Well, Whiskey coming Fame, my Paine, my Brain, Whiskey, Let
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This is the three Whiskey Happy Hour with your bartenders Steve Hayward, John You
and Powerlines International Woman of Mystery Lucresia. You gotta give in and let that
whiskey blow where you've been in love down in Low Well, gang, it
was worth it to wait till the last week of the term. What a
big bang, and listeners, it's a rare week because John and Lucretia and
I are together in person. Sorry, we get to and we've got our
maker's mark port. Cheers, everybody here, cheers. After weeks of disappointment
from the court, this week we just got a clean sweep. And by
the way, I think, I mean, I had about ten takeaways from
the affirmative action case. But how do you guys want to start, I
mean, aside from More versus Harper at the beginning of the week. Yeah,
so it wasn't a clean suite. Well, Thursday and Friday and you
know what, I'm not even going to try to talk about that other than
John and I had a lovely conversation about how and this is where John's actually
the expert because of his experience on the court as a clerk, talking about
how every decision that Roberts makes on a procedural issue rather than on the merits,
ends up benefiting the left in some way, and so More versus Harper
we talked about it once before, is a case having to do with the
redistricting, and then the court step in and I don't want to go to
the whole thing because we'd spend all day explaining it. But I mentioned to
John that it was very frustrating because they never should have taken that damn case
in the first place. Yeah, okahute. But I thought what you were
going to say, Lucrestia, was that I was right in my guide on
how to understand the moderate mind, which it is, which is hard,
which is hard to understand. I wanted you to say that which is right.
Every time they did something giving a victory to the left, like More
versus Harper, Alabama and redistricting, I knew we were going to win the
affirmative action case. They were creating a kind of shield for themselves to say,
we're not that conservative. So when we get to affirmative action. When
we get to the Biden student you know, student loan cancelation program, where
we can do the conservative thing because we gave some stuff to the liberals and
so we can be right that yellow dog in the middle of the road that
gets run over all the time. And the problem with that is, as
I've said before, I think I said it on the last case we discussed
aboutstanding, is that they expect that as a result to that, that the
left won't hate them, and they're wrong. Every single time. They does
not buy them anything. It does not buy them the less good graces.
It doesn't buy Biden News said, what does he say. It's not a
normal it's not a normal court, well, not a normal president. But
never mind that. Look, let's go through some some highlights of these things,
though, I think, and then also we'll see if Lucretia can find
a potential weakness in the Harvard opinion. She's not in her head already.
It's still a good thing. Let me just say that before we get off
on the wrong track. It's a good thing. But you go ahead in
a firm ative action case. Lucretia's almost turned Chief Justice John Roberts into a
natural law lawyer, where there's the color blindness principle the Constitution come from.
Oh well we'll come to that. Let's take let's take this an order for
a minute. I heard, I have heard, by the way, from
someone in the courtroom that Roberts actually choked up reading his opinion. I mean,
he really hates the stuff. And although I mean I can describe his
opinion as being kind of procedural and following the precedents and applying strict scrutiny,
but he throws down in a lot of places I think. And then Thomas
and apparently Justice Jackson was like visibly angry while Thomas was reading his concurrence.
Well, it's because he calls her a racist. I mean, well,
I have a very big extra legal takeaway. I mean it's there, but
it takes an effort to dawn on you. One of the things that is
discussed and widely known by people who follow this is that the deference shown to
universities on these affirmative action cases has always been something of an exception of strict
scrutiny of civil rights laws. What do you how can you say that diversity
is a compelling state interests? Well, but my point, you can see
where I'm going with all this. My point is is that this case pretty
directly, not in so many words, but the implication is very strong that
well, here's why I put it. This is a blow to the legitimacy
and at us of our universities. Yeah, and that's the subtext of so
much of it. No, you know, we've you your message to us
as a man, and I think this is one of the lines of Robert's
opinion. Your line to us has been trust us, and the rest opinion
is, no, we're not trusting you anymore because you're operating in such bad
faith and your reasoning is so bad. Uh. And so I mean that
part was fun, and I think, uh, you know, I think
this is a major turning point, um in uh, a whole lot of
aspects of beyond just admissions to college education. Well, who do you guys
passing around books? We're sitting in my office. I had a lot of
books, a lot of that I'm gonna get rid of. So I was
offering the creation content. Star Maker's mark is really nice. By the way,
You've got some more coming yours. I got plenty. So this is
what this is This is kind of an interesting thing. I was thinking was
if you think about the two biggest decisions conservatives wanted to overrule, we've done
it now, Row versus Weighed last year and Backy this year. Yeah.
