Sounds Like A Cult - The Cult of The Supreme Court

Episode Date: November 1, 2022

A cabal of black-robed elites who preside, unquestioned, over all our rights and freedoms… hmmm… sounds like a dang cult to us! Isa and Amanda are getting *judicial* this week to analyze the “cult” of The Supreme Court with NYU law professor and host of the Strict Scrutiny podcast, Melissa Murray. Just in time for voting season! Check out voting resources below for this year's upcoming midterm elections. Register to vote, learn about your local elections, and make a plan – resources below! Midterms cheat sheet: https://www.generatorcollective.com/ Vote Save America: https://votesaveamerica.com/be-a-voter/ Get tickets to see Sounds Like A Cult live and in-person in Los Angeles on 12/4! https://www.dynastytypewriter.com Link to Isa's upcoming NYC comedy show here! Thank you to our sponsors: For listeners of the show, Dipsea is offering an extended 30 day free trial when you go to DipseaStories.com/CULT Get Honey for FREE at JoinHoney.com/cult.  

The views expressed in this episode, as with all episodes of Sounds Like a Cult, are solely host opinions and quoted allegations. The content here should not be taken as indisputable. This podcast is for entertainment purposes only. This is Sounds Like a Cult, a show about the modern day cults we all follow. I'm Issa Medina and I'm a comedian. And I'm Amanda Montell, author of the book Cultish the Language of Fanaticism. Every week on our show, we discuss a different fanatical fringe group

from the cultural zeitgeist, from flat earthers to people who are just super obsessed with essential oils, to try and answer the big question. This group sounds like a cult, but is it really? To join our cult and see culty memes and behind the scenes picks, follow us on Instagram at SoundsLikeACultPod. I'm on Instagram at Amanda underscore Montell. And I'm on Instagram at Issa Medina, I-S-A-A-M-E-D-I-N-A-A, where you can see shows that I'm on as a stand-up comedian.

And tell me to come to your city, where are you? Yes, as a reminder, Issa is a comedian and I am an author and I do events as well. And those are our things. I don't know how to read. And I don't know how to laugh. We have some really exciting news for you all. We have been holding this in for so long. We are doing a live podcast in Los Angeles, baby.

It's in person. It's not on the internet. It is IRL. So we can take this parasocial relationship between us and you listeners, actually social. If you're in Southern California, you have to come. It's on December 4th at Dynasty Typewriter at 7.30 p.m. And we're basically going to record a live episode of the show,

but much juicier with culty tea, too hot to spill on the podcast, special guests, games, audience participation. It's going to be lit. You want to be there because we aren't going to publish the episode. It's literally you had to be there situation. It is exclusive. It's exclusive to in person. And if all goes well, hey, maybe we'll take it on the road.

Who knows? But right now you can get tickets to the Los Angeles show December 4th at the description of this episode or the link on our Instagram bio or on our website at soundslikeecult.com. We hope to see you there. So this episode is coming out during election season, which is hot fall season to elect your officials. So we just wanted to remind you guys to make sure to register to vote

and make sure we have the rights that we want to need. We love rights. We're big fans. We've linked a couple of resources at the description of this episode. And on our Instagram, if you want to know how to vote, progressive politics. Today's episode is sponsored by Honey, the easy way to save when shopping on your iPhone or computer. If you don't already have Honey, you could be straight up missing out.

And by getting it, you'll be doing yourself a solid and supporting this show. I'd never recommend something I don't use. Get Honey for free at joinhoney.com slash cult. That's joinhoney.com slash cult. I love Dipsy because it's not just an audio story app, but it helps you really wind down and relax. For listeners of the show, Dipsy is offering an extended 30 day free trial when you go to Dipsystories.com slash cult.

That's 30 days of full access for free when you go to Dipsystories.com slash cult. Dipsystories.com slash cult. Well, let's get into it. I am excited about this episode in a half depressed, half excited way. It was your idea. It was my idea. We are going to be talking about the cult of the Supreme Court. Plot twist.

I'm normally the one who's like, let's do the cult of conspiracy theories and QAnon. And you're like, let's do the cult of my butt. I've never said that, but I like where your head's at. I would love to do the cult of my butt. It does shrink and grow really randomly. Right now it's in a growing phase. And you can see it.

There is a photo of it on Instagram. Or if you come see me do stand up live, you can see it on stage. Yeah, you do have a joke where you turn around. If you raise your hand and you're like, I'm a fan of sounds like a coal, I will give you a lap dance. I won't. But we did have some fans come out to see me at fringe. And it was so lovely.

I kind of like was doing crowd work and accidentally like roasted one of them. And then she was like, wait, I'm a fan of yours. And I was like, wait, I'm sorry, are we best friends? No, this whole podcast is about roasting our listeners. Yes. We're just constantly telling them the cult that they're in. Exactly.

No, she was very happy about it in the end. You masochist. Anyway, today we are doing the cult of the Supreme Court. It's very serious. Yeah, do you even know what the Supreme Court is? It's a part of the judicial branch, actually. Yeah, I know. I was like trying to recall my AP government days in high school.

Randomly, I was a bad high school student. Yeah, it didn't interest you. I, on the other hand, I knocked it out of the park on AP Gov. Got a five on the exam. OK. Not to brag, but I did find it interesting. And one of the things that always stuck with me was the interpretation of the law.

