Speaker 1: It's the Three Whiskey Happy Hour, the podcast dedicated to
Speaker 1: single malts and blended opinions with your hosts Steve Hayward,
Speaker 1: John You, and some mystery woman named Lucretia, along with
Speaker 1: the floating cast of regular guests. So pour yourself, adron
Speaker 1: and settle in for another episode of one hundred proof Conversation.
Speaker 2: Welcome to this very special emergency podcast of the Three
Speaker 2: Whisky Happy Hour. Just to mention it, we actually already
Speaker 2: have this week's complete episode in the can. We recorded
Speaker 2: early this week for schedule reasons. We have Philmonio's from
Speaker 2: Notre Dame in for John You. This week. We also
Speaker 2: have a special guest appearance cameo appearance from Henry Kissinger.
Speaker 2: I think you'll find fun, and we do, for maybe
Speaker 2: about thirty seconds, take up the background of one of
Speaker 2: the main issues we want to talk about today. So
Speaker 2: the reason do I asked Lucretia on short notice, rushing
Speaker 2: back from the vet with her dogs, if she could
Speaker 2: join an emergency podcast is Trump has issued these executive
Speaker 2: orders today trying to, what do you say, reconstruct his
Speaker 2: policies against birthright citizenship. And you know, I don't even
Speaker 2: need to wait for the news tonight. I don't need
Speaker 2: to get on Twitter and Blue Sky to watch the
Speaker 2: left go berserk and the mainstream media. But I repeat myself,
Speaker 2: We're going to say Trump's define the Supreme Court. Trump's
Speaker 2: shredding the Constitution, He's attacking the Constitution, and this is
Speaker 2: all completely wrongheaded. And so I thought, let's get out
Speaker 2: ahead of us a little bit with our audience. And
Speaker 2: so here we are, so lucretia, how do you want
Speaker 2: to start on this? We both I haven't even showered day.
Speaker 2: I'm going a T shirt that's one for copy this morning.
Speaker 2: I've been so busy. But how do you want to
Speaker 2: start this? Do you want to explain what it says?
Speaker 2: Or do you want to go straight to the core
Speaker 2: constitutional argument? Or do you want to mention and that
Speaker 2: you know the important point that Trump asked the court
Speaker 2: to rehear the case.
Speaker 3: He did not no, no, no, he did not ask Here's
Speaker 3: the point. He indicated several weeks ago that the decision
Speaker 3: itself was so egregiously wrong and for all these reasons
Speaker 3: that he was going to ask the Court for a rehearing,
Speaker 3: which does happen on occasion. The court rarely grants those.
Speaker 3: John yu was very quick to point that out to me.
Speaker 3: But there's also a time limit. That time limit expired
Speaker 3: a couple of days ago. He did not go back,
Speaker 3: even though rumor had had it out there that Amy
Speaker 3: Coney Barrett was perhaps considering and I don't know if
Speaker 3: that was you know, that that could have been fake news.
Speaker 3: She was of course vilified very very strongly in in
Speaker 3: the media, but especially by the conservative punditry and so
Speaker 3: forth for her role in joining the dread Howard Roberts
Speaker 3: in the majority decision. That being said, I think it's
Speaker 3: not unreasonable to assume that because Trump decided that a
Speaker 3: rehearing would just be another loss, you know, a request
Speaker 3: for rehearing was probably going to be met with a no,
Speaker 3: that he decided to do this as especially since it's
Speaker 3: such a short amount of time after the rehearing deadline
Speaker 3: passed to find the find the openings in the Barbi
Speaker 3: Trump versus Barber case, to define in a more specific
Speaker 3: way who those people were who were not included in
Speaker 3: the subject to the jurisdiction of the United States phraseology.
Speaker 3: And so we're told that it is, of course diplomats,
Speaker 3: children of diplomats, children of aliens. It's a variety of
Speaker 3: interesting uh formulations about the people that are the children
Speaker 3: of people who are excluded. But one of the major
Speaker 3: reasons to do this, of course, is to which is
Speaker 3: something that that that I believe that Kavanaugh's uh concurring
Speaker 3: opinion UH left open was this idea that in fact,
Speaker 3: a very hard crackdown under the president's actual powers of
Speaker 3: already existing laws to stop birthright tourism, uh is one
Speaker 3: of the major folk I of this particular uh executive order.
