Listener supported WNYC Studios. Wait, you're OK? You're listening to Radiolab Radio from WNYC. Do you do? Oh, Susy's petting zoos, Susie's uses these. Hey, it's so hot under this blanket.

I'm sorry. No, look, it's dirty. All right. Since you're under a blanket will be fast. So you are Susie Lichtenberg. And what is your role?

I am the executive producer of Radiolab. Yes. And a few years ago, actually, four years ago, 2016, we created another little spinoff show, Persons Having Business Before The Honorable.

The Supreme Court of the United States are admonished to go on there and apparently no longer is now called more perfect and but Supreme Court mistakes in this horrible court.

Yes. And the question that we get, and it's a very flattering question, but uncomfortable one, we get it all the time, is what happened to more perfect? Is it coming back? Suzy, what do you know? What can you tell us? I wish I had a satisfying answer to this, but the answer for now is, I don't know.

Never say never. But we have so much to do at Radiolab that, uh, maybe. Yeah, quite possibly, but not at the moment. But with there being so much attention on the court with our passing, may she rest in peace in Valhalla.

And with all the attention around Amy CONI Barret's nomination and confirmation process on the horizon, and with all the conversation about court packing and whether to pack or not, it did call to mind an episode we created for more perfect 2016.

Four years ago, as you said, that really addressed one of the big questions that sort of lurks behind all of these recent events.

Yeah, which is how much power should they have? How much power should nine unelected officials who have lifetime appointments have?

And how do they get that power and why nine? Why nine?

And this is kind of the origin story of how the Supreme Court got to be, I guess you could say so supreme.

So let's just roll it more per day. I'm Jad Abumrad. This is more perfect. A mini series about the Supreme Court to begin, by the way. We'll explain the title of this podcast at the end. We live in a democracy with three branches. In it, you got the executive branch, the legislative branch and the judicial branch. Now, that third branch, the judicial the courts, consists of about 100 ish federal courts. And on top of those courts is the court this this this temple of nine, now eight unelected lifetime appointees who seem to have this tremendous power, almost tyrannical power.

They are wickedly important. And we're reminded of this.

Scalia's death throws a huge unknown factor into this campaign.

Every time we turn on the TV, we are one justice away from losing our fundamental rights in this country, because here we are in an election.

And the phrase that you hear a lot, one of the most important things in that election, I think this may be the most important thing to those of you who are young outside of that.

Is that one of the most important things the next president's going to do?

This next president may very well appoint between one and three or four Supreme Court justices.

Now, never mind that most Americans have no idea who the justices are. Two thirds can't even name a single justice.

I can't even name the one that just I honestly couldn't tell you any of their names. I can't remember the name of a judge I know is Judge Judy. Doesn't matter.

We all know that whoever they are, they're incredibly powerful people that they can, boom, instantly strike down.

A law that took years to pass Supreme Court, reversed a century of law that I believe will open the floodgates that can undo executive orders.

They can even change like this long held definitions like what makes a person, what makes a marriage, they can even decide an election.

Justice Scalia, my usual response is get over it, get over the possible corruption of the American presidential system.

Now, with all the background chatter in the election, it's sort of interesting to to think about the fact that when it comes to the court in their power, it didn't have to be this way.

It didn't have to be this way.

And it wasn't for a long time and it wasn't for a long time. Reporter Kelsey Padgett, I'll take it from here.

I mean, if you go back in time, say, like early eighteen hundreds.

The court had so little power. In fact, they were meeting in the basement of Congress. That's Linda Monck, constitutional scholar.

One newspaper refers to it later as a dark, dank potato potato like it was damn for something.

I mean, D.C. at this time was like a swamp.

So I imagine there were spiders in there and they said there weren't many windows.

Well, maybe it wasn't that bad. But still, we think of three separate branches. It's kind of hard to think of yourself as a separate branch when you're meeting in the basement of Congress.

Not only that, when Congress actually sets up the first Supreme Court, they created originally a Supreme Court of six justices.

That's Yale law professor Akhil Amar. An even number.

How odd.

They were freaked out. The court could be divided. Four four. What's going to happen? Oh, my God. Could be a four four split. It could have.