And at a young age, I was like, that's kind of bonkers. And that's essentially what the Supreme Court is. We pick nine people to interpret the freaking law for us. I mean, the way you describe it, it's like a bunch of white men made up a document that we all worship unquestioningly. It sounds like the Bible. Yeah, and they wear robes. They stay forever until they literally die.

Yeah, robes, cult red flag, number one. Yeah. Black robes. But as you all know, we are not professionals in the field. And so if you can't already tell, we are going to be chatting with an expert, law professor Melissa Murray, who does literally have a podcast about the Supreme Court.

When you said a law professor, I thought you were pronouncing it in French. Oh, no. Law professor. La professeur. Do you want to explain to the listeners why you wanted to do an episode on the cult of the Supreme Court?

Because I actually think it's a perfect topic for us to cover. Earlier this year, when the Supreme Court decided to overturn Roe v. Wade, I, as many other women, was shocked and highly disappointed. And it was just this moment where I really had to take a step back and be like, how does this group of nine people have so much control and power over every woman in our country,

especially when we live in a country of United States, where supposedly every state is allowed to have their own laws. They affected the way that we can control our bodies. Dipping back into my AP government brain, I recalled that, theoretically, the Supreme Court is there as one of three branches of government institutionalized for checks and balances. But as we can tell, it is increasingly

used as a partisan political tool. And as our country's political zeitgeist becomes more cultish and becomes more extreme, the Supreme Court follows suit. The problem is that the Supreme Court wields such an unbelievable amount of really finite power over so many people that when you have a group of nine folks in black robes

with gavils who are there to make life or death choices for 300 million plus people, that sounds like a cult. Yeah, it really does, especially when you think about the people who then do choose or approve for them to be in those positions. Justices get approved by the House and the Senate. And I think when we had a more bipartisan House and Senate, there was a more thorough process

to approve the justices. But now everything is so partisan that it really just is the president choosing the future for the next however long the justice will survive. And as we know, our lifespans are getting longer. It's true. So speaking of facts and figures, maybe we should serve some fast facts about the Supreme

Court for a little titty-bitty of background. The way that the Supreme Court is currently done, everything from the traditions to the rituals, they date all the way back to the 18th century, largely unchanged, which is a really, really, really long time to do things the exact same way. Yeah, so justices are essentially supposed to serve lifelong sentences.

But because they get appointed at such an old age, they serve an average of 16 years, which maybe wouldn't be bad if they were like 35. But they get appointed at retirement age. Truly. So then a 90-year-old is deciding our future. When I'm 90, I want to be put way out to pasture. Half of the justices at any point in time

are a weekend at Bernie's. And I wish it was the right Bernie, if you know what I mean. I wish it was our Bernie Sanders, not like weekend at Bernie's dead justices. Wait, are you a Bernie bro? No, you were a list of foreign. I was not a Bernie bro, but I love Bernie. Cult of Bernie bro is another topic for another day.

But some other quick fast facts of 100 plus total justices throughout history, 20 have been from Harvard Law School. So there is a pipeline, an overlap between the Cult of the Supreme Court and the Cult of academia. I think that is so important to highlight, because the Cult of Ivy Leagues is one that starts almost at birth, because it's like a privilege to be

able to afford and get into. And then professors teach things a certain way. So it's almost this bubble of the way that justices are taught things. That means that's the way that they're going to interpret them. And then that affects whether you and I can get a freaking abortion.

Totally. These people are, without question, not representing the average American more often than that. So the Supreme Court was first established in 1789. It was first assembled in 1790. Unlike the presidency, there are no official qualifications for becoming a Supreme Court justice. However, every justice that has ever served has been a lawyer.

I thought you were going to say a rapist. I'm just kidding. Oh, that's only one that we know of so far. Oh, god. RPG, why did you die? I know. I miss you. She should have retired, though.

I'm sorry. I do have to say that on the record. And it is ultimately quite cultish to think that you could trump death, to think that you could transcend mortality. Yeah. And that's why when we saw that justices serve for an average of 16 years,

I was like, OK, it feels like way longer. It does, but only because some justices are the crypt keeper. And they know nothing about fashion. Oh, my god. I cannot imagine any of the Supreme Court justices outside of their robes. Yeah, it's like seeing your teacher outside of school.

You know, you're like, wait, are you a real person? And then you're like, wait, do Supreme Court justices eat cheeseburgers? Yeah, sometimes I think about what Gordon Ramsay eats for dinner. Probably just plain rice. Top ramen, Taco Bell. Definitely not Taco Bell.

Something that is highly culty because the Supreme Court holds so much power, I think it's kind of nuts that they only hear 80 cases out of the seven to 8,000 cases that they receive each year. They only hear some of them, but I do think they review a lot of them. Hello all my friends in law school that I told Tillis end of this episode

are going to be like, Grilly, what are you talking about? And to those people, I'm going to say, hold on to your horses because we have an expert coming in. Listen, if we claimed to be experts on every single topic that we do every single week, because we do cover a wildly different cult week to week, that would be culty.

We would have to have six brains to be able to do a true deep dive into every episode. I think sometimes people expect us to do documentary level research, and I'm like, you know documentaries take eight months to three years? I'm like, babe, it's just us. We're not AI no matter how much Botox is in my forehead. Yeah, and I need to get some.

I think something incredibly culty is that the Supreme Court is such a tradition bound institution, which means that there aren't necessarily very many quantitative rules for joining. There are just these agreed upon, unofficial ways in which traditions are upheld. And tradition, as we know, is always a way to excuse extremely culty behavior unquestioningly.

