WEBVTT 1 00:00:01.760 --> 00:00:09.160 Well, Whiskey coming Fame, my Paine, my Brain, Whiskey, Let 2 00:00:09.279 --> 00:00:16.440 Me Go. From Powerline blog dot com and produced by wikochet dot com. 3 00:00:16.679 --> 00:00:23.480 This is the three Whiskey Happy Hour with your bartenders Steve Hayward, John You 4 00:00:24.120 --> 00:00:30.960 and Powerlines International Woman of Mystery Lucresia. You gotta give in and let that 5 00:00:31.079 --> 00:00:40.320 whiskey blow where you've been in love down in Low Well, gang, it 6 00:00:40.359 --> 00:00:43.359 was worth it to wait till the last week of the term. What a 7 00:00:43.439 --> 00:00:48.200 big bang, and listeners, it's a rare week because John and Lucretia and 8 00:00:48.240 --> 00:00:51.960 I are together in person. Sorry, we get to and we've got our 9 00:00:52.000 --> 00:00:56.039 maker's mark port. Cheers, everybody here, cheers. After weeks of disappointment 10 00:00:56.079 --> 00:00:59.600 from the court, this week we just got a clean sweep. And by 11 00:00:59.640 --> 00:01:00.719 the way, I think, I mean, I had about ten takeaways from 12 00:01:00.719 --> 00:01:03.879 the affirmative action case. But how do you guys want to start, I 13 00:01:03.879 --> 00:01:10.480 mean, aside from More versus Harper at the beginning of the week. Yeah, 14 00:01:10.519 --> 00:01:14.000 so it wasn't a clean suite. Well, Thursday and Friday and you 15 00:01:14.000 --> 00:01:15.840 know what, I'm not even going to try to talk about that other than 16 00:01:15.959 --> 00:01:23.000 John and I had a lovely conversation about how and this is where John's actually 17 00:01:23.040 --> 00:01:29.040 the expert because of his experience on the court as a clerk, talking about 18 00:01:29.079 --> 00:01:38.159 how every decision that Roberts makes on a procedural issue rather than on the merits, 19 00:01:38.040 --> 00:01:44.560 ends up benefiting the left in some way, and so More versus Harper 20 00:01:44.599 --> 00:01:47.719 we talked about it once before, is a case having to do with the 21 00:01:47.799 --> 00:01:51.239 redistricting, and then the court step in and I don't want to go to 22 00:01:51.359 --> 00:01:55.519 the whole thing because we'd spend all day explaining it. But I mentioned to 23 00:01:55.599 --> 00:02:00.640 John that it was very frustrating because they never should have taken that damn case 24 00:02:00.680 --> 00:02:05.959 in the first place. Yeah, okahute. But I thought what you were 25 00:02:06.000 --> 00:02:09.159 going to say, Lucrestia, was that I was right in my guide on 26 00:02:09.199 --> 00:02:14.159 how to understand the moderate mind, which it is, which is hard, 27 00:02:14.240 --> 00:02:17.800 which is hard to understand. I wanted you to say that which is right. 28 00:02:19.000 --> 00:02:23.000 Every time they did something giving a victory to the left, like More 29 00:02:23.159 --> 00:02:27.199 versus Harper, Alabama and redistricting, I knew we were going to win the 30 00:02:27.240 --> 00:02:32.400 affirmative action case. They were creating a kind of shield for themselves to say, 31 00:02:32.439 --> 00:02:36.960 we're not that conservative. So when we get to affirmative action. When 32 00:02:36.960 --> 00:02:40.599 we get to the Biden student you know, student loan cancelation program, where 33 00:02:40.680 --> 00:02:45.240 we can do the conservative thing because we gave some stuff to the liberals and 34 00:02:45.280 --> 00:02:49.719 so we can be right that yellow dog in the middle of the road that 35 00:02:49.800 --> 00:02:53.759 gets run over all the time. And the problem with that is, as 36 00:02:53.800 --> 00:02:55.759 I've said before, I think I said it on the last case we discussed 37 00:02:55.759 --> 00:03:00.000 aboutstanding, is that they expect that as a result to that, that the 38 00:03:00.360 --> 00:03:06.520 left won't hate them, and they're wrong. Every single time. They does 39 00:03:06.560 --> 00:03:09.639 not buy them anything. It does not buy them the less good graces. 40 00:03:09.680 --> 00:03:13.159 It doesn't buy Biden News said, what does he say. It's not a 41 00:03:13.199 --> 00:03:16.080 normal it's not a normal court, well, not a normal president. But 42 00:03:16.159 --> 00:03:20.719 never mind that. Look, let's go through some some highlights of these things, 43 00:03:20.719 --> 00:03:23.000 though, I think, and then also we'll see if Lucretia can find 44 00:03:23.439 --> 00:03:28.479 a potential weakness in the Harvard opinion. She's not in her head already. 45 00:03:29.560 --> 00:03:31.280 It's still a good thing. Let me just say that before we get off 46 00:03:31.319 --> 00:03:35.039 on the wrong track. It's a good thing. But you go ahead in 47 00:03:35.240 --> 00:03:39.319 a firm ative action case. Lucretia's almost turned Chief Justice John Roberts into a 48 00:03:39.439 --> 00:03:46.599 natural law lawyer, where there's the color blindness principle the Constitution come from. 49 00:03:46.039 --> 00:03:49.919 Oh well we'll come to that. Let's take let's take this an order for 50 00:03:49.919 --> 00:03:53.080 a minute. I heard, I have heard, by the way, from 51 00:03:53.439 --> 00:03:58.759 someone in the courtroom that Roberts actually choked up reading his opinion. I mean, 52 00:03:58.759 --> 00:04:00.840 he really hates the stuff. And although I mean I can describe his 53 00:04:00.879 --> 00:04:05.319 opinion as being kind of procedural and following the precedents and applying strict scrutiny, 54 00:04:05.400 --> 00:04:10.159 but he throws down in a lot of places I think. And then Thomas 55 00:04:10.199 --> 00:04:15.159 and apparently Justice Jackson was like visibly angry while Thomas was reading his concurrence. 56 00:04:15.360 --> 00:04:19.439 Well, it's because he calls her a racist. I mean, well, 57 00:04:19.480 --> 00:04:25.600 I have a very big extra legal takeaway. I mean it's there, but 58 00:04:26.120 --> 00:04:29.439 it takes an effort to dawn on you. One of the things that is 59 00:04:29.480 --> 00:04:33.399 discussed and widely known by people who follow this is that the deference shown to 60 00:04:33.560 --> 00:04:39.120 universities on these affirmative action cases has always been something of an exception of strict 61 00:04:39.160 --> 00:04:42.959 scrutiny of civil rights laws. What do you how can you say that diversity 62 00:04:43.079 --> 00:04:46.160 is a compelling state interests? Well, but my point, you can see 63 00:04:46.160 --> 00:04:50.720 where I'm going with all this. My point is is that this case pretty 64 00:04:50.759 --> 00:04:55.920 directly, not in so many words, but the implication is very strong that 65 00:04:56.240 --> 00:04:59.519 well, here's why I put it. This is a blow to the legitimacy 66 00:04:59.600 --> 00:05:02.800 and at us of our universities. Yeah, and that's the subtext of so 67 00:05:02.879 --> 00:05:06.040 much of it. No, you know, we've you your message to us 68 00:05:06.079 --> 00:05:09.040 as a man, and I think this is one of the lines of Robert's 69 00:05:09.079 --> 00:05:12.800 opinion. Your line to us has been trust us, and the rest opinion 70 00:05:12.920 --> 00:05:15.560 is, no, we're not trusting you anymore because you're operating in such bad 71 00:05:15.639 --> 00:05:20.040 faith and your reasoning is so bad. Uh. And so I mean that 72 00:05:20.120 --> 00:05:24.279 part was fun, and I think, uh, you know, I think 73 00:05:24.319 --> 00:05:29.079 this is a major turning point, um in uh, a whole lot of 74 00:05:29.879 --> 00:05:34.120 aspects of beyond just admissions to college education. Well, who do you guys 75 00:05:34.120 --> 00:05:38.279 passing around books? We're sitting in my office. I had a lot of 76 00:05:38.279 --> 00:05:42.000 books, a lot of that I'm gonna get rid of. So I was 77 00:05:42.199 --> 00:05:47.519 offering the creation content. Star Maker's mark is really nice. By the way, 78 00:05:47.560 --> 00:05:55.279 You've got some more coming yours. I got plenty. So this is 79 00:05:55.279 --> 00:05:58.720 what this is This is kind of an interesting thing. I was thinking was 80 00:05:59.040 --> 00:06:04.680 if you think about the two biggest decisions conservatives wanted to overrule, we've done 81 00:06:04.680 --> 00:06:10.839 it now, Row versus Weighed last year and Backy this year. Yeah. 82 00:06:10.920 --> 00:06:15.079 So it's almost like the conservative movement has really achieved what it's And both of 83 00:06:15.120 --> 00:06:18.680 those cases are from the seventies. It's been a fifty year campaign. Yeah, 84 00:06:18.800 --> 00:06:23.839 And I think now the conservative legal movement is gonna I think it's going 85 00:06:23.920 --> 00:06:26.720 to look for direction. I mean, you're going to see other cases this 86 00:06:26.879 --> 00:06:30.800 termpoint some of the direction, like religious liberties is something they care about. 