We're back with another edition of the Federalist Radio Hour. I'm Emily Drasnski,
culture editor here at the Federalist. As always, you can email the show
at radio at the Federalist dot com, follow us on Twitter at fdr lst.
Make sure to subscribe wherever you download your podcasts, and to the premium
version of our website as well. Today, I'm so happy to be joined
by my friend and Nez Stetman. And Nez, of course, you know,
as a senior policy analyst at the Independent Women's Forum, where she is
also the host of High Noon and Excellent podcast. That is and As.
That's every week, right, it's every week, but every four weeks it's
with Emily, So that's why you should listen to it. Yes, lucky,
lucky lucky listeners just can't get rid of me. And As is also
a senior contributor to Federalist. And Nez more importantly, for the purposes of
this conversation, you went to law school and decided to pour your money down
the drain to the University of Virginia. Yes, yeah, so that makes
me very qualified to talk about student loans. By the way, that's actually
really true. Maybe like the legal commentariat is in this one particular case extra
qualified to talk about the Supreme Court decision on student loans. But I should
say, right at the outside here the reason I wanted to have Anson.
We were chatting a little bit back and forth, and I realized she was
very, very pumped up about the Supreme Court and about some of the misconceptions
about what's just transpired in this last session of the Supreme Court. We now
have another session of the Supreme Court, especially this version of the Supreme Court
post Trump appointments in the rearview mirror, and a lot of huge decisions.
I mean, last year, everybody was focused on Dabbs. Next year,
it's likely everyone's going to be focused on Chevron, at least based on what
we know right now. But in this session they decided student loans, affirmative
action, three or three creative, and a case that I'm probably missing one
am I listen, I said, affirmative action, right, Those are the
big three? Yeah, those are the big three. I mean huge.
Like to have three cases of that caliber in one session is absolutely monumental,
And I think that's in an interesting way, goes along with what Alana Kagan
said in the student Loan opinion in her student Loan opinion, which was,
you know, it's not so much interesting how conservative, how my conservative colleagues
decided this case, as it is their decision to take up the case in
and of itself. So and as we'll get into all of that, but
I want to start just by asking you what the big takeaways from this last
session were, and we can then dive into the specifics of those three big
ones as we go along. Yeah, obviously these are decided on very different
legal grounds. I do think the defining aspect of this court just sit in
that space between legal and politics, is they are clearly on their way to
developing a unified conception of actually enforcing some of the separation of powers issues and
reigning in the power of the administrative state, of the deep state, as
you might like to call it. They seem to be quite serious about that.
They seem to be moving towards it from several different angles. Here the
student loan case is decided, or at least on the merits part of it
is decided in part with reference to this major questions doctrine that they are developing
about basically, and actually it is very common sense. I think you don't
need a lot of legal least to understand this. It is that actually big
decisions, big policy decisions, ought to be made by Congress, that Congress
actually has the power to legislate. Right this going back to you know Bill
on Capitol Hill, you know, sort of a house rock kind of stuff,
that Congress in fact does have to legislate these large changes in American law.
That sounds very basic, but it's not been the case now nearly for
a century, and definitely aggressively not the case for the last fifty years since
the nineteen seventies and sixties. So this is a major shift. I would
argue that it's eminently reasonable. In fact, it is the plane reading of
the way our system is supposed to function. But it's it's a monumental shift
in terms of the court actually, you know, enforcing the constitutionality of you
know, how how laws are supposed to be made, you know what powers
executive agencies actually have. And I think that's overall going to be a very
very good thing. Oh and by the way, enforcing their own role in
all of this, which is when when you mentioned Chevron and some of the
cases that are probably coming up in the next term. Um, they they've
also stepped out. And this is what Kaigan called judicial activism, or at
least a branch of what Kagan is probably going to continue to call judicial activism.
But in fact, it is the court reasserting its proper role and doing
the things it's supposed to be doing, which is policing these kinds of boundaries
between the different branches of government, and not doing what it's supposed to be
not supposed to be doing, which is inserting itself into matters that are very
clearly left to the states or to the people in terms of the democratic Republic,
which is policing all of these sort of cultural issues very clearly basically throwing
those back to the people. That's the broad contours of what I see,
and I think it's very encouraging well, and that gets interesting in the case
of three or three Creative, which is sort of stress testing Colorado's law post
Masterpiece, which is a decision I think Anthony Kennedy wrote the majority opinion on
and left a lot of conservatives dissatisfied, and I think left Christians very obviously
Christians and people of all fay it's vulnerable to lacking constitutional protections, and I
would imagine in this case you would argue, is this was entirely proper for
the Supreme Court to add to the docket. And I'll just ask you that
with one more question, kind of baked in the left latched onto this completely
inaccurate narrative that because Laurie Smith never actually got a real request to create a
website, um for a gay wedding, they tracked down one of the forms
that was submitted to her website that was cited in the court filing and said,
this guy is not even gay, he's married to a woman. And
it is shocked that this was listed here. Um. You can you can
just see here illegitimate judicial activism. You can see that this is all a
specter. This is fake. Um. But with that in mind, and
as obviously that's incorrect, it should just add, um, you know they
standing was not an issue as it pertains to that particular question, and it
didn't matter in this case that Laurie Smith, you know that that could have
been a fake request, it could have been a real request. She didn't
have an obligation to verify it. And uh, whether or not it was
real, it doesn't matter. She was stress testing a prep application of Colorado's
law, which I think it was. The Appeals Court said the state declined
to approve that they wouldn't be using it in a way that failed to protect
its own citizens. So let me toss that over to you, as somebody
who's actually, you know, been to law school. I can keep using
these words all at what, but you take it away from me. I'm
not that more advanced than you are. I never practiced law. Actually,
this might be the one thing that I'm quasi qualified to do which you are
equally qualified to do, which has read Supreme Court opinions the fun part of
law school as far as I was concerned. But no so to some extent,
this is true in the sense that a lot of these cases are tied
up by specially selected plaintiffs right, especially selected for the purpose of challenging some
particular law or aspect of the law. This is true, of course,
on both right and left. For example of the famous case Lawrence v.