We've seen that in the cult of fraternities and sororities. Yeah, we've also seen it in the cult of the royal family, the cult of weddings, the cult of academia, too. I really quickly just want to read where the current justices went to school. Amy Coney Barrett, Notre Dame, Alito Yale, KBJ Harvard, Gorsuch Harvard, Kavanaugh Yale, Kagan Harvard, Roberts Harvard, Sotomayor Yale, Thomas Yale.

Literally all of them went to Harvard or Yale, except for one. You sound like my exes. The lifetime appointment thing is also wild to me. It gives them this untouchable leader status that you can see those smug ass looks on their faces up there. Yeah, I mean, it reminds me a lot of the idea of tenure with academia. It's like it gives these people in power

the ability to kind of disassociate from their day-to-day job. And I'm not saying that they're lazy by any means. Not only did I not go to law school, but I could never get appointed to be a justice because if I got a job appointed for life, I'd be like, all right, kids, I'm going to lock myself in my office and watch Netflix. And they'd be like, what are you doing?

And I'd be like, I just have so many cases. Oh my god, the fun fact for those listening, Issa has this thing where she wishes that life were 300 years long so that you could work every job under the sun that has any sort of appeal. I'm like, life is already so long. The way that I say it is that I wish that I could have my 20s three or four times over,

because there's one in which I would travel the world and not focus on my career at all and just be this person without a savings account. Just travel and live paycheck to paycheck. Another world where I pursue stand-up comedy, which we are currently doing, okay? In the multiverse, you're doing all these things. Another world where I go to law school.

And then another world where I be commonly a stay-at-home mom. I don't know anyone who wants to repeat their 20s so many times, but what I'm hearing is in one version of the multiverse, you want to join the cult of PTA moms. In one version, you want to go be like a new age grifter in Bali. In one of the versions, you want to be in the cult

of lawyers and the Supreme Court. And then the comedian one, which is now, but which is now, we're working on it. If you come see me at a show, then you'll help me work on it, baby. It really does go back to this upholding of tradition because Supreme Court justices are impeachable, but in history, only one has ever been impeached.

It was in 1804, the year of my birth. Samuel Chase, this one justice was impeached for acting in a partisan way, but he was acquitted and stayed on the bench. Can you imagine? People would be impeached right and left. All everyone ever does is act in a partisan way. Yeah, that's kind of insane

that you could get impeached for acting that way and that we still have nine justices seated in those chairs. Now that's the only way to be. I also think it's funny that only one justice has been impeached. And I'm like, we should have had justices that were impeached from the law before they even joined the Supreme Court.

Yeah, impeach is such a satisfying word. Yeah. Impeach the Supreme Court. Obviously it's like the highest power for a justice, but within the justices and the nine justices, there is seniority and there is a hierarchy within them. The judges are seated by seniority with the Chief Justice in the center.

So I think that implies very clearly that there are probably internal politics that we don't even know about. And because it's so secretive and quiet, they do not talk to the press. They don't talk about their cases outside. The fact that the Roe v. Wade opinion was even leaked is insane.

We don't even know what's going on in there. I'm definitely not watching Netflix. I'll tell you that much. And let's talk about the conformity, uniformity, and sense of ritual. Again, those all black robes. Robes in general are accustomed from the English common law system

that colonial judges adopted. The tradition to where all black robes has existed since the 1800s, I think it's time to change it up. What color would you like to see the Supreme Court justices in? I think they should each be allowed to choose their own color,

but ultimately I actually think that they should have to wear transparent robes and meat naked underneath. Kind of like in Game of Thrones when the people in power get shamed. It's like, if you want to have that much power, then you have to give us some type of collateral. And it's your old wrinkly bodies.

That'll make you think twice about a decision. I know. And an opinion. Also what's incredibly conformist in culty is they still have quill pens placed on their desks each day like they did at the very first session. Get an iPad. You do famously love your Apple Pen low key though.

I have a quill. Of course you do. They also haze their members like some kind of fucking weird, nerdy, Harvard ass fraternity. The newest members have to answer the door whenever there's a knock outside of the conference room that's just for the newest members.

The newest members have to take notes. We're like, wait, that's not hazing. That's like a job. The new members have to show up to the office on time and do their job. Well, I do think it's funny to think of like some 80 year old person like sitting in the corner like a writer's room assistant taking notes.

Yeah, and these are people that have degrees from the highest of institutions. Yeah, the newest members also have to choose the lunch options. Yeah, each new justice serves on a committee that oversees the court's cafeteria. One of the things that I've noticed as an adult is something that makes the world go round is lunch.

And you absolutely need it for your blood sugar. Their days sound so boring. Actually though, I think that that lunch tradition is ultimately rooted in sexism because it's when Sandra Day O'Connor was first appointed the Chief Justice, Warren Burger immediately assigned her to cafeteria duty. The only thing I actually know about the Supreme Court

was a fun fact that I included in my first book, Word Slide, available wherever you buy books. It's that the majority of interruptions that happen on the Supreme Court bench are directed toward women, even subordinates who are arguing at their superiors at the justices are more likely to interrupt women than other justices are more likely to interrupt other men.

Yeah, and didn't you say that as the presence of women grew, the interruptions grew as well? They got worse. The more women are around, the more opportunity men have to fuck their lives up. For sure, because you'd think that there would be fewer interruptions as people started to see women in positions of power and that became normalized.