Speaker 2: Well, I know it's one thing I haven't mastered this
Speaker 2: thing at all yet, because at a time I did
Speaker 2: notice one thing in the Wall Street Journal news story
Speaker 2: about it, which has already been updated twice this afternoon,
Speaker 2: and it said that, uh that the Trump administry or
Speaker 2: actually some private organization, the Migration Research Ins too something
Speaker 2: like that, has identified, for example, ninety six hundred newborns
Speaker 2: in the United States in twenty twenty four where the
Speaker 2: mothers gave foreign addresses on the hospital paperwork, which means
Speaker 2: they're not even trying to pretend that they're under the
Speaker 2: jurisdiction of the United States, right, And that's some one
Speaker 2: of those little sort of webshots. I think that forces
Speaker 2: the issue at least sharpens it a bit and moves
Speaker 2: the ball down the field.
Speaker 3: So you know, this is a new topic for a
Speaker 3: lot of people out there. For me, it's a very
Speaker 3: different thing. I actually know quite a few people who
Speaker 3: are Mexican citizens. There's a hospital in a place not
Speaker 3: far about fifty miles from where I live, or was
Speaker 3: of hospital in Douglas, which is a port of entry
Speaker 3: on the southern Arizona border. The hospital would take cash
Speaker 3: payments from Mexican citizens, Mexican pregnant Mexican mothers, and if
Speaker 3: you paid up for delivery at that hospital, then when
Speaker 3: time came to deliver, you could cross on whatever visa
Speaker 3: you had have your baby. And I actually probably know
Speaker 3: two dozen people whose citizenship was established that way. It
Speaker 3: was a long time practice. Now it wasn't a business,
Speaker 3: it was just a practice. They shut that hospital down
Speaker 3: in part because that came under a lot of scrutiny.
Speaker 3: But it is a problem. And whether it's the ninety
Speaker 3: six whatever it was ninety six hundred or two thousand
Speaker 3: that they estimate, it's a problem, and not so much
Speaker 3: necessarily just because of rich Chinese or rich Russians or
Speaker 3: what have you. It's a problem about who else is
Speaker 3: allowed to come here and establish citizenship. And then let's
Speaker 3: never forget all of the benefits that come to the
Speaker 3: family of an American citizen infant. I mean, you see
Speaker 3: it from the other point of view, all of this, oh,
Speaker 3: this honor of seventeen children here who are some of
Speaker 3: from are citizens. A legal amen is being sent back
Speaker 3: to his country. Okay, right, great, So.
Speaker 2: Now, by the way, a great hair guy says, it's
Speaker 2: a two whiskey Thursday. So John Hugh was on trance
Speaker 2: of to day, of course, like almost every day, I'm
Speaker 2: having a lefroy here at four thirty in the afternoon,
Speaker 2: just because. And Lucretia, do you need to go into
Speaker 2: the kitchen?
Speaker 3: I do, I do, but I'm too thirsty yet to
Speaker 3: do so. And this is already gone. I will tell
Speaker 3: you that I'm sorry. John and I are in the midst.
Speaker 3: Some of you may know. John and I are in
Speaker 3: the midst. And I've already and back and forth on
Speaker 3: the question of birthright citizenship. He believes that the court
Speaker 3: was right for a whole variety of reasons. I'm sure
Speaker 3: that if you haven't actually linked to that back and
Speaker 3: forth Stevie, should I haven't.
Speaker 2: We've tried to.
Speaker 3: Yeah, yeah, it's a good idea.
Speaker 2: But is the first installments already up at Civitas.
Speaker 3: Yes, yes, one was on the I want to say
Speaker 3: the Friday, and Jones followed on Monday. But I have
Speaker 3: my I have already given John my rejoinder. And here's
Speaker 3: an interesting thing, Steve, I want to mention this, even
Speaker 3: though it's it's you know, probably like uh sneaking the
Speaker 3: ending in. If you look at the wording of the
Speaker 3: citizenship clause of the fourteenth Amendment, it says all persons
Speaker 3: born or naturalized right. And if you go into federal
Speaker 3: law and federal regulations persistent pursue it to that law,
Speaker 3: what you will find are there are very specific requirements
Speaker 3: for a person to become naturalized. One of which is
Speaker 3: that you cannot have any allegiance to a foreign power,
Speaker 3: foreign sovereign, foreign prints, et cetera, et cetera. Another is
Speaker 3: you have to you know, be in uh, I forget
Speaker 3: the exact terminology. You can't be breaking the laws of
Speaker 3: the United States, basically, right, and or you don't get
Speaker 3: to become a naturalized citizen. So My argument to John,
Speaker 3: we'll see what he comes back with, is why would
Speaker 3: the Constitution then be interpreted to allow the children of parents,
Speaker 3: you know, whose citizenship is determined then by those parents.
