SACHA PFEIFFER, HOST:
Some recent Supreme Court opinions could reshape American society. Some pleased conservatives, like stripping federal agencies of key regulatory powers - others pleased liberals, like protecting access to abortion pills. But the three lawyers and self-identified leftists who make the hit podcast "5-4" have no doubt about the court's core ideology.
(SOUNDBITE OF PODCAST, "5-4")
RHIANNON HAMAM: It's absolutely a partial court. Yeah. It's absolutely a partial court.
PFEIFFER: They say the pod is about, quote, "how much the Supreme Court sucks," end quote. I recently talked with its very opinionated hosts, Rhiannon Hamam, Michael Liroff and Peter Shamshiri - note that Peter uses a stage name - and asked if they think the justices have politics in mind when making decisions.
HAMAM: I think there are political considerations in every Supreme Court decision.
PETER SHAMSHIRI: I think that's right, and I think also somewhat, this is a reflection of the fact that the Supreme Court, as ideologically arch conservative as it is, is still, in a sense, the leftward bound of the conservative legal movement.
PFEIFFER: Leftward bound, meaning there are far more conservative benches than this one out there.
MICHAEL LIROFF: That's right. The Fifth Circuit, which covers Texas and some surrounding states, is more conservative than the Supreme Court and is regularly doing things that even this conservative Supreme Court needs to rein in. But that's not a reflection of their moderation. That's a reflection of everything being pushed to the right as fast and as far as they will allow it.
PFEIFFER: A question about a specific case, a quite recent one, which is the ruling that gives quite broad immunity to presidents. On your podcast, you are incredibly harsh in your denunciation of this ruling. You said, it's greasing the wheels for a future dictator, that there's no distinction anymore between use of power and abuse of power. Give a broad summary of why you view that so egregious.
SHAMSHIRI: Well, I think that the court in that opinion was essentially redefining the boundaries of the president's constitutional authority. The court basically said that the DOJ is in the sole control of the president, something that no court has ever found before because it's not really in the Constitution. The court essentially nullified several elements of the Constitution, which, you know, the Constitution explicitly talks about the criminal prosecution of presidents. And the court basically made that a non-entity. So, you know, it's the kind of ruling that I think a lot of people are willing to ignore because they imagine that we won't have a president willing to abuse the power that the court is granting him or her. But the reality is that this has sort of opened a door that wasn't open before, and to sort of state the obvious, Donald Trump is ready to walk through it.
PFEIFFER: I want to get you talking about some big-picture issues as well. This one fascinates me. The court now has four women. When you think back to the arguments over access to abortion medication, those women asked a lot of questions, including Amy Coney Barrett, who has had a miscarriage, who pointed out that not every abortion-like procedure involves a living fetus or a living embryo. Sometimes you have to resolve a miscarriage. I don't know that a bench full of men would've asked those questions. To what degree do you think the women on the bench are adding an important different perspective?
HAMAM: I think there's an important, different perspective. I think it's the degree to which that different perspective at the end of the day holds any weight with a 6-3 conservative supermajority - right? - in which Amy Coney Barrett is the only woman. So does that perspective actually matter?
LIROFF: I think what we're seeing is, in a lot of metrics, the current court is the most diverse it's ever been, and yet it's as conservative as it's been in at least a century, right? So there are limits. Diversity is important, but there are limits to its utility in the face of power and ideology.
PFEIFFER: Opinion polls show increasing and relatively high public disillusionment with the Supreme Court, another societal anchor institution that people have lost trust and faith in. Do you think that factors into the court's thinking at all?
SHAMSHIRI: I would say that they are conscious of it, but opinion polls don't mean much to them practically. I mean, there are not many institutional restraints on the court. And the real sort of legacy of this court, in my view, is that it views itself as sort of lording over the constitutional order rather than being part of it. And I think that has made it feel untouchable.
LIROFF: Like, yeah, they overturned Roe v. Wade, and it was a huge sort of Earth-shattering moment in politics, and it led to Republicans vastly underperforming in the midterm elections, and that had no practical effects for the Supreme Court's power at all.
PFEIFFER: How do you think history books of the future will evaluate this court?
SHAMSHIRI: As being taken down by our podcast.
LIROFF: That's right.
(LAUGHTER)
PFEIFFER: By the way, speaking of your podcast - and we've had a very serious conversation, but you guys are very funny, and I feel like we're not doing justice to how humorous and lighthearted you can be. So I have two questions.
SHAMSHIRI: We're trying to NPR it up for you.
HAMAM: Yeah. Yeah.
(LAUGHTER)
PFEIFFER: So my first question actually is, have you ever considered adding a host who would have a completely conservative view, either to challenge your own thinking or just even fire you up more as you have these discussions?
SHAMSHIRI: Absolutely not.
HAMAM: You know, the conservative counterargument, let's say, to our arguments on the podcast, to our viewpoints, are Supreme Court decisions right now. That is the counterargument, right? So we have...
LIROFF: Yeah. We read them.
HAMAM: We read them. We have it laid out quite clearly what conservative arguments are right now. And so, you know, we don't need any more of that in our lives. We consume quite a lot of it already.
PFEIFFER: One of the funniest things to me on your website is you have a frequently asked questions section. You do a lot of speaking, including at law schools. There's a question that says, should I go to law school? You write, the answer is probably no, but you probably will anyway. I found that so funny. You - from a room full of lawyers, by the way.
LIROFF: Yes.
PFEIFFER: What's the summary for why people shouldn't go to law school?
HAMAM: There's a problem at law schools with the way that the Supreme Court is taught, that there is this deference to the court as a objective - that the law is decided through these organic processes, that the justices truly consider, outside of the realm of politics, the legal issues and apply deft and elite legal analysis as the nine smartest and best lawyers in the country. That's a problem at law school. That's a problem with how law students learn the law. So yeah. The Supreme Court sucks, and so does law school.
(LAUGHTER)
PFEIFFER: Rhiannon Hamam, Michael Liroff and Peter Shamshiri, who uses a stage name, host the Supreme Court podcast "5-4." Transcript provided by NPR, Copyright NPR.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.
