Few things in the United States are more revered than the Supreme Court.
Our nine justices, tasked with protecting the constitutional code created by America’s forefathers, sit on a bench above the petty and political, ready to discern the nation’s guiding laws and rule with the blind eye of justice.
In a country that separates church and state, Supreme Court decisions are canon: Their history is meant to be studied, evaluated, and accepted as a biblical text might be. The scholars, young lawyers-to-be, are educated in the classics at institutions like Harvard and Yale and then sent to white-shoe law firms with rigorous processes in place to weed out those who don’t fit the mold.
But years of rancorous political posturing around who receive a lifelong appointment to the highest court, questionable associations and financial links between justices and those pleading their cases, and a recent spotlight on long-entrenched prejudice in our institutions have given rise to a new breed of millennial lawyer.
Those lawyers have criticized increasingly partisan confirmation hearings and potential conflicts of interest, including Justice Clarence Thomas’s wife, Virginia Thomas, a conservative activist, publicly endorsing the Jan. 6 rally in Washington that demanded Congress overturn the presidential election.
“It’s a frustration that we have with legal culture and legal media that isn’t questioning the status quo, but instead believes what big legal institutions believe and what the Supreme Court says about itself,” said Rhiannon Hamam, a public defense attorney in Texas who cohosts 5–4, a show about “how much the Supreme Court sucks,” which ranks fourth on the Apple Podcasts Government chart.
The podcast, also hosted by Peter and Michael, two lawyers with large social media followings who remain semi-anonymous due to privacy requirements in the workplace, typically examines through a critical lens a Supreme Court ruling that ended in a 5–4 split decision.
“[Conservative justices] don’t want to base our Constitution around the notion of society progressing when they reject the progression,” said Peter in a recent episode about Jones v. Mississippi, a 2021 Supreme Court ruling that affirmed the power of states to hold juvenile offenders to life sentences without parole. “Conservatism is a rejection inherently, so of course they don’t want to adhere to new norms; they reject those new norms.”
The podcast currently brings in about $23,000 each month through Patreon and runs a book club and Slack channel. On the Slack channel, lawyers post job listings, ask questions, and offer advice. Merchandise available for purchase include T-shirts that read “No robes, no masters” and “Stephen Breyer retire.”
“A good portion of our listenership and Patreon supporters are law students and young practitioners,” said Hamam. “And I think that just comes from the experience of going to law school and seeing and hearing and being surrounded by the dissonance and what it does to your brain.” Case studies, she says, often exclude discussion around the real human outcome and effect of the law on people, something that bothers young leftist lawyers.
Schools typically teach legal process theory, the idea that if you put all legal variables into the court system, an objective, correct outcome will be found, but political biases are rarely explored. “There’s no recognition that these are human beings, deeply flawed human beings, making decisions about the law. And the outcomes of the cases can be bad,” said Hamam.
Democrats in D.C. have in recent months begun to take action around this political posturing on the courts, something that Republicans have long (and publicly) taken advantage of.
Progressive groups claim that the GOP manipulated its way into two Supreme Court seats under former President Donald Trump by blocking President Obama’s nominee for nearly a year and then rushing Justice Amy Coney Barrett’s appointment just weeks after Ruth Bader Ginsburg’s death. Conservatives now have a 6–3 majority on the court.
Senate Leader Mitch McConnell, meanwhile, blocked a number of lower court appointees under Obama and then confirmed 200 judges under Trump and a Republican Senate in a move which he called “a generational remaking of the courts.”
In an effort to gain back judicial power, President Joe Biden and congressional Democrats have said they will consider an increase on the Supreme Court bench from nine to 13 along with potential limits to lifetime appointments. Biden signed an executive order creating a bipartisan commission to study reforming the court, something Hamam says is largely for show.
“The left has been late to react and to call this out,” she said. “This probably won’t make a difference and that’s not leftist cynicism.” The commission, said Hamam, wasn’t created with the intention of creating real change. The members have not been outspoken about court reform in their careers. “The whole goal is to basically turn in a book report about court reform to President Biden, not to propose actual change. The Biden commission is going to fall far short of what are urgently needed structural reforms to the federal judiciary in general.”
Congressional Democrats also introduced a bill to add four more seats to the Supreme Court, but the legislation was blocked by House Speaker Nancy Pelosi, who instead supports the Biden commission report.
Meanwhile, the cohosts of the podcast 5–4 hope to build and cultivate a like-minded community of young lawyers who have internalized the idea that change is necessary. Public opinion is also bending in their direction: Job approval for Supreme Court justices has dropped significantly over the past two decades while trust has also waned, and institutions like Harvard Law are taking note. In a panel discussion at the school this spring, experts in the legal field discussed the real possibility of reform.
The public, said Linda Greenhouse, senior research scholar at Yale Law School, during the discussion is somewhat justified in seeing the Supreme Court as “nine politicians in robes, who are projecting their personal preferences onto the pages of U.S. Report.”