But no, as women increasingly threaten traditional male power, the interruptions and silencing classic cult tactic got worse. Almost as fratty as the hazing is the judicial handshake. It happens during the private conference where they meet to discuss pending cases. It's really just that they all shake hands with each other, but it's weird and ritualistic to shake hands every day

with eight other people that you see every day. There's just this sense of protocol. It's like the Freemasons. It's like, here we are doing this thing once again. Yeah, what if I came into the studio and shook your hand every day? Or whatever you came into the studio and just slapped each other.

That would really wake us up. That would be more us. I slap you in the face and you slap me in the ass. Kinky, there is something culty about doing something every single day just because that's the way it's always been done. Just because it encourages that culture of conformity and lack of questioning and superiority.

It's like, we're all shaking hands, making eye contact, letting each other know we're better than everyone else. And who are they letting know? Because there's no one around. They don't let anyone in the building. If a Supreme Court justice shakes hands in the woods where no one can see it, is it really a handshake? Yeah, and is it really a justice?

We'll only know if their robes are transparent and we can tell that they're 1,000 years old. Ah, conversations of the great philosophers that we've talked about in hundreds of years. We don't know what's happening in there. I mean, the Supreme Court building is a tourist attraction, but most of the floors are closed off to the public. And the Supreme Court does not allow cameras

or televised proceedings to happen like Congress does. So you really don't know what's happening in there. John Roberts at one point said that the judiciary branch was the most transparent branch because they give lengthy opinions when they issue a ruling. But there are so many problems with that argument. First of all, the language is so accessible. They could be using this code language to speak to one another

in only a way that they would understand. The public doesn't know how to speak fucking Supreme Court. Yeah, there's transparency after the opinion and decision has been made. And so there's no transparency in the actual decision-making process. I mean, there are nine of them, so they had to have discussions

that got them to that final opinion. Their discussions and their rulings and whatever goes on in the Supreme Court is so inscrutable. In college, I took one graduate linguistic seminar where we were tracking the evolution of RBG's New York accent over her time on the bench. And I would have to listen to so many oral arguments to analyze her accent.

Like oral argument after oral argument. And I probably fucked up that data because it was so boring to listen to. Yeah, that sounds really boring. TDM is a way of concealing cultishness. Ultimately, I feel like that's why contracts are so complicated so that we have to hire lawyers to interpret them and to write them for us.

And it just makes the world go round. When you make something needlessly inscrutable and secretive, that's cult like exploitation to me. But as you can tell, we're just like culty, culty. This is so culty and LOL robes. So we're gonna talk to an expert on the Supreme Court, Melissa Murray. She is a lawyer and the host of a podcast

called Strict scrutiny, which is about the United States Supreme Court and the legal culture that surrounds it. Melissa Murray is a professor at the NYU School of Law. She's also a leading expert in family law, constitutional law and reproductive rights. And we are so honored that she would take the time to talk to us.

Seriously. About the cult of the Supreme Court. So before we get into our sponsors for the day, ESA here, I wanna speak to my New Yorkers. I will be performing in New York City on November 26th with some very special guests at Union Hall. You do not wanna miss it. Get tickets to the link in the episode description

or on my Instagram at ESA Medina, I-S-A-A-M-E-D-I-N-A-A. I'll be joined by some hilarious guests and I'll be doing a whole half hour of standup comedy. Again, that's November 26th, the Saturday after Thanksgiving. So treat yourself to a fun night out after and during a meal with your family and come meet me, your new chosen family in person.

I cannot wait to meet all my New Yorkers, concrete jungle, wet dream, tomato. I'll see you there, link in bio. Today's episode is sponsored by Honey, the easy way to save when shopping on your iPhone or computer. Thanks to Honey, manually searching for coupon codes is a thing of the past.

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So if you wanna get there quickly, you can. It's truly a beautiful app to listen to, to look at, we're big fans. We really are. For listeners of the show, Dipsy is offering an extended 30 day free trial when you go to DipsyStories.com slash Colt. That's 30 days of full access for free

when you go to DIPSEAstories.com slash Colt. DipsyStories.com slash Colt. Thank you so much for coming on the podcast. I'm gonna start off with a quick question. I'm a lawyer professor at NYU. And I'm also the co-host of Strix scrutiny, a cricket media podcast about the Supreme Court and the legal culture that surrounds it.

To start off really basic for our listeners and for us, could you explain a little bit the hierarchy and power dynamics of the Supreme Court and why it was set up that way? The Supreme Court is part of the federal judiciary. And I specifically call it the federal judiciary to distinguish it from the state judiciary. So in all of the states,

there is a whole separate court system that deals with issues relating to state law and state constitutional issues. The federal judiciary is slightly different because it deals principally with federal laws and federal constitutional issues. So there may be circumstances where states pass laws that are fine for the states

but actually run afoul of the federal constitution. And so those will percolate up through the federal court system or sometimes they'll percolate through the state court system and then go to the Supreme Court to be heard finally. But in the federal system, there are three levels and this is relatively consistent with the state hierarchy as well.