Texas Right, which struck down sodomy laws and texts. Nobody was enforcing sodomy
laws in Texas in two thousand and three. I hate to tell you,
nobody was being arrested for committing sodomy, arrested, charged, and sent to
jail in Texas in two thousand and three. It was it was an arrangement
between a friendly prosecutor and UM and the prosecuted right basically saying, please do
prosecute me for sodomy so that we can take this rame court UM and and
potentially test whether the Constitution protects a right to sodomy. Right. So that
was right privacy. But we'll I was gonna say it wasn't Masterpiece some like.
Wasn't there some judicial activism involved in Masterpiece? Because Phillips was getting like
sort of stress tested by LGBT activists who were confronting him with insincere and increasingly
absurd demands. And in some sense that's kind of why we're here in Colorado
anyway. Yeah, right, Um, But like I said, both sides
do select their plaintiffs and search for, um, somebody that has the perfect
case to try to tee up some of these legal issues. At least a
lot of public interest law firms do. Now, some of the cases are
just very organic in that way. Somebody has their rights violated, or so
they think, they hire a law firm to protect them. But a lot
of these cases are you know, public interst law firms or people who believe
that some aspect of our court doctrine is wrong and they find plaintiffs that suit
their their needs in that sense. So that's not unusual. It's not a
one sided thing in terms of three or three itself. I mean, I
think that this should have been a nine zero case because there are a couple
I think axes of this case that in other cases in the future may require
a lot of you know, sort of wrangling and refining because I think they're
they're actually too quite difficult to axes of of sort of societal tolerance you might
say that need and I'll lay those out in a minute. But on this
particular case, both parties stipulated this is expressive conduct, right. So both
parties basically said, this is usually what the First Amendment protects. This kind
of expressive, creative sort of of action is in fact speech, right.
So there's some conduct that is considered the equivalent of speech, and then there's
also some speech that's the equivalent of conduct. Right. You might have heard
of fighting words, right, which is a very small category at this point,
but fighting words, right, Like, there are some things you can
just say that are the equivalent of an action in our law. You can
imagine harassment, right, You could imagine somebody following somebody down the street,
like screaming slurs at them over and over again. Well, just saying the
slur is protected, but doing that in conjunction with it, that's that is
criminal in most states. Right, So there is this sort of distinction is
sometimes difficult to sass out between speech and action. But here both parties stipulated,
so they kind of you know, all of that to the side,
right, That was not the issue before the court. It's it's it's whether
this kind of quote unquote expressive conduct ought to be protected by the First Amendment
and by the freedom of speech. And the answer is very clear like that
it is. That's why I say this should have been nine zip. But
once you leave aside that sort of complicated decision about what constitutes action and what
constitutes speech where there could be legitimate disagreement between the left and the right wings
of the court on that, once you leave that aside, this should have
been okay. Well, if it is expressive conduct, there's no way in
which that should have been restricted. Right, So it's kind of disappointing,
it's kind of crazy that it didn't end up that way. But but this
is I think of an important victory and as you say, sort of capstone
and clarification of the masterpiece rule. I think it's important that this is not
on religious liberty, though primarily this this case did not turn on religious liberty.
She could have been not you know, her religious faith was almost aside
the point um she could have want not wanted to do this this website um
because she let's say, like was asked to do or a website for a
KKK themed wedding, Okay, and she didn't want to do that. That
that was that was sort of that was against her beliefs, whether it an
anti gay wedding, not an anti gay wedding, but that would be a
weird that would be a weird type of ceremony. But like an anti gay
cause, an anti gay groups like annual meeting or whatever, anything like that.