Speaker 3: Why would an infant whose parents brought him or her
Speaker 3: here to under circumstances where they were here illegally, or
Speaker 3: they did so actually somehow nefariously, under birth tourism or something,
Speaker 3: why would they get to become citizens? But a naturalized
Speaker 3: citizen has to in fact absolve allegiance to another country,
Speaker 3: and soon there should not be two separate standards for
Speaker 3: being a birthright citizen versus a naturalized citizen.
Speaker 2: You know, I'm having flashbacks to Marbury for a minute.
Speaker 2: Do you remember Marshall's opinion turned on if what was it?
Speaker 2: You know, original jurisdiction, if that, if it meant that
Speaker 2: it could be any I'm I'm this is problem. I'm
Speaker 2: trying to do this for memory. I'm doing it badly.
Speaker 2: But the point was he said, if those words don't
Speaker 2: have a restrictive meaning, then they're mereser plusage and legal
Speaker 2: language should be mere. So your point about naturalization, if
Speaker 2: birthright citizenship is automatic slam dunk, then that term becomes
Speaker 2: mister plusage in the fourteenth Amendment. I don't know if
Speaker 2: that's been developed or not, but because I didn't think
Speaker 2: of it till just now.
Speaker 3: But oh, I mean actually believe it or not. Ed
Speaker 3: Earler talked about that.
Speaker 2: I believe, of course.
Speaker 3: Yeah, no, of course, but I mean, yeah, that is
Speaker 3: a very a very good argument that subject to the
Speaker 3: jurisdiction has a specific meaning. It does not mean anybody
Speaker 3: on the territory subject to the laws of the United States.
Speaker 3: It doesn't mean that in any way, shape or form.
Speaker 3: It refers directly back to the language of the Civil
Speaker 3: Rights Act of eighteen sixty six, which the Fourteenth Amendment
Speaker 3: was passed because there were there was a question about
Speaker 3: whether or not Congress under the Thirteenth Amendment had the
Speaker 3: power to pass the Civil Rights Act of eighteen sixty six.
Speaker 3: So the whole citizenship clause of the Fourteenth Amendment is
Speaker 3: to make sure that the legislation passed by Congress in
Speaker 3: the Civil Rights Act of eighteen sixty six becomes operational.
Speaker 3: I guess that's the right where the implementation implementable, and
Speaker 3: the civil rights case is very clear. Subjectuist jurisdiction excludes aliens,
Speaker 3: right diplomats, those who invading armies, and Indians not taxed.
Speaker 3: Indians not taxed, John, my good friend John tries to
Speaker 3: argue that it's not fair to do this when he's
Speaker 3: not here. But he tries to argue that that Indians
Speaker 3: not tax is the only exception to the subject to
Speaker 3: the jurisdiction rule Congress. The Constitution explicitly says that, except
Speaker 3: it doesn't say that. In the first paragraph, that first
Speaker 3: section of the Fourteenth Amendment, it says it with respect
Speaker 3: to overturning the three Fists compromise repeats the same language
Speaker 3: excludes Indians not text. You can look this up yourself
Speaker 3: on the Fourteenth Amendment. The point of the matter is
Speaker 3: that there were categories of persons that under the Civil
Speaker 3: Rights Act of eighteen sixty six were specifically excluded, and
Speaker 3: those included Indians, They included aliens, those included those with
Speaker 3: allegiances to other countries. And the legislative history of the
Speaker 3: Fourteenth Amendment very clearly indicates that it is putting in
Speaker 3: place and using subject to the jurisdiction thereof as the
Speaker 3: catch all phrase for the very same people for which
Speaker 3: exceptions were made in the Civil Rights Act of eighteen
Speaker 3: sixty six. Anybody who reads the Fourteenth Amendment legislative debates
Speaker 3: sees that that's exactly the point the court didn't read it. Sorry,
Speaker 3: I got off of That's all right.
Speaker 2: Yeah, I'd like to do here because I want to
Speaker 2: ask you stick to a half hour. I'd like to
Speaker 2: draw back for a moment from the legal train of
Speaker 2: arguments and talk about the political and broader constitutional arguments
Speaker 2: and how citizens should think about this, because, you know,
Speaker 2: I said at the beginning, you know what the left
Speaker 2: and the media are going to say, you know, Trump's
Speaker 2: define a court to find a constitution. And here I think,
Speaker 2: I know we've talked about this in the years past
Speaker 2: in our podcast, but I think maybe we should do
Speaker 2: a refresher. When I heard people say I was gonna
Speaker 2: be said, I immediately think back to the way Lincoln
Speaker 2: talked about how we should think about the dred Scott case,
Speaker 2: which of course drew upon Andrew Jackson and the whole
Speaker 2: idea that well, let me pause here and say that
Speaker 2: one of the things that Phil Muno says in his
Speaker 2: article we're discussing in the main episode in a couple
Speaker 2: of days is how's he put it, the Constitution was
Speaker 2: made for the people of the United States. It was
Speaker 2: not made for the judges of the United States. Right,
Speaker 2: the preamble does not say we the judges of the
Speaker 2: United States? Is we the people? Right? Pretty straightforward what
Speaker 2: that ought to mean. And he said it's been a mistake.
