Ask not what your country can do for you, ask what you can do
for your country, mister Gorbachev, tear down this wall. It is the
Ricochet Podcast. I'm Rob Long, New York City, joined by Peter Robinson
and Steve Hayward. Our guest today is John You. There is so much
talk about stay tuned and since I've changed the law, what's happening. I've
changed in the way that now you're in a situation where there are forty fewer
people coming across the border illegally. It's better when he left office, and
I'm going to continue to move until we get the total band on, the
total initiative relative to what we're going to do with more border patrol and more
as President Trump, I really don't know what he said at the end of
this, and I don't think he knows what he said either. Hello and
welcome to the rickshay Podcast. This is podcast number six hundred ninety eight,
which is just I mean about the mental age I think of the President of
the United States. I can't I can't believe I made that joke. I
apologize it was too easy to go for. I'm Rob Long. I'm coming
to from New York City, one of the co founders of Ricochet joining me
as always a co founder, Peter Robinson in Palo Alto, and we are
joined by the brilliant, as always Steve Heyward to talk about what happened last
night, the burning of Atlanta, and also our old friend who's going to
explain why today was not just a great day for the Trump campaign but also
for constitutional law. Mister John you, professor John You, John, how
you doing? And a great day for the Trump campaign today too. Yeah,
that's right. I said, it was not just that, it was
also a great day for the Supreme Court. And we're gonna get to that.
We're gonna get to all the complicated stuff, but we first want to
hear from Steve. I have something to say that will be contrarian, slightly,
I think, to some of the media, but I want to hear
what you thought of last night. I mean, look, it's one of
those things where the whole thing was been hashed over and hashed over and hashed
over. But I just want here's one here's my anecdote, set table.
I was watching the debate with some good friends of mine who are mostly on
the left and mostly in public radio, and including a couple of very good
friend of mine, a wonderful, wonderful reporter, she's one of the best,
and we're watching this thing together. And about three minutes in she looks
at me, and I look at her, and I asked her, I
said, is this is this over? And she says, oh, yeah,
it's over. It's over. And the feeling in the room was that
it was over very early, so much so that people just started talking and
having conversations and they weren't watching it like you'd watch something that really mattered.
Uh. And I thought, Oh, that's really I thought it was really,
really fascinating. Anyway, that was my insight number one. But give
me your thoughts. Well, yeah, I mean that was burning down Atlanta,
a great train wreck. All the metaphors had been used. I have
two thoughts that I haven't seen widely expressed in the what eighteen hours since it
went down. One is, maybe someone has said this, but Trump's line
early on, after one of Biden's early incoherencies where he said I don't know
what he just said, I don't think he does either. I think that's
going to go down with Ronald Reagan's there you go again from nineteen eighty is
one of the great zingers in debate history. The other thing is the thing
that I have not seen anyone notice, is that I think Biden committed last
night his own deplorables moment. You remember Hillary talking about trump'sup orders or basket
of deplorables. And I think people haven't focused it on this because it was
wrapping his whole incoherence. It was on the abortion issue. And remember,
Biden did something inexplicable. He pivoted to immigration from his strongest point to his
weakest point, and he says, you know what Trump says, you know,
an immigrant murdered somebody, and he went to the funeral. I mean,
why you bring from humanity. But then the next thing that came out
of Biden's mouth was this, I'm a quote from the transcript, the idea
that she was murdered bye bye by an immigrant coming in. And they talk
about that. But here's the deal. There's a lot of young women who
are being raped by their by their in laws, by their spouses, brothers
and sisters, by It's just it's just ridiculous, and they could do nothing
about it. I'm thinking, wait a minute, he's he's Biden has just
slipped and told us what people like him think of Middle America, you know,
the great unwashed, the working class, the people in the middle and
they have to be we have to have unlimited abortion because there's this what epidemic
of rapes going on from family members and incests. I mean, I think
that was a slip that revealed once again the condescension that people like him and
Hillary and the rest of sort of the leftist elite have for the what they
call deplorable America. I I you know, I got to share this one
thing because I watched it. It was painful. I had to turn away.
I couldn't watch it anymore. But as a former Justice Department prosecutor,
I think that Trump is being prosecuted on the wrong charges. It's not insurrection,
it's not suddition. He should be prosecuted for elder abuse. Elder Well,
here's what I thought. I want to get Peter. I want to
hear you, your your your thoughts. Here. All of the commentary afterwards
said, you know, the both sides, Well, yeah, obviously terrible
for Biden. He was daughtering everything. But you know, Trump lied,
It's all filled with lies, and you know, I am no fan of
the of the man or his presidency Trump, but his lies, I mean,
you know, capital L didn't seem out rageously out of line for somebody
presidential candidate. I mean they all there goes pastor long defining deviancy doubt.
I mean not really. I just didn't. I just no point. I
mean, look, he's wrong about trade, and he was wrong about trade,
and he's just and and and but it's not a lie, he's just
that he was wrong. So uh anyway, so that part of my feeling.
But the second second thing is I thought he the reason that he beat
Biden, and he beat him, and people say, well, it was
it was a bad debate for Biden, but it was not necessarily good debate
for Trump. I think it was an excellent debate for Trump. I think
he was angry for the American people. He was angry in our on our
behalf, and that is something that he really crossed a line there where he
was going to convince vote. I think he's going to convince voters that he's
not this narcissistic, malignant, selfish, kind of mentally and emotionally unstable person.
He actually is a candidate who's running for you. Now I may not
buy that all the time, but I found his argument to be the most
coherent. And I mean, he had his best knight in politics, I
think, and Biden had his worse the night. And they are living in
fantasyland. If they are looking for mistakes that Trump made, there gonna matter.
That's my That was my take. Okay. Do I get my take
in here? Do we have time? Absolutely? Okay? Thank you?
So my take is a morning after take. I don't disagree with a word.
And if you said, particularly John saying it was painful, I was
watching with my youngest and youngest daughter and my wife and we kept wincing,
just wincing. No Biden fans in that room, but just wincing at how
horrible it all was. Yeah, okay, So but when I say the
morning after reaction, what I mean is, if you look at the New
York Times, Krugman has a column the best president of my lifetime must step
down. Thomas Friedman has a column Joe Biden is a friend, he needs
to step aside. Nick Christoph called for Biden to step down on Twitter before
the debate was over. What do I conclude from this? They had it
already. Now consciously did they think to themselves, this is the moment we
finally begin the campaign to get him off the ticket, or unconsciously, at
a minimum, unconsciously. There are all kinds of people who should have known
better, including the professional journalists I just named who were lying to us,
or lying to themselves or lying is getting overused now, but who are engaged
in a long running act not purely of self delusion, but of pushing delusion
on the rest of us. And at some level they knew it, which
is why they were able to pivot so quickly. Oh, this is what's
happening, says Christoph as he's watching the debate and tweeting, because at some
basic level he knew it all along. So Steve. I saw that.
