5-4

The legal media isn't doing its job. Except for us. We're killing it.

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Feed drop alert again! This week, 5-4 is inviting you to check out an episode of Know Your Enemy. If you like what you hear, subscribe to their feed wherever you get your podcasts. 5-4 will be back with new episodes starting next week.

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Feed drop alert! No new episode of 5-4 this week, so instead please consider checking out the new season of FIASCO, the history podcast from Prologue Projects. This season we're tackling the Benghazi scandal, starting with the rise of Libyan dictator Muammar Gaddafi and ending with the 2016 election. The episode we're sharing today is the fourth one in the series, in which Mitt Romney's presidential campaign pounces on the Benghazi attack as a political issue before the attack itself was even over. To hear the rest of FIASCO: BENGHAZI, subscribe to the Luminary channel on Apple Podcasts by visiting apple.co/fiasco.

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You know what's exactly the same? When the government kicks you out of your house so it can build a military base, and when a union organizer gives a farm worker a pamphlet. Or at least that's what the majority of justices on the Supreme Court think, based on the ruling in Cedar Point Nursery v. Hassid.

We want to know what you think about 5-4 - give us your feedback on this survey!

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The hosts discuss Textualism, the legal theory that the dictionary is the real law, God made the dictionary, and what legislators intended is a secondary consideration at best.

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In this emergency episode, the hosts discuss one of the spiciest cases from this term, Fulton v. Philadelphia. And you know how conservatives hate spice, so suffice it to say, this holding didn't come out great!

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In this emergency episode, the hosts discuss one of the spiciest cases from this term, Fulton v. Philadelphia. And you know how conservatives hate spice, so suffice it to say, this holding didn't come out great!

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Congrats grads! Our gift to you is an interview with Nick Wallace. Nick is the former Stanford law student who was threatened with having his diploma withheld because the snowflakes in his campus' Federalist Society were triggered.

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Warrantless police surveillance of your telephone is A-OK, according to the holding in Smith v. Maryland - as long as the cops only look at WHO you call, not WHAT you say. 

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Peter and Rhiannon join Katy Stoll and Cody Johnston from Even More News, to talk about what the Supreme Court's decision to hear a Mississippi abortion ban case means.

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The hosts pound some brewskis with Supreme Court Justice Brett Kavanaugh.

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The hosts discuss a case in which the Supreme Court denied "class" status to female Wal-Mart employees in a gender discrimination class action, proving in this 5-4 decision that boys will be boys.

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Hey, remember JOHNNIE COCHRAN? While you wait for next week's episode of 5-4, please enjoy this special feed drop from Celebrity Book Club with Steven and Lily, a new podcast from Prologue Projects in which NYC comedians Steven Phillips-Horst and Lily Marotta take on a different celebrity memoir every week and use it as a canvas for exploring pop culture, the sick 'n' twisted lives of the rich 'n' famous, and their own lifelong friendship. The subject of this week's episode was selected with 5-4 listeners in mind: It's Johnnie Cochran's Journey to Justice, in which the world's most famous lawyer — not including Peter, Rhiannon, and Michael — opens up the briefcase on his life in the law. If you like what you hear, subscribe to Celebrity Book Club with Steven and Lily now.

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The hosts discuss the 8th Amendment and juvenile life without parole, and the tension between modern neuroscience, and the conservative impulse to maintain 200-year-old traditions of punishment.

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In this first-ever 5-4 film review, the hosts have looked into the abyss and are ready to render their verdict.

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The hosts are joined by Rep. Mondaire Jones to discuss the Judiciary Act of 2021, Supreme Court reform, and the Biden Commission.

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The hosts are joined by Josie Duffy Rice and Jay Willis of The Appeal, to discuss "Worst Supreme Court Justice of All Time" bracketology, and simple arithmetic. This week's case is Bowles v. Russell, in which the petitioner sought to have his appeal heard because a judge had miscalculated a deadline, and his lawyer had the audacity to adhere to it. The court denied the petitioner, citing "rules are rules, even when they aren't actually rules."

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The hosts discuss the Insular Cases, a series of holdings from 1901 that delineated the Constitutional rights afforded to citizens of US territories like Puerto Rico and the Philippines. And by "delineated" we mean "decimated."

In these cases, and since these cases, the Supreme Court has repeatedly used economic justifications to create and reinforce racist policies that disadvantage and disenfranchise people who live in our country's de facto colonies. Do you love live-fire military exercises, half a millennium of genocidal rule, and not getting to vote in federal elections? Visit scenic Guam!

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The hosts discuss Hoffman Plastic Compounds, Inc. v. National Labor Relations Board (NLRB), a 5-4 decision in which the Supreme Court denied a worker back pay that he was owed after being unlawfully terminated for union organizing, citing his lack of authorization to work in the United States. The decision completely rejected the ruling of the NLRB, guidance from the Department of Justice, standing immigration law, and basic human decency.