This is very much about whether or not as citizens of this country,
we have the right to uh create and express ourselves um in line with what
we believe, and whether other people can compel by laws to create something UM
for a cause that they support and we don't, right, so, or
that the artist doesn't UM. And when you think about it that way,
it seems very obvious. Right. You know, you go to an artist,
you asked them to commission a painting, um, but you wanted something
that is like wildly offensive to that artist. Right. Maybe you want a
portrait of Donna Old Trump in Napoleon's uniform with epaulets on right, and underneath
you want it to scroll God Emperor Trump. All right, there are plenty
of artists who do not want to create that object for you. You do
not have you should not have the power of law to compel them to do
that. So that's really what this case turned on. That being said,
leaving aside that access in between conduct and expressive conduct versus speech versus like commercial
conduct conduct. So for example, like a commercial transaction that has no expressive
conduct, if you're just selling envelopes for example, right, that that has
fewer protections in this regard than something like this that is closer to an artwork
or an expression. So that, leaving aside, that's one whole axis of
debate. I think what's interesting about this case. It's not actually in this
case, but I could imagine a similar case that would bring up some of
these issues. And it goes to something that the lower court said on this
and they actually ruled that this woman was a monopoly of one because her expressive
conduct was you know, essentially she had an esthetic monopoly on a particular kind
of wedding invitation is and that's absurd, right that that's completely absurd. But
it got me thinking about, you know, where this line is, and
it leads into the hobby lobby side of things as well, because the question
is, at what point are our constitutional rights for cement or otherwise, um,
whether it's it's religious liberty under the first Member, where it's free speech
under the First Amendment right, or whether it's it's one of our other rights.
At what point do those rights cease to attach to an organization? And
this is really the Mitt Romney question, right or corporations people too. And
there seems to be like a spectrum to me that is going to have to
be hashed out as to how far these kind of protections go or ought to
go. When you have this one you know, based business, small business
of one that's an expressive, expressive business like an artist, right, selling
their works. It seems very obvious. So in this particular case, it
seems very obvious. Right, Um, there are any number of other places
to build wedding websites. Too bad for you if you liked the way she
designs the flowers in the corner. You know what I mean? Too bad?
Right, You don't get to force artists to do exactly what you want
by the force of law. In the middle, I would put something like
hobby lobby that asserted a religious liberty claim in a corporation that was still very
much held. And I'm not an expert in the various corporate forms, but
I think it's called a closely held corporation, which came up in the case
because they the family was still very much in control of the company, right,
it was very much still in the hands of the family. So there's
that's that's a case that's sort of in the middle. In the middle,
also, you might talk about organizations that have a particular expressive purpose, right,
so the Heritage Foundation or the Federalists for that matter, right, you
know, Um, those organizations the product they sell, or the New York
Times is a expression of a particular point of view. And it would seem
very weird, for example, to apply uh sort of neutrality or require some
kind of neutrality for example, and a hiring on the basis of political opinion
to places like that. But then if you move to very very large or
even multinational corporations that are in they're publicly traded companies, right, so they
have they have a board, they have shareholders, they might have a CEO
that's the figurehead of it, they have thousands of employees right and there,
to me, the question becomes much less clear, both because of the potential
market share of the company and also because that expressive intent or for example,
the religion quote unquote of the company. What does it mean to say that
a company of you know, millions of people has a religious liberty interest.
So of course, the sort of old Republican way of thinking about this is
very much the mit Romney way, which is, you know, corporations are
people, their their fiction, but we treat them as though they're a real
person and they have certain rights attached that. I mean, I'm not necessarily
convinced that that's the right way to think about it, and I think there
I could imagine a version of this case for example, that you're talking about
a huge company like you know, I don't know Facebook, that wants to
censor particular views. That is, if it were if it were a government
entity, it would be violating the First Amendment right um and wants to exclude
certain customers deny service to certain customers on the basis of X. Right.
First of all, what are the X is going to be? One very
clearly is going to be race always that we have at a pop public accommodations
piece of the puzzle. But it's not clear to me that that there shouldn't
be other pieces of that puzzle. Maybe maybe we do require huge corporations.
Maybe their interest in having a quote unquote expressive you know uh sort of purpose
or speech is less than the interest of Americans to be able to freely exercise
their own speech, right if I just I just think it gets much more
complicated when you're talking about these very large corporations. So I think there are
two axis that this is going to go down. This case should have been
a slamdunk nine zero because it's so obvious. But one is that speech conduct
distinction that's been fleshed out in both directions by the Supreme Court for quite some
time, and it's continue to bedevil the Court. And then the other one
that I think we really haven't dug into enough at all, and it has
to do with all of the tech cases. And you know, to what
extent they hold a monopoly, To what extent large corporations can exclude half the
country and refuse to serve them, To the extent that an entire class of
customers cannot find an alternative for a given service in a given market. I
think these are all like interesting questions that we'll see probably come to the Court
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media took through the three creative and just it was idiotic. The coverage of
it was just completely idiotic. You had multiple news outlets to the point where
even the like absolutely depraved fact checking industry. I saw slap I think NPR
with a fact check for saying that Laurie Smith refused to serve gay customers when
in fact, it's on the first page of the opinion that the state and
Laurie Smith both agreed she would serve any customer, regardless of any of their
status as protected class. She just, you know, gay customer wants her
to do graphic design for anything else, make a website for anything else,
fine, she just didn't want to do it for the wedding. And it's
just incredible how willfully the media is spreading a false narrative about the story.