Speaker 2: And by the way, I think he's preaching him lucretia
Speaker 2: a stake to think that the Supreme Court has the
Speaker 2: primary or last word on this subject. So Trump is
Speaker 2: properly contesting the Supreme Court for how the Constitution should be.
Speaker 2: I mean, I've made this rantom four when you know
Speaker 2: President George W. Bush sidon McCain fine goldat and said,
Speaker 2: I think it's a violation of the First Amendment. But
Speaker 2: that's a subject for the Supreme Court to decide. It's well,
Speaker 2: which is impeach the guy right now for not upholding
Speaker 2: his oath of office to defend the constitution? Right, So,
Speaker 2: do you want to go to an argument or you
Speaker 2: want me to start it and you can fill start it.
Speaker 3: I want to give you all right, let me do.
Speaker 2: It this way. It's little noted in most of the
Speaker 2: Lincoln biographies, but when he came into office in eighteen
Speaker 2: sixty one. And I post a question about this to students,
Speaker 2: and then the answer they give me will tell you
Speaker 2: how bad things are in education. Say so, Lincoln comes
Speaker 2: into office, he finds the State Department has denied a
Speaker 2: passport to a free black, a passport application to a
Speaker 2: free black in Massachusetts who wanted to study abroad in France. Similarly,
Speaker 2: the patent office, I think in Philadelphia had denied a
Speaker 2: patent application from a free black, not a former slave,
Speaker 2: not even Frederick Douglass, who had applied for patent. And
Speaker 2: in both cases, the state Department and the patent office said, well,
Speaker 2: the dread Scott case says that blacks are not American citizens,
Speaker 2: no matter their slave status, and therefore they have no
Speaker 2: legal right for a passport or a or a passport
Speaker 2: or patent. Lincoln ordered those bureaucratic findings countermanded. And so
Speaker 2: I asked students, actually undergraduates. Law students usually can puzzle
Speaker 2: us a little longer, say was Lincoln defying the Constitution
Speaker 2: when he made those decisions? And I often get a
Speaker 2: majority of the class nodding their heads that yes, he did.
Speaker 2: Because the Supreme Court determines what the Constitution is that's
Speaker 2: what people think, and that's what the Supreme Court has
Speaker 2: wanted us to think. And Lincoln's point was, and this
Speaker 2: is what he explained is inaugural dress, right is I'll
Speaker 2: rephrase it this way. Actually, all three branches have their
Speaker 2: say in things. They have their different I have news.
Speaker 2: You can't just defy a court order, as Lincoln put it,
Speaker 2: as to the parties to that case.
Speaker 3: Yeah, Dred Scott is still a slave.
Speaker 2: Right, Red Scott still a slave. I can't make that
Speaker 2: go away. But and Lincoln loved to draw up on
Speaker 2: Andrew Jackson, who, in his famous veto message of the
Speaker 2: third Bank in the United States said I don't care
Speaker 2: if the Supreme Court is as it's constitutional. I don't
Speaker 2: think it's constitutional. And that's why I'm going to veto it.
Speaker 2: He didn't do it on policy grounds. He could have.
Speaker 2: I mean, he hated banks, just like Thomas Jefferson did.
Speaker 2: But the point is that we have become the sense
Speaker 2: that the Constitution belongs not only to the people, but
Speaker 2: to the other branches. To contest and push back against
Speaker 2: the Supreme Court is something that has afro feed. And
Speaker 2: so here's Trump doing exactly what Lincoln would say he
Speaker 2: should do. And now we sit back and watch the
Speaker 2: Left rage about how he's trying to destroy the Constitution,
Speaker 2: and of my rant on this it's not.
Speaker 3: It's a good rant. I want to go back a
Speaker 3: little more than the beginning of what you started. And
Speaker 3: I want to say this much. I know that some
Speaker 3: of our listeners out there know this argument, So if
Speaker 3: you already do, forgive me. But I really think it's
Speaker 3: an important one. If you've ever really studied Marburie versus Madison,
Speaker 3: which creates, of course, for the Supreme Court the power
Speaker 3: or at least further defines it, whether you believe it's
Speaker 3: in the Constitution or not. It's not specific, but defines
Speaker 3: for the Court the power of judicial review. It is
Speaker 3: very very important to look at exactly what it is
Speaker 3: that the Court does in Marbury versus Madison. The Court
Speaker 3: doesn't define Congress's powers with respect to what Congress can
Speaker 3: do about just any old thing, or what the President
Speaker 3: can do about just any old thing for that matter.