So it's almost like the conservative movement has really achieved what it's And both of
those cases are from the seventies. It's been a fifty year campaign. Yeah,
And I think now the conservative legal movement is gonna I think it's going
to look for direction. I mean, you're going to see other cases this
termpoint some of the direction, like religious liberties is something they care about.
Cutting back the administrative state the obviously care about. But these are not on
a par with reversive Row and reversing back. They're not. But Edward Bloom
was interviewed by The New York Sun saying that his next his next target,
shall we say, is actually going to be the d EI regime, which
ones I just for a moment want to go back to what Steve was saying
about that, because and remind us the one thing that I've ever given Steve
actual credit for being clever about. I'm part of the readers can't listeners can't
see I'm boring Steve a double shot right before Lucretia launches her attack. No,
that was one of those. They called it a left handed compliment where
I actually complimented Steve, but made sure that I did it in a way
that insulted him. So the point is is that when you said that the
universities were able to survive strict scrutiny by the weakest of all possible rationale,
the weakest compelling state interests that you could imagine, which is a stupid idea
of diversity. And remember when we did our thing on after the oral arguments
on this case, on the Harvard case, we talked at some length about
how I believe it was Alito and Thomas especially tried to elicit a response from
the government from the solicitor general from Harvard about what can you tell us why
diversity is so important? Okay? And so what Steve had said about Baki
is that the mist the really if Baki had just gone ahead and upheld quotas,
we would have been so much better off because it did in fact create
in universities, which as we know now has spread to corporations and whatnot.
The diversity regime, the diverse that is, there is no questioning diversity.
You cannot doubt that diversity is a good thing. You really, I mean,
it's it's it's practically a capital crime to deny that, and so what
I would The reason I brought it up, though, was so that I
could get to my one criticism of Roberts in this Steve says, it's just
a footnote. I shouldn't make so much of it. But since he told
me that two days ago, I have seen a dozen including in the briefing
I got this morning from the Secretary of the Army, very much made out
of the little carve out that Roberts gave to the military academy. They're just
that's just wishful thinking on their part. It's not a carve out. That's
a very standard lawyer thing to do is to say, get it, yeah,
there's we just remember what who is you know, the dumbest person on
the coil. That's tough, but I'm sure. But she actually calls him
out and she says, on the one hand, you want to say that
this is a that affirmative action, that the quest for diversity and counting by
race is a violated the Fourteenth Amendment, but you won't reach the issue of
it in in uh service academies, where it's so much more important that they
have diversity. And there's all these reasons. But she comes back and she
says, you're a hypocrite. You can't, on the one hand, have
a principled stance against counting by race and then say, well, there's something
about military academies that that I think that's over reading the footnote. The footnote
just says we're not deciding military academies because are not beforce. But well,
you know, I'm sure that a conservatives them at the Supreme Court. They
weren't at part of the lower trial. They're going to be at the They'll
they'll be a case coming next year, the year after, I'm sure,
And I can't see how the military academies are going to wriggle out of this
one. But Roberts is just doing the lawyerly thing, which is we're not
deciding issues that aren't before. Well here, well here's why, because the
centers you're going to bring it up and so you don't want to leave it
on address. Yet we just say, oh, there's just you cannot count
raise in any kind of educational and leave it at that. Well, all
right, I mean, because I'm not a lawyer, that's why, well
I think I look, I don't blame him for it was not brought up
a trial. It was only brought up by the Biden administration at the Supreme
Court level. You're not supposed to introduce new issues at that level. So
there's a red hair that, by the way, well on the whole lot
that shows you how weak their case was, that they're reaching for anything.
But there was the part of the opinion where Robert says, there's really only
two places in the law where race specific remedies are acceptable. One iss when
we're remediating a specific injury, Yeah you suffered to segregate, are you suffered?
Exactly? And the second one, which I hadn't thought about before,
was segregation of inmates by race in prisons when there's risks of race riots.
No, no fact they actually say the court in the past has said we
won't even let you use race. Then that's a remarkable thing, is that
the Court has already said we overrule Krematsu. You can't use national security as
a defense. So that seems to wipe out the military cabbies, and know
they say enforcement is not allowed to use race to stop race riots in prisons
because there because a lot of grant gangs are race based, and so you're
not Actually this is amazing, and you're not allowed to use race to segregate
them in their prisons. But I thought that because because the conservatives want to
have a uniform rule without any exceptions for color blindness. Well, no,
I think that it's fine to have an exception if it's really truly a compelling
state interest that would allow an exception to the general principle that the Constitution,
the fourteenth Amendment equal protection clubs, does not allow you to discriminate on the
basis of race, and you bring strict scrutiny and the government must show a
compelling state interest. That's how our jurisprudence works, right. But again,
the problem has been that four universities and then it's filtered into other things.