But you have at the bottom trial courts. So these are courts of original jurisdiction. So if you wanna file something for the first time, present a claim, you go to a trial court. It's also called a US district court. If you are unsuccessful on your claim there, you have a right to appeal to the next level of the federal judiciary,

which is the intermediate appellate court, which is known as the circuit court. So we have 13 circuits throughout the United States from the first circuit to the federal circuit, which deals with patent issues and things like that. And then if you aren't successful there, you can petition to have the Supreme Court, which is the federal court of last resort

to hear and review your issue. And the thing is, you actually don't have a right to be heard by the Supreme Court on appeal. It has a discretionary docket. So you file a petition for certiorari and the court decides if it wants to take up your case. And it typically decides to take cases based on whether or not there's a split

between different circuits on a particular issue or if it's an issue, a first impression that really needs deciding because there's all sorts of questions about it. Or in some cases, they just take stuff because they have an appetite to take stuff, even though they don't really need to, even though the issue may have been settled

relatively recently, they can do what they want to do as long as they have four justices who are willing to review that case. I'm so glad you explained all of that. Bless you. We didn't quite explain that part fully well in our initial recording.

Generally, what do you think was the original intention and promise of the Supreme Court and how have we gotten away from that initial promise? So when the court was set up is actually supposed to be, as Alexander Hamilton put it, the least dangerous branch. When the founders were drafting the constitution and setting up this tripartite system of government, their real model was obviously Britain,

which they were breaking away from. And so a lot of their anxieties about how to structure a government were really focused on all of the things they thought had gone wrong with their relationship with Great Britain. I mean, it's basically like you're dating a narcissist. You think about your narcissistic partner's tendencies

as you look for a new partner. And so they were just really focused on making sure they did not run into the same situation in this new country they were building that they'd experienced with Great Britain. So the parliament had been a huge problem for them. So they really were focused on constraining the power of the federal legislature, Congress. So article one of the constitution is really, really dense

and enumerates all of the things that Congress can do and then leaves everything else to the state. So it specifically tells Congress, here's what you can do and everything left is to the states and to the people. And that's because parliament had so much power in England and they were really trying to correct for that. They also were really concerned about a leader becoming an omnipotent monarch

in the manner of King George III. So they spent some time trying to delineate the powers of the president to make sure that the president didn't have an opportunity to be tyrannical as well. They really didn't spend a lot of time thinking about the court. So article one focuses on the powers of Congress

and it's very, very detailed. Article two is about the president and it's less detailed, but still, they sort of talk about what the president can and cannot do. And then with article three where they're talking about the judiciary, they're just like, eh, this Congress can make Supreme courts and some lower inferior federal courts

as it decides it wants to have. And, you know, also the Supreme court can only hear cases or controversies. The federal courts can only hear cases or controversies and they're just really spare about it. Just identifying what the federal judiciary will be about and what it will do. And so they provide for original jurisdiction

of the United States Supreme Court. They provide for appellate jurisdiction, but they don't say much at all. And that's because, as Hamilton says, they don't envision the court being a source of potential tyranny in the way they imagine the Congress or the president potentially consolidating power

and becoming over encroaching. They think the court's just kind of, eh, that's a nice to have, little did they know. I feel like they probably didn't envision such a partisan Congress like the way we have it today. I feel like it's kind of getting out of hand. Something that was highlighted to me when a friend of mine worked for a judge in New York

if they have like an allegation, for example, within their office, there's no protocol. There's no HR. That's like one specific example, but can you speak a little bit on how the courts function in that way? Yeah, in other words, could you speak to how so many different kinds of power are able

to go unchecked in the court system? Because I can't help but think that it has to do with this kind of spiritual reverence that we have for these age old institutions. Sure, let me back up to the first point you made. The framers did not really contemplate the prospect of rampant political polarization in the manner that we have today.

James Madison talked about the prospect of factions, which you might imagine as contemporary political parties, but I don't think they imagined that we would become so factionalized that Congress cannot work or the president cannot work. And these major institutions of authority that are supposed to work in particular ways actually can't do their job.

And when Congress and the president can't do its jobs, that means that there's a lot of pressure to prosecute either a domestic or international or foreign relations agenda in some other place. And the only other place really is likely to be the Supreme Court. The second part is the spareness of Article III, one of the reasons why we have a federal judiciary

with so few internal controls. Probably not because of the Constitution. The framers didn't know from HR. And I want to be very clear, some of the people framing the Constitution actually owned slaves and were enslavers. So, you know, these were not the guys were like, you know, we need an HR here.

We need a human resource. But it does speak to the idea that because they were so spare about it, a lot of things were not written down, including the court's power to interpret and review and determine the constitutionality of the actions of the other branches. So there is nothing in the Constitution

that specifically enumerates the authority of federal courts to determine whether an act of Congress or an act of the president is constitutional. So there is no sort of code of conduct for federal judges. You know, they have some ethical obligations that they're required to observe. The Supreme Court actually doesn't have to observe any of them.

And, you know, when judges have, you know, sexual harassment or, you know, inappropriate workplace environments, it's just very hard for clerks and other courthouse staff to report it. Often one of the mechanisms has been to refer it to some administrator within the courthouse. And then if it's really serious

or it's determined to be really serious, they might bring in or refer it out to another circuit to, you know, investigate. But it's basically other judges weighing in on what their colleagues are doing. And you can imagine that that's just incredibly fraught, probably not terribly effective. So I don't think that's a function of the Constitution.

I think it is a function of what Amanda is talking about, which is sort of, you know, the kind of reverence and veneration that we have of federal judges, which relates to this idea that, you know, there is something culty about this. And I think the root of the cultishness, if you want to call it that, may go back to the Constitution itself.

I mean, there's a way in which people talk about the Constitution that feels a little fundamentalist. And it's fundamentalist whether you are on the right or the left. I mean, regardless of where people fall ideologically, there seems to be an almost uniform veneration for the Constitution and its principles. I am a law professor.