And that's something that actually one thing I want to ask you about seeped into
the descents, not just in this case, but in the case of particularly
the affirmative action decision I think three or three and the affirmative action case.
We're just egregiously embarrassing for the presidents who have nominated these justices from the left,
it was these were the sophomoric descents. I say that as somebody who
genuinely thinks it's important. We talked about this on actually net Con Squad,
which both of us to do for the m and Broke Foundation on this week's
episode. Listen. I think it's important to have fair representations of the conservative
and liberal positions present on the Supreme Court. Centrist positions whatever, so that
they can kind of duke it out in their descents and their opinion. What
we saw from contains Brown Jackson and Soda Soda Mayor was just even Elana Kagan
in some cases was just embarrassing, especially in three or three in the affirmative
action cases. And as I wanted to toss you that question with the reality
that like or with the I guess assumption that these justices are supposed to be
better than your average like liberal arts graduate who blogs for BuzzFeed, and yet
that's what these descents read like to me. It will first all all engage
in some ranks speculation to some degree. It's very clear to me that Kagan
is the best of the liberals, that she's very intelligent, and actually she's
just you know, I think she understands that at some point her descents are
going to have to grapple with the analysis that the rest of the Court is
actually using, which is largely a textual and originalist analysis on some of these
questions. So you see her trying to like basically flip her brain from liberal
mode into originalist mode and then trying to find arguments within those parameters. Um
which, by the way, I think it would be will be very good
for the court, like if if um if basically we can set the cannon
of construction as originalism um and then have sort of different arguments within that.
I think that's an enormous improvement. Um. So she's she's on sort of
one end of this soda mayor. To me, I'm not convinced that she's
really particularly bright. Um. Sorry, are you saying maybe she's not a
wise Latina? Well, she's like that phrase, I think it was her,
Oh, it was her. I think she said something like I would
hope that a wise Latina, with the fullness of her experiences in life,
would be able to come to a better decision. Um, I'm going to
start referring to as a wise poll wise bull up anyway. But in between,
I really don't know yet about Katangi Jackson. Her affirmative action logical,
She strikes me as very ideological. But you know, back and forth,
her attempt to grapple with what Clarence Thomas was writing about. They're both clearly
pissed. They were both clearly pissed, pissed off. It was personal,
yeah, but it just again like obviously both of us are biased ors Justice
Thomas, because at least I'm sure we're both the greatest American living supreme in
every sense of the word. But in this case, I mean a yeah,
both of them obviously come to this with with personal experiences and that means
sort of personal stakes. But at the same time, it was just sad
to watch her grapple with his legal reasoning in a way that again it sounded
to me like a college freshman trying to like fight with the professor. It
was. It was just like really pathetic. Well, if I'm going to
put the most generous construction on this, what I would say is the entire
legal apparatus, you know, from law schools on up right up to the
ABA, to all of these professional sort of constructs around the law, that
they have been operating in a world where basically they get to ignore the right
for a very long time. And you know, you have this famous speech
of Edme standing up in nineteen eighty three and saying no, like we need
to basically, and this is the beginning of the Federalist society saying no,
like originalism is a legitimate canon of construction. This is, in fact the
only sane canon of construction. This is how we should be reading law.
We should be thinking about it in an originalist framework. Should be thinking about
what the fun when we're talking about the Constitution, we should be thinking about
what the founders and what the general public meaning of these words were when they
were actually ratified by the people of United States. Right, so that,
but prior to that, and then for a long time afterwards, until I
think that this flip on the court basically the entire legal apparatus, and which
you could rise and fall and be a smart, you know lawyer who then
goes out in practices or gets a Supreme Court clerkship, and then comes back
into the academy becomes a law professor. Right, you never had to grapple
with conservative thought. And actually I was thinking about this a lot watching the
Stanford Law you know performance a few months ago, from the students screaming at
Judge Duncan unable to actually listen to a relatively bland talk of his. How
are our law schools going to produce lawyers who can even argue in front of
the Supreme Court because they are incapable of confronting the actual arguments and responding to
them, but within the four corners of that courtroom, you have to because
now the originalists are somewhat in charge, right, Yes, you know Kavanaugh
and Roberts are sometimes a little squishy in the middle and so on. But
like fun to mentally, you need to be able to make an originalist argument
in order to sway the middle in that court. Now that has not been
the case in the modern history of the court. So to be sort of
intellectually generous to the newly dissenting three, they've never had to do this before.
You can go your entire life in the legal world and make it all
the way to the Supreme Court, never actually confronting originalists conservative jurisprudence. You
can just ignore it. That's no longer true because there's a current composition of
the Supreme Court. So they're they're they're wet behind the Earsagan Kagan will probably
make more arguments within that construction going forward, and they already see that just
because she she'll realize she asked you, and she's smart enough to switch m
So to my aura, I doubt it. I think she's just I think
we're just going to get op eds from her. A Kagan vote with the
conservative justices in three h three would have been really interesting because she strikes her
views are never going to match up, right, but she realizes what the
game is and how to you know what the parameters of the game she's playing
now well, and also just like even to your point about it, how
it should have been decided nine zero like the old ACLU liberal approach to speech
protections would have been all over this. In fact, I think ADF Kristen
Wagner or argued this case of the Supreme Court on behalf of Lori Smith.