Steve tweeted somewhere this morning, I just reviewing my ex somebody tweeted the reason
they agreed to such an early debate was to give themselves time to replace him
if he collapsed, And Steve tweeted, that's what I think, And you
know what, it's what I think too. When I saw the early debate
date way back when these weeks ago, when they both camps agreed to the
todate to the debate. That's exactly what if he puts in a performance that's
fiery and more or less coherence the way he did at the State of the
Union. By the way, the importance, the political importance of his State
of the Union address had nothing to do with his agenda. It was entirely
devoted to shutting down the insurgency within the Democratic to replace him. He was
saying, I want this job, and here exactly I'm cohering. That was
his cognition test or cognitive test that Trump kept pushing for. It was the
State of the Union dress. So they weren't sure, but they thought,
let's have an early date so we can get rid of this guy. If
he does collapse, well, he has collapsed. Well the problem with that,
of course, is that you can't get rid of him unless he decides
to get be got rid of unless you're convince him that he decided that.
I suppose you can. You know, hey, Grandpa, this is what
you decide to do. So it isn't I mean, it's the it's the
best card day can play in a very bad deck. Well, so let
me let me put let me give let me offer a scenario and see what
you guys make of it, and Steve and John is well we turned the
show over to John in just a moment when when we start to sing,
yeah, okay, So here's here's the way I see it. Within two
weeks and maybe by the end of this week, Joe Biden will have announced
that he's no longer seeking the Democratic nomination. He will release his and the
politicking will begin immediately. Of course, he will release his delegates. At
the convention. Everybody says Kamala Harris is a problem. How can they possibly
set aside an African American woman? And the answer is, there will be
a big, fat book contract, there will be corporate boards. She will
be very comfortably bought off. She may even be promised in an ambassadorship to
the Court of Saint James or Paris. They will move her aside. How
can they check the diversity boxes if they get rid of her, because they
will nominate Whitmer Governor Whitmer of Michigan, who's a woman, and Rafael Warnick,
Senator Warnick of Georgia, who's a black man. That will give them
a state in the Upper Midwest and Georgia, or in my judgment, This
would be the most powerful ticket they could put forward. Josh Shapiro, a
more or less centrist Democrat in Pennsylvania. He's Jewish. He would make the
first Jewish president if he were elected. Rafael Warnick. That gives them Pennsylvania
and Georgia, and all of a sudden, Donald Trump will go from being
the younger man in the debate to a man who is almost a quarter let
me see, no, no, who is more than a quarter of century
older than the young, energetic, telegenic, well spoken presidential candidate. This
will happen by August or what do you think? Well, So, first
of all, before I answer your question, can can I just say,
after Rob's speech a moment ago, Peter Will and John Will you guys go
in with me to have put a hidden camera in Rob's voting booth in November,
because I'm okay, I already mailed. I've already mailed Rob's right.
So, Peter, I think campell Jill Stein right now in reverse order.
Peter, I agree with you that Josh Shapiro would be the strongest candidate.
I'm going to say something very crass. The Democratic Party cannot nominate a Jewish
person at the top of their ticket right now, they just can't. I
think that's even that's even harder for them than pushing Camel off the ticket,
you think, so, oh yeah, oh no, I'm convinced of this.
I mean, I just you know, I'm just paying attention. The
squad just wouldn't stand for it. The squad and you know, the prophet.
So the anti Semitism is now so deep in the Democratic Party that there'd
be a revolt against it. Be a whispering campaign probably, but it would
be bad. Now. Now, the second thing is, yeah, maybe
you can buy Kamela off with book contracts and millions of dollars, but I
think her pride is too strong for that. I have another scenario, by
way, if anybody wants to buy me off. No, no, I
mean we've established that. Yeah, right, I have contact. I'll be
contacting my local McDonald's, right. I have an easier scenario that I think
works. Newsome wants it badly. I'll bet he's been burning up the phone
line since minute five last night. He sponged the drool away from his lips
as exactly. Newsom and Kamela hate each other. That's well known in California.
Democratic circles. Yes, So if you think that Newsom is going to
be the person who wraps up the nomination, then he stands up and says,
gosh, you know, there's this twelfth Amendment, and you know John
can correct me, right, but the twelfth Amendment has that peculiar passage and
says the electors from the state cannot vote for both president and vice president for
people of their same state. That means that they cannot vote because remember,
you cast your vote separately. The candidation run together, but you cast the
electoral votes separately, which is weird. They can't cast a vote for Newsom
for president and Harris for vice president. They can't allow California's forty five electoral
votes or whatever it is, numbers fifty two to not go to a Democrat.
You either surrender the vice presidency to Republicans or you allow the Senate to
pick the vice president. That's the backup feature in the absence of a majority,
and the Senate might be Republican in January. So you say, gosh,
I'm so sorry, Vice President Harris, we just have to have somebody
else on the ticket. Because of this archaic passage in the Constitution, there's
nothing we can do or so terribly sorry, and then they'll pick Warnock or
somebody or you know, maybe Whitner for running Mete. I don't know,
but I think that's how it could happen. That passes the and it allows
the Democrats to focus their rage against are archaic constitution. Right, So I
think that's sound could go down. Okay, So so are you guys are
overst and not just inertia, but the Biden love of power. Yeah,
you're any like the jaws of life to prive these people lose it. Yeah,
but here but here's the more serious point is how can you say Biden
is unfit to run for office and leave him as president for the next six
months? Right? If you're gonna say he should step down because he's you
know, because he's senile, you got to trigger the twenty sixth Amendment.
We got we're war. Two of our allies are war. We've got the
worst, all these problems at the border, inflation China and Taiwan, Ukraine,
Israel. I'm gonna say, oh, it's okay to leave the seaele
guy as commander chief for the next six months. But we're gonna but we
got to get him out of said Robert Herr has said he's too old to
stand trial. He's too old and senile to stand trial. But you know,
if you guys want to continue as president, that's up to you.
We've all already made that decision. The people in Biden world now have to
They're the only people who have any kind of power and leverage. They have
to now explain to their elderly president and their boss and their key to enormous
power. I mean, has there been a presidential staff by definition that has
this much power? Can imagine Whichoe Wilson had a stroke and couldn't walk right.
So they're going to have to convince him to do something the people in
Washington, DC and probably everywhere else can't do, which is to say,
please take my power away, old man. Instead, they're going to do
what they've been doing for the past year or two years, how long this
this client has been and say everything's fine, everything's fine. We're just there.
And they're pointing to it today because he did have a fantastic rally in
North Carolina right he came out. He was oh boy, look at that.