They allowed that stupid idea that diversity could somehow be a compelling state interest.
It started, of course, in backing by saying that it was a First
Amendment interest, you know, the academic freedom and all of that, to
have a diverse student body and we're not going to second guess universities and their
decisions. But as you just pointed out, they said we are going to
second guess on national security. How does university's academic freedom take a higher place
in consideration than say, national security does as a compelling state interest? It
makes no sense. Well can I Well, well, I was gonna can
I just summarize in two sentences or one sentence that one of the things I
think is great about Robert's opinion is he goes through the sordid history of the
Bachi case and how it metastasized and got worse and worse as time went on.
So you know, we overruled Blacky. I thought, Lucretia you were
did you want to comment on that, joinre this sort of I was going
to say, you, clearmonk I should love this opinion because it basically traces
oh colorblindness from the Declaration of Independence. Well, I'm coming to that through
the ending Bella period, through the Civil War, through link and through reconstruction,
through the civil rights movement. And I thought this was why I think
this is his best opinion ever so far, maybe the best opinion he will
ever write. Yes, he says, I mean he was gonna say in
this worst but this is the structure of the opinion is this is the simple,
clear rule color blindness. Every time the court deviated from it, we
wrought destruction on the country dred Scott plus e versus Ferguson and now this case
backy. So he said, just we should have learned our lesson, wipe
it out, and let's get out of the business. He calls it the
sort of business of sorting Americans bright race. Well, and that's what most
of the that's why it goes through all that history. He doesn't see it
that way, but he wants to show the American people every time we thought
we were so smart as a people that we could manipulate race to achieve some
greater social goal, like your diversity, it's been a disaster. Well,
I thought, I do want to talk a little bit about the compare and
contrast Robert's opinion from Thomas's concurrence. But I want to follow up on Lucretia's
bringing up the little footnote about military academies. That's not the part I thought
you were going to grab onto as a possible vulnerability. So when I heard
the opinion was out. I wanted to say, I wanted to look for
like the Bocki case. I remember when Backie came out in nineteen seventy eight.
I was in college then, and it was kind of calm. They
did what okay, the listeners. You know, that's luckily for humanity.
When Steve decided not to become a doctor, we found out he wasn't getting
into UC Davis, a medical school. Well wait a minute, okay,
you finish. I have a funny thing to tell John. Well, all
right, I thought, so I was looking for is there going to be
a Backy like loophole? And at the end of the syllabus of the case,
Robert says the following, I'll read it here. At the same time,
nothing prohibits universities from considering an applicants discussion of how race affected the applicant's
life, so long as that discussion is concretely tied to a quality of character
or unique ability that the particular applicant can contribute to the university. Now,
I think if you think that language, it makes it this individual thing,
not a racial thing. However, Harvard and other places went off right away,
and and so to mayor in the descent, he said, oh,
you know, there's a little pool here. We can just we can figure
out, we'll have these essays. We're going to sort of go on essays.
And in the final revision Robert slams the door on that pretty hard.