87 00:06:30.120 --> 00:06:33.360 Cutting back the administrative state the obviously care about. But these are not on 88 00:06:33.399 --> 00:06:39.680 a par with reversive Row and reversing back. They're not. But Edward Bloom 89 00:06:40.480 --> 00:06:46.240 was interviewed by The New York Sun saying that his next his next target, 90 00:06:46.279 --> 00:06:49.439 shall we say, is actually going to be the d EI regime, which 91 00:06:49.480 --> 00:06:53.680 ones I just for a moment want to go back to what Steve was saying 92 00:06:53.680 --> 00:06:58.639 about that, because and remind us the one thing that I've ever given Steve 93 00:06:58.839 --> 00:07:03.120 actual credit for being clever about. I'm part of the readers can't listeners can't 94 00:07:03.120 --> 00:07:12.560 see I'm boring Steve a double shot right before Lucretia launches her attack. No, 95 00:07:12.879 --> 00:07:15.920 that was one of those. They called it a left handed compliment where 96 00:07:15.920 --> 00:07:18.040 I actually complimented Steve, but made sure that I did it in a way 97 00:07:18.040 --> 00:07:25.879 that insulted him. So the point is is that when you said that the 98 00:07:26.040 --> 00:07:32.040 universities were able to survive strict scrutiny by the weakest of all possible rationale, 99 00:07:32.120 --> 00:07:36.800 the weakest compelling state interests that you could imagine, which is a stupid idea 100 00:07:36.800 --> 00:07:41.680 of diversity. And remember when we did our thing on after the oral arguments 101 00:07:41.759 --> 00:07:45.759 on this case, on the Harvard case, we talked at some length about 102 00:07:46.040 --> 00:07:54.040 how I believe it was Alito and Thomas especially tried to elicit a response from 103 00:07:54.040 --> 00:07:58.959 the government from the solicitor general from Harvard about what can you tell us why 104 00:07:59.120 --> 00:08:05.360 diversity is so important? Okay? And so what Steve had said about Baki 105 00:08:05.680 --> 00:08:09.560 is that the mist the really if Baki had just gone ahead and upheld quotas, 106 00:08:09.800 --> 00:08:13.399 we would have been so much better off because it did in fact create 107 00:08:13.560 --> 00:08:18.720 in universities, which as we know now has spread to corporations and whatnot. 108 00:08:18.399 --> 00:08:24.839 The diversity regime, the diverse that is, there is no questioning diversity. 109 00:08:24.920 --> 00:08:31.120 You cannot doubt that diversity is a good thing. You really, I mean, 110 00:08:31.160 --> 00:08:35.399 it's it's it's practically a capital crime to deny that, and so what 111 00:08:35.440 --> 00:08:37.919 I would The reason I brought it up, though, was so that I 112 00:08:37.919 --> 00:08:43.919 could get to my one criticism of Roberts in this Steve says, it's just 113 00:08:43.000 --> 00:08:46.320 a footnote. I shouldn't make so much of it. But since he told 114 00:08:46.320 --> 00:08:50.919 me that two days ago, I have seen a dozen including in the briefing 115 00:08:50.919 --> 00:08:56.080 I got this morning from the Secretary of the Army, very much made out 116 00:08:56.120 --> 00:09:01.519 of the little carve out that Roberts gave to the military academy. They're just 117 00:09:01.720 --> 00:09:03.960 that's just wishful thinking on their part. It's not a carve out. That's 118 00:09:05.000 --> 00:09:07.639 a very standard lawyer thing to do is to say, get it, yeah, 119 00:09:07.879 --> 00:09:13.080 there's we just remember what who is you know, the dumbest person on 120 00:09:13.120 --> 00:09:20.279 the coil. That's tough, but I'm sure. But she actually calls him 121 00:09:20.279 --> 00:09:22.559 out and she says, on the one hand, you want to say that 122 00:09:22.639 --> 00:09:28.960 this is a that affirmative action, that the quest for diversity and counting by 123 00:09:28.080 --> 00:09:33.519 race is a violated the Fourteenth Amendment, but you won't reach the issue of 124 00:09:33.559 --> 00:09:39.639 it in in uh service academies, where it's so much more important that they 125 00:09:39.679 --> 00:09:41.759 have diversity. And there's all these reasons. But she comes back and she 126 00:09:41.840 --> 00:09:45.960 says, you're a hypocrite. You can't, on the one hand, have 127 00:09:46.000 --> 00:09:50.960 a principled stance against counting by race and then say, well, there's something 128 00:09:52.000 --> 00:09:56.039 about military academies that that I think that's over reading the footnote. The footnote 129 00:09:56.039 --> 00:10:01.480 just says we're not deciding military academies because are not beforce. But well, 130 00:10:01.519 --> 00:10:05.679 you know, I'm sure that a conservatives them at the Supreme Court. They 131 00:10:05.679 --> 00:10:09.480 weren't at part of the lower trial. They're going to be at the They'll 132 00:10:09.519 --> 00:10:13.440 they'll be a case coming next year, the year after, I'm sure, 133 00:10:13.759 --> 00:10:16.840 And I can't see how the military academies are going to wriggle out of this 134 00:10:16.840 --> 00:10:20.039 one. But Roberts is just doing the lawyerly thing, which is we're not 135 00:10:20.679 --> 00:10:26.279 deciding issues that aren't before. Well here, well here's why, because the 136 00:10:26.360 --> 00:10:28.600 centers you're going to bring it up and so you don't want to leave it 137 00:10:28.639 --> 00:10:31.960 on address. Yet we just say, oh, there's just you cannot count 138 00:10:31.360 --> 00:10:35.120 raise in any kind of educational and leave it at that. Well, all 139 00:10:35.200 --> 00:10:37.840 right, I mean, because I'm not a lawyer, that's why, well 140 00:10:37.879 --> 00:10:43.120 I think I look, I don't blame him for it was not brought up 141 00:10:43.120 --> 00:10:46.279 a trial. It was only brought up by the Biden administration at the Supreme 142 00:10:46.279 --> 00:10:48.720 Court level. You're not supposed to introduce new issues at that level. So 143 00:10:48.720 --> 00:10:50.759 there's a red hair that, by the way, well on the whole lot 144 00:10:50.799 --> 00:10:54.639 that shows you how weak their case was, that they're reaching for anything. 145 00:10:54.559 --> 00:10:58.679 But there was the part of the opinion where Robert says, there's really only 146 00:10:58.679 --> 00:11:05.240 two places in the law where race specific remedies are acceptable. One iss when 147 00:11:05.240 --> 00:11:11.200 we're remediating a specific injury, Yeah you suffered to segregate, are you suffered? 148 00:11:11.360 --> 00:11:13.000 Exactly? And the second one, which I hadn't thought about before, 149 00:11:13.159 --> 00:11:18.639 was segregation of inmates by race in prisons when there's risks of race riots. 150 00:11:18.720 --> 00:11:20.840 No, no fact they actually say the court in the past has said we 151 00:11:20.879 --> 00:11:24.279 won't even let you use race. Then that's a remarkable thing, is that 152 00:11:24.840 --> 00:11:30.799 the Court has already said we overrule Krematsu. You can't use national security as 153 00:11:30.840 --> 00:11:33.559 a defense. So that seems to wipe out the military cabbies, and know 154 00:11:33.639 --> 00:11:37.720 they say enforcement is not allowed to use race to stop race riots in prisons 155 00:11:39.000 --> 00:11:43.519 because there because a lot of grant gangs are race based, and so you're 156 00:11:43.559 --> 00:11:48.000 not Actually this is amazing, and you're not allowed to use race to segregate 157 00:11:48.039 --> 00:11:52.840 them in their prisons. But I thought that because because the conservatives want to 158 00:11:52.879 --> 00:12:00.240 have a uniform rule without any exceptions for color blindness. Well, no, 159 00:12:00.399 --> 00:12:05.679 I think that it's fine to have an exception if it's really truly a compelling 160 00:12:05.720 --> 00:12:11.559 state interest that would allow an exception to the general principle that the Constitution, 161 00:12:11.600 --> 00:12:16.600 the fourteenth Amendment equal protection clubs, does not allow you to discriminate on the 162 00:12:16.639 --> 00:12:20.759 basis of race, and you bring strict scrutiny and the government must show a 163 00:12:20.799 --> 00:12:26.639 compelling state interest. That's how our jurisprudence works, right. But again, 164 00:12:26.679 --> 00:12:33.600 the problem has been that four universities and then it's filtered into other things. 