Where was he yesterday? So they're already trying to explain to people,
No, no, it was just an off night. But the problem is
it wasn't just an off night for Biden, as they said, It's also
a really great night for Trump. And it wasn't about a comparison. Is
that he came out and he mentioned he mentioned twenty twenty glancingly. His answer
on January sixth was a clever I thought it was a good answer. His
answer on abortion stunned the people I was in the room with, because even
though it was a typical Trump nonsense, it was it had an intellectual and
philosophical and emotional coherence to it that I don't think a Republican politician has been
able to articulate. I mean, imagine, think of all the weird,
twisted turns that George H. W. Bush got himself into when he's talking
about abortion. So this was a guy who kind of had Now I don't
believe he's going to continue. That's a kind of discipline that I don't think
Trump has. But he had it when it counted, And I feel like
the media is missing that argument, missing that point because the Biden disaster was
so so strong, so catastrophic. Steve John, we can talk about the
Supreme Court in a moment, and who cares about the Could we just talk
about rob which is him we got. I don't know whether talking about the
sea now, candidate. I don't know whether to believe the demurals or what
comes after the demural listen. As you guys know, I'm no fan of
Donald Trump, but that was like God last night. Didn't you that we
have to we have to look at this the way it played out, and
we wanted to play out and it played out. I mean, yeah,
he was a little nasty near the end, but he's he's a jerk,
right, He's a nasty But on the other hand, he won that debate.
He didn't not lose, and I think it's a it's a very big
distinction that people in the media are not making. Peter I agree he won.
At this point, Peter, I like to repair to what our old
friend Milton Freeman used to say, nothing counts before the butt we could use
no right exactly exactly by the way, one small technical observation turning off the
mics played entirely worked. It just worked like a charm. I couldn't everything
I read led me to believe that that was what the Democrats had insisted on,
but it worked for Trump. Actually, what Biden wished is that he
could turn off as mic earlier. How many times did they say, oh,
by the way, I miss the president. You have half your time
left to set as president? Right? The idea? What was the idea
again? H So I think I I I what I hope for is just
because of it's American politics. America Fox is fascinating that we have an interesting
summer with an interesting convention, and I think we're going to be great for
the country. To remind ourselves that this is politics. We're not choosing the
pope here, We're not choosing the father of the country. We're not.
We're just choosing the chief executive of the ad ministry branch. And that person
is by definition flawed, and we've had a bunch of losers and miscreants in
that in that role in a country we just fine. And maybe we should
go back to something a little bit more political and a little less of this
show business pageantry that we've fallen into. Okay, possible. The other possibility
is that nothing happens, that it's just the high wire act all the way
to November and Trump says something stupid or whatever happens happens, and it's this
weird thing where we're worried about. We're up till three in the morning counting
ballots in Pennsylvania and Georgia. Oh, I that one. I think we
can rule out. If yeah, if Biden remains on the ticket, If
to that extent nothing happens, he loses. I just I cannot conceive of
any way for him to come back from last night. There's a Democratic Party
base of maybe thirty seven percent of the vote or so a little under forty
percent of the screen to vote for the Democrat no matter what, and that's
about all he'll get. In my judgment, there is just no recovering from
last night. There's I know, pulling back a Paul Krugman column that says
it's time for Biden to step down. There's no pulling back all this material
that will appear in Trump ads. The business community will just say we're done
with Biden. It's over. We're not going to waste any money on him.
I just don't see. Excuse me, I say all this, and
then you're quite right. Donald Trump is so wildly unpredictable. He may find
some way of saving the situation for Joe Biden. But it would have to
be well, it would have to be something that I can't even imagine anyway.
Oh so if I may I be the little third grader writing report on
the virtues of democracy, I do. I will say so I've said this
morning after those bastards, they knew what they knew, they were lying,
which is why they were so ready to wreckon it, to change, to
sort of try to pivot. But there is this to be said. Brashneff
remained in office till he died. Chowchescu remained in office until the day there
was until the day he died. In other words, the idea that it
was a reassuring night for democracy, this strange little ritual of a presidential debate
that I don't think any of us was expecting what happened last night. We
thought nothing would happen. It wouldn't be consequential, somebody would get would win
by some they both say, ridiculous thing, and the polls would remain unchanged.
In fact, we were all enabled to see that Joe Scarborough who said
the president is at his best, that Jean Pierre, whatever the press secretary.
Oh no, the president is decisive and alert, and we have trouble.
It was all a lie, and we could see it with our own
eyes, and the only system of government under which we had been permitted to
see that is democracy. Could our producer add a little swell of the national
anthem in the back? I need to get I just hope you can,
you know, over, you know, block out my weeping and crying.
I mean, I'm so moved. Hi, everybody, James Lonox here for
Ricochet. It's June. It's the first month of summer, and you know
what's going to happen. Summer is going to be gone like that before you
know it. So what do you do to keep it strong and long?
Well? You might sign up for Ricochet at ricochet dot com. Join the
member feed, where you have endless numbers of conversations with like minded folk and
those who want to argue with you too. It's this place for sane,
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for August, through the fall, and no matter of fact, you'll
meet new friends and be with them the year round. So that's Ricochet dot
com. Go there, take a look. Thanks. Speaking of democracy,
We've got a couple Supreme Court rulings to talk and I'm they link together in
my head and maybe I'm wrong. First case of question is what they call
the Chevron case, and the second one is the SEC case. So that
was earlier this week, and it seems to me that the Supreme Court in
those two cases is making a drawing a very bright line saying if you're gonna
have rules, and you're gonna enforce rules and enforce fines and have semi quasi
legal proceedings, they have to come through the judicial brands. Is that sort
of close now? Not even make it stronger? And also include the January
sixth case, which is and this is something that's been going for several years,
but it's reaching a crescendo. Is you want to call it the bureaucracy,
you want to call it the deep state, but they are on a
generational losing streak. Now, this is the main mission of the Roberts Court
is to cut down the deep state to size. Every time the deep state,
which I think is the permanent bureaucracy, gets up before the Court,
they are getting smacked down. So the first case Rob mentioned, the Chevron
case. Should courts accept the interpretations of the law offered by agencies, which
we've been doing for forty years now? The court says no, no longer,
We're not deferring to what bureau bureaucrats think about their own power. The
Jarksey case against the sec Rob mentioned from two days ago. Can an agency
try you or me before their own court system with no juries? Course,
court says no. The reason I think this ties in with the January sixth
case. Think about this, this is can prosecutors right sort of bend and
twist the law to go after people that they don't like? Again, the
court says, no, you cannot. Even though the January sixth the cool
you know, both sides of the court are saying, even though the January
sixth protesters might have done terrible things, they tried to perhaps stop the peaceful
chansfer of power. But they said prosecutors again, the permanent bureaucracy cannot make
up or twist and turn with the law to go after people without the protections
of good old fashioned American I'm not going to say the word democracy as Peter
does because guess what, we are not a democracy. We are thank god,
we are not a democracy, Peter. We have a decentralized government system
with lots of things in it to protect us from the majority of like the
juries, like the judiciary. Like. So that's what I think. That's
how you can understand what the Supreme Court term has been about is restoration of
all of the protections against big powerful government. And that's what the Roberts Court's
really been trying to do for ten years. So, John, can I
just just sketch out a timeline, kind of a template or what the issue
really has been. Congress passes a law, and the law is and then
they have a clause in there saying and the details to be just come later
from the mist of the blah blah blah blah as such and such as as
as seems as pertains this issue, or some ridiculous boilerplate that is frankly anti
democrat. And then the agency has this law which is essentially carte blanche to
do almost anything they want. It's like a star chamber law, and it
can be in anything. It can be the consumer protection bill that the agency
that passed. It could be the EPA could be almost any administrative body that
has penalizing powers. And then if you're running I I just was a friend
who was running a business and they're like, Okay, we're kind of in
a new area of industry and we have to continually ask what the rules are.