And I think this is we're sharing with listeners who let me let me scroll
to here. It's on page thirty nine sing. I think the point here
is that there's a great line and you could see why Roberts was just exasperated
with the dissenters, where he says, oh, the dissenters think they're giving
legal advice to all the college emissions officers in the country on how to evade
our decision. And he has this great line. He says, you know,
people should seek should not seek the legal counsel from the dissenters on a
losing Supreme Court case. Yeah, so are it was so awesome. That's
that's Robert's at his finest. Yeah, here's the passage. Here's the whole
part, well, not the whole thing, but the relevant part. But
despite the dissens assertion to the contrary, universities may not simply establish through application
essays or other means the regime we hold unlawful today, and in parentheses,
a dissenting opinion is generally not the best source of legal advice on how to
comply with the majority opinion. And then he quotes, what's the what's the
is it so one of the old martial cases quote what cannot be done directly
cannot be done indirectly? Right. Let's say this is interesting because of the
Conservatives generally are against desperate impact, where you can bring a racial discrimination claim
just based on a statistical imbalance and races. Basically, Roberts is saying it's
going to be okay to sue universities after this using desperate impact information because if
I'm an Asian kid, suppose I mean I don't get into Harvard. So
what I'll do now? This is of course something that never happened to me
personally. Betimes, I was an Asian kid and I dike end to Harvard,
and uh, you know, I I see this new rule. Oh
Taco, you can talk about race in your application. Essay. I think
Roberts is saying, after our decision, if the percentage of Asians and the
Harvard class stays in this eighteen percent to twenty percent range then come along and
claim that they're indirectly using these essays to keep you down, and Roberts is
saying, you're going to get in the courthouse door. This is like every
little thing that Harvard tries to do to evade this decision is going to be
the subject of a lawsuit one. So maybe we've just turned disparate impact on
the Grigson's power on its head. I don't want to do it that way,
but okay, it's hardly Yeah, how else could you? That's a
problem. So so this morning I got on the elevator in the hotel and
it stopped at another floor and this very nice Asian family, wife and a
husband and probably a little seven year old boy. This baseball cap is a
little backpack on, and he had on a Harvard sweatshirt. And I came
this close to saying, you have a chance of getting in now, did
that? But I didn't, because you know it's perfectly but would not.
I would take a picture for you, but that would have been a lot
of creepy to been awesome. But I think that's I mean, if you
want to talk about what's going to happen in the future, right, these
universities. We all work at them. We know what our colleagues and administrators
are going to try to do. They're going to try to hit racial targets,
but not use race. They're going to try to get rid of tests.
They're going to try to make it holistic, and they're going to keep
no records. There'll be nothing on paper, there'll be no emails, there's
no proof. So the only way you could prove Roberts is claim here,
you know, opening the door here is to say Harvard did all these things,
and look, Asians and whites are the exact same percentage as they were
before. Yeah. Sa, So there's got to be something funny going.
I think, you know, I think the figures are Stanford and Princeton are
boasting that their next class is twenty two percent Why in a population is still
fifty five fifty a sixty percent white. There's a higher proportion of Hispanics in
the entering class at Stanford, understand than whites and a lot of Smacks in
California. But but it's a national university, it's not just drawing from the
state. And so at some point that you're gonna that's gonna leave them vulnerable
to some lea. So what about the I've seen a bunch of articles on
this one too. What about the legacy admissions? That's what people are really
Okay, Maybe this is the thing about the opinion. It doesn't say you
can't use any other factor for admissions. It just as you can't use race,
so you can use geography socioeconomics. In fact, that's a lot of
the exchange between Thomas and a contingent get Brown Jackson some trouble getting it out.
Baker's mark has a hard time because contingent Brown Jackson basically says it's all
race. She she actually issues she has, you know, the six ten
nineteen project descent, and we have a critical race theorist on the court right.
And Thomas's response is, no, race is not the all encompassing explanation
about how people do. He basically suggests it's more likely to be class.
It's more whether you're poor or whether your parents went to college. And he
says you have to work hard to overcome it. But his point is,
and I think this is true. I think all the members, members of
the majority opinion would support socioeconomic preferences. So just out of curiosity. At
what point do we stop saying that any of those kinds of things matters legacy,
enrollments, socioeconomic background, etc. Etc. To get in To get
in Now, if you're a poor person and you've demonstrated the incredible aptitude that
you're likely to be a huge success you've demonstrated through merit, then you know,
step up and provide them with some financial aid, some scholarship, whatever.
But at what point are we going to just go back to merit?
Well then, and that of course is part of the problem, John,
because tests are only a a faulty, a partially faulty way of determining merit.
Right, Um, you know you can't go just by GPA because there's
great, great inflation across high schools. You can't go with just keep calling
Steve. What is that? It's a GoPro camera people. People want to
have video, I mean, not what you post it, but it's like
Steve's placing surveillance devices. You miss a discussion with Eduardo about data privacy and
everything that the government's collecting on us, But we won't go into that now
because we have more interesting things to say about all of these court cases.
