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 Austin attorney named Rhiannon woke up 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.”
Scalia, respected even among liberals for his intellectual rigor, was a prime target. The Justice is best known for his commitment to textualism, a method of interpretation that hinges on the literal meaning of the law at the time when it was written. But in their analysis of his Castle Rock opinion, the hosts of “5-4” point out his willingness to abandon that ideology when it proved inconvenient. They are not alone in mounting such critiques, nor do they claim to be. (Margaret Talbot, writing in this magazine in 2005, noted that Scalia’s invocations of American tradition could be “selective and historically misleading.”) The hosts situate themselves within the tradition of “legal realism,” which holds that the law should be viewed in the context of its material impact. Their delivery—funny, forceful, expressly designed to cut through layers of jargon—pushes the argument further, helping it to reach lay listeners and first-year law students who have been taught to regard Scalia as a “legal god.”
The podcast serves as a corrective to a field that is crowded with overly romantic notions. Op-eds written by attorneys who argue before the Court or by law professors who hope to secure clerkships for their students necessarily reflect a degree of investment—and faith—in the legitimacy of the legal system. “5-4,” on the other hand, has no particular interest in making the law look good. Law school, in the hosts’ telling, is “a three-year-long hazing ritual that has almost no practical value.” The Founding Fathers were not fonts of unassailable wisdom but members of “the most syphilis-ridden group of dandies in modern history.” Whereas Noah Feldman, writing in Bloomberg, cautioned against urging the eighty-two-year-old Justice Stephen Breyer to step down, insisting that liberals “stand back and let the master operate,” “5-4” launched a tote bag emblazoned with a surfing flamingo and the words “Stephen Breyer RETIRE bitch.”
As the Supreme Court lurches further to the right, the hosts’ insistence that it is both a political body and a fundamentally broken one has seemed to resonate more broadly. Immediately after Ruth Bader Ginsburg’s death, last year, they released a critical episode into the sea of hagiographies, acknowledging her vital contributions but concluding that her failure to retire under Obama would see much of that legacy undone. Their audience grew by a third. Last October, Representative Ro Khanna appeared on “5-4” to make a case for court reform, and was introduced as a congressman “whose P.R. people have made a terrible, terrible mistake”; in reality, Khanna was likely speaking to his ideal audience—the podcast’s listenership includes congressional staffers and D.C. circuit-court clerks, as well as law students, attorneys, and non-lawyers of all stripes. Law professors have added the show to their syllabi, and it now brings in twenty-six thousand dollars per month on Patreon. “We used to joke, like, Oh, we’re the most influential leftist legal thinkers,” Peter told me recently. “And then we realized that might actually be true, just because there are so few.” The shortcomings of the commentariat had also become clearer: “Too many people perceive the law as a battle of ideas and not a struggle for power.”
When I joined Rhiannon, Michael, and Peter on Zoom for the taping of the emergency episode on S.B. 8, the mood was bleak. The lobby of Peter’s apartment building, in Queens, had flooded owing to Hurricane Ida, and his Wi-Fi connection was spotty. Michael, who had been up until four in the morning, was sipping from a can of 5-Hour Energy. Rhiannon noted that the lack of rest was nothing unusual. “I haven’t had a full night’s sleep since seventh grade,” she said. Before the recording, she had called a law-school friend who is now the head of a reproductive-justice organization in Texas, asking what she knew and what she needed, and incorporated the friend’s responses into the show’s outline. Michael had prepped by revisiting U.S. v. Cruikshank, an 1876 case that he described as being part of the same “reactionary structure” as the Texas law. And Peter, who typically explains the decisions, had pored over the various dissents to the ruling, written by Breyer, John Roberts, Sonia Sotomayor, and Elena Kagan. (Breyer’s, he announced, was “one of the most boring things that I’ve ever read in my life.”)
For most of its existence, “5-4” has been recorded on Zoom. Michael and Peter worked out of a studio in Brooklyn—and patched Rhiannon in from Austin—for the first few episodes, but the pandemic soon forced them to go remote. To this day, they’ve never met Rhiannon in person. Peter told me that the three first crossed paths in 2018, as fellow-panelists on a “short-lived and terrible” legal podcast called “Mic Dicta.” A year later, Neyfakh approached Peter, who had amassed a significant following on Twitter under the pseudonym “Law Boy, Esq.,” about making his own show. (Neyfakh found his Twitter persona “hilarious and scarily consistent.”) He knew that he wanted Rhiannon and Michael to be his co-hosts. Peter, who is Iranian American, had been exposed to leftism early—his grandfather, a former academic and avowed socialist, introduced him to Chomsky and Zinn when he was a teen-ager—but he told me that he’d experienced a “reawakening” in 2016, after discovering a “modern, online, younger left.”
Michael, a former Obama campaign staffer, is from Florida. When he was eighteen, he cast his vote for Al Gore, in Broward County, and then watched as the Supreme Court ruled to stop the recount, effectively handing the Presidency to George W. Bush. “I didn’t check my chads. I don’t know whether my vote was counted,” he told me. “It’s hard to escape that sort of experience and think about the Supreme Court as anything other than parties and political actors.” Rhiannon, who grew up in a suburb of Dallas as the daughter of a Palestinian immigrant, was disillusioned by law school and pushed further to the left by her experience in criminal law. “A lot of the work of being a public defender is about humanizing a quote-unquote defendant in the system, so that a judge sees that this is not just a case number,” she said. She applies the same ethos when prepping for an episode of “5-4,” focussing on the lives of the plaintiffs and the impact of the ruling on the ground. Peter described her to me, affectionately, as “our resident human being.”
The hosts were joined on the S.B. 8 Zoom call by their producer, Rachel Ward, who reminded everyone to hit record on their respective mics. Usually, the show opens with a florid simile from Peter—he’s described cases, variously, as having “eaten away at the fabric of American society, like moths in our collective closet,” and having “sent our nation’s values spiralling downward, like Bitcoin after an Elon Musk tweet”—but, that day, it began on a note of exhaustion and outrage. “I don’t have the energy for a cute little intro, so let’s get right into it,” he said.
“I got some shit to say,” Rhiannon said. “I’ve got some people to threaten, physically.” She piled her hair into a bun, and then launched into a discussion of the material impact of S.B. 8 and its disproportionate burden on the most vulnerable. Abruptly, she broke off. “Okay, pausing here,” she said to the group. “I was indirectly involved in the case of an unaccompanied minor in ICE detention—a fifteen-year-old who was pregnant,” she explained. “And I’m just wondering whether I should use that example.”
“What’s the value versus the risk?” Ward asked. (Later, Rhiannon told me that the discussion was a familiar one: she often grapples with whether to include stories from her own practice.) After confirming that no harm would come to the client if the details were vague, Ward encouraged her to continue.
At another point in the conversation, Michael noted the lack of response from powerful Democratic politicians and critiqued the Party’s efforts to accommodate its more conservative members, when it could be capitalizing on its Senate majority. “You threaten them with whatever you can,” he said, of the centrists who have obstructed and undercut progressive legislation in the Senate. “You tell Manchin that you’re pulling the military bases, and you tell Sinema that she is banned from Hot Topic for life.” Rhiannon, who had been nodding along intently, laughed as he added, “No more backpacks on the Capitol grounds!”