And the agency that it pertained to would not tell them what the rules
were, didn't have to was not asked to, didn't have to decide what
the rules are, only decided post facto that they had violated the rules.
So the idea was that somehow this big the big businesses are trying to subvert
the rules. But in fact, most of these businesses have enormous compliance departments,
lawyers desperately trying to figure out what the rules are. But those agencies
don't make the rules, they only enforce the fines. And what Supreme Court
said is you can't do that no more. Is that close? Yeah?
I would say that the Supreme Court actually doesn't care about the big businesses and
their compliance costs. These decisions are really protecting the little guy. And maybe
the way you think of is this way. There's two real models of government
going on here. One would be the progressive model. Congress passes these vague
laws, like Steve's favorite statute, the Clean Air Act. Oh you know
what the Clean Air Act says? The Clean Air Acts says you. The
EPA make the air clean. That's about all the statutes says. And then
the EPA is like, Okay, let's have all electric cars within tenure.
Right. The agencies just go hog wild with that kind of stuff. The
agents will say, is the legislature they're filled with corrupt politicians. Progressive think
all the power should be transferred to the experts, and then the experts can
issue the rules that are best for society. And maybe that helps the big
businesses, maybe it doesn't, but there should be rules issued by experts,
insulated from politics. That's the model we've been living under since the New Deal.
The other model, which is the Founder's model, I think, is
we live in a decentralized government. Concentration of power is the problem, particularly
when it has democracy behind it, when we don't want to have majoritarian rule
in this country. And so what we do is we create lots of barriers
to government action altogether. And so in Rob's hypothetical, in that world,
businesses and people are free to do whatever they want. Unless the government comes
in after the fact, when the legislature passes a law and a prosecutor comes
in and a court where a jury blesses it. Otherwise, if they don't,
they don't, if they don't give you hard time, you're just free
to do whatever you want. The original eighteenth century constitutional model, and it's
been supplanted by this progressive view. And what this Supreme Court is doing is
trying to refer us back to the original. So much to the Chief Justice
John Roberts, this moderate guy who upheld Obamacar and so and so forth.
In his opinion today, he's talking about how important it was to the founders,
the founders that we returned to this model. How important is to the
founders two days ago that we have jerry trials. That's that is, That's
really what's going. It's not a big business compliance thing. It really is
that I think they think they're defending the rights of the little guy against a
overly powerful federal government. Well, I mean, and the case, John,
I mean, you know better than I do. But the case Rob
involved the little guy. It wasn't a big company. The lober Bright was
a fisherman, and fisher the fisher We see now right that the facts were
really shot person. You know, the old Marine Mammal Protection Act said well,
the government can carry out inspections to make sure fisher people aren't taking too
many of the fish or something like that, and that led the Department of
Commerce to say, oh, we need to put inspectors on your boats when
you go out to see oh, and you have to pay for them seven
hundred dollars a day. This was a plot point in the Oscar for Best
Picture three four years back. I think it was coda about the family of
death fishermen in Maine or somewhere. And but the point is, I mean
that could be the day's profit for an independent fishing person, right, he
could threaten to wipe them out. And it was never authorized by Congress that
you could charge. Essentially, it's a tax, one way of thinking about
it, but it was never authorized in the statute. And that's so there.
This is not a big company. It was not involving Chevron. It
was involving a couple of people with fishing boats. And the counter argument is
going to be from Gress's, oh, this means that all the things that
the garment does are going to be struck down. Now we're going to have
dirty water and asthmatic air, I don't know what other you know, And
children's cribs are going to start exploding when you put kids in there, and
you know cars are going to drive over old autonomously. You know it's going
to be cats and dogs living together like a Ghostbusters. You know, it's
gonna be the end of the world. That is really not what the Court's
about. What they're saying is you can make all those decisions, but it
has to be the Congress. It does it people who are elected and accountable
to the people. Congress can't look. Congress likes transferring this power to agencies
too, because then they don't have to take hard votes exactly. But now
that that's the return of the system. I was at a dinner a couple
of years ago with the Chief Justice and I was asked to ask introduce him,
and so I asked him to tell us what we should know that orton
the people that was missed in the coverage of the Supreme Court. And John
Roberts stood up and said, what people need to know is that the Supreme
Court finds itself in one bad spot after another because Congress is not doing its
job, and he spoke that last phrase with real anger. Actually, so
as a procedural matter, John, the Court has now said, agencies don't
get to make it, don't even get to interpret the law. Congress needs
to specify. Congress needs to write good legislation. Is that what it comes
to? Can we expect this group of decisions I'd like to get to Mrthy
in a moment, by the way, which was a disappointment that doesn't fit
the pattern we're discussing. But can we expect that this group of decisions that
taken together say Congress must legislate the Court's interpret Federal agencies only do what they
are explicitly instructed to do by statute. Can we suppose that this will have
an a tonic effect on Congress, that it will now be forced to write
better, cleaner legislation, to take greater responsibility upon itself. So now I'm
switching my hat to the now my old other had former Senate aid and the
synic can me be like, no, oh, of course not what do
you of course? Pians? What do you I mean? The thing is
they can pass precise laws when they want to, right when they want to
pay off groups or anything. You know, the tax code is very clear,
right, appropriation laws very clear. So, uh, this is this
decision itself doesn't give Congress an incentive, you're a political incentive based in reelection
to pass clearer laws. What it generally just means is that the administrative state,
you know, the deep state, whatever you want to call it,
has less freedom to get away with things now under the vague laws that Congress
is going to keep passing unless people say, I'm not voting for people my
representative or senator unless they do their jobs. But I don't I detect to
know interest in that in the in the electorate. Yeah, I know we're
going to we want to move on to some of the other summarthy and also
the obstruction case. Right, but isn't it mean So the strangest thing about
these cases is that isnt it possible at a year from now, in the
first term and the first year of the second term of the Trump administration that
the all the liberals screaming and yelling about Chevron and the SEC decision will be
saying, according to Chevron, the SEC, you're not the administrative state can't
do what what Trump? The Trump administrator wants to do. I mean,
shouldn't they be cheering this because it's, especially after last night, it's entirely
possible they're going to be looking at a Trump administrative state and not a Biden
administrative state. I mean, yes, how obvious is that going to be
a year from that? I mean if people who are court watchers should of
course immediately recognize that. But they're so overcome a course by who wins the
election they won't say it outright, But yes, of course, if you
think, if you the more it looks like Trump is going to win the
election, the more you're going to see progressive start to embrace these decisions by
the Supreme Court, right because Trump Trump likes using executive orders too, just
he uses them on immigration and building a border wall. But these these same
doctrines, I am sure will be cited by the ACLU and the NAACP and
immigration whatever law center the minute Trump comes into office and starts issue in the
executive orders about deportation, building walls, and placing travel bands back in effect.