165 00:12:33.919 --> 00:12:39.480 They allowed that stupid idea that diversity could somehow be a compelling state interest. 166 00:12:39.559 --> 00:12:43.039 It started, of course, in backing by saying that it was a First 167 00:12:43.080 --> 00:12:48.360 Amendment interest, you know, the academic freedom and all of that, to 168 00:12:48.440 --> 00:12:52.879 have a diverse student body and we're not going to second guess universities and their 169 00:12:52.919 --> 00:12:56.840 decisions. But as you just pointed out, they said we are going to 170 00:12:56.960 --> 00:13:05.120 second guess on national security. How does university's academic freedom take a higher place 171 00:13:05.279 --> 00:13:09.600 in consideration than say, national security does as a compelling state interest? It 172 00:13:09.639 --> 00:13:13.399 makes no sense. Well can I Well, well, I was gonna can 173 00:13:13.480 --> 00:13:18.360 I just summarize in two sentences or one sentence that one of the things I 174 00:13:18.399 --> 00:13:22.480 think is great about Robert's opinion is he goes through the sordid history of the 175 00:13:22.480 --> 00:13:26.320 Bachi case and how it metastasized and got worse and worse as time went on. 176 00:13:26.799 --> 00:13:30.879 So you know, we overruled Blacky. I thought, Lucretia you were 177 00:13:31.039 --> 00:13:33.399 did you want to comment on that, joinre this sort of I was going 178 00:13:33.440 --> 00:13:37.480 to say, you, clearmonk I should love this opinion because it basically traces 179 00:13:37.919 --> 00:13:41.759 oh colorblindness from the Declaration of Independence. Well, I'm coming to that through 180 00:13:41.080 --> 00:13:46.720 the ending Bella period, through the Civil War, through link and through reconstruction, 181 00:13:46.799 --> 00:13:50.279 through the civil rights movement. And I thought this was why I think 182 00:13:50.320 --> 00:13:54.080 this is his best opinion ever so far, maybe the best opinion he will 183 00:13:54.120 --> 00:13:56.639 ever write. Yes, he says, I mean he was gonna say in 184 00:13:56.679 --> 00:14:01.600 this worst but this is the structure of the opinion is this is the simple, 185 00:14:01.720 --> 00:14:05.039 clear rule color blindness. Every time the court deviated from it, we 186 00:14:05.039 --> 00:14:11.200 wrought destruction on the country dred Scott plus e versus Ferguson and now this case 187 00:14:11.559 --> 00:14:16.279 backy. So he said, just we should have learned our lesson, wipe 188 00:14:16.279 --> 00:14:18.879 it out, and let's get out of the business. He calls it the 189 00:14:18.960 --> 00:14:24.159 sort of business of sorting Americans bright race. Well, and that's what most 190 00:14:24.159 --> 00:14:26.679 of the that's why it goes through all that history. He doesn't see it 191 00:14:26.720 --> 00:14:30.679 that way, but he wants to show the American people every time we thought 192 00:14:30.799 --> 00:14:35.279 we were so smart as a people that we could manipulate race to achieve some 193 00:14:35.399 --> 00:14:39.360 greater social goal, like your diversity, it's been a disaster. Well, 194 00:14:39.399 --> 00:14:43.840 I thought, I do want to talk a little bit about the compare and 195 00:14:43.919 --> 00:14:50.120 contrast Robert's opinion from Thomas's concurrence. But I want to follow up on Lucretia's 196 00:14:52.039 --> 00:14:54.639 bringing up the little footnote about military academies. That's not the part I thought 197 00:14:54.679 --> 00:15:00.919 you were going to grab onto as a possible vulnerability. So when I heard 198 00:15:00.960 --> 00:15:05.240 the opinion was out. I wanted to say, I wanted to look for 199 00:15:05.399 --> 00:15:07.879 like the Bocki case. I remember when Backie came out in nineteen seventy eight. 200 00:15:07.919 --> 00:15:09.759 I was in college then, and it was kind of calm. They 201 00:15:09.759 --> 00:15:13.960 did what okay, the listeners. You know, that's luckily for humanity. 202 00:15:15.399 --> 00:15:20.080 When Steve decided not to become a doctor, we found out he wasn't getting 203 00:15:20.080 --> 00:15:26.039 into UC Davis, a medical school. Well wait a minute, okay, 204 00:15:26.080 --> 00:15:28.440 you finish. I have a funny thing to tell John. Well, all 205 00:15:28.559 --> 00:15:31.159 right, I thought, so I was looking for is there going to be 206 00:15:31.200 --> 00:15:35.519 a Backy like loophole? And at the end of the syllabus of the case, 207 00:15:37.000 --> 00:15:39.720 Robert says the following, I'll read it here. At the same time, 208 00:15:41.039 --> 00:15:46.679 nothing prohibits universities from considering an applicants discussion of how race affected the applicant's 209 00:15:46.759 --> 00:15:52.720 life, so long as that discussion is concretely tied to a quality of character 210 00:15:52.879 --> 00:15:58.960 or unique ability that the particular applicant can contribute to the university. Now, 211 00:15:58.200 --> 00:16:02.120 I think if you think that language, it makes it this individual thing, 212 00:16:02.200 --> 00:16:04.840 not a racial thing. However, Harvard and other places went off right away, 213 00:16:04.879 --> 00:16:08.159 and and so to mayor in the descent, he said, oh, 214 00:16:08.159 --> 00:16:11.919 you know, there's a little pool here. We can just we can figure 215 00:16:11.919 --> 00:16:14.399 out, we'll have these essays. We're going to sort of go on essays. 216 00:16:14.440 --> 00:16:18.480 And in the final revision Robert slams the door on that pretty hard. 217 00:16:18.639 --> 00:16:22.919 And I think this is we're sharing with listeners who let me let me scroll 218 00:16:22.960 --> 00:16:26.759 to here. It's on page thirty nine sing. I think the point here 219 00:16:26.000 --> 00:16:32.360 is that there's a great line and you could see why Roberts was just exasperated 220 00:16:32.399 --> 00:16:36.320 with the dissenters, where he says, oh, the dissenters think they're giving 221 00:16:36.399 --> 00:16:40.000 legal advice to all the college emissions officers in the country on how to evade 222 00:16:40.000 --> 00:16:42.320 our decision. And he has this great line. He says, you know, 223 00:16:42.440 --> 00:16:47.519 people should seek should not seek the legal counsel from the dissenters on a 224 00:16:47.559 --> 00:16:52.519 losing Supreme Court case. Yeah, so are it was so awesome. That's 225 00:16:52.519 --> 00:16:55.399 that's Robert's at his finest. Yeah, here's the passage. Here's the whole 226 00:16:55.399 --> 00:16:56.519 part, well, not the whole thing, but the relevant part. But 227 00:16:57.320 --> 00:17:04.440 despite the dissens assertion to the contrary, universities may not simply establish through application 228 00:17:04.599 --> 00:17:11.039 essays or other means the regime we hold unlawful today, and in parentheses, 229 00:17:11.359 --> 00:17:14.920 a dissenting opinion is generally not the best source of legal advice on how to 230 00:17:14.960 --> 00:17:18.599 comply with the majority opinion. And then he quotes, what's the what's the 231 00:17:18.680 --> 00:17:22.279 is it so one of the old martial cases quote what cannot be done directly 232 00:17:22.319 --> 00:17:26.079 cannot be done indirectly? Right. Let's say this is interesting because of the 233 00:17:26.359 --> 00:17:32.519 Conservatives generally are against desperate impact, where you can bring a racial discrimination claim 234 00:17:32.599 --> 00:17:37.720 just based on a statistical imbalance