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The hosts appear on Even More News, with hosts Katy Stoll and Cody Johnston, to talk about voting rights cases at the Supreme Court, and H.R.1.

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The hosts discuss Connick v. Thompson, a 5-4 decision in which the Supreme Court holds that a conspiracy to convict an innocent man, by systematically withholding evidence that could prove his innocence, does not constitute a "pattern."  Where's your dictionary now, Scalia?

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The hosts discuss Trump's appointees to the federal bench, and the effects that this rogue's gallery of cronies has had - and will continue to have - on the judiciary.

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The hosts discuss Toyota Motor Manufacturing v. Williams,where the Supreme Court unanimously narrowed the definition of disability under the Americans with Disabilities Act. 

Thanks to Erin Hawley (@geekygimp) for her help prepping this episode.

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The hosts are joined by Alec Karakatsanis (@equalityAlec), founder and executive director of Civil Rights Corps, and the author of Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System. They discuss San Antonio ISD v Rodriguez, an equal protection case from 1973, which is widely cited by conservatives as holding that the equal protection clause does not protect impoverished people. The hosts beg to differ.

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Here's a taste of what Patreon supporters get! In this episode, Peter (@The_Law_Boy), Rhiannon (@AywaRhiannon), and Michael (@_FleerUltra) discuss former Supreme Court Justice Antonin Scalia.

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The hosts are joined by Josie Duffy Rice of The Appeal to discuss another death penalty case — McCleskey v. Kemp. In this 1987 decision, the Supreme Court held that statistical evidence of systemic racial disparities is not enough to prove discrimination. Instead, defendants have to show that individual prosecutors, judges or juries pursued them with racist intent. As a result, states were basically let off the hook for perpetuating systemic racism in death penalty cases.

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The hosts discuss Atkins v. Virginia, a case in which the Supreme Court held that it is unconstitutional to impose the death penalty on people with intellectual disabilities. But the Court also created a loophole by allowing states to decide the standard for who qualifies as intellectually disabled. As a result of the Court’s lack of clarity, some states have continued to execute people with intellectual disabilities to this day.

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The hosts discuss a case in which the Supreme Court struck down a provision of the Violence Against Women Act (VAWA) that allowed women to sue abusers in federal court for damages. In the process, the Court constrained the ability of Congress to regulate interstate commerce, not only weakening an important civil rights law, but also making it more difficult for Congress to pass progressive legislation going forward.

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Your hosts discuss Navarette v. California, which held that an unverified anonymous tip about reckless driving could be sufficient grounds for the police to pull over a car. The case exemplifies how deferential the Supreme Court is to police power, and has resulted in an increased reliance on anonymous tips by the cops, and a corresponding erosion of citizens’ privacy rights.

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In 2002, a student held up a banner that said “Bong Hits 4 Jesus” at an Olympic torch relay, in full view of his classmates and teachers. When he was suspended, he claimed his banner was protected free speech under the First Amendment. The Supreme Court disagreed. In this episode, your hosts discuss the contours of student free speech, the Court’s puritanical moralizing on marijuana, and the importance of absurdist speech in creating real change.

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In the second part of a two-episode series on abortion rights, the hosts discuss Planned Parenthood v. Casey, a 1992 case in which the Supreme Court made it easier for states to restrict abortion access so long as abortion regulations don’t create an “undue burden.” The vague standard set lawmakers on a new path of attacking abortion access and fueled anti-abortion groups’ efforts to spread stigma and misinformation, setting up Roe v. Wade for a death by a thousand cuts.

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The hosts take on one of the Supreme Court’s most famous decisions, Roe v. Wade. In this first episode of a two-part series, they look at the legal and factual origins of Roe v. Wade. They also discuss how Roe was weaponized by the conservative legal movement to rally against an interpretation of the Constitution that allows for flexibility in favor of a far more rigid approach.

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Peter, Rhiannon, and Michael join the hosts of the podcast Know Your Enemy for a conversation about the conservative legal movement. They discuss the origins of conservative doctrines like originalism and textualism, and the rise of the Federalist Society from a small group of conservative students and academics to an organization whose members constitute the majority of the Supreme Court.

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The hosts take on a 1993 death penalty case that has been called one of the worst decisions in capital punishment jurisprudence. Herrera v. Collins asks whether someone on death row can have new evidence of their innocence reviewed in federal habeas corpus proceedings, often the last resort for someone who has exhausted their appeals. In a 6-to-3 vote, the Court rejected the claim, barely shying away from holding that the Constitution does not protect against an innocent person being executed.

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The hosts discuss Roman Catholic Diocese of Brooklyn v. Cuomo, a recent case about COVID-19-related restrictions on religious gatherings. In it, the Supreme Court struck down hard capacity caps on religious gatherings in high-risk areas. The case has already spawned more challenges to pandemic-related restrictions on religious gatherings and likely foreshadows the expansion of legal exemptions for religious groups.