The Supreme Court is not designed to function with an even number of just you know, we're in a crisis.

Should cable news be creating their constitutional crisis graphics? Originally, the first Congress, they created six members because they're not imagining the court as deciding everything.

In other words, like, you know, if the court split, who cares? Because at the time, they weren't deciding big cases.

They weren't deciding like affirmative action, Roe v. Wade, nothing like that.

They were mainly like these little tiny rinky dink cases. And most of their time was spent literally riding in carriages from town to town, trying cases around the country.

And that's a big hassle. They don't even get to sleep in their own bed.

Wait, why are they riding around? Well, so they actually each had a separate geographical zone that they're in charge of, and that's actually still true today. But unlike today, wouldn't where people, you know, come to the Supreme Court back then, people weren't coming to them.

Why would I do that? That's Ellie. Ellie, most all our legal editor.

Why would I go seek out these guys someplace else to hear my local issue in South Carolina? If they have something to say about it, they can come to South Carolina and sit on my farm and talk to me. Got to think about the about the country in 1818 before this is a states rights, states centric country.

All of which is to say that being a Supreme Court justice at the time, it's not a great gig.

It's it's rough. Consequently, the people who chose to do this well are kind of misfits.

Oh, yeah, totally. And who are like, really smart, but like a motley crew that isn't organized. That's very Savitsky.

He's a lawyer, constitutional history enthusiast. He says at the time on the court, you had this one guy nicknamed Old Bakan Face who has is like a maniac.

He's like the kind of like Charlie Sheen wild thing in major league type character, very hot tempered, had a foul mouth.

There's another one who, you know, is like four foot five and like, really silent. The Supreme Court was like a pretty ragtag bunch. All of this happens.

And I think it's important for for people to understand all of this happens in part because the Constitution is embarrassingly silent on what the Supreme Court is, what it should do, how it should be constituted.

Article three says Article three of our United States Constitution says there shall be a Supreme Court. Thanks, guys. It's true, I mean, it's kind of weird, like if you read the Constitution, we spends a lot of time talking about the House of Representatives. How are you going to count slaves? And it's going to be by population that has to be a census every 10 years because the house is important. But when it comes to the Supreme Court, all you get is like a couple of sentences, almost nothing at all.

You know, and that's that's kind of the puzzle of this, like how did they get so powerful? I mean, they started out as it's like nobody's in a basement and now they're these all powerful, you know, priests of the Constitution, the Supreme Court of the United States, nine men and women high in government who sit in judgment on many of the great questions before our nation.

So how did that happen? Especially when there's like arguably nothing in the Constitution that said that that should happen. All right. So how did it happen? Well. You could trace so much of this back to one move by one man, John Marshall, John Marshall, John Marshall, the new chief justice, he arrives to the court in on one.

Marshall calls his first meeting of the court. And one person shows up. What do you mean the other? I got something better to do, like they just don't show up. Actually, it was three, but still wait, before we go, can you just like what did he look like? Oh, they all look the same to me. He didn't mean that. He was tall. He was gaunt. He had a square jaw, very jowly, piercing eyes.

Marshall was a smart cookie. And he would need to be because he ends up getting in this very famous fight with his very famous second cousin, that would change the course of the American history like forever, who is a very famous second cousin.

Well, just a little old man named. Thomas Jefferson. Oh, T.J., now, John Marshall and Thomas Jefferson, we really don't like each other. Who? I mean, on a personal level, you think Hamilton and Jefferson is something on Broadway? Actually, it was Marshall and Jefferson who really despised each other. And yet they both come from Virginia. They both come from the back country. Wilder hate.

Well, I mean, part of it was this like family beef. At one point, John Marshall's wife's mother rejected Thomas Jefferson romantically, would be his wife's mother.

So his his mother in law said no to the great Thomas Jefferson. No, but that doesn't seem like enough of a reason.

Well, I mean, OK, so the main reason, the non gossipy reasons, the not fun reason is because they were in opposite political parties.

I think an important thing to understand about Marshall is that he's a party man, OK, party man.

He's a party man like he likes to party. He he he's committed to his team. And his team is are the Federalists. The Federalists. They love big government. Let's have a national bank to rev up national power.

