dissent, throw in some fucking fire, you know?

• 46:00Peter Shamshiri?

  Right.

• 46:01Speaker 04

  This is, this is kind of what I was thinking about the dissent. I'm a little surprised and I don't know. We read a lot of these, y'all, like, like, we read a lot of these and so I think we pick up on subtle differences. A lot of my friends are sharing a quote from Sotomayor's dissent, which is really powerful. She says in this dissent, "We should not have to live in a country where the government can seize anyone who looks Latino, speaks Spanish, and appears to work a low-wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent." Like, this is, you know, it's sort of like, obviously like what the dissent is about. I suppose this is a good, like, succinct articulation of that, for sure. I am shocked.

• 46:42Speaker 04

  Look, when this dropped yesterday, the three of us, in the chat with just the three of us, in the chat with other people, Brett Kavanaugh's opinion was shocking. This is shocking. It's disgusting on its face. It is in contravention of so much of the, like, foundational understandings of the Constitution and United States law, right? It's surprising to me that each of the three liberals did not dissent separately and join each other's dissents.

• 47:16Peter Shamshiri?

  Maybe it's because it's not a majority. It's just Brett and they're like-

• 47:19Speaker 04

  I get that.

• 47:20Peter Shamshiri?

  That's the only thing I can think of.

• 47:21Speaker 04

  I get that, but what's to come? What is this showing what's about to happen?

• 47:26Peter Shamshiri?

  I mean, it, like we said, it's not the majority in a technical sense, but like, it sort of is, right?

• 47:33Michael Liroff?

  Right.

• 47:33Speaker 04

  Yeah. Brett Kavanaugh says like a huge factor in making this decision is whether or not the government will prevail on this argument, should this case be heard on the merits. He's saying, "This is how we would rule."

• 47:45Peter Shamshiri?

  Yeah. I mean, that's the analysis that you have to do to get to the conclusion that they got.

• 47:50Speaker 04

  Right.

• 47:51Peter Shamshiri?

  Yeah. I mean, I agree. I just don't really get why. I would have liked to see something out of Jackson. Kagan would have been like, "I agree with the racism part, but the precedent..."

• 48:02Michael Liroff?

  It would be a fucking just painful.

• 48:06Speaker 04

  It'd be a yawn fest. It'd be a yawn fest, but I think it is wild enough. It's shocking enough. It's disgusting enough that it warrants each of the three of them doing their thing, whatever that thing is. But like, do you have something to say about this? This is, it's, it's wild. Yeah.

• 48:21Michael Liroff?

  I think what's important to realize here is what the conservatives are doing right now. And I don't just mean in this opinion. They essentially want the district courts and courts of appeals to be their bagmen and to do their dirty work for them. They want to bless essentially Dred Scott or Plessy V. Ferguson, but they don't want to write those opinions. They don't want their name on it.

• 48:50Speaker 04

  Totally.

• 48:50Michael Liroff?

  So they are issuing these fucking shadow docket decisions where the only conclusion you can draw is that we now live in a racially segregated society with different rights for different groups.

• 49:04Speaker 04

  Right.

• 49:04Michael Liroff?

  But they're not going to say that. And then they expect, because this is how the Supreme Court often talks to district courts, and I've discussed this, I think we've all discussed this on the podcast before, is like through informal signaling on the shadow docket about what they take, what they overturn, what they grant, et cetera. They expect the courts to get the picture and just start doing it. Just start being like, okay, we live in this world now. And so far, the district courts have said, no, fuck you. Make me, which is awesome. Good for them for the most part. And, but it's fucking cowardly. And if that's what's happening, then somebody should be saying that. Somebody should be writing an opinion being like,

• 49:47Speaker 04

  Yes.

• 49:47Michael Liroff?

  The Supreme Court is allowing a Plessy-like regime go into effect and asking lower courts to do it for them because they're too much of a fucking pussy. I said it since Peter's not allowed, to do it themselves. They're trying to make the district courts do it. Somebody should put that in a fucking opinion. I believe that because that's what's happening. Even if the district court judges are Sotomayor's audience, somebody should be talking to regular people. Somebody should be talking to congressmen. Somebody should be talking to the fucking media and explaining what's going on because what's going on is. Horrific and shocking. Like, I read this opinion yesterday and

• 50:33Michael Liroff?

  was furious, like pacing around my house angrily for like an hour and was like, I need to do something to fucking calm down. I'm like, losing my shit. Like,

• 50:44Speaker 04

  No, line by line, this is wild.

• 50:45Michael Liroff?

  Yeah. So it's not like, as part of a larger effort, sure, this would be fine as the only thing the liberals put out on this. I'm sorry. Come on.