I spend my whole life talking about this. So I'm obviously complicit in this, but, you know, this is a document that is born of circumstances that can only be described as a democratic deficit. Not everyone is participating. And yet we venerate this document. This is an article of faith

on which our entire government is resting. The way that you say fundamentalism, I never thought about it like that for the Constitution. I don't know, but just hearing you say it, yeah, we are choosing to idolize this document that was created so, so long ago and is not really relevant to the present day. The Founding Fathers almost serve a religious role,

a cult leader-ish role. We certainly talk about them as such. Let me say, I do think the Constitution has some bearing on today. I'm like, eh, it's not cool. We can write something up really quick, just the three of us. That actually is a really interesting point.

We could write something up at any point. We could have a constitutional convention and have a complete do-over where more people participate in it, but we don't. And the fact that we don't may actually suggest the sort of fidelity to this existing document that we have on both sides.

But I actually think fundamentalism works on two different levels. So I was just sort of talking about fundamentalism in, you know, we all, regardless, I think, of our party affiliation, probably believe that the Constitution is sort of a bedrock principle, like the Declaration of Independence.

Like, these are founding charters and they're part of our identity as a country in the same way the Bible is part of your identity if you are a fundamentalist Christian. I also think fundamentalism, though, works on another level, which is the question of how you interpret the Constitution. And there is a strain mostly associated with the right

that argues that the best way to interpret the Constitution is in the way that the framers would have understood it at the time the Constitution was being ratified. That notion, which is called originalism, and it has lots of different strains, but I'll just sort of productively call it originalism, that does venerate the founding generation

as these sort of cult-like figures whose judgment was infallible, who knew what they were talking about. And the only way to understand the Constitution and its meaning today is to understand what its meaning to them was, regardless of the circumstances. That, to me, very much tracks

with a kind of fundamentalism that I think we talk about in other contexts that we associate with cults. There seems to be something sort of sinister lurking beneath this originalism, euphemism. Can you unpack that a bit? To be very clear, originalism as a method of constitutional interpretation

really arises in the 1980s in the Reagan era as a response to what conservatives view as the excesses of the Warren Court. This idea that the Warren Court, looked at the Constitution was like, F that, we got a better idea. And they decided to do things like a right to privacy, which is not explicit in the Constitution,

but originalists would say, no, we're actually looking at what does the text say? And if it's not in the text, then it has to be deeply rooted in the history and traditions of this country. And so it's just a very rigid kind of view that is purposefully rigid because it's meant to restrain

the normative judgments of judges. And that's the response to the Warren Court. Like here were a bunch of like, Pinko liberal commies on the court who were just giving defendants rights and giving women rights. And none of this was what the framers would have wanted. That is, I think, reductively

what the originalists would say. Did the framers of the Constitution in 1787 understand what they were writing to be about bodily autonomy? I don't know, maybe not. But by the 14th amendment, after the civil war fought over the whole question of, can we own people? The idea that liberty doesn't have anything to do

with bodily autonomy just seems really far-fetched. Yet true originalists would not understand the 14th amendment in that way because there's no right to bodily autonomy written in the Constitution. So again, there is a kind of selectivity about it even as it's presented as objective and neutral. What do you think are some of the cultiest decisions

that have ever been made by the Supreme Court? You know, it's worth noting that the justices have often been referred to as priests. Like, this is a kind of priesthood. Even they understand that there is something sort of weirdly religious about the enterprise itself. This is not a decision I think is necessarily culty, but I think it has inspired culty behavior.

And it's Roe versus Wade. I mean, Roe versus Wade has, I think, single-handedly mobilized an interest in the court on the part of conservatives that is really about reifying this idea of originalism, in part because conservatives read Roe versus Wade and say, you know, they made up a right. They made up a right to have an abortion.

There's nothing in the Constitution that says anything about abortion. You know, I don't think that's the right way to read Roe versus Wade. I mean, I think this idea of a right to privacy that stems and proceeds from this grant of liberty in the 14th Amendment is very much about bodily autonomy. Those in Congress who were debating it understood

that what distinguished slavery from freedom, you know, what was liberty versus what was enslavement was the right to get married, which slaves were not permitted to do, the right to control your children. They could see their children sold away from them, the right to control your labor, which they obviously couldn't do, the right to not be subject to sexual coercion,

which everyone understood was something that enslaved women literally dealt with all of the time, being forced to bear children for the purpose of fattening their owner's pockets, not necessarily because they were interested in expanding their family. So the idea that liberty has nothing to do with compelled pregnancy or forced birth

is absolutely delusional. But, and I think Dobbs, which overrules Roe versus Wade, is exemplary of the court in full culty mode. You know, this is a decision that says, even though we have upheld this right to choose an abortion for almost 50 years, despite the fact that generations of women in this country have relied on this,

and recognize it, and recognize its protections for controlling your reproductive capacity is one of the reasons that has allowed them to pursue education and to pursue employment, and to maybe dream about not just becoming a mother, but a mother and something else. Despite all of that, we're just gonna say right now, like we can't find it here in this constitution.

It's obviously not deeply rooted in our history because the only history we're going to look at is some noted witch burners from the common law period. We're not going to look and talk about the 14th Amendment and abolition. We're not gonna talk about any of that stuff. And we're just gonna write this opinion that basically writes women out of the constitution, right?