The Republicans, Thomas Jefferson's people, they like small, tiny government. Let the states have the power.

You know, we're maybe even in favor of the view that states can veto a federal law if they don't like it.

So these two guys, these two cousins, both national figures, totally different philosophies.

And even before Marshall hits the court, they're going at it.

They beef and they beef and they it's actually a slugfest. To paraphrase Marshall. You're dishonest, Jefferson.

You're a hack. Marshall, you and your friends are poisoning America. It's like the it's a food fight.

It's very difficult to stop the tendency to view the people that you disagree with as well as evil somebody that can take our jobs back.

Right. Because we're going to hell. It's really hard. We do that today all the time.

Right.

They even as much, if not more than today. They thought that the other side was trying to destroy the America that they had just created.

Anyway. Throughout the 17 90's, the Federalists are in power, the feroze hold all the branches of government. John Adams is president, mostly loved by his own party, hated by Thomas Jefferson's party.

They literally call him like his rotund he very offensive. So Adams is a power.

And ultimately our guy, John Marshall Marshall is secretary of state, one of the highest officials in the administration, you know, party man.

And for a while things are going well for his party.

But then if 800. Thomas Jefferson and the Republicans sweep in and crush absolutely crushed the Federalists like landslide crush. Yeah, Fleetwood Mac style.

The Republicans ran the table in eighteen hundred. They're going to take over the House. They didn't take over the presidency. So John Adams is like, crap, what do I do?

We need to save the republic. The Federalists have basically been swept out, but in his dire moment, he has this idea.

He's thinking like, oh, I've lost the House, I've lost the White House. Oh, this Supreme Court, the Supreme Court. And normally nobody cares about the Supreme Court. But like in this moment, he's thinking, oh, my gosh, this is my last hope. And in fact, as luck would have it, a vacancy pops up, a vacant chief justice position.

So just as Justice Scalia's recently died and there's a vacancy, will the sitting chief justice, Oliver Elsworth, steps down and Adams picks his secretary of state, John Marshall, to be the new chief justice. That's how we got John Marshall.

And John Adams says one other thing. In the waning seconds of his presidency, Adams and these repudiated Federalist jammed through a whole bunch of federal judgeships, they create scores of new judges and they throw federalists into almost all of those positions, like 40 appointment.

He just throws in 40 judges right at the last minute, creates 40 judges at the last minute. And then he appoints just.

If I were Jefferson, I would be past. Jefferson is pissed, which we'll get to in a second.

But in the meantime, Adams has just a few days left in his presidency. So he's like frantically trying to get all these judges in, nominate these people, confirm them.

Once you confirm someone, you have to give them their commission. You can't just go around claiming you're a judge or claiming you're right. You have to have a committee like a piece of paper with a formal seal, the signature of the president.

And as the story goes, as the clock is striking midnight on John Adams's last day, Adams and his team there in his office there try and get these papers out the door. They're frantically signing them, stamping them.

I just imagine, like young boys sprinting through the dead of night, he's waving these papers over their head.

Your commission, in fact, that the like, I think totally apocryphal story is that Jefferson's attorney general, like busts in the door at midnight and is like, put down your pen, you know, don't do it.

So but apparently some of the commissions don't get delivered.

They just are left sitting on the desk because is was it like an oversight or something or clerical error?

It's not even like they just ran out of time. Oh.

But they thought like if a couple were left on the desk, it's no big deal because, like, it's a sign permission from the president. It's like still a binding to the fact that it wasn't formally delivered.

You know, you still get your appointment. So this sets up this like kind of terrible situation for Jefferson.

He shows up the next day to take power.

And the judiciary is filled with ghosts of presidential appointees past just a bastion of partisan judges. So as you can imagine, Jefferson and his friends think that this this is not fair.

Jefferson sees Marshall and all of the other judges that Adams appointed as Adams as spies on his administration.

So Jefferson, he decides to immediately retaliate because, you know, he won the presidency. He won by a lot. And he's like, you're shoving all these judges down my throat. And on top of that, the guy you've named to be the head of the judges, the head of the Supreme Court, is my evil second cousin. What is this?

So Jefferson is running the country and working with a Republican Congress to, among other things. Can't solve the Supreme Court term for 18, do they just cancel the whole thing, they just cancel it, they say like go home?