Speaker 3: The Court defines its own powers in Marbury versus Madison.
Speaker 3: The Court is saying that, no, we have powers under
Speaker 3: the Constitution. And because of the way Appellate power and
Speaker 3: original power works and all this other stuff you cannot
Speaker 3: add to our original jurisdiction, And they are saying what
Speaker 3: the Court's powers are there. That's the first use of
Speaker 3: an Act of Congress being overturned, and as you know,
Speaker 3: Marshall never overturns another Act of Congress in his thirty
Speaker 3: three year career on the Court. If you are talking
Speaker 3: about powers like the power to issue passports, the powers
Speaker 3: that are exercised by the State Department under the executive branch,
Speaker 3: ultimately it is absolutely up to the president to make
Speaker 3: a constitutional argument for what his powers are and why
Speaker 3: they're appropriately exercised. I believe that, and I also believe
Speaker 3: that the ultimate judge of that, of course, is the people.
Speaker 3: A dependence on the people. As you're going to hear
Speaker 3: me make the same lame argument again tomorrow when you
Speaker 3: listen to the the full podcast. I actually believe that
Speaker 3: it has been a terrible, terrible, what would you call it,
Speaker 3: acquiescence of the American people to turn over all of
Speaker 3: these decisions to the Supreme Court. It's easy, oh, well,
Speaker 3: you know, the Supreme Court decided this, and it's a
Speaker 3: really bad decision, but it's the law of the land. Now, Uh,
Speaker 3: that's that's you know, that's that's a really iffy thing.
Speaker 3: How does Lincoln put it? We will have he says,
Speaker 3: if we we will have completely turned over our Republican
Speaker 3: government to the the whims of this eminent tribunal. That's
Speaker 3: not it exactly.
Speaker 2: Yeah, but although I'm goin a tribunal is the phrase
Speaker 2: he uses it. I sometimes wonder if he's being slightly
Speaker 2: ironic or circle.
Speaker 3: I think it was very nasty about that. Yeah, well,
Speaker 3: I wasn't sure Lincoln.
Speaker 2: Okay, So we do have. One of the problems with
Speaker 2: the live chat window that I get is that it
Speaker 2: scrolls up and I can't see them recall the earlier questions.
Speaker 2: But our for somebody's not working for me. I don't
Speaker 2: know why.
Speaker 3: Well, it does for me. The problem is is that
Speaker 3: I start reading them and then I don't listen to
Speaker 3: you anymore. I don't know what you're talking about. That
Speaker 3: that's the problem.
Speaker 2: Why would this be? I? Well, I do like I
Speaker 2: do like a question from the world's greatest condoment hater,
Speaker 2: Anthony Lucido, who says this is just for fun. If
Speaker 2: the corn degrees work, tourism can be banned does Katanji
Speaker 2: Brown Jackson read eight hour to send sighting Hassan Piker
Speaker 2: and the enduring greatness of Chairman. Now, you know, I
Speaker 2: hope she doesn't read your comment, Anthony, because she will
Speaker 2: probably say that's a great idea.
Speaker 3: Yeah, I'm kidding. So so back to what So. I
Speaker 3: do think that what Trump is trying to do here
Speaker 3: is thread the needle a little bit into not just
Speaker 3: Kavanaugh's decisions, specifically Kevin, I remember concurs on the on
Speaker 3: the Fourteenth Amendment argument that but he says it's because
Speaker 3: it's up to Congress. It's a statuey thing, not not.
Speaker 3: He doesn't want to make it a Fourteenth Amendment ruling.
Speaker 3: And my problem John and I when we argued about
Speaker 3: this not on the last time we discussed birthright citizenship,
Speaker 3: he kept thinking I was saying that, you know that
Speaker 3: the Congress should defy the Supreme Court. Now I do
Speaker 3: think that, but for all the reasons I just talked about,
Speaker 3: that's no longer really very much of an option just
Speaker 3: to say we're we're going to repass a law and
Speaker 3: you're wrong, Supreme Court, because the Fourteenth Amendment's enforcement clause
Speaker 3: says Congress not the Supreme Court shall have the power
Speaker 3: to enforce. And so if Congress wants to define I've
Speaker 3: said this all along. If Congress wants to define exactly
Speaker 3: what birthright citizenship means, I believe they can do so.