What you see. One other things I just wanted to point out was this
exchange between KBJ and Justice Thomas, because she really says, I mean,
I thought it was a really quite striking and worth reading. Is she points
to all these differences between blacks and whites, basically education, wealth, healthcare,
and she attributes it all to slavery and racism. And so, in
her view, after all the bad things white people have done to Asian I'm
sorry to blacks. Asians are the blacks and are continuing to do now because
she's saying people are still racious. Yea, they don't even know they're doing
it. It's all unconscious bias. Then what's a little thing like affirmative action
to make up for it? And Thomas, I mean some of the language
he uses as of a kind I have not seen in Supreme Court opinions and
several generations where he basically one thing he says is Justice Jackson is stereotyping people
by race, and therefore is you know, has the same bias and mentality
that segregation has happened. That's because she's an overseer. And then the second
thing, that's what Harvard, all right, go ahead, And then the
second thing, he says, I was quite incredible, is he said,
Look, I can't think of a more damaging, harmful thing to do to
young black kids than to tell them what she is telling them, that you're
a victim. Nothing you do matters, you can't work hard, you can't
achieve, the whole system is stacked against you. And he basically says,
it seems to me. And this is like they start using the word I
and my experiences, my experiences. You work hard, take advantage of your
natural talents, and you will do better. That's how you get ahead,
not by right squeezing resources out of the people you claim are white supremacists.
Right. It was a very unbelievable exchange. Not that I think these things
should be decided by the majority, but there have been a whole lot of
public opinion surveys out there in the last day or so that indicate that sixty
seventy percent of Americans absolutely support the courts decision. This again, that is
not in and of itself decisive in my opinion, but there's a lot of
good thinking out there about this. Why actually, I take Lucretia's point in
different direction. I would say, and we've talked about this before. I
think Dabbs fell on the conservative movement like a like a gigantic bomb. We
were so unprepared to win Dobbs in a weird way, even though you could
see the way things are going. And so they're parts of the country where
Dobbs is unpopular and conservatives had no response, no legislation, no program.
This decision, on the other hand, is going to be highly popular.
Two thirds of the country is in favor of getting rid of the use of
race. I think a majority of all races actually thinks we should get rid
of the California, the most liberal state in the entire country, consistently refuses
to endorse or to repeal or to you know, all of those things.
Affirmative action, well, what I mean, fortune favors the well prepared,
or that a version I heard once is luck is the residue of design.
There's no luck here. This was practice. But none of us thought,
I mean maybe by the time we heard about the League opinion and everything,
we were starting to think it might do it. But we all thought with
Dobbs, yeah, we all thought that it would be a Robert's decision.
It would be it would be milk toast it would be because yeah, yeah,
and and and not a single one of us, I think, really
expected that it would be the solid decision that it was, which what is
the reason why we were a little bit more prepared now for um, you
know, so I just needed everybody to know that early in the morning because
we're on the West coast the decision came out and I had just seen it
too when we got all in caps from John a text message. They did
it. The thing you guys knew exactly when I met. Yeah, I
broke up like it's six fifty five yesterday and today because to read the opinions
right when they came out. Well, look, I mean and I said,
Fortune Favors are prepared. This case turned on, you know, literally
decades. But in particular I got to it very hard. You know,
the discovery work in the lawsuit right, getting into their admissions process of discovery
phase was crucial. I remember talking to our late friend Will haunts Voys.
It's a shame he wasn't didn't live long enough to see this get to the
end, but he's watching from heaving. Yeah, and you know he did
the discovery depositions. He and his team right and uh, and then you
know the analyze ed blow him. You know what, range the organized the
team to analyze the numbers. But then the other thing that it showed up
in Justice Thomason's opinion, and I think he believes it. But secondly,
I knew it would send Justice Jackson and so my oar into a rage.
Was the mismatch hypothesis data that our friend Rick Sanders spearheaded starting more than a
decade ago. By the riad, he's a liberal, by the way,
but it so outraged at the cynicism of the admissions departments who only care about
counting their numbers coming in, doesn't care how they do. Once they're they're
right. And there's a great footnote. I think it might have Actually I'm
not sure it's from Thomas or from Roberts saying, well, so of my
r says missus Thomas. She says it's been debunked, but that's not really
true, and he gives the reputation, says and by the way, if
universities want to prove the mismatch is wrong, how about they release their data
so we can really examine it. Because they stonewalled Rick Sanders all the way
along on grades and passage rates and bar passage data. And because they your
own, leaving out an important party that contributed to the win yesterday, which
is hubristic college presidents and administrators. They I think they're the ones who tipped
the Robert's Basi says, you've had over twenty years to produce proof that racial
diversity does all the things you told the court multiple times. That leads to
better classroom instruction, that better research leadership. Right, there's not a single
study that shows a more diverse class gets better grades or does better scores on
whatever task, not a single study. It's because diversity as well, not
only, but it's a matter of faith. Why would you have to have
why would you need to prove anything? Because if you're if diversity, I
mean, it's diversity. And honestly that is so. You heard what the
Harvard president said in his statement about it. Yeah, this has been a
hard day. Oh god, kiss my. You know Harvard students have it
so rough. You know, here's another thing they could see. This is
the thing there. This is why they're also hubristic. Is another important point
for Roberts I think is so the descent says you can use race when you
give people benefits, you just can't consider race when you punish them. So
why is this SUNG constitutional? You're giving a benefit for blacks and roberts is
Another key point in his opinion is college emissions are not just giving benefits because
there's zero SUNG, you know, benefits spreading. Everybody wants whites and Asians.
