The Leftist Lawyers Who Think the Supreme Court Sucks

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The New Yorker
@NewYorker
As the Supreme Court lurches further to the right, the argument made by the hosts of “5-4”—that the Court is both a political body and a fundamentally broken one—has seemed to resonate more broadly.

The Leftist Lawyers Who Think the Supreme Court Sucks
The hosts of “5-4,” a popular legal podcast, hope to combat overly romantic notions about our broken system.
newyorker.com
10:43 AM · Sep 17, 2021

https://www.newyorker.com/culture/podcast-dept/the-leftist-lawyers-who-think-the-supreme-court-sucks

The morning after the Supreme Court issued its late-night ruling on Whole Woman’s Health v. Jackson, allowing S.B. 8, a restrictive Texas abortion law, to take effect, an attorney named Rhiannon woke up, in Austin, to a slew of frantic messages. A reproductive-rights organization with which she works had already launched into crisis-management mode, producing a long chain of e-mails about legal strategy. There were also notifications in her group chat with two New York-based lawyers, Peter and Michael, with whom she hosts a popular weekly legal podcast called “5-4.” (The name is a reference to Supreme Court decisions that end in a 5–4 split, or a slim majority, which tend to be the Court’s most controversial.) “UGH, court just ruled,” Peter had texted around midnight, linking to the judgment—a 5–4 ruling—minutes after it dropped. Michael’s tone, in a reply sent an hour and a half later, was more resigned: “Well, there it is.” Rhiannon was the first to voice what all three were thinking, and what their social-media followers had already begun to express: that the situation called for an emergency episode.

On its Web site, “5-4” is described as a podcast about “how much the Supreme Court sucks.” The show, which is executive-produced by Leon Neyfakh, the creator of “Slow Burn” and “Fiasco,” began in February, 2020, as a reassessment of past Court decisions, tracing the social and political forces that shaped each ruling and its subsequent impact. (One early episode discussed the 1968 case Terry v. Ohio, which laid the legal groundwork for modern-day stop-and-frisk policing; another focussed on Shelby County v. Holder, the 2013 decision that functionally gutted the Voting Rights Act.) But, as time went on, the show expanded in scope, taking in new legal decisions—and crises—as they occurred. The hosts addressed the flurry of lawsuits challenging the outcome of the 2020 election, as well as opinions handed down during Amy Coney Barrett’s first term on the Court, and the creeping politicization of the so-called shadow docket, which has become a means for the Justices to address hot-button concerns, sometimes late at night, without hearing oral arguments. Although it went largely unacknowledged in mainstream analysts’ end-of-term assessments, the shadow docket has been used to sanction executions, strike down COVID-safety protocols, and restrict voting rights. Most recently, it was the vehicle for the decision on S.B. 8.

Many legal podcasts, much like the field itself, trade on the credentials of their hosts: “Strict Scrutiny” is hosted by three law professors who clerked for Supreme Court Justices; “Amicus” is hosted by Dahlia Lithwick, a Stanford Law alumna and award-winning legal journalist. In contrast, the hosts of “5-4” have carefully avoided sharing their C.V.s. Listeners know their first names and a handful of biographical details—Rhiannon is a public defender, Peter has worked at a white-shoe firm, and Michael is a self-described “reformed corporate lawyer”—but that’s pretty much it. Their semi-anonymity has allowed them to be brutally honest, and occasionally profane, without fear of professional repercussions.

“Our vision of the podcast, at least in part, is to talk about the law the way that we talk about the law at a bar with our friends,” Michael explained to me, the other day. “And that means we curse more. That means sometimes we crack a joke about something dark.” In an episode about Castle Rock v. Gonzales, Peter described the late conservative Justice Antonin Scalia as having been “nominated by Reagan to a spot on the Supreme Court in 1986, and nominated by God to a spot in hell in 2016.” Later on, the hosts—conscious that their black humor might feel inappropriate to the kidnapping and child murder that underpinned the case—laid out the rationale for their irreverence. “We make fun of this stuff because it’s a way to cope,” Rhiannon said. “Levity is a way of subtly undermining, just a little bit, the seriousness and the deference that we’re supposed to give to the Supremes.”

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