The Hosts of ‘5-4’ Never Trusted the Supreme Court

For Rhiannon Hamam, it was a tossup between Bush v. Gore and Castle Rock v. Gonzales.

When it came to what she considered the worst Supreme Court decision of the modern era, Bush epitomized to her the court’s opposition to democracy — reversing a Florida Supreme Court order for a manual recount and effectively deciding the 2000 presidential election. Castle Rock, on the other hand, spoke to its inhumanity, denying a mother whose three children were killed by her husband the right to sue the police who failed to enforce a restraining order against him.

Then, last month, came the decision in Dobbs v. Jackson Women’s Health Organization, barging to the top — or bottom — of her list by overturning Roe v. Wade and revoking the constitutional right to an abortion.

“It was absolutely awful,” Hamam said. “It’s hard to avoid the sense that something has gone very wrong.”

Like millions of Americans, Hamam, a public defender and one of three hosts of the popular podcast “5-4,” has spent much of this spring and summer fixated on the court and the imminent consequences of its 6-3 conservative supermajority. According to an annual Gallup poll released in late June — following the leak of an early draft of the Dobbs ruling — public confidence in the Supreme Court is plummeting. Only 25 percent of respondents said they had “a great deal” or “quite a lot” of confidence in the institution, the lowest level in the survey’s near 50-year history.

But for Hamam and her fellow podcast hosts — Michael Liroff and Peter, who asked to be identified only by his first name because his employer is unaware of the podcast — hating the high court is nothing new. In fact, it’s something of a calling. On “5-4,” a show “about how much the Supreme Court sucks,” as announced in its tagline, they’ve spent more than two years and nearly 150 episodes mordantly enumerating what they argue are its many sins and weaknesses.

The approach, both profane and meticulous, has attracted a fast-growing audience of like-minded listeners.

Since the beginning of the year, subscriptions to the “5-4” Patreon account have grown by over 30 percent, now bringing in more than $35,000 each month. First-day downloads of the podcast, which is produced and distributed by Prologue Projects, have more than doubled over the past two years, the company said, propelled by a series of court-related headlines, including the death of Ruth Bader Ginsburg and the Dobbs leak. In June, the month of the Dobbs decision, there were more than 400,000 downloads across the podcast’s catalog, up more than 90 percent from the same time last year.

The hosts themselves, “three nobodies” as Hamam put it, have been embraced by the left-wing cognoscenti. Hamam, 33, has been featured on MSNBC and The Cut, and the website of The New Yorker published a profile of her, Liroff (a former associate at the law firm Sullivan and Cromwell) and Peter (an in-house counsel) last fall.

Elizabeth Warren, the progressive and professorial senator from Massachusetts and a self-described “5-4” fan, recorded an interview last week for an upcoming episode.

“She took us to school,” said Liroff, 40.

Peter, 36, said the surge of attention has been “vindicating in a dark sort of way.”

For Liroff, the growing popularity has made the podcast feel worthwhile. “I think for a long time much of the legal establishment and the Democratic Party have been tied to this mythical idea of the Supreme Court that has denied them the vocabulary and the framework to really understand what has been happening,” he said. “Hopefully, we’ve played a small part in beginning to change that.”

In conversation, as on the show, the hosts are a bottomless well of sardonic judicial analysis. In a video interview last Wednesday, they debated which of the nine justices is most worthy of contempt (unanimous: Clarence Thomas), whose opinions are the most painful to read (Liroff: Brett Kavanaugh “writes like if you gave a talented law student a concussion”) and pet ideas for reform (all want to expand the court by a minimum of four justices; Liroff suggested the regular appointment of an additional justice every two years).

Their core complaint is the court’s holier-than-thou posture, exemplified by the black robes the justices wear in public. (The “5-4” merch store offers T-shirts emblazoned with the slogan “No Robes No Masters.”) The hosts believe the institution’s mystique allows fundamentally political actors to masquerade as enlightened and neutral arbiters.

“It’s a systemic problem baked into the structure of our democracy,” said Hamam, who has noted that the current conservative majority was largely appointed by presidents who originally took office without winning the popular vote.

Similar criticisms of the court have been made almost since its founding. Thomas Jefferson, a frequent antagonist of the federal judiciary, maligned its unelected judges as “a subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric.” And complaints of judicial overreach were once most commonly associated with conservatives, many of whom objected to a series of rulings in the 1950s and ’60s that ended segregation and expanded civil rights.

For Peter and Hamam, the conversion moment occurred in law school nearly a decade ago, when they realized, as Peter put it, that the justices were “just winging it like everyone else.” Liroff’s awakening came earlier. He was an 18-year-old high school student in Florida when the court issued its ruling in Bush v. Gore.

“They just busted in like the Kool-Aid man and said that it was over,” Liroff said. “I never knew if my vote even counted.”

Having found themselves with the cultural wind at their backs, the hosts say they want to help build a community of young, left-leaning lawyers and law students who take a more pragmatic view of the court and the law. A Slack group for “5-4” Patreon subscribers is filled with fans who consult the trio for advice, moral support and the dark humor of the commonly aggrieved. (A chatbot’s response to any mention of the name “Scalia” begins with a four-letter word.)

The show’s expanding reach has also brought a newfound sense of responsibility. Though they originally recorded more or less off the cuff, the hosts estimate that they now spend more than 20 hours per week preparing for each episode. The extra prep time allows for more research and the clarification of arguments. But the hosts say they have no plans to soften or moderate their core message, no matter who is hearing it.

“What made us successful is our unique point of view,” Hamam said. “I’m not dumbing that down because I know someone from Senator Warren’s office is listening.”

Although they hope the podcast continues to grow, none of the three has plans to quit his or her day job. Ultimately, the hosts say, the show — like the law — is just a means to an end.

“I hope the Democrats are sufficiently radicalized that they reform the court, expand it and make our podcast obsolete,” Liroff said. “But I’m not very optimistic.”