I am Andrew Gutman and I'm Beth Peely, and we're a couple of
accidental activist parents who woke up and started speaking out about issues that we saw
in our children's schools. So join us every week on Take Back our Schools
on the Ricochet Audio Network or wherever you get your podcasts Ricochet, Join the
conversation. Let's talk about Murphy. That was a disappointment last week, right,
Yeah, John, Yeah, that's my line out of it is we've
now got from the Supreme Court Murphy's law. Whatever can go wrong with the
Supreme Court will go wrong with the Supreme Court. There's a pattern here,
John goes back three or four years. You thinks us about it, but
maybe talk about the case first though. Okay, So this is actually the
return of standing doctrine with a vegance or the standing doctrine is the idea.
If you look at the Constitution, it says federal courts can only decide cases
or controversies under federal law. And so the Supreme Court has said, well,
we're not going to decide everything everybody asks us. There has to be
a real dispute, a real case, not some made up case or someone
just asking us to weigh in on some policy decision where we have no real
dispute going on. So that's what standing is standing doctrine is essentially, is
the plaintiff here really the right plaintiff to bring this case? Is there really
a dispute that we can adjudicate? Now. Why it's disappointing is because when
you read the facts of what happened to Murphy, and I actually think the
plaintiffs achieved their goal, which was to air out all the things that Biden
and his aides were doing to coerce social media, to censor people. We
now know that because of these of these cases, even though you know doctor
j and Scott Alisser and all the other people who sued lost in the end.
But this is what this is how I would read it. There's Murphy,
there was another case earlier. There's a lot of discretion in the Supreme
Court to avoid deciding things they don't want to decide, and standing is one
way they do that. They sort of say, ah, this is not
the right plain, death is not the right guy. I think what they
were doing is they are trying to get out of abortion, get out of
these social media cases because they got to have their powder drive for Chevron today
and the presidential immunity case on Monday, And so that's I think how judicial
moderates. Moderates think. I mean, I don't agree with it, but
they're like, well, some things I'm going to be conservative, somethings I'm
going to be liberal. So these all these standing decisions were their way of
giving liberals some wins, kicking the can down the road and then saying,
oh, no, Chevron. And that leads me to guests, I'm probably
going to be wrong, but my guess would be a Monday, Trump is
going to get a much better victory in the community case than I originally thought
he would. I thought he wasn't going to get any immunity. I think
he's going to get something now. I also think that means that social media
companies will win on Monday in the Texas and Florida cases. That'll be the
win for the liberals. But this is like, I think this is not
kW with John Roberts are the middle of the court. Things. We've got
to give some to the left, give some to the right. May I
quote from Justice Alito's dissent in Merthy. If the lower court's assessment of the
voluminous record is correct, this is one of the most important free speech cases
to reach this court. In years. Freedom of speech is essential to democratic
self government and to the advancement of humanity. Store of knowledge, thought,
and expression in fields such as science, medicine, history, the social sciences,
philosophy, and the arts. Osial obviously hasn't looked at Twitter lately,
but go ahead. The government's behavior was blatantly unconstitutional. Officials who read today's
decision may conclude that if a corrosive campaign is carried out with with enough sophistication,
it may get by. This is not a message this court should send
Two questions. A. Is he correct? B? Can we agree that
he has now replaced Justice Scalia as the most eloquent member of the court?
John question A on standing. One thing that is true is that it's only
a case. It's only a holding on this point if not being the right
guy, So someone else can come in and make the exact same claims,
but do them a little differently, and they'll be able to get into court,
and they'll be able to get all the way to the Supreme Court.
But the more important thing is the main purpose of the litigation was achieved.
Everybody now knows all the things that the Bright and White House was doing to
force Twitter and Facebook to commit censorship. The real answer to this is the
political process. I think not having the federal courts get involved with how the
platforms decide to you know, moderate or censor, if you would call it
that. The discussion feeds in terms of your question too, is Justice Alito
the most eloquent? I don't know. I mean, you know, Peter,
you know, if you read Supreme Court opinions, I mean, they're
pretty pretty boring. So it's a very low bar to be the best writer
on the Supreme Court. You know, none of these guys are None of
these guys would have made it into the writer's room on cheers, rob right,
Like they're not concise, they're jokes. Yeah, probably would be.
So I don't think any of them really approaching Justice Scalia. I'm afraid.
Oh you don't, so, could I before we talk about immunity the Fisher
case, could you explain the facts in that case? And isn't that tremendously
important? Oh? You mentioned it already, But discuss the facts in that
case and go into a little bit more if you would. I think the
legal importance is minimal or it's small, but of course the practical consequences are
enormous. The legal issue is okay. So after the two thousand financial crisis,
Congress passed a law called Sarbeins Oxley, and one of the provisions says,
when Congress wants information, you don't mutulate, tamper, destroy, hide
the evidence. Right, So that's part A of the law. And then
Part B says, or otherwise impede the investigation. So the legal questions really
simple. Does that second part actually mean you can charge people for anything they
do that obstructs an investigation, like say, threatening a witness, or does
it just mean don't otherwise destroy evidence in a way that we haven't thought of,
right, don't otherwise mutilate, tamper or ruin the documents. And so
all the courts said was, I think it's pretty Actually, it's very simple,
and I think obviously give us the facts in the case who was Fisher?
And oh, so this is what happens. So that's the laws it
reads. So the Biden Justice Department, for whatever reason, chose to charge
people involved with the January sixth riots in the Capitol with don't do anything that
could otherwise impede or obstruct congressional activity. And so they said, well,
if these people appeared on the grounds of the Capitol, they stopped Congress from
completing the electoral count on January sixth, so they impeded the investigation. Fisher
and the trial judge in this case, a very good judge, guy named
Carl Nichols. I know he said no, obviously, that second part of
the law is only saying, don't do other things to documents that we haven't
thought of. I think he's like obviously correct, because if it weren't,
then all you ever needed was to say, just don't obstruct Congress. Why
list anything? Right, It's like so obviously clear. So that's why,
I mean, the legal holding is not that big a deal. The practical
consequence of those that this rips the heart out of most of the January sixth
prosecutions. And I think Trump doesn't need immunity anymore. That's the big thing
that people have not noticed. Trump is going to win on the substance of
the claims now in the prosecution, even if he's not immune. Because this
charge actually is the heart of Jack Smith's indictment of Donald Trump, and now
it's been held not to apply to January sixth, there's still two other charges
left, and he's going to get off on those because one is I mean,
I think this is Jack Smith is an incompetent prosecutor because he charged he
didn't charge Trump with insurrection, he didn't charge Trump with sedition. He said
he committed all those things. Joe Biden, the head of the executive branches,
out there saying Trump did all those things. They charged them with this
evidence tampering thing. That's gone. The second charge is they charged them were
defrauding the United States, which is usually used against government contractors, but the
Supreme Court has already said that's a bribery law that involves stealing money from the
government, and if there's no loss of property or money, you can't use
that charge. That's gone. So the only remaining charge is this bizarre claim
under the ku Klux Klan Act that Donald Trump deprived every American in the country
of their vote simultaneously and all at once. So this this actually, this
evidence tampering law was the only one that even had a remote chance of working
on Trump. So if I'm tru Trump, you know, if you lose,
If Trump loses on Monday, I still think he's gonna he's gonna win.
