The 5-4 Podcast is the real AP US Government education you didn’t know you needed. The first episode is on Bush v. Gore. It sets up the podcast - as the hosts explain, Bush v. Gore is the court at its worst: petty, partisan, and illogical. Americans are trained from a young age to respect the court, but this respect is unwarranted. As Peter says:
“Anyone who thinks after Bush v. Gore, that the court functions as like an independent body separate from politics, or that it even could function like that, theoretically, is just a rube. Just a complete fuckin' sucker.”
This may seem like a bold claim, but listen along and verify the hosts' assertions and you will see the supposedly-Supreme court crumble under very basic arguments. Basic factual errors are present in decisions that are still binding to this day.
Case Study: Terry v. Ohio (1968)
In “Terry v. Ohio at Thirty-Five: A Revisionist View” by Lewis R. Katz, a law professor at Case, Katz pokes holes in what is still the law of the land. In Terry v. Ohio, the Supreme Court legalized stop and frisk. The podcast episode goes over much of his paper (without citing it, sadly), but basically: the Court didn’t get its facts right. Each man in Terry went from making 3 trips to 8 trips (for a total of 24). The officer’s changing story is never questioned, and the paper/episode goes into additional detail about how much the “Supreme” court just dropped the ball and helped further transition us to a police state.
Charitably, it was an error. Less deferentially, the Court had its decision before they even looked at the facts. They used the “24 trips” logic in saying that the stop and search was justified – so is it still justified when the actual number was 62% less?
5-4 also does a great job explaining the implications of its court cases. In Terry, the court cracked open the door for a new kind of police activity. As always, the police busted down the door and abused their power far more than the court intended. They cite statistics on Michael Bloomberg’s New York in examining how Terry has paved the way for institutionalized, industrialized racism.
If the court is falliable, we can question it
Going against the ingrained notion of a perfect court is freeing. No longer are we bound by the court’s precedent - they sure aren’t. 5-4 shows that everything the court does is made up on the spot to retroactively justify the politics that they want to create. “Legislating from the bench”, a constant boogeyman to some, is a time-honored tradition of the court. It’s all bullshit, and it all deserves scrutiny.
A new way of thinking about the law
The hosts are legal realists. We don’t need to defer to “wig-wearing slaveowners who didn’t understand germ theory”. Their bullshit, backwards ideas are killing people 200 years later. 5-4 reveals the court and much of the legal system for what it is - modern-day alchemy. We are supposed to be dazzled by their arguments, but they fail against common sense. We should be asking what the purpose of the legal system is. If it’s supposed to help people, it has completely failed.