Yeah, they were like, there's no more Supreme Court. Sorry. Imagine if that happened today when Obama's plan for immigration got smacked down. Imagine him like instead of having, like, that peaceful press conference where he, like, shows his disappointment, imagine instead he was like Supreme Court, go to your room.

No good punks. That's right.

Anyhow, Marshall sent away for over a year. There's no full Supreme Court meetings. And when he comes back, it's pretty clear to him that the Supreme Court is on life support.

The Republicans could pull the plug at any minute. Marshall knows already that there are rumblings that one of his colleagues, a man named Chase old Bakan face, you know, guy should be impeached.

So when he sees this motley crew in a dark, dank potato hole.

He's like, I got to do something, we're fighting for our life here. I was thinking about this on the way over and it kind of reminds me of, you know, there's like summer camp movies where there's like a baseball team and they're like super ragtag and like can't get together. And then, like at the end, they have to, like, play the really good team with, like, the nice professional uniforms. That's kind of like the judges on the Supreme Court.

And Marshall was kind of like the counselor or the camper, you know, the new kid on the block who comes to the team and is like, we can do this, guys. We can do it.

Cue 80s movie training montage.

I mean, he knows that if the U.S. is even going to have a court system with the Supreme Court, he's got a beef this team up.

One of the first things that Marshall does is just professionalize the judiciary like so, for example, he starts this tradition of wearing black robes that made them look the part.

The judges appeared in their robes of justice.

He figured that the black robes would make them look less like partisan hacks and more like they're floating above the fray, beyond politics. Next, he moves all the justices into this one dorm, the same rooming house, no wives, no family, all business.

He's trying to create that more perfect union in the judiciary.

And just to grease the wheels a little bit, has somebody read, my dear? Is that some wine? Yes, it's a fortified wine gold.

Justice Marshall would order it in great quantities that many scholars think was part of John Marshall Secret.

OK, so he's professionalizing the team, he's getting them together, and then they get put to the test in 1883. It's a cousin on Cousins Smackdown.

That's coming up when we continue. This is more perfect.

Oh, yay, yay, yay. Hi, this is Nicola from Hamburg, Germany. Radiolab, supported in part by the Alfred P. Sloan Foundation, announcing public understanding of science and technology in the modern world. More information about Sloan at W w w Sloan dot org.

Science reporting on Radiolab is supported in part by Science. Sandbox is Science Foundation initiative dedicated to engaging everyone with the process of science.

Game Jad Abumrad, back to our story from Kelsey Padget, and we arrive at the pivotal moment, the cousin on Cousins smackdown that would change America.

OK, so remember how Ari told us that some of those commissions didn't get delivered at five and that they were just like sitting on a desk somewhere and how they thought it wasn't a big deal because it's still a binding document?

Well, when Jefferson comes to power, apparently he finds those papers and it's like, oh, look at this. You didn't deliver these commissions. Guess you can't get those positions. Sorry.

And one of the people that lost out because their commission did not get delivered was one. Mr. William Marbury is a businessman.

Thirty nine years of age, he got appointed to be justice of the peace. It's a pretty low ranking position.

So he's sitting there and he's waiting for his commission to show up. And like, of course, it never does. And it finally dawns on him like, oh, the Jefferson administration has it.

I I'm going to go get it. He follows a lawsuit. So and what he does is actually ends up being really important.

But he follows a lawsuit directly in the Supreme Court that you can do that, you can just go right to the Supreme Court like first. Well, at this time, Congress had just passed a law that said, like in certain very strange circumstances, you can just go directly to the Supreme Court.

He goes directly to the Supreme Court and he says, I have a right, I have a legal right. I want you, the Supreme Court, to order Thomas Jefferson.

Give me that darn piece of paper that says I'm really a judge.

The case gets named Marbury v. Madison because James Madison is Jefferson's secretary of state, who is actually suing, but he's essentially suing the president, forcing Marshall in the court to have this confrontation with Jefferson.

So now is the showdown. It's between Marshall's ragtag team and Jefferson.