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The hosts discuss Ashcroft v. Iqbal, a 2008 case in which the Court created a new pleading standard for legal complaints that made it much harder for plaintiffs to bring their cases. Here, a Pakistani immigrant who claimed he was detained and tortured in the wake of 9/11 had his case dismissed because, according to the Court, his allegations that Bush administration officials were responsible for his treatment were not “plausible.” 

 

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The hosts return to examining cases with a little-known campaign finance decision from 2011: Arizona Free Enterprise Club PAC v. Bennett. They discuss the Supreme Court’s ruling, which declared unconstitutional a matching funds program for political candidates who opt out of private fundraising, effectively killing public campaign financing. The hosts also talk about the Trump campaign’s ongoing efforts -- in the courts and otherwise -- to contest the results of the 2020 election, and how likely they are to affect the Biden victory.

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The hosts look back at the week-long presidential election, which Joe Biden won. They discuss the challenges mounted by the Trump campaign in various states and explain why none of them is likely to change the outcome of the election. They also reflect on some state-level initiatives and put forth their strategy for how President Biden should deal with a split Senate, especially on matters pertaining to the Supreme Court.  

 

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The hosts reflect on a string of cases pertaining to the coming election, discuss the legacy of Bush v. Gore, and the significance of Justice Kavanaugh recently citing Justice Rehnquist’s infamous concurrence in the case. They then replay their original analysis of the 2000 election case that put George W. Bush in the White House. 

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The hosts discuss options for reforming the court — from court packing, to term limits for judges, to stripping the court of jurisdiction to hear cases pertaining to new laws. They also speak to Congressman Ro Khanna about court reform, and about the bill he has introduced to limit Supreme Court Justices' tenure. But they remain clear on their preferred option: packing the court to include more liberal justices.

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The hosts reflect on the Amy Coney Barrett confirmation hearings, then move on to discussing gerrymandering, the practice of drawing up voting districts to favor a particular political party. Specifically, they talk about Rucho v. Common Cause, a 2019 case in which the Supreme Court not only refused to rule on two states’ gerrymandered maps, they found all partisan gerrymandering to be outside the purview of the Court going forward. 

 

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The hosts discuss the past, present, and future of the Electoral College, and all the ways it could be used to stage a procedural coup in the upcoming election. They also talk about how the Electoral College could be restructured to give greater representation to states with large populations, like California. But if it were up to them, they’d get rid of this undemocratic institution all together, and switch to a system in which the president is chosen by popular vote.

 

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The hosts discuss the recent news that Donald Trump has contracted COVID-19 and what implications it might have for the upcoming election and the Supreme Court. Then they answer listener questions, covering everything from court reform to how to decide if you should go to law school.

 

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The hosts talk about Amy Coney Barrett, who has been nominated to replace Ruth Bader Ginsburg on the Supreme Court. They discuss the nominee's judicial record, her faith, and what it means to be nominated by President Trump at this time.

 

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On this week's episode of 5-4, Peter, Rhiannon, and Michael are discussing the death of Ruth Bader Ginsburg. Specifically, the hosts talk about the consequences of RBG's decision not to step down from the Court during Barack Obama's presidency, what that decision tells us about her, and what lies ahead.

 

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On this week’s episode of 5-4, Peter, Rhiannon, and Michael are talking about police use of chokeholds. In 1983, the Supreme Court held in City of Los Angeles v. Lyons that a man who had been injured by a brutal police chokehold did not have standing to sue for an injunction—in other words, he could not ask the Court to order the police to stop using chokeholds. The Court’s decision allowed the practice to continue, and chokeholds have been a focus of police reform efforts and protests since then, particularly after the 2014 death of Eric Garner.

 

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On this week’s episode of 5-4, Peter, Rhiannon, and Michael are discussing the right to vote. As the 2020 presidential election draws near, the Trump campaign has already started suing states over the use of mail-in ballots. The hosts talk through the basics of election law history and explain how individual citizens' right to vote is only sort of provided for in the Constitution.

 

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On this week’s episode of 5-4, Peter (@The_Law_Boy) and Rhiannon (@AywaRhiannon) are joined by their friend Adam to discuss the 1972 case that exempted professional baseball from antitrust law.

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On this week’s episode of 5-4, Peter (@The_Law_Boy), Rhiannon (@AywaRhiannon), and Michael (@_FleerUltra) talk about the 2019 case that denied immigrants who have committed certain crimes the right to a bond hearing, and illustrated the futility of objectively interpreting the law.  

 

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On this week’s episode of 5-4, Peter (@The_Law_Boy), Rhiannon (@AywaRhiannon), and Michael (@_FleerUltra) talk about the 2000 case that allowed Boy Scouts to discriminate against gay scout leaders.

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