And to be clear, women were not in the constitution until 1920 with the 19th Amendment. But we have been read in through this process of interpretation during the 1970s, the kind of decisions that the originalists are responding to and reacting against. Yep, thank you for pointing that out. We often talk on this show about how

during times of socio-political tumult, like now, cults tend to thrive. The difference is that in the current age, so many of them operate and assemble on social media. In your opinion, what do you think about our country's culture at the moment and the history that led up to it is responsible for making the Supreme Court

more cultish than it maybe once was? You hit the nail on the head earlier when you talked about political polarization. I think that's a big part of it, like we are so divided. But I also think you can't disregard the degree to which much of this social movement stuff around conservatism, and I'm not talking

about legal conservatism, I mean, there's January 6th, Patriot Front, QAnon, how much of this is undergirded by this sense of grievance and that they are being stripped of something that is theirs. And that, I think, goes back to the original founders. Like, they drafted a constitution to protect what was theirs.

Like, the entire constitution is shot through with explicit mentions of slavery, not just the three-fifths clause, also an article four about the rendition of fugitive slaves, the fact that they write in the constitution that they're going to keep the international slave trade until 1808, just 20 years, and then they have to have

a naturally reproducing slave population. They wrote a document specifically to preserve slavery, and to preserve slavery, you have to be preserving a racial hierarchy. And so, you know, part of the investment in the constitution as a sort of guiding charter, we have to, I think, recognize as an investment in a kind of racial hierarchy

that is not aligned with the pluralistic democracy that we actually inhabit. Like, we've created a pluralistic democracy despite the fact that our founding documents work against it. It all is reflective of the American tradition of believing in, like, this zero-sum game, this thing that if you have rights, I lose rights.

And that started with slavery. You know, if we give slave rights, we lose our economy. It's just been doubled down as history has gone on, where instead of just changing that culture of, like, you know, we can all have rights, we can all grow, move forward, be better, the January 6th folks, they're mad because they've been convinced

and they've been told that they are losing rights because other people are gaining them. And we talk all the time about how some of the most notorious cult leaders of all time are these white cis men in a position of privilege who feel like they have a chip on their shoulder. Like, they're entitled to something that they've been stripped of.

And so that's such an important parallel to draw. The point you say about sort of the zero-sum game, I think that is right. The idea that rights trump isn't quite as thick. Me having rights doesn't necessarily diminish your rights. It's more of an proportionality kind of interest. And, you know, I don't know if that's any better because then it just means, like, you know,

I can sort of curtail some of your rights in order to vindicate some of mine. And, you know, maybe that doesn't feel great either if you are one of these historically subordinated groups to have your rights kind of be at the mercy of someone else. But it is, I think, part of the unusual calculus here in this country that, you know, if someone else wins, I must lose.

It's because our country is so hierarchical and focused on competition. Again, that's a reductive summary, but that's part of it. Do you think there is anything that we could do in today's, like, partisan society to make the Supreme Court less culty? Anything that lowers the temperature around the court would make everything less culty.

Lots of people have talked about rebalancing the court, court packing. I don't know if you even have to go that far. I think one thing that would be great is stop making them lifelong priests. Like, give them term limits. 18 years, let every president have the opportunity to nominate at least one justice.

I think that would do a lot. We're going to pivot to a little bit of a game. We often play games with our guests on Sounds Like a Cult. The game is called Which is Cultier? We're going to read two Supreme Court-oriented scenarios and you're just going to name which you think is cultier. Which is cultier?

That Ruth Bader Ginsburg gained such a cult status that her image was placed on literal prayer candles and her net worth was allegedly over $18 million in 2013. Or that RBG and political enemy, Anthony Scalia, were secretly besties who'd go on family vacays and to the opera together. I mean, I think the fact that they were such good friends

is sort of like the kind of cultiness of collegiality on the court, like how they talked about, like, you know, we disagree all the time and it makes our work better, like super culty. I have to say, I found the sort of cult, the notorious RBG cult kind of interesting, bemusing in some ways, deeply disconcerting in others. I think it overshadows the way in which

some of her colleagues were actually a little more progressive on certain things than she was in a lot of ways. And also the fact that she like stayed on instead of retiring. Well, I think that might have also been because her husband passed away and, you know, she really loved her job.

This is a woman who spent most of the early part of her career like being turned away from jobs and she finally reaches the pinnacle of the profession. She's like, yeah, I'm not going until I'm ready. Which pointless 150-year-old ritual is cultier? The white quill pens are still placed on attorneys' tables before they read their oral arguments or that before the court gathers

to discuss decisions every day, each justice shakes hands with the other justice, a tradition known as the judicial handshake. I'm gonna say the quill pens are really culty. I mean, like you're taking this all the way back to the 1780s when everybody knows that each advocate would just prefer a really nice roller ball.

Last one, which is cultier? Justice Amy Coney Barrett privately being connected to the alleged charismatic Christian cult people of praise where her title was once literally handmade or Justice Clarence Thomas publicly citing the debunked conspiracy theory that COVID-19 vaccines are made of cells from aborted fetuses earlier this year.

I don't know anything about people of praise other than what I've read in the paper and I think religion is such a personal thing so I'm gonna leave that one to the side because I never ever tire of talking about Justice Clarence Thomas and his antipathy for women's reproductive rights. Not only does he say that aborted fetuses

are being used to create deadly viruses, like he's also arguing that abortion is a form of contemporary eugenics and you can do a whole separate cult on the cult of eugenics where I think you will not find many people who provide abortions historically or contemporarily but there you have it.