and races. Basically, Roberts is saying it's 235 00:17:37.759 --> 00:17:45.160 going to be okay to sue universities after this using desperate impact information because if 236 00:17:45.160 --> 00:17:48.359 I'm an Asian kid, suppose I mean I don't get into Harvard. So 237 00:17:48.359 --> 00:17:52.279 what I'll do now? This is of course something that never happened to me 238 00:17:52.359 --> 00:17:56.359 personally. Betimes, I was an Asian kid and I dike end to Harvard, 239 00:17:56.920 --> 00:18:00.119 and uh, you know, I I see this new rule. Oh 240 00:18:00.160 --> 00:18:04.359 Taco, you can talk about race in your application. Essay. I think 241 00:18:04.440 --> 00:18:08.359 Roberts is saying, after our decision, if the percentage of Asians and the 242 00:18:08.400 --> 00:18:12.519 Harvard class stays in this eighteen percent to twenty percent range then come along and 243 00:18:12.519 --> 00:18:17.759 claim that they're indirectly using these essays to keep you down, and Roberts is 244 00:18:17.759 --> 00:18:19.799 saying, you're going to get in the courthouse door. This is like every 245 00:18:19.839 --> 00:18:25.200 little thing that Harvard tries to do to evade this decision is going to be 246 00:18:25.240 --> 00:18:29.559 the subject of a lawsuit one. So maybe we've just turned disparate impact on 247 00:18:29.599 --> 00:18:33.680 the Grigson's power on its head. I don't want to do it that way, 248 00:18:33.759 --> 00:18:37.759 but okay, it's hardly Yeah, how else could you? That's a 249 00:18:37.799 --> 00:18:41.119 problem. So so this morning I got on the elevator in the hotel and 250 00:18:41.480 --> 00:18:47.480 it stopped at another floor and this very nice Asian family, wife and a 251 00:18:47.559 --> 00:18:51.319 husband and probably a little seven year old boy. This baseball cap is a 252 00:18:51.359 --> 00:18:57.599 little backpack on, and he had on a Harvard sweatshirt. And I came 253 00:18:57.720 --> 00:19:00.880 this close to saying, you have a chance of getting in now, did 254 00:19:02.359 --> 00:19:06.240 that? But I didn't, because you know it's perfectly but would not. 255 00:19:06.680 --> 00:19:08.200 I would take a picture for you, but that would have been a lot 256 00:19:08.240 --> 00:19:14.920 of creepy to been awesome. But I think that's I mean, if you 257 00:19:14.920 --> 00:19:18.319 want to talk about what's going to happen in the future, right, these 258 00:19:18.400 --> 00:19:22.559 universities. We all work at them. We know what our colleagues and administrators 259 00:19:22.599 --> 00:19:25.720 are going to try to do. They're going to try to hit racial targets, 260 00:19:25.759 --> 00:19:27.680 but not use race. They're going to try to get rid of tests. 261 00:19:27.720 --> 00:19:30.160 They're going to try to make it holistic, and they're going to keep 262 00:19:30.240 --> 00:19:33.680 no records. There'll be nothing on paper, there'll be no emails, there's 263 00:19:33.720 --> 00:19:38.440 no proof. So the only way you could prove Roberts is claim here, 264 00:19:38.480 --> 00:19:42.559 you know, opening the door here is to say Harvard did all these things, 265 00:19:42.559 --> 00:19:45.759 and look, Asians and whites are the exact same percentage as they were 266 00:19:45.839 --> 00:19:51.039 before. Yeah. Sa, So there's got to be something funny going. 267 00:19:51.200 --> 00:19:55.359 I think, you know, I think the figures are Stanford and Princeton are 268 00:19:55.400 --> 00:20:02.359 boasting that their next class is twenty two percent Why in a population is still 269 00:20:02.400 --> 00:20:07.839 fifty five fifty a sixty percent white. There's a higher proportion of Hispanics in 270 00:20:07.880 --> 00:20:11.519 the entering class at Stanford, understand than whites and a lot of Smacks in 271 00:20:11.559 --> 00:20:15.000 California. But but it's a national university, it's not just drawing from the 272 00:20:15.039 --> 00:20:18.480 state. And so at some point that you're gonna that's gonna leave them vulnerable 273 00:20:18.519 --> 00:20:22.400 to some lea. So what about the I've seen a bunch of articles on 274 00:20:22.440 --> 00:20:26.759 this one too. What about the legacy admissions? That's what people are really 275 00:20:27.119 --> 00:20:32.240 Okay, Maybe this is the thing about the opinion. It doesn't say you 276 00:20:32.279 --> 00:20:36.559 can't use any other factor for admissions. It just as you can't use race, 277 00:20:36.720 --> 00:20:40.839 so you can use geography socioeconomics. In fact, that's a lot of 278 00:20:40.880 --> 00:20:48.960 the exchange between Thomas and a contingent get Brown Jackson some trouble getting it out. 279 00:20:48.359 --> 00:20:55.720 Baker's mark has a hard time because contingent Brown Jackson basically says it's all 280 00:20:55.880 --> 00:21:00.240 race. She she actually issues she has, you know, the six ten 281 00:21:00.359 --> 00:21:03.400 nineteen project descent, and we have a critical race theorist on the court right. 282 00:21:03.799 --> 00:21:10.039 And Thomas's response is, no, race is not the all encompassing explanation 283 00:21:10.079 --> 00:21:12.839 about how people do. He basically suggests it's more likely to be class. 284 00:21:14.000 --> 00:21:17.359 It's more whether you're poor or whether your parents went to college. And he 285 00:21:17.359 --> 00:21:21.000 says you have to work hard to overcome it. But his point is, 286 00:21:21.039 --> 00:21:23.160 and I think this is true. I think all the members, members of 287 00:21:23.160 --> 00:21:30.599 the majority opinion would support socioeconomic preferences. So just out of curiosity. At 288 00:21:30.640 --> 00:21:36.920 what point do we stop saying that any of those kinds of things matters legacy, 289 00:21:37.519 --> 00:21:44.359 enrollments, socioeconomic background, etc. Etc. To get in To get 290 00:21:44.400 --> 00:21:49.799 in Now, if you're a poor person and you've demonstrated the incredible aptitude that 291 00:21:49.839 --> 00:21:55.920 you're likely to be a huge success you've demonstrated through merit, then you know, 292 00:21:56.039 --> 00:22:00.559 step up and provide them with some financial aid, some scholarship, whatever. 293 00:22:00.640 --> 00:22:03.480 But at what point are we going to just go back to merit? 294 00:22:04.359 --> 00:22:07.920 Well then, and that of course is part of the problem, John, 295 00:22:07.960 --> 00:22:15.920 because tests are only a a faulty, a partially faulty way of determining merit. 296 00:22:15.000 --> 00:22:19.400 Right, Um, you know you can't go just by GPA because there's 297 00:22:19.480 --> 00:22:26.440 great, great inflation across high schools. You can't go with just keep calling 298 00:22:26.279 --> 00:22:30.240 Steve. What is that? It's a GoPro camera people. People want to 299 00:22:30.279 --> 00:22:32.359 have video, I mean, not what you post it, but it's like 300 00:22:32.400 --> 00:22:41.359 Steve's placing surveillance devices. You miss a discussion with Eduardo about data privacy and 301 00:22:41.400 --> 00:22:45.200 everything that the government's collecting on us, But we won't go into that now 302 00:22:45.200 --> 00:22:49.640 because we have more interesting things to say about all of these court cases. 