I think I actually like built a coalition of artists to come together on this
and and say, like absolutely this case should go in a particular direction because
this is a matter of speech protections and to your point, much broader even
than religious liberties. So that you know, the affirmative action decision, actually
all of the decisions, we had some really good writing from Justice Thomas this
round or the session, some actually kind of interesting stuff from you Injustice Roberts.
Do you have any takeaways or are there particular parts of these of these
decisions you think people should pay the most attention to from any of the conservative
justices or even from the liberal justices in terms of like representative examples of bad
logic. Was there any part of one that stood out well? Obviously what
we've already talked about, the seemingly personal exchange between Jackson and Thomas. I
mean, it's it's not lost on anyone that there's two black members of the
Court and this is a decision on affirmative action, and I you know,
look, we're biased, as we already said about Justice Thomas. But I
think this is this is going to go down in history, is one of
sort of the great defenses of a color blind constitution and the importance of that.
But overall, I mean, look, it's funny because some of these
are very legally important and some of them are very politically important. Some of
these decisions right, So legally, I think it's monumental that the Court is
now getting rid of this always um kind of on shaky ground exception to the
color buying Constitution, to to sort of Fourteenth Amendment jurisprudence, to the impermissibility
of using racial preferences constitutionally. So I think it's monumental in that sense.
How it's going to play out practically is really still too early to tell because
it's it's it's just the beginning. You know, the universities are already indicating
that they're going to find, you know, a new loophole for this,
even though this decision says, and don't you dare use this loophole for example,
the essays, you will strike it down again. You cannot use you
cannot use these other factors as a proxy for race. But nevertheless, like
they're definitely going to try to do it. They've already like intimated as much,
I mean, like and as this is this issue is you're like genuinely
extremely helpful on and can get into the weeds one So let me just tee
you up here, because I think a lot of people might not know how
the essays are used that they're I think it was like what one of four
criteria before this decision, you know, you're allowed to use race as one
of four criteria was used by some of these schools, and then they would
take the essays or the personality you know, interview criteria and knocked down Asian
Americans very conspicuously in ways that they weren't doing to other people. Harvard my
alma mater, George Washington University we've seen statements from universities, you know,
X, Y and Z corporations are fretting that their talent pipeline has been disrupted.
How can we get divert people into Deloitte now, etc. Etc.
God forbid they hire somebody without a college education. And as tell us what
we can, basically give us your highlights from the decision, and then as
you were sort of steering the conversation to what this actually does, given how
adamant the schools are about having their sort of racial preference regime to continue on
in the future. So in terms of lawfare and legal ramifications, this isn't
that the principles involved here do not stop at universities, right, And I'll
get to in a minute the battle with the universities that this is going to
be. But the reasoning here, theoretically, first of all, applies to
all government programs that that wait according to race. So there are preferential loans,
there are all kinds of programs that are designed at you know, to
increase representation of underrepresented minorities and so on. Those things are all now sort
of ripe for challenge now that this declaration of the color Blind Constitution has actually
been made. Even more interesting to me would be, you know, these
are not the same things. The Civil Rights Act and the various titles of
that and then the Fourteenth Amendment analysis, but there's a lot of cross pollination
between the two illegally in terms of like what doctrines are sort of imported from
from different kinds of analysis. And to me, the next logical step here
would be to actually aggressively use the public accommodations piece of the Civil Rights Act
and declare that companies really cannot discriminate on the basis of race, because what
obviously when the Civil Rights Act was passed, this was more we were more
thinking about, you know, as a customer, am I going to be
discriminated against? You know, this is this motel on the Southern Highway going
to serve the black customer? But theoretically, like this is also and there
is an entire title about employment, and we have all of these discrimination cases
under Title seven and of the Civil Rights Act about discrimination on the basis of
race unemployment. Every major corporation, every major corporation, I would bet serious
money, is discriminating on the basis of race in their hiring and promotion practices.
Today they are discriminating again whites into a lesser extent agents because they want
to put a diverse portfolio of people in their leadership. Okay, some of
them are completely open about it. Some of them are less open about it.
Right, And it is more complicated because you don't have sort of something
as simple as a GPA and an SAT score. But you could do something,
for example, of years of experience, years in management experience. I
guarantee you if we got into Discovery and some of these large corporations, if
we got to the point of actually getting some of those numbers, you would
see disparities, perhaps not quite as obvious as in university admissions, but still
like very substantial disparities about what background is required to get a promotion if you
are a black woman versus a straight white man in these large corporations. So
that I think could be even though it's not the direct legal consequence. There
has been in the past a lot, as I said, of this cross
pollination between analysis in these different fields that address racial discrimination, different laws that
address racial discrimination. So I think it could be quite potent if conservatives have
both the sort of the will to do this in a serious way. To
really enforce color blindness in a serious way. I think it could be a
bombshell, and I think I think it could be very very important. But
as I said, enforcing it against universities, it's going to be I mean,
it's going to require more than a Supreme Court case every two terms.