Can I can I ask you John about a wrinkle in this case.
It's a six to three decision, which we're still Fisher, but it was
not sixty three Republicans versus Democrats. Katanji Brown Jackson voted with the five other
Conservatives Mean and Amy Cony Barrett wrote a dissent. What's going on here?
John? Or Justice Jackson and Justice Barrett? Are they both competing for the
David Suitor chair of Jurisprudence? What's happening here? No fun? No fair?
Making fun of New Englanders like Peter and Rob the enough challenges is is
okay? So first of all, yeah, so one thing is this is
that is really interesting. It actually deprives I think critics of the case that,
oh, this is just Trump justice side right prosecute, you know,
letting Trump people off. Uh. Ktanji Brown Jackson. Secondly, the votes
didn't really matter. Still would have been five to four even if you know
Ktangi Brown Jackson did vote the majority, but she wrote a small opinion to
attach the majority concurrence. And she's right. She just says, this is
a simple case. You know, I wish it wasn't, you know,
I'm trying to decide it without regard to the January six protesters. This is
not about their immorality or morality. This is just whether the prosecutors use the
law properly. You know, she might be someone who might be more favorable
the criminal defendants and so might want the government to have to prove its case
and not make stuff up. The Amy Coinney Barrett one is the one I
don't get because you know, she clerked for Scalia. She kind of models
herself after Scalia tries to protect his legacy. I can't imagine Justice Scalia taking
the same view she did. Yeah, mind you, this is let me
use it. This is a criminal was the view. What was the argument?
What was her argument? So her argument is, oh, well,
you know, part be of the law right and anything else that you can
think of them might impea Congress. Don't do it. She thought that really
does include everything, like, oh, they put in don't tamper with the
documents, and then they just put in a general clause to catch everything else.
Scalia, in his old age, wrote this these huge volumes about how
to interpret the law, and so there's several examples Scale gives them this book,
which are on the side of the majority saying, yeah, you don't
read Basically, here's here's an example. Actually, this is the example that
Chief Office Roberts gave, and Robert liked it because it involves popular culture.
Basically, he says, suppose there's a football rule that says, don't pull
people by the face mask, don't you know, like trip them, don't
stomp on them with your cleats, and then says, and don't otherwise harm
them. And so Robert says, if that were the law, would you
say that trash talk violates the rule? And he would say no, because
all the lists, everything in the first list is about physical harm, and
so you wouldn't say, oh, in the second part, oh, you're
never going to get everything else. He said, nobody would read the law
that way, a football rule that way, although I constantly think the referees
who stopped the Eagles from winning the Super Bowl due the rules this way,
obviously, but really likes that's the example Chief Justice Roberts gives. I think
it's it's quite compelling, actually, and I'm not in favor. I've got
no brief for the January sixth protesters. I think they should all do be
charged with you know, insurrection and sedition, and the ones who are convicted
should be sent away for a lot, but they can't be charged with insurrection
and sedition, or else they would have been charged with insurrection or sedition.
I mean to me, that's the significance? Is it? The political I
guess you just said that on the law, this is an easy case.
Catenji Jackson Brown for the first and let us hope the only time in history
agrees with John Yu. Yeah, this is an easy case, which suggests
that the Justice Department lawyers knew that the law that it was that they were
doing, that they were stretching the law, and they still put hundreds of
people in jail on this Kakamami chart law that was addressed to Enron executives who
had been engaged in fraudult or destruction of documents. So they and they were
effectively the dj was effectively daring the court. Yeah, we know it's easy
law. You know it's easy law. But look at the politics of this.
We dare you to say it. I think the Justice Apartment probably thought
no one would appeal it because this is such a high sentence right there,
going around saying we'll give you a plea one year you be guilty, will
give a year in jail. But if you don't, we're going to throw
this en wrong case at you and you're going away for a long time.
Most people will say, I'll take the deal, right. They didn't expect
that there would be people who try to get all the way the Supreme Court
on this misinterpretation of the law. So we should all feel grateful to mister
Fisher and his council. Well, I don't feel decided to take a little
tour of the Capitol when he wasn't supposed to. But right off hours,
we should talk a little bit about this. Uh, I don't really know
what they're calling it right that it's the outdoor camping rules. What I've been
calling it, which is the homelessness as versus Grant's Pass six three decision are
in people from camping in public parks and imposing fines on those who do.
Does not criminalize the status of homelessness and does not amount of cruel and unusual
punishment. The idea that the Supreme Court had to decide this is sort of
shocking anyway, but it really does have I mean, of all of the
things that maybe have an effect on the most people. Right that this this
decision does seem to have an effect on pretty much everybody lives in the city,
around a city, or in a state that is currently experiencing homelessness,
or currently experiencing people who are currently experiencing homelessness, or whatever' supposed to say.
How how of all the ripple effects of all the of all the decisions
we got this week, this one seems like it's pretty big, But nobody's
talking about it's just because it's not fancy. I think so, Rob,
if you think about what might affect the daily lives of most Americans, of
all these cases, this is the one that will have the most direct impact
because you've got first of all, let me, as an expert on all
things woke. I think the proper phrase is the unhoused. Is that the
right phrase the opinion. But the opinion used the old term homeless? Yes,
yes, I think that was part of the purpose, part of its
its hate exactly right. So, But you're right because and this is even
though in the other and this is different than the other cases. If the
other cases are about the courts are going to uh sit there and conduct close
scrutiny of what the administrative state and the Justice Department is doing. This case
is a plea for judicial modesty and humility. This is a case where the
court says, almost this is a terrible problem. States and cities have to
figure out what to do and who are we, the courts, to interfere
and tell them, oh, you're allowed to try this, You're not allowed
to try that, based on an utter misreading of the Constitution. Because so
again, the simple case is, the Eighth Amendment says no cruel and unusual
punishments. And it's I think proven without a doubt that that is about the
sentence you get from a court when you've been convicted of a crime. And
this lower court here, of course, out in California, said no,
no telling people they can't sleep in a public park. That's cruel and unusual
punishment. It has nothing to do with the criminal sentence, has nothing to
do with what a judge and a jury do to you after you've been prosecuted.