303 00:22:51.359 --> 00:22:55.559 What you see. One other things I just wanted to point out was this 304 00:22:55.720 --> 00:23:00.839 exchange between KBJ and Justice Thomas, because she really says, I mean, 305 00:23:00.880 --> 00:23:03.279 I thought it was a really quite striking and worth reading. Is she points 306 00:23:03.319 --> 00:23:10.240 to all these differences between blacks and whites, basically education, wealth, healthcare, 307 00:23:10.640 --> 00:23:12.920 and she attributes it all to slavery and racism. And so, in 308 00:23:12.960 --> 00:23:17.799 her view, after all the bad things white people have done to Asian I'm 309 00:23:17.799 --> 00:23:22.039 sorry to blacks. Asians are the blacks and are continuing to do now because 310 00:23:22.039 --> 00:23:25.240 she's saying people are still racious. Yea, they don't even know they're doing 311 00:23:25.279 --> 00:23:29.440 it. It's all unconscious bias. Then what's a little thing like affirmative action 312 00:23:29.559 --> 00:23:33.400 to make up for it? And Thomas, I mean some of the language 313 00:23:33.400 --> 00:23:37.480 he uses as of a kind I have not seen in Supreme Court opinions and 314 00:23:37.359 --> 00:23:45.720 several generations where he basically one thing he says is Justice Jackson is stereotyping people 315 00:23:45.839 --> 00:23:51.920 by race, and therefore is you know, has the same bias and mentality 316 00:23:52.160 --> 00:23:56.000 that segregation has happened. That's because she's an overseer. And then the second 317 00:23:56.000 --> 00:24:00.960 thing, that's what Harvard, all right, go ahead, And then the 318 00:24:00.960 --> 00:24:04.880 second thing, he says, I was quite incredible, is he said, 319 00:24:04.920 --> 00:24:08.559 Look, I can't think of a more damaging, harmful thing to do to 320 00:24:08.720 --> 00:24:14.400 young black kids than to tell them what she is telling them, that you're 321 00:24:14.440 --> 00:24:18.319 a victim. Nothing you do matters, you can't work hard, you can't 322 00:24:18.359 --> 00:24:22.079 achieve, the whole system is stacked against you. And he basically says, 323 00:24:22.400 --> 00:24:25.079 it seems to me. And this is like they start using the word I 324 00:24:25.319 --> 00:24:30.279 and my experiences, my experiences. You work hard, take advantage of your 325 00:24:30.359 --> 00:24:33.240 natural talents, and you will do better. That's how you get ahead, 326 00:24:33.319 --> 00:24:41.359 not by right squeezing resources out of the people you claim are white supremacists. 327 00:24:41.839 --> 00:24:45.880 Right. It was a very unbelievable exchange. Not that I think these things 328 00:24:45.880 --> 00:24:48.839 should be decided by the majority, but there have been a whole lot of 329 00:24:49.599 --> 00:24:56.039 public opinion surveys out there in the last day or so that indicate that sixty 330 00:24:56.200 --> 00:25:00.319 seventy percent of Americans absolutely support the courts decision. This again, that is 331 00:25:00.359 --> 00:25:04.599 not in and of itself decisive in my opinion, but there's a lot of 332 00:25:04.759 --> 00:25:08.640 good thinking out there about this. Why actually, I take Lucretia's point in 333 00:25:08.680 --> 00:25:15.480 different direction. I would say, and we've talked about this before. I 334 00:25:15.519 --> 00:25:21.880 think Dabbs fell on the conservative movement like a like a gigantic bomb. We 335 00:25:21.880 --> 00:25:25.759 were so unprepared to win Dobbs in a weird way, even though you could 336 00:25:25.759 --> 00:25:29.319 see the way things are going. And so they're parts of the country where 337 00:25:29.559 --> 00:25:33.599 Dobbs is unpopular and conservatives had no response, no legislation, no program. 338 00:25:34.319 --> 00:25:38.319 This decision, on the other hand, is going to be highly popular. 339 00:25:38.680 --> 00:25:41.880 Two thirds of the country is in favor of getting rid of the use of 340 00:25:41.960 --> 00:25:47.160 race. I think a majority of all races actually thinks we should get rid 341 00:25:47.160 --> 00:25:52.960 of the California, the most liberal state in the entire country, consistently refuses 342 00:25:52.279 --> 00:25:57.599 to endorse or to repeal or to you know, all of those things. 343 00:25:59.039 --> 00:26:03.440 Affirmative action, well, what I mean, fortune favors the well prepared, 344 00:26:03.680 --> 00:26:07.039 or that a version I heard once is luck is the residue of design. 345 00:26:07.079 --> 00:26:11.440 There's no luck here. This was practice. But none of us thought, 346 00:26:11.640 --> 00:26:15.400 I mean maybe by the time we heard about the League opinion and everything, 347 00:26:15.440 --> 00:26:18.720 we were starting to think it might do it. But we all thought with 348 00:26:18.799 --> 00:26:21.599 Dobbs, yeah, we all thought that it would be a Robert's decision. 349 00:26:21.640 --> 00:26:25.799 It would be it would be milk toast it would be because yeah, yeah, 350 00:26:25.920 --> 00:26:29.359 and and and not a single one of us, I think, really 351 00:26:29.400 --> 00:26:33.880 expected that it would be the solid decision that it was, which what is 352 00:26:33.920 --> 00:26:38.559 the reason why we were a little bit more prepared now for um, you 353 00:26:38.640 --> 00:26:45.720 know, so I just needed everybody to know that early in the morning because 354 00:26:45.720 --> 00:26:49.400 we're on the West coast the decision came out and I had just seen it 355 00:26:49.440 --> 00:26:56.440 too when we got all in caps from John a text message. They did 356 00:26:56.440 --> 00:27:04.039 it. The thing you guys knew exactly when I met. Yeah, I 357 00:27:04.119 --> 00:27:08.599 broke up like it's six fifty five yesterday and today because to read the opinions 358 00:27:08.720 --> 00:27:11.279 right when they came out. Well, look, I mean and I said, 359 00:27:11.480 --> 00:27:18.119 Fortune Favors are prepared. This case turned on, you know, literally 360 00:27:18.160 --> 00:27:21.240 decades. But in particular I got to it very hard. You know, 361 00:27:21.279 --> 00:27:26.559 the discovery work in the lawsuit right, getting into their admissions process of discovery 362 00:27:26.559 --> 00:27:30.839 phase was crucial. I remember talking to our late friend Will haunts Voys. 363 00:27:30.960 --> 00:27:33.319 It's a shame he wasn't didn't live long enough to see this get to the 364 00:27:33.480 --> 00:27:37.440 end, but he's watching from heaving. Yeah, and you know he did 365 00:27:37.440 --> 00:27:41.519 the discovery depositions. He and his team right and uh, and then you 366 00:27:41.559 --> 00:27:44.400 know the analyze ed blow him. You know what, range the organized the 367 00:27:44.440 --> 00:27:48.400 team to analyze the numbers. But then the other thing that it showed up 368 00:27:48.400 --> 00:27:52.559 in Justice Thomason's opinion, and I think he believes it. But secondly, 369 00:27:52.559 --> 00:27:56.880 I knew it would send Justice Jackson and so my oar into a rage. 370 00:27:56.960 --> 00:28:02.640 Was the mismatch hypothesis data that our friend Rick Sanders spearheaded starting more than a 371 00:28:02.680 --> 00:28:04.960 decade ago. By the riad, he's a liberal, by the way, 372 00:28:06.000 --> 00:28:10.680 but it so outraged at the cynicism of the admissions departments who only care about 373 00:28:10.680 --> 00:28:12.839 counting their numbers coming in, doesn't care how they do. Once they're they're 374 00:28:12.960 --> 00:28:15.519 right. And there's a great footnote. I think it might have Actually I'm 375 00:28:15.519 --> 00:28:18.119 not sure it's from Thomas or from Roberts saying, well, so of my 376 00:28:18.279 --> 00:28:22.759 r says missus Thomas. She says it's been debunked, but that's not really 377 00:28:22.799 --> 00:28:26.039 true, and he gives the reputation, says and by the way, if 378 00:28:26.160 --> 00:28:29.799 universities want to prove the mismatch is wrong, how about they release their data 379 00:28:29.960 --> 00:28:33.920 so we can really examine it. Because they stonewalled Rick Sanders all the way 380 00:28:33.920 --> 00:28:38.920 along on grades and passage rates and bar passage data. And because they your 381 00:28:38.920 --> 00:28:45.079 own, leaving out an important party that contributed to the win yesterday, which 382 00:28:45.160 --> 00:28:49.759 is hubristic college presidents and administrators. They I think they're the ones who tipped 383 00:28:49.799 --> 00:28:56.559 the Robert's Basi says, you've had over twenty years to produce proof that racial 384 00:28:56.559 --> 00:29:00.559 diversity does all the things you told the court multiple times. That leads to 385 00:29:00.599 --> 00:29:06.440 better classroom instruction, that better research leadership. Right, there's not a single 386 00:29:06.480 --> 00:29:10.680 study that shows a more diverse class gets better grades or does better scores on 387 00:29:10.720 --> 00:29:17.279 whatever task, not a single study. It's because diversity as well, not 388 00:29:17.279 --> 00:29:18.920 only, but it's a matter of faith. Why would you have to have 389 00:29:19.400 --> 00:29:25.559 why would you need to prove anything? Because if you're if diversity, I 390 00:29:25.599 --> 00:29:30.799 mean, it's diversity. And honestly that is so. You heard what the 391 00:29:30.839 --> 00:29:34.680 Harvard president said in his statement about it. Yeah, this has been a 392 00:29:34.720 --> 00:29:41.680 hard day. Oh god, kiss my. You know Harvard students have it 393 00:29:41.799 --> 00:29:45.440 so rough. You know, here's another thing they could see. This is 394 00:29:45.440 --> 00:29:48.559 the thing there. This is why they're also hubristic. Is another important point 395 00:29:48.680 --> 00:29:53.880 for Roberts I think is so the descent says you can use race when you 396 00:29:53.920 --> 00:29:59.079 give people benefits, you just can't consider race when you punish them. So 397 00:29:59.359 --> 00:30:02.880 why is this SUNG constitutional? You're giving a benefit for blacks and roberts is 398 00:30:03.000 --> 00:30:07.119 Another key point in his opinion is college emissions are not just giving benefits because 399 00:30:07.119 --> 00:30:11.440 there's zero SUNG, you know, benefits spreading. Everybody wants whites and Asians. 