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you get your podcast. And I absolutely want to ask you about the student
loan question, um, because I know again this is like actually really the
Nez Stepman Supreme Court session. It's like so specific to your interests. What
are you doing behind the scenes. I went fishing with Jessice Thomas. That's
the oh you took him on your mega yacht. To be clear, I
would love to go fishing with Jessice Thomas. I've never been fishing with just
this is I have to send this to Pro Publica now because I think you
took justice time. I know you have that Maga Yott. You don't talk
a lot a lot, but it's it's doctor and it's actually docked in my
four hundred fifty square foot Okay, but it all makes sense now that I
know, um that aside your obvious conflict of interest, aside um this student
loan question, there was I actually do think there was a legitimate conversation about
standing in this case. The States that brought the student deck question. There's
a legitimate question on standing. But one way to ask you about that case
would be with Chevron coming up next session, with Chevron on the table next
session. Increasingly now that you know you're seeing these six three decisions come down,
and you know the post Trump Supreme Court is a somewhat conservative place on
some of these major questions. With Chevron on the table, we're really litigating
or potentially looking at a curbing of bureaucratic authority of executive authority. I think
this case is along those lines. Well, obviously this case is along those
lines. But what does it mean for how far the left has pushed those
questions, you know, since the age of Teddy Rosult and Woodrow Wilson and
then into the Biden administration when we're looking both at the case and then potentially
with the Chevron doction on the table next session. Okay, so these are
two slightly even though they're both hemming in the power the administrative state. But
there are two different lines here, right. Chevron is about when the course
will step in when agencies are interpreting their own powers. So when an agency
reads the statute and then they issue a regulation or dear colleague letter or whatever
it is, the question of Chevron deference is whether the court will defer to
their reading of the statute the agency's own reading of the statute. Now,
this is obviously like take a man out of the street, ask him if
you think that we should trust an agency to interpret the limits of its own
power. Right, there's an obvious conflict of interest here, right, But
the Court nevertheless said Okay, So, like a lot of these statutes are
quite technical. Let's say you're an EPA and you're reading some like not the
basic part of the Clean Air and Water Act, but some very like you
know, niggly paragraph down, you know, five six, you know,
paragraphs of a very technical stuff about what the EPA isn't isn't supposed to do,
or what the EPA is and isn't supposed to enforce. Right, So
the Court back back in the eighties, um, including conservative members of the
Court like like Scalia at that time, said basically, well, look,
yes, we retain this sort of theoretical power to review this, but we're
going to defer unless we have a really really clear instruction from Congress. Super
clear it says you know, it says black and the agency interpretation is white.
Right, Um, we are going to defer to the agency itself and
unless we have some really spectacular reason to overrule it. So like this is
about where the bar is for overruling an agency regulation or interpretation of one of
these statutes. So that is now getting pushed in a little bit, but
it's really about hopefully in the next term, we have had West Virginia Verse
CPA, and hopefully we will have in the next term some more narrowing or
even the overturning of Chevron, which would be huge, but at least narrowing
of that deference. That's about their own power of the court. They're saying.
They're reasserting the power of the Court of themselves to go in and say,
no, we're going to read this statute and we're going to do our
own interpretation of it. We're not just going to automatically say that the EPA's
interpretation of a statute that they're enforcing supersedes our own, because this is actually
what the Court is supposed to do, right, read statutes and interpret them.
It's very, in some sense, a very weird way to step back
from the job of the court to say no, no, no, we're
going to hand this opt to bureaucrats. So that's about their own power.
The major questions doctrine is about the power of Congress versus the executive agencies.
Right, So theoretically it's the power of the president versus Congress, but as
we know, you know, these agencies operate largely without presidential oversight as well.
Leave that aside for a moment, So it's about whether, and in
some sense it's the same because you're talking about statutes and how far agencies can
read it, and that's why that's the commonality between these two things. But
in this case, it's about, Okay, well, Congress, on what
level does Congress need to speak right and what sort of importance level of policy
decision making can the agency not make those decisions without Congress. And in the
case of the student loan student loan forgiveness plan, right now you're talking about
billions of dollars. Appropriation is the most basic power of the legislative branch.
Right Congress spends money, the president is supposed to execute in accordance with that
spending. And now we have a president and an agency saying we are going
to spend billions of dollars with the stroke of a pen the way that we
think it should be sped on very very shaky statutory ground without additional instructions from
Congress. So that's that's what's at a play here. But both of those
things are going to start to constrain. Hopefully as you terms go by and
the court develops, all of these different limitations will really constrain the power of
agencies, which, as I said, something that hasn't dealt with so far
very much the court that a third prong of us might come along at some
point is the independence of agencies, both from Congress and what role Congress has
an oversight of these agencies, and then even more especially from the president,
because we even in statute we have some some agencies independent agencies that are allegedly
sort of have certain powers apart from the president, and they're really like creatures
of Congress. But even within the rest of these agencies, we know that
on a practical basis, oftentimes the agencies are defying instruction from the president.