So basically what happens is the court has a trial, Marbury and his lawyers, they get up there and they're like, what happened to the papers? Where is the commission? Did you have them? What you do with them? Jefferson, the people get up there and say, I don't know what you're talking about. I won't answer the question of what happened to them. They stonewall, to which Marbury's lawyers are like, seriously, these are all important official documents signed by the president.

Like no one knows what happened to them. I feel like they go back and forth, back and forth. Things get very tense. And, you know, I mean, to their credit, like no one, like, punched out.

Eventually, they stop arguing about whether or not the papers exist and they're like, this is the more important question, does the Jefferson administration have to honor those papers?

Do they have to give the commission to Marbury? Are they required?

Is there a legal requirement that they give it to him?

And in Marshall's head, it's a resounding hell. Yeah, he should have gotten that permission because the law is the law.

And if you decide you're not going to follow the law just because you don't like the guy who made the law or you don't think it's fair.

That's anarchy. I mean, that's we talk a lot in this country, we pat ourselves on the back in this country about our peaceful transfer of power.

Ellie Mistal, again, about how we seamlessly can go from one party to the other party without bloodshed in the streets and whatever. Yeah, good for us. But what how do we actually get to that point? And this is a key reason why we've gotten to that point, because the decisions of the past administration still hold the value. Even when that administration is kicked out of office, kind of overthrown by popular vote, their decisions still have still have sway, still have a legal force.

Jefferson was quite obviously negating that.

So Marshall wants to say to Jefferson, you know, suck it up, cousin.

Give this guy his papers. You're an official, do your job. But he thinks twice. He understands how weak his court is.

According to Akhil Amar, Marshall is afraid that if he orders Jefferson to give up those papers, Jefferson is going to straight up laugh in his face and say, You and what army?

I'm not going to do it. Literally. They just got back from a congressionally mandated you can't come to work time.

Jefferson knows full well that he has no intention of granting that commission. He will never give that commission. Jefferson knows this. Marshall knows this. Marshall knows that. If he tells Jefferson to give him the commission, Jefferson is going to ignore him. And then the power of the Supreme Court. Basically evaporates because Ellie says, like, if you think about it, if the executive branch is going to say kind of right at the jump, that if you make a decision that I don't like, I'm just going to ignore that, then every executive branch going on from Jefferson throughout the rest of our history is going to just ignore the Supreme Court when the Supreme Court does something that the executive doesn't like.

So basically, Marshall's kind of stuck.

If he rules for Jefferson, he's selling out the law and he's going to make the court look weak if he rules against Jefferson, Jefferson is going to ignore the court and they're going to look weak. Either way, Jefferson wins and either way, Supreme Court maybe disappears forever. Marshall needed to find a way to get through this. He needed to find some way to kick this case. To be clear, John Marshall is running away from a fight with Thomas Jefferson.

He says all sorts of things, but he knows that Thomas Jefferson, you know, straight up, has more power. And so he's retreating.

Wow. It's like suddenly feels like an apocalyptical moment. Yeah. What does he do? Well, so the thing that he does, it's like the most Jedi master ish thing ever.

He writes this 100 something page decision, and in the beginning, if you actually read the decision, it's a lot of pages of telling Jefferson. How he's wrong, how he can't do what he did. How he is, you know, ruining America, right? There's a lot of that in the Marshall decision, but then when he gets to the matter at hand, he does this little.

Shift, so he says, OK, hold on. Yes, Marberry is right, he should have gotten that commission and yes, Mr. Jefferson should not be doing this. But we the Supreme Court, we don't have jurisdiction to hear this case. Court needs to have the power to hear a case, and if a court doesn't have the power to hear a case, even if you are completely right, even if your position is right, you can't get relief.

Why would he say that they don't have jurisdiction?

What's this is like where he uses the force? You know, earlier I had mentioned that Marbury brought this case under a law Congress had passed that said Marbury could come straight to the Supreme Court for this kind of situation. Well, John Marshall, he goes back to his constitution.

He's written around these guys trying to figure out like what he can do here. And he finds this little sentence. Yeah.

So it's Article three, Section two in the Constitution that says basically you're not supposed to go to the Supreme Court first.

You're supposed to go to a different court and then the Supreme Court. It's an appeals court. Walky. Exactly.