400 00:30:11.680 --> 00:30:15.720 This is where hubristic are hubristic colleagues come in? They won't increase their 401 00:30:15.759 --> 00:30:19.759 college class size exactly right. They have. I'm sure the population is almost 402 00:30:19.799 --> 00:30:23.839 doubled since backy, but I'm sure the Harvard class is not doubled or tripled. 403 00:30:25.119 --> 00:30:29.119 They could have made a good faith effort to make the class sizes bigger 404 00:30:29.519 --> 00:30:33.759 to reduce this zero sum idea, but they won't. So you know why? 405 00:30:33.559 --> 00:30:36.839 You know why? I don't remember. Actually I've always wondered why. 406 00:30:37.079 --> 00:30:41.000 No because the personality of Asians. No, no, no, that's not 407 00:30:41.519 --> 00:30:52.720 personality. I think it's people. I see yet again Lucretia set me up, 408 00:30:52.799 --> 00:30:55.759 just like last life. Yeah, I mean Harvard, I mean, 409 00:30:56.000 --> 00:30:57.799 you know the case is Harvard, Princeton, Yale, Stanford. They have 410 00:30:57.839 --> 00:31:02.720 this huge endowed They could raise all the money they want, and they could 411 00:31:02.720 --> 00:31:06.160 make their class size too much bigger exactly, they have their faculties three times 412 00:31:06.200 --> 00:31:08.559 bigger. Yeah, that's how would actually really, you know, take some 413 00:31:08.640 --> 00:31:11.680 of the out of Roberts. I still think Roberts would have decided the same 414 00:31:11.680 --> 00:31:15.920 way anyway, but I think that would make them less exclusive places. Yeah. 415 00:31:15.960 --> 00:31:18.759 No, that's that's why there's still hubris there. That's their hubris. 416 00:31:18.000 --> 00:31:22.079 Yeah. One of the other factors that played into Robert's opinion in such a 417 00:31:22.079 --> 00:31:26.000 great way, because by the way, I could not seriously criticize it. 418 00:31:26.000 --> 00:31:30.720 But Roberts's opinion is very workman like and strict scrutiny and all this one liners 419 00:31:30.799 --> 00:31:36.920 like, yeah, way to end discrimination by racist to stop. But one 420 00:31:36.920 --> 00:31:41.200 of his powerful parts of many is the Grutter time clock part. So the 421 00:31:41.400 --> 00:31:47.720 Grutter case twenty two years ago, Sandraday O'Connor and one of her confused moments 422 00:31:47.720 --> 00:31:51.799 said, Okay, we're gonna confused movements, as if most of them weren't. 423 00:31:52.000 --> 00:31:55.720 Let's leave that for another day. Her first several years on the court, 424 00:31:55.759 --> 00:31:57.160 she was pretty good, and then she started going to too many parties. 425 00:31:57.319 --> 00:32:01.200 Never mind, but remember the Amos line for listeners who may not recall 426 00:32:01.279 --> 00:32:05.519 it, is she said, okay, we'll let Michigan. I think its 427 00:32:05.559 --> 00:32:08.079 Michigan continue to use racial quotas, but really they ought to be gone in 428 00:32:08.119 --> 00:32:12.480 twenty five years, and that came up a lot in oral argument. It 429 00:32:12.559 --> 00:32:15.000 was quite clear that Harvard and UNC they didn't take this seriously. They didn't 430 00:32:15.000 --> 00:32:20.480 think that this was meant to be someone important well. Of course, and 431 00:32:21.039 --> 00:32:25.079 what Roberts makes clear in his opinion and the concurrences is it's pretty clear that 432 00:32:25.319 --> 00:32:30.000 these universities have no intention of ever phasing it out. Of course, public 433 00:32:30.119 --> 00:32:34.920 choice theory would tell you they wouldn't. This is actually a point Lucretia mentioned 434 00:32:34.920 --> 00:32:40.720 earlier about what's coming next, because what Roberts's opinion also talks about is how 435 00:32:40.839 --> 00:32:46.519 rather than winding down, the racial diversity has actually gotten more established, to 436 00:32:46.599 --> 00:32:52.119 run deeper into our institutions, more difficult to get rid of. And so 437 00:32:52.160 --> 00:32:55.839 that's, you know, Roberts is showing the direction lawsuits against these DEI initiatives 438 00:32:55.839 --> 00:33:02.960 in the universities and employers next, because d I should just if it's any 439 00:33:04.000 --> 00:33:07.039 justification for it at all, it would be that it's a temporary remedy needed 440 00:33:07.079 --> 00:33:12.680 to overcome the past, and over time it should disappear, whereas universities like 441 00:33:12.799 --> 00:33:15.359 Harvard or California. You see, you know, you see said at the 442 00:33:15.519 --> 00:33:19.960 court two, we're never going to tell you when racial diversity is achieved. 443 00:33:20.039 --> 00:33:23.440 We refuse to answer that. They refuse to answer the question what would be 444 00:33:23.960 --> 00:33:28.079 the actual and state of all this? So let me I don't want to 445 00:33:28.119 --> 00:33:30.640 get ahead of our host Steve and his plan for today, but I do 446 00:33:30.680 --> 00:33:35.160 want to ask you guys this because actually because my students asked me about this, 447 00:33:35.200 --> 00:33:39.680 and I used you guys as examples who are mentioned in the class a 448 00:33:39.759 --> 00:33:45.319 little bit. But but but hear me out. You have both mentioned that 449 00:33:45.119 --> 00:33:52.000 your esteemed employer asks you for diversity statements, right, and we now know 450 00:33:52.160 --> 00:33:58.559 that maybe we can question the religion of diversity, inclusion and equity. But 451 00:33:58.720 --> 00:34:04.079 also the next case on the docket here is the freedom of speech case. 452 00:34:04.559 --> 00:34:07.920 The website designer, it was Corsage made a very clear point that it's not 453 00:34:08.000 --> 00:34:12.599 a freedom of religion case, it's a freedom of speech case and that what 454 00:34:12.719 --> 00:34:15.920 government cannot do, which they said, what in the Jehovah's Witness case with 455 00:34:16.199 --> 00:34:21.800 what was that Barnett Barnett versus West Virginia that you can't compel speech. But 456 00:34:21.920 --> 00:34:27.039 you guys are being, as a condition of your employment, compelled to speak. 457 00:34:27.920 --> 00:34:29.920 Now, I know what you do. You do a lovely thing. 