This is where hubristic are hubristic colleagues come in? They won't increase their
college class size exactly right. They have. I'm sure the population is almost
doubled since backy, but I'm sure the Harvard class is not doubled or tripled.
They could have made a good faith effort to make the class sizes bigger
to reduce this zero sum idea, but they won't. So you know why?
You know why? I don't remember. Actually I've always wondered why.
No because the personality of Asians. No, no, no, that's not
personality. I think it's people. I see yet again Lucretia set me up,
just like last life. Yeah, I mean Harvard, I mean,
you know the case is Harvard, Princeton, Yale, Stanford. They have
this huge endowed They could raise all the money they want, and they could
make their class size too much bigger exactly, they have their faculties three times
bigger. Yeah, that's how would actually really, you know, take some
of the out of Roberts. I still think Roberts would have decided the same
way anyway, but I think that would make them less exclusive places. Yeah.
No, that's that's why there's still hubris there. That's their hubris.
Yeah. One of the other factors that played into Robert's opinion in such a
great way, because by the way, I could not seriously criticize it.
But Roberts's opinion is very workman like and strict scrutiny and all this one liners
like, yeah, way to end discrimination by racist to stop. But one
of his powerful parts of many is the Grutter time clock part. So the
Grutter case twenty two years ago, Sandraday O'Connor and one of her confused moments
said, Okay, we're gonna confused movements, as if most of them weren't.
Let's leave that for another day. Her first several years on the court,
she was pretty good, and then she started going to too many parties.
Never mind, but remember the Amos line for listeners who may not recall
it, is she said, okay, we'll let Michigan. I think its
Michigan continue to use racial quotas, but really they ought to be gone in
twenty five years, and that came up a lot in oral argument. It
was quite clear that Harvard and UNC they didn't take this seriously. They didn't
think that this was meant to be someone important well. Of course, and
what Roberts makes clear in his opinion and the concurrences is it's pretty clear that
these universities have no intention of ever phasing it out. Of course, public
choice theory would tell you they wouldn't. This is actually a point Lucretia mentioned
earlier about what's coming next, because what Roberts's opinion also talks about is how
rather than winding down, the racial diversity has actually gotten more established, to
run deeper into our institutions, more difficult to get rid of. And so
that's, you know, Roberts is showing the direction lawsuits against these DEI initiatives
in the universities and employers next, because d I should just if it's any
justification for it at all, it would be that it's a temporary remedy needed
to overcome the past, and over time it should disappear, whereas universities like
Harvard or California. You see, you know, you see said at the
court two, we're never going to tell you when racial diversity is achieved.
We refuse to answer that. They refuse to answer the question what would be
the actual and state of all this? So let me I don't want to
get ahead of our host Steve and his plan for today, but I do
want to ask you guys this because actually because my students asked me about this,
and I used you guys as examples who are mentioned in the class a
little bit. But but but hear me out. You have both mentioned that
your esteemed employer asks you for diversity statements, right, and we now know
that maybe we can question the religion of diversity, inclusion and equity. But
also the next case on the docket here is the freedom of speech case.
The website designer, it was Corsage made a very clear point that it's not
a freedom of religion case, it's a freedom of speech case and that what
government cannot do, which they said, what in the Jehovah's Witness case with
what was that Barnett Barnett versus West Virginia that you can't compel speech. But
you guys are being, as a condition of your employment, compelled to speak.
Now, I know what you do. You do a lovely thing.