Speaker 3: But yes, no longer because of the way the Court
Speaker 3: decided the opinion that they the way they did. I
Speaker 3: think Trump is looking for that little maneuver room that
Speaker 3: Baby will allow because he's much more specific about who
Speaker 3: it is is covered under subject to the jurisdiction and
Speaker 3: who isn't, and much more specific about how his powers
Speaker 3: as executive allow him to make decisions with respect to
Speaker 3: those people that are clearly executive power decisions. That's what
Speaker 3: I think is happening here.
Speaker 2: Okay, let me let me take two more questions, want
Speaker 2: of answers, just very quickly, both from Gail w She
Speaker 2: repeats a question since my scroll isn't working that I
Speaker 2: think we talked about this. But I think, Gail, maybe
Speaker 2: you came on late. Didn't Trump request a rehearing? The answers, Yes,
Speaker 2: but that rehearing period expired a couple of days ago.
Speaker 3: Something he did not request it. He said he was
Speaker 3: going to and he did.
Speaker 2: Oh, Okay, Oh, I see. I thought he he wasn't
Speaker 2: gonna win anyway. I mean they you know, no, probably not,
Speaker 2: never get that. But the more serious question is, and
Speaker 2: you know, we've talked about this before, and so Lucretia,
Speaker 2: I think I want to lem me you to sort
Speaker 2: of one and a half answers at al Summer. You
Speaker 2: see your question, Lucretia, if we think the ruling is wrong,
Speaker 2: why do you think the conservative justices, to many of them,
Speaker 2: lovely Barrett and Roberts went along with it. Do you
Speaker 2: think they're buckling under threats. I don't know, but I
Speaker 2: think they're weak minded myself.
Speaker 3: But yeah, I do too. I do too. So let
Speaker 3: me leave aside Amy Coney Barrett for a moment. One
Speaker 3: thing that I've noticed is that persons who have a
Speaker 3: personal stake in citizenship, which is not how should I
Speaker 3: say not children born to parents who's who have lived
Speaker 3: here their entire lives and were always citizens. Okay, if
Speaker 3: you have some if you have a brother or sister
Speaker 3: who's a naturalized citizen, or your parents came here and
Speaker 3: you were a naturally citizenship, that's our co host. By
Speaker 3: the way, it was naturalized at the age of two
Speaker 3: that I do think so. In amy Cony Barrett's case,
Speaker 3: she has several children that are adopted from Haiti. Maybe
Speaker 3: that's it. Maybe it's not. Leave that aside. In the
Speaker 3: case of Roberts, Roberts is constantly more worried about the
Speaker 3: integrity of the Court than he is the integrity of
Speaker 3: the Constitution. He thinks they're the same thing, and they're not.
Speaker 3: It's I make I make fun of him constantly, the
Speaker 3: dread coward Roberts. It's an understandable position, and in some
Speaker 3: ways it is the fulfillment of what Madison tells us,
Speaker 3: which is that ambition on behalf of the integrity and
Speaker 3: the reputation of the court. That's the thing that's driving
Speaker 3: Thomas all of the time. It's it's it's the right thing.
Speaker 3: The problem again is that he should realize that it's
Speaker 3: not the integrity of the court, full stop. It's the
Speaker 3: integrity of the court upholding the integrity of the Constitution.
Speaker 3: That's really what's required of him. And yeah, go ahead.
Speaker 3: And so if you look at it really politically.
Speaker 2: Steve, yeah, well that's what I'm going to do.
Speaker 3: Decisions in what are considered in favor of Trump, you know,
Speaker 3: the left attacks him, and maybe they threaten and do
Speaker 3: all of those things. And I do think that Tom,
Speaker 3: excuse me, that Roberts is often motivated by wanting to
Speaker 3: appear fair and impartial.
Speaker 2: Yeah, now, let me make a small modest defense of him,
Speaker 2: which I think you'll mostly agree with. I think it's
Speaker 2: not a neugatory thing to worry about the loss of
Speaker 2: public confidence in the Court. The reason I say that is,
Speaker 2: of all of our government institutions, the only institution is
Speaker 2: really a substitution, is the Pentagon that is higher in
Speaker 2: public esteem. Supreme you know, Congress is in the toilet.
Speaker 2: The president's ratings that I mean, all the presidents end
Speaker 2: up where Trump is now in the last twenty years.
Speaker 3: But it may not be the Pentagon. It's actually the military.
Speaker 2: Military.
Speaker 3: It's two different things. OK, sorry, go ahead.
Speaker 2: But the point is is that Supreme Court holds up Well,
Speaker 2: I don't think that's entirely the maneuvering of I know
Speaker 2: it's going down. I'm coming to that point, but it's
Speaker 2: not anywhere near as bad as Commerce and the rest.