458 00:34:29.960 --> 00:34:31.599 When you're asked to do your diversity statement, right, you say, as 459 00:34:31.639 --> 00:34:37.599 the only conservative Asian on the entire law school faculty, I am diversity on 460 00:34:37.679 --> 00:34:40.960 campus soonified or something. A lot of those lines, but it's but still 461 00:34:42.239 --> 00:34:45.760 I agree. So I actually I totally read that case of same way as 462 00:34:45.840 --> 00:34:50.440 lucre Shaft. I read that three or three creative case which said the quest 463 00:34:50.480 --> 00:34:54.719 for diversity cannot overcome your right not to speak. I thought that actually might 464 00:34:54.920 --> 00:35:00.639 be the leaver for attacking these TEI policies. So think about it, supposed 465 00:35:00.639 --> 00:35:05.360 to work at the University of California, which says you've got to use five, 466 00:35:05.559 --> 00:35:08.719 ten, twenty five different pronouns. Right, Suppose you're a believer in 467 00:35:08.760 --> 00:35:12.639 the literal. You're a literal believer in the Bible. You only think there's 468 00:35:12.639 --> 00:35:16.039 two sexes. Why don't you say it's a violation of my predial. A 469 00:35:16.039 --> 00:35:22.280 believer in biology too, Okay, well, okay, no, but the 470 00:35:22.920 --> 00:35:24.679 right you could say it doesn't it doesn't have to be true if you just 471 00:35:24.719 --> 00:35:28.840 have this belief right, I got a religious believe free speech treat. You 472 00:35:28.840 --> 00:35:32.480 could say I refuse to use anything other than he or she right, and 473 00:35:32.920 --> 00:35:37.199 I'm three or three creative today? Points Wait, so, actually I think 474 00:35:37.239 --> 00:35:38.800 of my next Diversity of the Cruatia has inspired me. I didn't think of 475 00:35:38.800 --> 00:35:43.400 this, but I think this fall. I'm gonna say I refuse to answer 476 00:35:43.440 --> 00:35:47.760 the diversity question. Wouldn't it be so cool if they fired you? But 477 00:35:47.800 --> 00:35:53.400 what if they can make me an offer? But wouldn't it be if what 478 00:35:53.519 --> 00:35:59.239 if they moved you out of this lovely corner office and into a closet somewhere 479 00:35:59.480 --> 00:36:02.840 to put issue for your failure? Could you get standing before the court? 480 00:36:02.880 --> 00:36:06.079 Oh? Yeah, of course? But I was thinking what if you just 481 00:36:06.119 --> 00:36:09.480 say I refuse to answer? So lu Creastia is referring to Steve, and 482 00:36:09.559 --> 00:36:14.400 I have to file diversity statements serving now on that which say how have you 483 00:36:14.440 --> 00:36:15.880 added to the diversity of the campus. Yeah, I think La Crestia is 484 00:36:15.960 --> 00:36:20.079 right. What would happen if you said I refuse to answer this question because 485 00:36:20.519 --> 00:36:25.639 I do not believe that racial diversity achieves anything, and I will sue you 486 00:36:25.800 --> 00:36:30.920 if I don't get my whatever Okay, so office pay increase what our teaching 487 00:36:30.960 --> 00:36:35.719 requests. So my favorite constitutional scholar a good lawyer this year, I have 488 00:36:35.760 --> 00:36:39.519 a question for you. I'm getting I'm seeking free legal advice. So we 489 00:36:39.639 --> 00:36:45.119 do not at my university have to give diversity statements. But yeah, no 490 00:36:45.119 --> 00:36:51.239 no, wait wait wait, but we do have to buy both. Then 491 00:36:51.519 --> 00:36:59.719 the university requires that we ask three diversity questions on every search committee. Oh 492 00:36:59.800 --> 00:37:04.280 yeah, that's actually being challenged right now by the Pacific Legal Foundation. Yeah, 493 00:37:04.320 --> 00:37:07.079 the group I'm on the board of. Because there's a professor I think 494 00:37:07.159 --> 00:37:12.519 you see Santa Creue, Santa who was denied a job external job, and 495 00:37:12.559 --> 00:37:15.760 he's claiming it was because he at least diversity. But but but but actually 496 00:37:15.840 --> 00:37:22.719 that's not my question. My question is, can I refuse to ask diverse 497 00:37:22.239 --> 00:37:27.840 because you're required on every search committee when I'm doing interviews, Can I say 498 00:37:27.840 --> 00:37:31.480 it, can refuse to ask you and and and when they when they say 499 00:37:31.519 --> 00:37:35.360 you have to, I'm going to say you can't force him when they when 500 00:37:35.440 --> 00:37:37.719 Yeah, and then you can sue them. I can sue them and then 501 00:37:37.760 --> 00:37:40.239 retire. That'll be a great case. Yeah, you would make it, 502 00:37:40.280 --> 00:37:47.119 won't you couldn't You ask a diversity question when I have to. When I 503 00:37:47.119 --> 00:37:52.559 have a pair and the flop cards are straight, how would you play the 504 00:37:52.599 --> 00:37:55.280 hand? No, that's that's what they mean by diversity is but I do 505 00:37:55.400 --> 00:37:59.320 have to wait. This is a shout out in case you ever. Let's 506 00:37:59.559 --> 00:38:05.880 to it. I have I have an assistant dean who is the most amazing 507 00:38:06.320 --> 00:38:10.719 employee not only in my university but on the planet. On the planet, 508 00:38:12.000 --> 00:38:16.239 okay, And when she was interviewing for the job, she almost had me 509 00:38:16.440 --> 00:38:22.800 believing that she believed that nonsense on. I think it was the best answer 510 00:38:22.840 --> 00:38:25.400 I've ever heard. But I know her and she doesn't believe in any of 511 00:38:25.440 --> 00:38:29.960 it, any of it. Most people doing. It's our fliers out of 512 00:38:29.960 --> 00:38:32.320 everybody. Yeah, of course, that's like this, like the Soviet unions 513 00:38:34.199 --> 00:38:37.559 exactly. Yeah, that's why I sometimes refer to our East German universities. 514 00:38:37.719 --> 00:38:43.800 Right, So, well, all right, let's talk about the Biden students. 515 00:38:43.840 --> 00:38:46.519 Just going to bring that up next, the student loan giveaway. And 516 00:38:46.960 --> 00:38:50.440 I didn't I didn't even have a chance to look at the opinion at all. 517 00:38:50.480 --> 00:38:52.719 But my question was, why wasn't this easy? I mean, it 518 00:38:52.119 --> 00:38:59.000 was easy? Why? Well, yeah, that's because they're obviously just ideological 519 00:38:59.079 --> 00:39:04.199 hacks, and they have staked out a place on the Court where that's just 520 00:39:04.239 --> 00:39:07.639 what they're going to do. Right. Kagan thinks this is an attack on 521 00:39:07.719 --> 00:39:12.400 democracy, the idea that you make Congress vote on spending four hundred billion dollars. 522 00:39:12.559 --> 00:39:15.400 Why shouldn't it be up to the president. I think somebody cleverly quoted, 523 00:39:15.440 --> 00:39:17.719 I'm not sure if it was a concurrence in the majority opinion. Someone 524 00:39:17.800 --> 00:39:22.679 cleverly quoted Speaker of the House Nancy Pelosi saying, President, I can't do 525 00:39:22.719 --> 00:39:24.679 this. Congress has to do this. It's in the majority opin it's in 526 00:39:24.760 --> 00:39:30.760 the majority opinion by writer. That's that's that's cold. That's really cold. 527 00:39:30.840 --> 00:39:32.519 I mean, the one reassuring thing about the cases, it was almost a 528 00:39:32.639 --> 00:39:38.159 disputed that the fundamental constitutional principles, Congress controls the purse. So what I 529 00:39:38.239 --> 00:39:43.760 like to think about this case today, in the firmative action yesterday, is 530 00:39:43.800 --> 00:39:47.880 the Court is returning to making constitutional law clear and simple, color blind, 531 00:39:47.920 --> 00:39:52.440 constitution, easy to apply, easy to understand, rooted in a very simple 532 00:39:52.480 --> 00:39:58.559 principle, and this one too, only Congress spends the money, so it's 533 00:39:58.719 --> 00:40:04.320 very easy for I think that's the great benefit of these cases. But never 534 00:40:04.519 --> 00:40:15.280 never underestimate the the what's the push that comes from progressivism to push aside those 535 00:40:15.360 --> 00:40:21.920 constitutional restrictions whenever they get in the way of some policy decision that the left 536 00:40:21.960 --> 00:40:24.039 wants. I mean, it's hard for us even to rop our heads around 537 00:40:24.079 --> 00:40:29.440 it because we believe in the constitution. We recognize that the Constitution has made 538 00:40:29.440 --> 00:40:32.559 this the most prosperous, the most everything country in the history of the world. 