So it's easy that to say, oh, the Eighth Amendment just has
nothing to do with management of who gets to sleep where and how long,
whether you can be moved along, or whether you can be given a ticket
and pay a fine. If you now you could say, Okay, the
punishment is too Like after you've been fined, you could say, oh,
I think it's too much to be fined fifty bucks for sleeping outside. You
could try to raise an Eighth Amendment claim there. I suppose you're not going
to win, but you could try that. But that's so that's the easy
answer. But the practical consequence is power is now restored to cities and states
to try to come up with sensible problems about homelessness. Yeah. I mean,
that's the point, John, is that there's now no legal bar to
cities that want to do something serious about the matter. I mean, up
till now, I mean, I think the way this has been working is
you would have cities would try to do something to move the homeless out or
whatever, and a homeless advocate legal advocate to run to court and a look
at a couple of Ninth Circuit rulings that said, oh, it's an Eighth
Amendment violation and tie the hands of the cities. And so now there are
no excuses. You know, city leaders could even if they wanted to do
something, or if they didn't, they could say, well or hands are
tied by the cour and now their hands are untied, and the results in
San Francisco will be Oh, I have no idea. More homeless people are
going to show up and live in those luxury hotel rooms. Donald Trump was
talking about, Well, the other the cities around San Francisco will get tough,
and that's just guess what's going to happen. Yeah, well, I
mean it's well, a couple of points on that. I mean, there
was a report out from the state California Legislative Analyst Office a month or six
weeks ago showing that the state has spent something like fifteen billion dollars on homelessness
in the last ten years. And it went through this technical all these flow
charts about how none of the programs are coordinated, and of course homelessness went
up. A simple minded person might say, that's because when you spend more
money on it, you're going to get more of it. Well, the
California state just state legislature just passed the budget for the next year. It's
got huge cuts for lots of programs because we're so much or so far into
red, but it has another billion dollars in additional funding for homelessness. So
there you go. Wow, it'll be I think something that Donald Trump can
bring up in his debate bottomn with right, Yesvin Newsome, Yes, right,
So so John, Actually this looks like I mean, everyone wants to
talk about Dobbs right with the with the kind of a new sort of more
conservative makeup of the Supreme Court. But this sort of collection of things,
it seems like this is this, This is most this is most close closely
resembles the conservative Supreme Court that people have been imagining. Yes, yes,
can I say, like reading the opinions closely, which I do. I
do it for a living. It's amazing. I get paid for it,
but I'm happy to receive the money. Is uh. This is a This
is a Supreme court where all the arguments I think I said this to you
guys about two years ago. All of the arguments, all the debates are
about conservative originalist methods. They're all about how should conservatives who have disagreement about
themselves properly decide these cases. There's no more war in court. Don't read
the numbers of the emanations of the principles of this amendment and the dignity of
the human being as we think best. That's all gone. Nobody to if
they want to get anywhere at the court is making or promoting liberal judicial ideas
anymore. Is dead. That's the most remarkable with this. So if you
even receive the descents, the descents by a Kagan or Soda may or thereabout,
they're mostly you conservatives are not being faithful to conservative ideas, or you're
being inconsistent. Nobody's saying, Oh, the privacy right that emanates from the
due process clause means that these twenty rights in Emmanuel contact to be recognized by
our constitution. It's all gone. It's just like gone, right, that's
all gone. That's incredible change. Critique this headline, This is on the
New York Times website at this very hour. Justice is limit power of federal
agencies imperiling an array of regulations. Subhead A foundational nineteen eighty four decision had
required courts to defer to agencies reasonable interpretations of ambiguous statutes underpinning regulations on healthcare,
safety and the environment. As editor, would you permit that headline to
stand? I think that's true. It imperils it. What they don't address
in the headline is whether the regulations were actually legal. Yeah. What they
didn't understand is that people like us read that headline and say hot dog.
Yeah right, No, exactly where's the bad news here? So, Peter,
I always like to remind people who are I think are not clear on
this. The original case was NRDC versus Chevron Natural Resources Defense Counsel. They
were really suing the Reagan EPA. And the point to keep in mind is
the environmentalist position lost. The Reagan administration won that case. Fast forward to
today. Who are the greatest defenders of losing that case? The environmental community.
They're all over Twitter day saying this we're doomed, right right, Rob,
I want to you put it earlier that that means John did right where
you know the air is going to get dirty? All right? It shows
you the situational ethics of the left of these matters. They lose a landmark
case and then they become its greatest champions. So what about what about the
ethics situational All right, let's put it this way, situational analysis, even
of our side. I simply don't know the history here, but when that
decision was handed down in nineteen eighty four favoring the Reagan EPA. Chevron one,
we're in favor of oil companies. I guess the Federalist Society was just
in embryo still in nineteen eighty four. But did Robert Bort write an attack
on the on the decision, in other words, did it as a matter
of actually was handed down. Yeah, okay, So when roe versus Wade
was handed down, all kinds of people, including our friend Richard Epstein,
said at the time, that's a terrible decision. I don't recall that people
said that in nineteen eighty four about Chevron. I think it's a little it's
very much a product of his time. And in fact, actually this goes
with some of the other doctrines rob mentioned, like the sec case and administrative
judges. Actually Conservatives used to be in favor of these things. The Conservatives
were in favor of Chevron because what the Reagan administration to do wanted to do
was deregulate, and the courts, which were still stacked with LBJ and Kennedy
and Carter nominee judges, were stopping them. And so the Reaga mistrary said,
you should defer to us. We've been elected, and we were elected
to deregulate and the courts have to defer to us. So back, well,
the same thing with this Jarksey case about the SEC. It's actually chief
Justice requist who used to be in favor of getting rid of a lot of
juries and courts because his worry was the Left have created so many new rights,
particularly like social security and benefits cases. We can't have the federal courts
flooded with these things. We got to create these fake courts to hear tens
of thousands of cases and get them out. So actually conservatives too, I
think actually the conservatives were kind of like the tough on time and be pragmatic
and defer to the agencies once upon a time. But I think now we're
returning to our true roots. Was sort of defending the Constitution's creation of decentralized
weak government. No, so I have a slightly different view on the case
than John presents it. What's so much the Reaganites wanted to deregulate, as
regulate more rationally. So what the dispute was about, very simply was what
does the word source mean in that statute that John hates me to mention.
The Reagan administration's view was it ought to be the entire Chevron oil refinery,
and we're going to look at the whole refinery and figure out sensible, least
cost ways for them to reduce air emissions. The environmentalist position was, no
source on the statute should mean every single valve and every single pipe and every
switch, so that the EPA can issue specific regulations about every tiny thing that
happens in the refinery. That was their position. And that's when the rank
of the EPA said, that's stupid, that's expensive. It'll just lead the
endless rulemaking and what a dumb way to do things. And that was the
position that won. But it didn't take the bureaucrats long to figure out,
oh, if the courts are going to defer to us, we can run
wild. And it took a while for our team to figure that out.