So I'm gonna go with Justice Thomas. He's always my go-to on these sorts of things. If they were being used to make vaccines, wouldn't that make them super useful? You know? He's actually really, really interesting as just a figure, like an intellectual figure. I think he's completely underestimated

as an intellectual heavyweight on the court for lots of reasons. I think you might think about what those reasons could be but in fact, I think over the course of his 30 years on the court, he has really, and maybe even more so than Justice Scalia who I think is sort of the intellectual father of conservatism on the Supreme Court.

Justice Thomas has sort of carefully stewarded a lot of ideas that I think 30 years ago people have been like, that's off the wall. Now it's very definitely on the wall and in fact, it is our law now. He's this underrated dark horse, slow and steady winning the race. He is the tortoise.

Yeah. He's so many different animal allegories that we can do. Although I don't even want to compare him to a turtle because I'm like, oh, I love turtles. I know turtles are elegant. The snapping turtle, like the kind that'll take off your hand.

Yeah, the snapping turtle, that's what it is. We love a metaphor chat at the end of an interview. Thank you so much for coming on Sounds Like a Cult and lending your wisdom. If folks want to keep up with you and you're intellect and your work, where can they do that? I'm on Twitter at ProfM Murray and you can find my musings there.

I'm also on Instagram, although I have to say I'm not good at Instagram. People are always like sending me notes on Instagram. I was like, I don't know what to do with this. Like, thank you. So I've already declared an Instagram bankruptcy but I'm there as well. And you can also listen to me each week

with my co-host Leah and Kate on Strix Grootney, a podcast about the Supreme Court and the legal culture that surrounds it. So Amanda, do you think the cult of the Supreme Court is a live your life, a watch your back, or get the fuck out? This one's really tough to evaluate, I think, because what would live your life,

watch your back and get the fuck out, translate to with the Supreme Court? Does get the fuck out mean the Supreme Court is beyond repair and we should abolish it? I would say that get the fuck out would mean that the Supreme Court should be abolished and watch your back means that we should add more justices. And live your life means that it should stay as it is.

It's Gucci. Would get the fuck out mean if you're considering pursuing a career that might lead you to joining the Supreme Court, should you reject that? That's true, there's so many ways to analyze it. I think that we should be looking at it from like the way that the Supreme Court exists

and it's just the entity. So not people that might wanna be in it, even for the better, because the way that it's functioning right now, we would have to have a bunch of new justices and that still wouldn't be right because I still don't think that would be representative of the US population's public opinion.

Yeah, I suppose we should be evaluating it on the basis of its cult-like influence over the rest of society. To me, oh God, it really calls to mind this cult called The Family. There's an amazing Netflix docu-series about this cult. It's this extremely influential evangelical secret society that has an unbelievable amount of political influence.

They're the people who put on the national prayer breakfast every single year that is not put on by the government. It's one of these families, like the Cult of the Hammer family, that has so much money and so much influence and so many relationships that they're able to influence politics in really shady, backdoor ways.

And the Supreme Court has gotten shadier and cultier as our culture at large and our government at large has gotten shadier and cultier. And I think a lot of people take different stances. It's very common that people are abolish the Supreme Court or that people are like, we need to add more justices or that people are like, let's keep it as it is. I think the Supreme Court is somewhat of a microcosm

of America itself at this point. And so I would say America is a watch your back and thus the Supreme Court is a watch your back. Ooh, I disagree because I think that the Supreme Court is not a democracy at all. I think it's too many steps removed from a democracy, like at least in a state, you can have like a referendum, you know, like you can have a law put up

for decision making at an election and the people can just decide immediately. And I think the reason a lot of the things are the way they are in American society and all democracies is because we didn't have technology and we couldn't vote in mass. And so like the Electoral College, we had these people deciding for us

because they needed to be our representatives and it was easier for them to decide for a larger group of people. Today, the Supreme Court is so outdated because we don't need them to make the decisions for us. We could literally have a federal vote on these issues. So you know, like the Supreme Court sees cases that were originally seen by juries of our peers, right?

And so that's the ultimate end of a jury, right? It's decided by the Supreme Court. And so why don't we go back and make the jury the nation? The Supreme Court justices are supposed to reflect the public opinion, but unfortunately, they don't. At this point in our society, in our extremely culty political state, they don't. Yeah, all right, get the fuck out.

Get the fuck out, Supreme Court. And I normally don't say that. You really normally don't. And how coincidental or not coincidental is it that when a topic comes up that's political and you remember have a graduate degree in public policy, the more you know, the more you know. The cultier these things seem.

Yeah, that's true. That's like when I was like cheerleading, it's a live your life because I just watched like two seasons of cheer and I was like, it's so innocent. Yeah, and then the people who've done it are like, no. Yeah. That reflects in a lot of our listeners too.

People who have been in the cult always message us or comment and are like, wait, no, but I have a story that was even worse. Right, it's all a matter of opinion. Much like on the Supreme Court, are we the justices of sounds like a cult? Yeah, are we the justices of whether something's a cult or not?

I always say, no one is the definitive authority on whether something is a cult or not. These are just our subjective thoughts and opinions. Anyway, I agree. It's get the fuck out. That is our show. Oh my God, I convinced you. Thanks so much for listening.

We'll be back in the new cult next week. But in the meantime, stay culty. But not too culty. Still Country Music sounds like a cult is created, hosted and produced by Amanda Montel and Isa Medina. Michael Dorfman is our editor. Our podcast studio is all things comedy

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