But but he basically tells Marbury, the plaintiff, you came in and you came to the Supreme Court first, and you did that because Congress passed a law that said that you could come to the Supreme Court first.

But the Constitution says that you can't come to the Supreme Court first.

So I can't help you. No, it's not your fault, Mr. Marbury.

But that law was unconstitutional and we're not going to follow that unconstitutional directive.

So you see what he did there. I maybe I, I don't know if I see so you're that you know, that part in Star Wars was a Weakland, the first one where Obi Wan Kenobi is fighting with Darth Vader.

And he says, if you strike me down, I shall become more powerful than you can possibly imagine. This is like that.

But real Marshall is agreeing to lose. He's like found this way to lose to like, let Darth Vader strike him down. That's actually going to make him more powerful.

He's basically saying to his cousin, OK, you don't have to give Marbury's commission. And the reason you don't have to give Marberry is commission is is because that law doesn't work, because we the court, we get to decide when something agrees with or doesn't agree with the Constitution. So, like, congrats, you win, cousin.

Oh, and by the way, we, the court, have the power to declare things unconstitutional. That was the sort of Jedi master movie. That's the movie. Instead of jumping off the cliff or laying down your dukes to the right, and he establishes a new rule of the game unconstitutional. Inside this one highly technical, highly political drama between these two cousins, John Marshall sneaks in an atomic bomb.

This incredible power. And in Marshall's decision, he wrote, It's emphatically the duty and province of the judicial department to say what the law is, say what the law is, to say what the law is.

And with those words, he made the court what it is today.

The U.S. Supreme Court ruled Monday a law allowing Americans born in Jerusalem to list Israel as their place of birth is unconstitutional, is unconstitutional. Down DOMA is unconstitutional, unconstitutional, unconstitutional, unconstitutional. And no one had ever done that before. Well, I mean, like people talked about it a lot, like lots of theories about it and some smaller court, smaller decisions.

But this is the first time that the Supreme Court does it and he does it in the face of the president, Roe, against Wade.

And there's still a Miranda petitioner versus Arizona election against the United States and that set us on this path.

New York Times company Fisher versus Shelby today.

The court is so much more powerful, it's grown into the 800 pound gorilla when it says other branches tend to say how high.

We'll hear argument now on No. 00949, George W. Bush and Richard. And we just take it for granted.

Three words, Bush v. Gore. They decide the presidential election and and no one blinked. Mixed up in for one second. Yeah, yeah, yeah, now you could be. We have to say this before we close. You could reasonably argue that Marbury vs. Madison was not the big moment when the court got its power, because it really depends on what you mean when you say power. I guess we were talking with our legal editor, Mr. Helen Thomas, constitutional scholar Linda Monk.

They both said, like, look at what happens after this case just 30 years down the road ish.

John Marshall, still the chief justice. He gets into a dustup with Andrew Jackson.

And this is Jackson we're talking about. So generally it was I would like to do horrible things to Native Americans. And the court was like, you probably shouldn't do horrible things to Native Americans. And Jackson was like, shut up.

I remember asking you a God damn thing to essentially you had a situation where Marshall makes a ruling saying we have to respect Native American sovereignty.

And Andrew Jackson famously said or supposedly said, we don't know if that's true.

Look, I think it's more fun to believe that Jackson did say that it works better in the musical, OK?

The court has made its ruling. Now let them enforce it.

John Marshall has made his decision. Let him enforce it. And obviously he couldn't sort to make a long story short, you get the Trail of Tears. Thousands of Native Americans were marched off their lands.

There's evidence that they were purposefully moved during the winter so that more people would die along the way.

So while the court maybe had constitutional authority, it didn't have actual power until we just got a report here on this and that.

The students are fast forward to the 1950s court ordered schools to desegregate. They don't. And the president sends in the troops, takes Eisenhower executive order.

Directing the use of troops and putting boots on the ground picks Kennedy, president of Alabama National Guardsmen.

Putting boots on the ground takes force. It's still so often comes down to an executive willing to put boots on the ground in order to enforce their laws.

That's when the power becomes real, although maybe not.

I don't know. A time before I went to college and even shortly after I was in college where things were not separate.