• 50:55Speaker 04

  Yeah, that's how I felt. Before we wrap, I want to make a point about like where a decision like this or, you know, Brett Kavanaugh's opinion here, like, where does this come from? Like, we, all of us, society is obviously reacting to, you know, extremism in government right now. This like far right ascendancy authoritarianism, this kind of thing. But we make the point on this podcast a lot that like this is built brick by brick. You can draw lines that culminate in this decision. You can draw lines all the way back. I mean, we've talked like all the way back throughout United States history.

• 51:37Speaker 04

  But more specifically, you can draw the lines back to 2010, when the Papers Please law went into effect in Arizona, which is where law enforcement in Arizona, conducting regular stops, were mandated by law with the Papers Please law to conduct immigration status checks, ask for proof of citizenship or legal residency. And that law was challenged and it went up to the Supreme Court. And in Arizona, the United States, the Supreme Court said that requiring immigration status checks during law enforcement stops is fine. So outrage is is absolutely like warranted, right?

• 52:22Speaker 04

  Like more than warranted confrontation with this kind of regime, with the imposition of this kind of world, with the imposition of these kinds of hierarchies, absolutely warranted. But I think it's just so important to like contextualize historically and even specifically on these kinds of laws. Where this comes from. And again, always, always, always noting that it's a project, right? Brett Kavanaugh and this stupid concurrence don't come out of nothing. This is a project built brick by brick by brick over decades.

• 52:54Michael Liroff?

  Right.

• 52:54Peter Shamshiri?

  He could have never thought of this on his own.

• 52:56Speaker 04

  Right, right.

• 52:58Michael Liroff?

  No, I do think that's really important to to mention, Ree, because, you know, we've talked about on the podcast, and it's true that these guys are marinating in right wing bullshit, and it's pickling their brains. And we've talked a lot on the podcast, and it's true that a six three court is worse than a five four court. And Brett Kavanaugh is to the right of Anthony Kennedy, and Amy Coney Barrett is far to the right of Ruth Bader Ginsburg. But even back in 2010, before people were cooking their brains on Nazi Twitter, before people were cooking their brains on OANN and Newsmax,

• 53:39Michael Liroff?

  before all that shit, when it was a five four court with Scalia and Kennedy. Yeah, they were like, yeah, you can, you can just demand ID from anyone who you suspect might be a migrant, right? Like, that's.

• 53:54Speaker 04

  And Kennedy wrote that majority opinion.

• 53:56Michael Liroff?

  Yeah, Libertarian King, Anthony Kennedy, wrote that that opinion. So like, I think what this illustrates is one of our core theses of this podcast, which is that this is, is and has always been a reaction to the New Deal and a reaction to the civil rights movement and a reaction to the sexual revolution. And this is very much in line with a reaction to the civil rights movement. These are people who want a segregated society, at least, if not something worse.

• 54:25Peter Shamshiri?

  And we've been going for long enough that I don't have a ton more to say, but it's worth reemphasizing that what's happening here over the course of this year at the court is the creation of a secondary body of law for immigrants. No equal protection, no due process. We've seen that here. We've seen it in like the C. Coates situation. No Fourth Amendment. And as always, under fascism, it's not that there are no constitutional protections. You get constitutional protections if you're a white guy applying to college.

• 55:04Michael Liroff?

  Right.

• 55:05Peter Shamshiri?

  It's not that there are no constitutional protections, it's that there are categories of people who are carved out from those protections. There are categories of people who the Constitution falls upon more loosely.

• 55:21Peter Shamshiri?

  All right, folks, next week, we're gonna do a term preview. The term to come, just today, they granted cert on tariffs.

• 55:31Speaker 04

  Let's fucking go, girls.

• 55:35Peter Shamshiri?

  So excited, so excited. Whatever they do, I hope it's good for my stocks, you know? And I imagine all of our listeners feel the same way.

• 55:45Speaker 04

  Do y'all think I still don't have stocks?

• 55:47Michael Liroff?

  No, you don't have stocks.

• 55:49Peter Shamshiri?

  You really should know by now, hon. Back in episode two, Riannon asked us if she had stocks. That was probably recorded in January 2020. We said no. No, sweetie.

• 56:01Michael Liroff?

  No.

• 56:02Speaker 05

  I don't know if I have stocks still.

• 56:09Peter Shamshiri?

  You're doing the, "Okay, yay."

• 56:12Speaker 05

  No, no. You're pretty. You're pretty.

• 56:17Peter Shamshiri?

  Follow us on social media, @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 will see you next week.

• 56:31Michael Liroff?

  Bye, everybody.

• 56:32Speaker 04

  Toodles.

• 56:36Michael Liroff?

  Five to Four is presented by Prolog Projects. This episode was produced by Dustin DeSoto. Leon Neefac 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. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community, and more, join at patreon.com/54Pod.