Right, So we really do have That's why it seems like nothing ever changes
in the country, right, because we really do have an enormous amount of
our governance on autopilot with these same permanent bureaucrats who make the same decisions no
matter who's in office. Um. And that's why it really does seem like
if people check out of elections and so forth, because it seems like no
matter who we elect, things don't change very much. And it's why we
can have a you know, clearly mentally senile person in the presidency because who's
there's all this palace intrigue, who's running who's running the country? That the
agencies are running the country because they were running the country ninety percent of the
time. Anyway, this um sounds and as somewhat like a rare, if
unintentional white pill from you. And I know we were talking with Josh Hammer
and Ben Weingarten about this over on nakon squad M. Josh felt sort of
characteristically optimistic, and I think you actually even offered to bring everyone down,
which sounds characteristic. But why, looking ahead, should people not say,
listen, if you know, we're if these questions are coming to the court
in the absence of congressional action, and if the quarters in a position to
really smack down these extra constitutional mechanisms. I mean, think of if something
like DOCCA Obama's executive order on DACA had come to this court. You know,
so this is the sixth three court, this is I mean, some
of these challenges could be pretty pretty difficult for the extra constitutional sort of bureaucratic
regime to recover from. Or maybe I'm wrong about that question. So basically,
why shouldn't we take this as a giant, delicious um white pill and
white pill. I feel I fear that we're using and lingo that is revealing
us to be people who spend way too much time on Twitter. You know
what, why should we not see this with some sense of optimism rose colored
glasses, I think is the old way to say that. Look, I
think this is very encouraging. The big question mark is how it will be
received. And I mean, so far we've seen three different prongs of attack
from the left to try to delegitimize the Court in response to not just this
particular set of decisions, but the last term, the Roby Wade being overturned
and everything else. Look, we saw how the deep state responded to the
American people lefting Donald Trump, and that was to cross all kinds of you
know, for the people who scream about norms, to disregard some of the
most important norms in a constitutional republic, like not prosecuting your domestic political opposition,
like making sure that major foreign policy decisions run through the president and that
the elected president has control over the military. Those that's a pretty big one,
um, you know. So, and spying on a domestic campaign on
the thinness of possible pretexts, treating the cases of different political opponents wildly differently
by the FBI. Um. These are all really important ones. Um.
So it remains to be seen to me how the left will respond to this.
I've heard three possible ways to do legitimize and de legitimizing the Court so
far. The first has been the probablia propablica reporting that we and then everywhere
reporting um that that we were sort of alluding to with our jokes earlier,
which is to try to portray the court is corrupt. Um. There is
nothing to this reporting it is. I mean, every time I read it
and I just don't understand it. It's something completely ordinary with a bunch of
adjectives jammed in to make it seem really shady. But the end of the
day, what you've got is that some justices have a rich friend. Um.
The rich friend has basically no alignment in terms of judicial opinions. There's
some extremely ten you know, tenuous third degree connections between some you know,
alleged connection like overlap between some interest but there's not even a clear pattern of
the justices ruling in the favor of those interests. The idea that that Justice
Thomas gets his judicial philosophy from Harlan Crowe is absurdum and potentially racist depending on
the context. I mean there's long been of course, it's always as never
Clarence Thomas's idea, right, Like he couldn't have possibly come to his judicial
philosophy himself. Um, he's got to be his his white wife or Harlan
Crowe or you know, a million other or one Scalia was alive. It's
he's a mouthpiece for Scalia, despite having different judicial philosophy on so key aspects
then Scalia, including on Chevron. I think I might be wrong about that,
but on for sure, on sort of criminal protections, procedure protections,
they differed. Um, same thing with Harlan Coe. Harland Crowe is a
moderate sort of no labels republican who is pro choice. Please explain to me
how you think that he's like governing Clarence Thomas's decisions. I mean, it's
ridiculous, um, But I do think that these repeated, you know,
stories which you could easily to be clear, could and have found, like
Luke Rosiak has found corresponding stories on all of the sort of the left members
of the Court. It's really the result of the Court being less politicized than
the rest of our politics more than anything else in the sense that there's a
lot of personal relationships involved. The community around it as quite small. You're
going to be having lawyers who argue in front of the court on a series
of cases that are repeatedly appearing before the court. Both sides, you know,
go and give talks the Federal Society and the American Constitution Society, which
is the liberal version of the Federalist Society. You know that this is at
the end of the day, this is a quite small sort of community of
people. So there are going to be overlap, overlapping and protection sort of
like you're going to find personal relationships between people. But yeah, like this,
this reporting could have been done at anytime. Why is it being done
now? I think it's to legitimize the court and try to make it appear
corrupt, which is a pretty easy sell in an era where people are very
easy to convince that our institutions are corrupt because so many of them are.