Speaker 2: I do think that one of the reasons for that
Speaker 2: is because they don't televise their hearings. I think if
Speaker 2: you actually televise them, start having show voting by the
Speaker 2: lawyers and the justices, I would get and I think
Speaker 2: the public would get sent it. Anyway, The point is
Speaker 2: it's not an oratory consideration. I think the Sarah is
Speaker 2: good book recently on the Supreme Court called Last Branch Standing.
Speaker 2: I think it's called there's something to that point. However.
Speaker 2: Oh and I'll give one other point for Roberts. You
Speaker 2: remember when Chuck Schumer made that menacing speech on the
Speaker 2: steps of the Supreme Court, You're going to reap the
Speaker 2: whirlwind for these and Roberts put out that public letter
Speaker 2: saying to Schumer, you are being reckless and endangering us.
Speaker 2: I wish Roberts would do a lot more of that
Speaker 2: kind of thing. That said, I think your argument is
Speaker 2: on the whole that is a dereliction of duty on
Speaker 2: some level of the spectrum. So I agree with you
Speaker 2: on that part. But you know, he's a Burkean. Let's
Speaker 2: put it that way. People Saylito is the Burkean. It's
Speaker 2: really in some ways Roberts.
Speaker 3: And again, you know, I'm very rough on him. I
Speaker 3: should concede all of the benefits that we've had because say,
Speaker 3: Roberts was Chief Justice and not I don't know, Lawrence
Speaker 3: Tribe perhaps, or you know, something like that.
Speaker 2: Mike or Mike Ludick, who's gone totally yeah.
Speaker 3: But maybe Mike wouldn't have been so crazy.
Speaker 2: Who knows, I can't.
Speaker 3: But that being said, how many people went to Earl
Speaker 3: Warren and said, if you keep going in this direction,
Speaker 3: you're going to ruin the reputation of the Supreme Court.
Speaker 3: And if they did, it wouldn't have mattered, because the
Speaker 3: opposite happened. The Supreme Court became more and more powerful
Speaker 3: in terms of setting policy large policy initiatives in this
Speaker 3: country as a result of Warren completely saying, screw you
Speaker 3: to any sort of conservative attitude about how the Supreme
Speaker 3: Court should decide decisions. And I don't mean conservative, it
Speaker 3: is impolitical, but I mean truly, let's think about conserving
Speaker 3: the concert, not advancing certain leftist progressive policies. Right, barn
Speaker 3: didn't care. He didn't give a damn about balancing decisions
Speaker 3: that are going to piss off the left versus decisions
Speaker 3: that are going to piss off the rights right.
Speaker 2: Well, if he ever did, he quickly, really, he and
Speaker 2: others especially quickly realized, hey, we can get away with that.
Speaker 2: What else could we get away with it? It just
Speaker 2: got worse and worse.
Speaker 3: Right and Mike put in their threats to amy Cony
Speaker 3: Barrett are a great concern. I agree. I mean, I
Speaker 3: don't think anyone never mind of a mother of eight children,
Speaker 3: you know, a young mother, fairly young, of eight children,
Speaker 3: should should be fearful for her life or the life
Speaker 3: of her children. The Left is to blame for that though,
Speaker 3: And oh yeah, which is I think what Steve was
Speaker 3: saying a moment ago in many ways is that there
Speaker 3: has not down Yes, there has not been the pushback
Speaker 3: on the on the I mean, now we have a possible,
Speaker 3: supposedly the likely Democratic nominee for president in twenty twenty
Speaker 3: eight talking about abolishing the Supreme Court at the very least,
Speaker 3: you know, completely stacking it. You know that people are
Speaker 3: saying this all the time.
Speaker 2: Right, So right, I mean understand that if we get
Speaker 2: I mean we want to wrap up here soon. If
Speaker 2: we pack the Supreme Court, that it's a public approval
Speaker 2: will tank because it will become an openly partisan institution.
Speaker 2: And the Left doesn't care because they want to win.
Speaker 2: And so by tearing down the court. Now we'll excuse
Speaker 2: them from the blame for that happening. Can I just
Speaker 2: and let me begin with this. Maybe I've got an
Speaker 2: article in the can for Cibitas about what I'm calling
Speaker 2: I'm hoping that the next Diagnostic and Statistical Manual Mental
Speaker 2: Illness will include what I'm calling pcb D Progressive constitutional
Speaker 2: bipolar disorder. Because on the one hand, they're yelling, as
Speaker 2: they will today, Trump is a threat to the Constitution. Also, progressives,
Speaker 2: the Constitution stinks. We got to change it and junk
Speaker 2: it and change it wholesale. Well, which is it? Guys?