539 00:40:32.599 --> 00:40:37.679 And so for that reason and for a great because of a greater understanding 540 00:40:37.679 --> 00:40:42.360 of the Constitution, we accept it. But the left says, if it 541 00:40:42.400 --> 00:40:45.079 gets in the way, we don't want it. If the Court is deciding 542 00:40:45.159 --> 00:40:50.119 all cases, not just some of them, not just balancing and the yellow 543 00:40:50.119 --> 00:40:52.519 dog in the middle of the road, but all the cases in our favor, 544 00:40:52.599 --> 00:40:57.760 we're okay with that. If the if the president is deciding everything that 545 00:40:57.760 --> 00:40:59.920 the left wants to do, we're okay with that. If Congress is. 546 00:41:00.280 --> 00:41:04.440 But anytime they don't do that, oh it's the end of democracy as we 547 00:41:04.480 --> 00:41:08.280 know it, right, because it's not fulfilling our policy preferences, right, 548 00:41:09.079 --> 00:41:14.719 And so don't don't. And I think if you look at Kagan who's the 549 00:41:14.840 --> 00:41:23.000 only smart one out of those three. Although she's disappointed, I don't think 550 00:41:23.039 --> 00:41:27.280 she's dumb as a board like the other two are. I mean, where's 551 00:41:27.360 --> 00:41:31.159 the sorry almost swore on your podcast, where's the why is Latina when we 552 00:41:31.199 --> 00:41:37.239 need her? Here's another thing that comes out of the opinions today yesterday is 553 00:41:37.239 --> 00:41:42.599 the Democrats quest for racial diversity. It leads to them appointing not their best 554 00:41:42.639 --> 00:41:47.159 people to the court if anything, Sodo mayor KBJ. Their pinions are so 555 00:41:47.320 --> 00:41:52.280 out there right there, so critical race theorists themselves. Nobody in the middle 556 00:41:52.519 --> 00:41:57.199 who might be persuadable, like a Roberts or Capital is ever going to join 557 00:41:57.280 --> 00:42:00.760 them. It's it's wonderful or Mary Garner. I don't know. I thought 558 00:42:00.760 --> 00:42:02.039 that so long, is that this is going to backfire on them, right, 559 00:42:02.079 --> 00:42:05.880 yes, exactly, because they are elevating, as they have in the 560 00:42:05.960 --> 00:42:10.199 university's diversity above the actual things that you're supposed to, you know, the 561 00:42:10.239 --> 00:42:16.280 actual ends like excellence or intelligence. Right there, they've turned diversity into their 562 00:42:16.360 --> 00:42:20.440 ends, not a means, which is what Lucretia was just saying, yes, 563 00:42:20.840 --> 00:42:22.599 yeah, well it's one of their ends. I also think that it 564 00:42:22.719 --> 00:42:29.800 is in and of itself as a means because it allows them to socially engineered 565 00:42:29.800 --> 00:42:32.360 society and the way they want it. And you know, that's that's the 566 00:42:32.599 --> 00:42:37.400 argument I often give to people when they you know, they say, well, 567 00:42:37.440 --> 00:42:40.400 because of racial discrimination and the legacy of slavery and so forth, we 568 00:42:40.440 --> 00:42:45.159 need to do this. The point of the matter is the majority or the 569 00:42:45.239 --> 00:42:51.199 people in power, can every single time change their minds and decide, you 570 00:42:51.199 --> 00:42:53.760 know what, we no longer want to protect blacks. We want to protect 571 00:42:53.840 --> 00:43:00.079 Asians, even though they don't have personalities. But I mean, that's the 572 00:43:00.079 --> 00:43:02.360 point of power. If it hasn't if it's not based upon principle, it 573 00:43:02.440 --> 00:43:06.440 can be turned in any way the people in power wanted to. And that's 574 00:43:06.599 --> 00:43:15.440 really the underlying issue here. So the affirmative action cases are two hundred and 575 00:43:15.480 --> 00:43:19.599 thirty seven pages the opinions, so it's long. The others are shorter. 576 00:43:19.679 --> 00:43:22.119 But that's a lot to get through. And we could go on forever about 577 00:43:22.159 --> 00:43:27.079 this, but I think we should draw a end to this for now. 578 00:43:27.639 --> 00:43:30.599 But what else happened this week? Anything else? I'm kind of I got 579 00:43:30.639 --> 00:43:32.880 to hang out, well, that's right, we got to hang out with 580 00:43:32.880 --> 00:43:37.159 the fence We were a great conference here. The reason we're all together is 581 00:43:37.599 --> 00:43:42.280 we put together a conference at our Public Law Center here at Berkeley, bringing 582 00:43:42.320 --> 00:43:47.639 together Italians and Latin Americans. The Latin Americans in particular are pro free market 583 00:43:47.880 --> 00:43:52.280 professors and some Americans. And I think we had a great We had a 584 00:43:52.320 --> 00:43:58.440 great conference, lovely people. We got serenaded with opera from Eduardo and didn't 585 00:43:58.559 --> 00:44:04.000 did he sing on them? No? No, he surely correct about that. 586 00:44:04.199 --> 00:44:07.880 He surely right about that. But you know, so I have to 587 00:44:07.880 --> 00:44:12.440 say, does give us gives me perspective actually when I see what things are 588 00:44:12.480 --> 00:44:15.880 like in Italy or Latin America, even though we have these great divisions, 589 00:44:16.000 --> 00:44:20.119 even though to us, you know, things aren't so great. But god, 590 00:44:20.159 --> 00:44:24.239 we're the greatest country. So I have I'm gonna do this quick, 591 00:44:24.320 --> 00:44:30.960 I promised Steve. So I pushed Eduardo. We ended up the because it's 592 00:44:30.960 --> 00:44:32.199 going to show after this, so I hate to kind of do this, 593 00:44:32.280 --> 00:44:36.719 but this will maybe make people want to listen, we hope. So we 594 00:44:36.840 --> 00:44:39.519 talked about AI with a little bit with Eduardo, and I was trying to 595 00:44:39.559 --> 00:44:44.079 do this sort of comparative thing. And you know, their their emphasis is 596 00:44:44.079 --> 00:44:46.239 on data privacy, at the at the you know, the root of AI 597 00:44:46.360 --> 00:44:52.719 and my emphasis of course on the uses of AI and especially by the government. 598 00:44:52.039 --> 00:44:59.800 And it was really interesting. He had no concerns whatsoever about how the 599 00:45:00.000 --> 00:45:05.039 government might use AI for propaganda or for anything else, because he said, 600 00:45:05.440 --> 00:45:08.880 oh, well, we have liberal democracies and separation of powers. The government's 601 00:45:08.920 --> 00:45:15.960 not that powerful. And his entire argument was that he's much more worried about 602 00:45:15.000 --> 00:45:21.480 the elon Musks and the Google. You know, Europeans are still trapped in 603 00:45:21.519 --> 00:45:25.960 the Woodrow Wilson progressive world where there they feel a threat is big companies, 604 00:45:27.239 --> 00:45:30.960 grand nations. Yeah, a powerful government not to protect liberty, but to 605 00:45:31.000 --> 00:45:36.199 fight with companies. And this is why there are no great high tech companies 606 00:45:36.199 --> 00:45:38.519 that you're yes, literally discussed as well. But I don't want to take 607 00:45:38.519 --> 00:45:42.440 too much in way. Okay, So does that mean we have to say 608 00:45:42.480 --> 00:45:45.199 no, well do I don't you know, I don't know that we have 609 00:45:45.239 --> 00:45:50.039 a Camelism. Handy I have I don't have a camera. There's there's Biden. 610 00:45:50.119 --> 00:45:52.199 Let's wait. Oh that's right. That's part of our sign off now 611 00:45:52.320 --> 00:45:55.239 is yeah, it can be a Bidenism, but I have a gay Babylon. 612 00:45:55.760 --> 00:45:58.800 Yeah, so you heard him murdered a week saying that, well, 613 00:45:58.800 --> 00:46:01.159 prudent is clearly losing the war in Iraq. Yeah, I think there you 614 00:46:01.199 --> 00:46:05.960 go. You don't need any other quotes than that. And the court is 615 00:46:06.000 --> 00:46:09.480 not normal. The court is not normal. Okay, So my Babylon bee. 616 00:46:10.280 --> 00:46:15.199 So it's a picture you have to kind of see. It is a 617 00:46:15.239 --> 00:46:22.960 picture of CANTEENNGI. And then the headline is awkward. Supreme Court rules against 618 00:46:22.000 --> 00:46:29.880 a fermative action with a firmative action higher sitting right there. Oh that is 619 00:46:30.000 --> 00:46:32.280 brutal. It's brutal, but I love it, all right, change I 620 00:46:32.320 --> 00:46:37.239 go, Let's go away. Let's go Brandon always drink your whisky meat and 621 00:46:37.679 --> 00:46:42.199 I never get this fun life. Well, there's don't forget to melt the 622 00:46:42.239 --> 00:46:45.840 soft serve power dividend. And let's let the anglophile say it. And God 623 00:46:45.960 --> 00:46:52.199 saved the queen man. All right, let's finish our maker's mark and go 624 00:46:52.239 --> 00:48:21.920 have dinner. Ricochet joined the conversation