At one point, as we were working on the story, Elie talked to his mom and she told him that when she was growing up in the mid 60s and the years after desegregation, more than a decade passed Brown v. Board, you would still never know what happened.

No one would know it. And Clarksdale, Mississippi, at that time, there was a public library, but I was not allowed to go to that library. My father, who was Chinese, could go into the library so many times. I sit in the car while that went into the library to get a book that I wanted.

And this is this is after the passage of the Civil Rights Act even. Yes, I'm saying high school. I graduated in 67, 67.

Wow. Just yesterday, as we're recording this, a court had to issue a current court had to issue another ruling ordering a town in Mississippi to desegregate its schools.

Yeah, that that didn't happen five years ago and that happened yesterday, man, yesterday. The courts can make these laws, but if the people aren't willing to go along with it, then what do these laws mean?

I think ultimately I agree with learned hand. He was a judge in New York in the early nineteen hundred that we place our hopes too much upon laws and courts and constitutions, that these are false hopes. Liberty lies in the hearts of men and women, and when it dies, there no law, no court, no constitution can save it.

In the end, for better or worse, we the people still have the power. OK, so we made that podcast in 2016, almost four years ago, exactly, very different lineup on the court at that time. Scalia hadn't died yet. RBG was still alive. Kennedy hadn't retired yet. As we mentioned at the top, most Americans couldn't even name a single of these justices.

We also found that when we went out, a lot of people had no idea how many justices there are.

I do not know how many Supreme Court justices. I'm not sure either 12 or a couple of hard won. Seven Supreme Court judges or maybe 12.

Nine. Nine, yes.

Well, now eight. And so the whole idea was that we should know these people. Yeah, we think you should know their names totally.

And so the title of the podcast was A Pneumonic Device to help you remember the names of the justices who are on the court at that time. And who were they?

Just to remind you, I mean, to do this, it was Kagan, Kennedy, Thomas, Ginsburg, Breyer, Roberts, Alito, Sotomayor and potentially Merrick Garland. If if he were to make it on the court.

Kagan, Kennedy, Thomas, Ginsburg, Breyer, Roberts, Alito, Sotomayor, maybe Garland. So first, let her last name, Katie G b r a s.

Maybe G. What if you turn that into a song to help you remember? That was the thought four years ago.

Giddens Take the kids live to Aruba all summer. Maybe God damn kids could practically Booba all summer, maybe goddamn kids particularly, but also maybe goddamn can't keep up. Oh summer maybe. God damn kids can't read. So maybe got two kids all summer, maybe got kids. That is Robert. The giggling man, oh, so maybe God damn. All right, so that was the song, which you can find it on our website, Radiolab Dog.

Um, so here I don't know, Suzy, like I feel like we should turn this over to to the peeps. Yeah, I think there's a lot of potential here and it needs to be updated because the court has changed and it's going to change some more.

So now that that song that we just played is outdated. Maybe we should just see what people come up with, can you can you give us a new song with a new pneumonic new vibe, new genre maybe that hit us up? Right. Classic rock like smooth jazz program. So that's the task.

Help us update this mnemonic for 2020 and 2021. Send us submissions to Radiolab at WNYC Dog Radio Lab at WNYC. Please send us some things will updated the one that like we think is the awesomest.

We will just we'll throw back at you. Let everybody hear it. OK, I'm Jad Abumrad.

You want to say your name to the electorate. Thank you for listening. My.

Seriously, more perfect is produced by me, Jad Abumrad, Suzy Lichtenberg, Tobin Lowe, Kelsey Padget and Sean Firm with Sean Wheeler, Ellie Mistal, David Herman, Alex Overington, Karen Duff and Katherine Wells, Barry Finckel, Andy Mills, Dylan QIf and Eva Dashers.

Special thanks to Judith Resnick, Paul Bougere. Liam told Jessica Miller, Annie McEwan, Matthew Matt Kielty, Alethia, John Moeed Bernard Knottiest Serota and John Hanrahan. Supreme Court audio is from a free law project in collaboration with the Legal Information Institute at Cornell. More Perfect is funded in part by the William and Flora Hewlett Foundation, the Charles Evans Hughes Memorial Foundation and the Joyce Foundation.