Speaker 2: Can you make up your mind? Please? And you know
Speaker 2: one of them is well, I'll stop there because you
Speaker 2: can read the article when it's done, but when it's
Speaker 2: out finally, but this is part of it. This is okay,
Speaker 2: I'll stop there.
Speaker 3: Yeah, I mean, I mean the idea that the Democratic
Speaker 3: Party in Wisconsin, never mind what happened in Michigan, but
Speaker 3: that you said bipolar. She admits to being bipolar. Literally,
Speaker 3: I mean in an absolute nut job. She acts like
Speaker 3: an out job. She you know, despises her own child
Speaker 3: because he's half white and and people are going to
Speaker 3: vote for that. Oh, I mean, what, what in what
Speaker 3: world does was Robert's thinking, He's going to look like
Speaker 3: the statesman above it all and convince people of the
Speaker 3: integrity of the court and the low rally around and
Speaker 3: say yeah, yay. I mean in a world where somebody
Speaker 3: would vote for say ed or Hong Francesca Hong.
Speaker 2: Korean. Yes she is she Oh Hong is a Korean name.
Speaker 3: I guess I didn't think so, but that's what I've
Speaker 3: heard from But anyway, Curry that you can't reason with
Speaker 3: people like that, why did you.
Speaker 2: Well, this is off topic and.
Speaker 3: We really do need but you said backwards, Uh.
Speaker 2: Okay, Well what we will take up in a future
Speaker 2: general episode. I just read the date on this today.
Speaker 2: If you take a minority candidate and a white candidate
Speaker 2: and you give them exactly the same positions, make them
Speaker 2: radical positions, a majority of Democratic voters will vote for
Speaker 2: the minority candidate and be more hesitant about the white candidate.
Speaker 2: Why because being a minority for the Democratic Party for
Speaker 2: a long time that was a big plus factor. This
Speaker 2: is what should make people very scared about this guy
Speaker 2: in Michigan. But we'll treat that in some detail down
Speaker 2: the road.
Speaker 3: I can't let this one go by No, no, no, what
Speaker 3: you said. I agree, Michael Leak, Koreans don't know how
Speaker 3: to cook turkeys.
Speaker 2: Oh, there we are. I had the wrong setting on
Speaker 2: my well, you know, okay, have nice drink. So when
Speaker 2: you hear all this crazy stuff today and tomorrow about
Speaker 2: Trump's attacking the Constitution, now you know why, you can
Speaker 2: just let it roll off your back like like water
Speaker 2: off a peaking duck.
Speaker 3: And so can I make a prediction at the end
Speaker 3: of this for a year and a half or something
Speaker 3: from now? So I believe that you know there. I'm
Speaker 3: sure that there are all sorts of leftist organizations already
Speaker 3: preparing their challenges to friendly district court judges out there,
Speaker 3: when I mean, one would think that they have to
Speaker 3: at least wait until the Trump State Department denies a
Speaker 3: passport to someone, but who knows not with our district
Speaker 3: court judges these days, I think that this is going
Speaker 3: to go back to the Supreme Court. And I think
Speaker 3: that Trump may very well be getting close to the
Speaker 3: point where he's going to ignore district court universal injunctions. Yeah,
Speaker 3: why wouldn't you, Why wouldn't you at this point if
Speaker 3: you're Trump I don't know. Maybe he'll wait till after
Speaker 3: the midterms, but.
Speaker 2: Oh okay, I'm going to give Anthony Lucia the last word.
Speaker 2: I wouldn't see what Scott Pelly thinks. Although actually, so
Speaker 2: you know, my my great mentor Stan Evans said that
Speaker 2: great Trolly said. You know, whenever there's an important public
Speaker 2: policy issue, I want to know what Bono thinks. It's
Speaker 2: importantly know what celebrities think about public and healthcare and stuff.
Speaker 2: I actually, Katy Perry says healthcare should be free. You know,
Speaker 2: I think Katy Perry concerts should be free.
Speaker 3: To Actually, you know what, I'm I might have to
Speaker 3: change my mind about that because it turns out I
Speaker 3: actually care what Aaron Rodgers thinks.
Speaker 2: Hmm yeah, okay, okay, all right, we got to go
Speaker 2: you guys up Saturday.
Speaker 3: It was to see you all sort of not the
Speaker 3: lovely part the scene, right, okay, by everybody bye?
Speaker 4: You know that they'll never let music.
Speaker 2: Comes far the leader.
Speaker 4: No, it's a farm up, the fell at the firms,
Speaker 4: the big one, the red one of the counas in
Speaker 4: choice after the countdowns, to see what they think.
Speaker 1: They said, that doesn't.
Speaker 2: Come any They're written and it Ricochet join the conversation.