When you're asked to do your diversity statement, right, you say, as
the only conservative Asian on the entire law school faculty, I am diversity on
campus soonified or something. A lot of those lines, but it's but still
I agree. So I actually I totally read that case of same way as
lucre Shaft. I read that three or three creative case which said the quest
for diversity cannot overcome your right not to speak. I thought that actually might
be the leaver for attacking these TEI policies. So think about it, supposed
to work at the University of California, which says you've got to use five,
ten, twenty five different pronouns. Right, Suppose you're a believer in
the literal. You're a literal believer in the Bible. You only think there's
two sexes. Why don't you say it's a violation of my predial. A
believer in biology too, Okay, well, okay, no, but the
right you could say it doesn't it doesn't have to be true if you just
have this belief right, I got a religious believe free speech treat. You
could say I refuse to use anything other than he or she right, and
I'm three or three creative today? Points Wait, so, actually I think
of my next Diversity of the Cruatia has inspired me. I didn't think of
this, but I think this fall. I'm gonna say I refuse to answer
the diversity question. Wouldn't it be so cool if they fired you? But
what if they can make me an offer? But wouldn't it be if what
if they moved you out of this lovely corner office and into a closet somewhere
to put issue for your failure? Could you get standing before the court?
Oh? Yeah, of course? But I was thinking what if you just
say I refuse to answer? So lu Creastia is referring to Steve, and
I have to file diversity statements serving now on that which say how have you
added to the diversity of the campus. Yeah, I think La Crestia is
right. What would happen if you said I refuse to answer this question because
I do not believe that racial diversity achieves anything, and I will sue you
if I don't get my whatever Okay, so office pay increase what our teaching
requests. So my favorite constitutional scholar a good lawyer this year, I have
a question for you. I'm getting I'm seeking free legal advice. So we
do not at my university have to give diversity statements. But yeah, no
no, wait wait wait, but we do have to buy both. Then
the university requires that we ask three diversity questions on every search committee. Oh
yeah, that's actually being challenged right now by the Pacific Legal Foundation. Yeah,
the group I'm on the board of. Because there's a professor I think
you see Santa Creue, Santa who was denied a job external job, and
he's claiming it was because he at least diversity. But but but but actually
that's not my question. My question is, can I refuse to ask diverse
because you're required on every search committee when I'm doing interviews, Can I say
it, can refuse to ask you and and and when they when they say
you have to, I'm going to say you can't force him when they when
Yeah, and then you can sue them. I can sue them and then
retire. That'll be a great case. Yeah, you would make it,
won't you couldn't You ask a diversity question when I have to. When I
have a pair and the flop cards are straight, how would you play the
hand? No, that's that's what they mean by diversity is but I do
have to wait. This is a shout out in case you ever. Let's
to it. I have I have an assistant dean who is the most amazing
employee not only in my university but on the planet. On the planet,
okay, And when she was interviewing for the job, she almost had me
believing that she believed that nonsense on. I think it was the best answer
I've ever heard. But I know her and she doesn't believe in any of
it, any of it. Most people doing. It's our fliers out of
everybody. Yeah, of course, that's like this, like the Soviet unions
exactly. Yeah, that's why I sometimes refer to our East German universities.
Right, So, well, all right, let's talk about the Biden students.
Just going to bring that up next, the student loan giveaway. And
I didn't I didn't even have a chance to look at the opinion at all.
But my question was, why wasn't this easy? I mean, it
was easy? Why? Well, yeah, that's because they're obviously just ideological
hacks, and they have staked out a place on the Court where that's just
what they're going to do. Right. Kagan thinks this is an attack on
democracy, the idea that you make Congress vote on spending four hundred billion dollars.
Why shouldn't it be up to the president. I think somebody cleverly quoted,
I'm not sure if it was a concurrence in the majority opinion. Someone
cleverly quoted Speaker of the House Nancy Pelosi saying, President, I can't do
this. Congress has to do this. It's in the majority opin it's in
the majority opinion by writer. That's that's that's cold. That's really cold.
I mean, the one reassuring thing about the cases, it was almost a
disputed that the fundamental constitutional principles, Congress controls the purse. So what I
like to think about this case today, in the firmative action yesterday, is
the Court is returning to making constitutional law clear and simple, color blind,
constitution, easy to apply, easy to understand, rooted in a very simple
principle, and this one too, only Congress spends the money, so it's
very easy for I think that's the great benefit of these cases. But never
never underestimate the the what's the push that comes from progressivism to push aside those
constitutional restrictions whenever they get in the way of some policy decision that the left
wants. I mean, it's hard for us even to rop our heads around
it because we believe in the constitution. We recognize that the Constitution has made
this the most prosperous, the most everything country in the history of the world.
And so for that reason and for a great because of a greater understanding
of the Constitution, we accept it. But the left says, if it
gets in the way, we don't want it. If the Court is deciding
all cases, not just some of them, not just balancing and the yellow
dog in the middle of the road, but all the cases in our favor,
we're okay with that. If the if the president is deciding everything that
the left wants to do, we're okay with that. If Congress is.