You see why on our three Whiskey Happy Hour podcast, I don't let I
don't let Steve talk about the Clean Air Act? See can I ask a
question? I'm searching for this. I don't know who was the the Chevron
case was decided in nineteen eighty four, right, I know you're gonna ask.
I think who was who was running the EPA in nineteen eighty four.
Well, actually Neil Gorsuch's mother has left by eighty four, so close.
You know, I'm so old. I was thinking like this would have been
a great story, right that. You know, the son avenges the mother
or the son under however you want to look at it a little bit enough,
eventually you get to overturn your mom. I guess. Yeah, we
got interesting. Rob perked up when he thought he saw a sit comment.
Right, yeah, you know, he only gets going if oedipices involved.
It's got to be the one of the one of the absolute you know,
bedrock foundational myths we got to talk about. So so all in all,
this was an incredibly busy week and it feels like, so before we wrap
up the Supreme Court, John, what did they not decide? What do
you think they're gonna kick down the road? What? Yes, that's a
great question. But they first they they ducked a bunch of abortion issues.
They ducked the question of the FDA's approval of the abortion pill. They ducked
this case out of Idaho. Where can you read Medicare requirements that you give
emergency treatment in a hospital if you receive federal funds. Does that allow you
to override estates ban on abortions? So this is all the working out of
Dobbs. There's going to be still a lot of Folow. Actually, Steve
and I wrote a piece when Dobbs came out, which was, this is
not going to get the Court out of abortion. The states will still be
primary regulars. There's so many follow on issues about Dobbs and abortion. So
the Court avoided all those two, so those are all still to come.
There are also a whole bunch of cases they didn't They decided not to grant
this year involving the Harvard Affirmative Action case because even though Harvard shouldn't be discriminating
on race, all these high schools are still still discriminating on the basis of
race. So the Court decided not to hear a bunch of those two.
And then the one thing is we'll see what happens on Monday with the social
media cases. But they also ducked right the Biden administration or the government in
general using pressure to get social media to conduct censorship. They kicked that one
down, and that might be the most important for as amendment issue. As
Peter mentioned, and Justice Leo mentioned is how are we as a society going
to regulate social media which are private companies, but they have de facto become
the public square for our society. And that they avoided because right, they've
got enough on their plate this year. But these are what that's what's going
to fill the docket in the next. John may I asked, just explicitly,
I think you the way I hear you, you're imputing to the Chief
Justice. I think mainly the Chief Justice this kind of notion of we can
only handle so much. We as justices can only handle so much. But
as a political matter, the system can only bear so many prizing decisions,
so much only a certain degree of overturning. And so he's using standing and
other he's refusing to decide certain issues on the substance just because he doesn't think
the system can bear it. You've served in a justice's chambers? Is that
the way the justices think? Well, I served in the chambers of Justice
Thomas, who is they at least thinks that way on that court? Right,
he was just you know, he's happy to get the answer right,
even if the Supreme Court building burns down because of it. But this is
not just Chief Justice Roberts idea. This is the main theory of constitutional law
that's been taught in the law schools for fifty years since Roberts was a student,
which is the Supreme Court has a limited amount of political capital, and
so it has to use it sparingly, especially because it's a anti democratic institution.
Usually when the Court acts is telling the democracy can't do something, so
they have to do it sparingly and only for the most important things. So
conserve your capital, right, And that's I think that's how Roberts looks at
the world, and you can see it playing out right now these last times.
Is that correct or useful? What do you make of that view?
I think it's stupid. I'm like Donald Trump's saying, stupid. They get
advocate. So look the I think the Supreme Court's sole in the job is
to get things right. If they case or controversy reaches the court in the
proper way, they're only right. They That's what Hamilton said about them.
They have neither the sword nor the purse. All they have is judgment.
All they have is getting it right and persuading the rest of the country that
they have interpreted the constitution correctly. Otherwise, why bother with them? Why
have one unless that's all they do. So I don't like it when the
court evades, you know, chimmys and evades because they're worried about the political
consequences of their decisions and they want to conserve their capital. That's not their
job. I think elective politicians should think that way all the time, and
they do. I'm ticked off about Murphy because Jabadi Chari promised me that if
you want to take me to Disneyland, Wow, I would love to say
Peter, you know, like like yeah, I'm thinking like a progressive like
Peter Robinson. The Hoover Institution and COVID denier and a little teacup spin around.
It feels like we could easily do a gofund me for that. I
don't think. I think that's how they came up with That's how they refined
vaccines. It sounds like a huge last question, John, just on the
you know, the process. Are they all gone now the spring Court?
Are they all like home or on vacation? I mean, when these things
drop, how far away are they from that building? Well, this is
one of the interesting things, as you may know, usually the end by
the end of June. So usually today would have been the last day of
the decisions. But they actually have no fixed calendar. It's up to them
to decide when they meet or not. So they extended the term into the
first Monday in July because they still got several more important decisions to issue.
But the minute those things go out, you know, and they already know
the outcomes, and they're pretty much finished the work because they need a certain
amount of days for the printers actually, because they still have a printing shop
in that building, right, they still need the printers to have days in
time to you know, to set the print, to set the opinions and
print them. So but the minute they're done announcing the decisions on Monday,
they all spread to the winds uh and go all their various places. They
know. Justice Kennedy was famous for going to Salzburg, Austria to commune with
the eurouclatic elites and just and I will tell you Justice Thomas, you know,
he's the opposite, you know to the r Yeah, he likes to
get in his RV and dry. I mean I went with him once.
I was like, yeah, I don't want to see any more America.
Thanks, but you know, you know, he likes to drive around his
RV and be anonymous and stop at r V parks and uh, you know,
Walmart parking lots and you know, commune with the regular Americans. There's
your show, by the way, there's your show. Oh, Rob,
I've heard I've heard Justice Thomas tell the story of being in a Walmart parking
lot and he's, you know, in the shorts and somebody comes up to
him says, oh, that's a nice rig you got there. Who you
drive for? And just Thomas points at for Jin's, Miss Jinny. He's
the only one who can tell that story. I know. Yes, right,
John, thank you for joining us and trying to make sense of this.
You you did a B minus job, which is pretty good. So
you know, I mean with all the Yale and the Yale Great inflation,
I know that's a failing great. Yeah. No, I don't do that.
I'm I'm old school. So uh So, on Monday, we're gonna
get some new decisions, you think, Yeah, to be the termino,
you will. We will know if President Trump is immune. We will know
whether Texas and Florida can force social media not to censor people. Okay,
all right, fingers crossed, Thank you John, see you guys. Uh
busy week. I know in which way for you, mister Long. I
don't know just that that it'll be interesting. I don't know. I just
saying fingers crossed. Well, I mean, I think I know which way
to fingers can be crossed for all those things. But I'm you know,
as you know, I'm a I'm an originalist, so whatever the you know,
I go with the I go with the with the with the right wing,
right blowing wind. When it comes to the court speaking of the wind,
our wind is over. But before I let you go, oh,
I do want to say this podcast was made possible for ricochet dot com.
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