And then the other two aspects I've seen. So there was an op ed
in the New York Times by a law professor whose name escapes me, but
impromatured given the impremature by The New York Times that basically the executive branch should
refuse to enforce Supreme Court opinions. That would be one way of deligitimizing.
And then, of course we have the one that's been kicked around for the
last three or four years, which is packing the court. And so that's
why I guess that will be the the black pill with the white pill or
the you know, we don't actually know if those those attempts are going to
succeed. They very well may, but but that's that's there is going to
be an attempt to delegitimize the Court because some of these decisions, even though
they're not, they by no means always go, you know, sort of
the way the right would like to, especially with with Justice Kavanaugh, but
even with Justice course that who has his own ideas about textual interpretation UM in
Bostock and elsewhere, and then has has this very long standing which actually I
kind of have a soft spot for this long standing sort of UH perspective on
cases regarding UH reservations and Indian UM Indian government. It just strikes me that
Justice Justice Gorsuch is the only Western member of the Court Um, as well
as being I believe the only Protestant, and actually I think that that probably
has a lot to do with how he sees some of those issues. But
maybe the only Protestant conservative thin Kanji Brown Jaction is definitely Protestant. Yeah,
it's not Catholic like the rest of them. They are. They really are
talk about the puppet master. I'm kidding, Oh my gosh, Catholic listeners
are about to Yeah, Catholics and Jews picked up most of the Supreme Court.
Um so, yes, I guess if if, if, if Justice
Jackson uh is a Protestant, should be the second Protestant on the Court in
a overwhelmingly um, not overwhelmingly anymore, but a majority Protestant country. Um
So, if we want to talk about being counting in affirmative action, maybe
they need more Protestants on the on the Supreme Court. But um, I'm
ready and willing, ready and willing to serve bad joke. But actually,
by the way, this is something that's that's really great about the Federalist Um.
I've always saw I'm, you know, sort of this atheist, Jewish
background person who I think this is really great about the Federalist It's something that
people don't talk about, is that there are a lot more Protestants on the
Federalists writing staff and among their columnists then there are even on most like most
conservative publications are staffed largely by writers who are either Catholic or other categories like
agnostic Jews for the most part of some religious Jews, but more agnostic Jews,
and unlike a fake racial category like AAPI, which brings together people from
all over the planet. Of course, religion does infuse, or lack there
of, infuses a lot about our worldview, and I think it's it's good
that there's a magazine like The Federalist or a website like the Federalists that actually
showcases the thought process of a lot of conservative Protestants, who, after all,
make up the majority of conservative voters. We get it, you are
sucking up in as. No. No, I think it is actually like
parts of a Federalist just waiting for the Protestant integralist movement to take off.
Oh no, it won't happen. But that's why I would feel comfortable with
it. Well, yeah, you're you'll get fully on board. Well,
note, I think that's very, very true, especially for conservative publications,
and when you have a big swath of the country that's like nondenominational Protestant or
you're just Protestant in general, not a very well represented demographic both with like
I would argue black Protestants or sort of like royal white Protestants in media.
So I totally agree with you on that tangent. But anyway, I started
for interrupting, I that was that was it. I just I think the
court there will be a big movement to de legitimize the Court. Um,
it's going to put us on kind of the opposite I feel like a trajectory
or fighting position. Then most of the right is now, which is I
think very much on the side of either reforming or even detonating and beginning anew
in a lot of our institutions. But I think in this case we're going
to have to defend the institution of the Supreme Court. And of course it's
all eminently fair, just on like the basic political sense, this is completely
fair. Of this is how the cookie crumbles. You had control of the
Court for decades. Now that the Conservatives have the control of control of the
Court, they're going to decide cases a different way. You do not get
to change the rules of the game. But of course the left that is,
like the left is on that in so many other areas of politics that
it would be foolish imagine they would not try here too. Yeah. No,
I was going to say exactly that, like it's they were doing.
They were getting how many speaking on a rarea or like private jets, whenever
you name it, and now it's just delegitimizes the court anyway. All that
is to say, and as a Stepman, we so appreciate your wisdom,
your insight, your candor on today's chat, on this podcast, Emily,
it's just so nice to me on my podcasts, so mean to me.
I don't know what it is. It's like a schizophrenic. I feel like
I mean to when Rachel's here as well, because it's better to you have
a foil or I guess I'm made to both of you. Anyway, All
that is to say, we genuinely appreciate it. This was really helpful,
especially for those of us who sometimes get lost in the legal Sauce so and
as Stepman, a senior policy analyst over at the Independent Women's Forum, also
a senior contributor to the Federalist and the host of High Noon, which you
can find wherever you get your podcasts. Thank you so much for stopping by
once again. Thanks much for having me. Emily, you've been listening to
another edition of The Federalist Radio Hour. I'm Emilijasinsky, culture editor here at
The Federalist. We'll be back soon with more. Until that, would be
lovers of fram and anxious for the fray you today