But anytime they don't do that, oh it's the end of democracy as we
know it, right, because it's not fulfilling our policy preferences, right,
And so don't don't. And I think if you look at Kagan who's the
only smart one out of those three. Although she's disappointed, I don't think
she's dumb as a board like the other two are. I mean, where's
the sorry almost swore on your podcast, where's the why is Latina when we
need her? Here's another thing that comes out of the opinions today yesterday is
the Democrats quest for racial diversity. It leads to them appointing not their best
people to the court if anything, Sodo mayor KBJ. Their pinions are so
out there right there, so critical race theorists themselves. Nobody in the middle
who might be persuadable, like a Roberts or Capital is ever going to join
them. It's it's wonderful or Mary Garner. I don't know. I thought
that so long, is that this is going to backfire on them, right,
yes, exactly, because they are elevating, as they have in the
university's diversity above the actual things that you're supposed to, you know, the
actual ends like excellence or intelligence. Right there, they've turned diversity into their
ends, not a means, which is what Lucretia was just saying, yes,
yeah, well it's one of their ends. I also think that it
is in and of itself as a means because it allows them to socially engineered
society and the way they want it. And you know, that's that's the
argument I often give to people when they you know, they say, well,
because of racial discrimination and the legacy of slavery and so forth, we
need to do this. The point of the matter is the majority or the
people in power, can every single time change their minds and decide, you
know what, we no longer want to protect blacks. We want to protect
Asians, even though they don't have personalities. But I mean, that's the
point of power. If it hasn't if it's not based upon principle, it
can be turned in any way the people in power wanted to. And that's
really the underlying issue here. So the affirmative action cases are two hundred and
thirty seven pages the opinions, so it's long. The others are shorter.
But that's a lot to get through. And we could go on forever about
this, but I think we should draw a end to this for now.
But what else happened this week? Anything else? I'm kind of I got
to hang out, well, that's right, we got to hang out with
the fence We were a great conference here. The reason we're all together is
we put together a conference at our Public Law Center here at Berkeley, bringing
together Italians and Latin Americans. The Latin Americans in particular are pro free market
professors and some Americans. And I think we had a great We had a
great conference, lovely people. We got serenaded with opera from Eduardo and didn't
did he sing on them? No? No, he surely correct about that.
He surely right about that. But you know, so I have to
say, does give us gives me perspective actually when I see what things are
like in Italy or Latin America, even though we have these great divisions,
even though to us, you know, things aren't so great. But god,
we're the greatest country. So I have I'm gonna do this quick,
I promised Steve. So I pushed Eduardo. We ended up the because it's
going to show after this, so I hate to kind of do this,
but this will maybe make people want to listen, we hope. So we
talked about AI with a little bit with Eduardo, and I was trying to
do this sort of comparative thing. And you know, their their emphasis is
on data privacy, at the at the you know, the root of AI
and my emphasis of course on the uses of AI and especially by the government.
And it was really interesting. He had no concerns whatsoever about how the
government might use AI for propaganda or for anything else, because he said,
oh, well, we have liberal democracies and separation of powers. The government's
not that powerful. And his entire argument was that he's much more worried about
the elon Musks and the Google. You know, Europeans are still trapped in
the Woodrow Wilson progressive world where there they feel a threat is big companies,
grand nations. Yeah, a powerful government not to protect liberty, but to
fight with companies. And this is why there are no great high tech companies
that you're yes, literally discussed as well. But I don't want to take
too much in way. Okay, So does that mean we have to say
no, well do I don't you know, I don't know that we have
a Camelism. Handy I have I don't have a camera. There's there's Biden.
Let's wait. Oh that's right. That's part of our sign off now
is yeah, it can be a Bidenism, but I have a gay Babylon.
Yeah, so you heard him murdered a week saying that, well,
prudent is clearly losing the war in Iraq. Yeah, I think there you
go. You don't need any other quotes than that. And the court is
not normal. The court is not normal. Okay, So my Babylon bee.
So it's a picture you have to kind of see. It is a
picture of CANTEENNGI. And then the headline is awkward. Supreme Court rules against
a fermative action with a firmative action higher sitting right there. Oh that is
brutal. It's brutal, but I love it, all right, change I
go, Let's go away. Let's go Brandon always drink your whisky meat and
I never get this fun life. Well, there's don't forget to melt the
soft serve power dividend. And let's let the anglophile say it. And God
saved the queen man. All right, let's finish our maker's mark and go
have dinner. Ricochet joined the conversation