Speaker 1: The other thing that you have to realize is that
Speaker 1: after three or four years of you being on a
Speaker 1: podcast here with me, you've come so far.
Speaker 2: Oh my god, I'm so glad that's not on tape.
Speaker 3: Whiskey, come and take my pain. They don't. Why think
Speaker 3: alone when you can drink it all in with Ricochet's
Speaker 3: three Whiskey Happy Hour. Join your bartenders, Steve Hayward, John You,
Speaker 3: and the international Woman of Mystery, Lucretia. Where this lap stopping? Livid?
Speaker 3: Ain't you easy on the show? Cat's gotta giving whiskey?
Speaker 3: All right, listeners, Daddy's back getting in charge from the juveniles.
Speaker 3: I left in charge of the podcast like it reminds
Speaker 3: me of that old line of p J o'rouric about
Speaker 3: giving power to liberals is like giving the car keys
Speaker 3: and whiskey to a teenager. So I let you guys
Speaker 3: run this show. For the large part, I was gone
Speaker 3: and you can see where it went. So I'm back
Speaker 3: in charge. It's the three Whiskey Happy Hour. Good morning, everybody.
Speaker 3: I've got Lucretia at a disadvantage because she's not quite
Speaker 3: awake yet, but there we go.
Speaker 1: I'm awake. I just don't like speaking to people or
Speaker 1: have them speak to me before seven am.
Speaker 3: Well, we are far flong again as usual. John's in Washington,
Speaker 3: d C. I'm finally back in California after a month
Speaker 3: of flouncing about in Scandinavia. And Lucretia is at home
Speaker 3: at her undisclosed location in a desert bunker. Right, So right, okay,
Speaker 3: all right, well, you know, let's start this way. So, Lucretia,
Speaker 3: you had a post on our Political Question site here
Speaker 3: earlier the day you thought would provoke both of John
Speaker 3: and me, and it didn't provoke me. I actually agreed,
Speaker 3: but I didn't really get into it in our recent
Speaker 3: podcast where essentially you said, what Trump was the smartest
Speaker 3: guy in the room, especially when it comes to the
Speaker 3: grand strategy of this whole Middle East scene, and I
Speaker 3: think beyond that. So I agree with that, but secondly,
Speaker 3: beyond that as a general theme to open up with today,
Speaker 3: you know, the whole scene right now with Trump and
Speaker 3: the country is in my mind, starting to take on
Speaker 3: the same vibe as the nineteen eighties, you know, Morning
Speaker 3: in America with Reagan right things everything was starting to
Speaker 3: go right at leading force to a forty nine state
Speaker 3: landslide in nineteen eighty four. But you know, success briefed,
Speaker 3: success and good grief. I look up right now at
Speaker 3: where Trump is at the moment, So more wins at
Speaker 3: the Supreme Court. That'll be our main subject for today.
Speaker 3: NATO calling him daddy. I love that part, calling him
Speaker 3: daddy and saying, yeah, we'll spend five percent of GDP
Speaker 3: on defense. Almost all European countries said they would do that.
Speaker 3: European Union.
Speaker 1: By the way, Steve, they say, do you think the
Speaker 1: guy came back and said he didn't actually call him daddy. Yeah,
Speaker 1: there's a difference. You know, It's like saying daddy's home.
Speaker 1: I forget what it was. He wanted people to know
Speaker 1: he wasn't calling him daddy.
Speaker 3: Okay, well, I'm sure you got a lot of blowback
Speaker 3: for it. Well, all right, but then the European Union said, yeah,
Speaker 3: I guess you're going to have to make some trade
Speaker 3: concessions to Trump to get some trade deals right. Harvard
Speaker 3: is reportedly trying to negotiate a deal with Trump over
Speaker 3: their conflict. CBS News is looking to settle Trump's libel suit.
Speaker 3: The Iran bombing looks like a big success.
Speaker 1: BBA fired their president.
Speaker 3: Yeah, I was going to add that that's a big
Speaker 3: story that we don't have time to go into details.
Speaker 3: But that's and that happened fast, and it's not getting
Speaker 3: a lot of press. But the Democrats. Here's the headline
Speaker 3: in my mind, the way the Democrats are pushing back
Speaker 3: against Governor youngcin and friends of ours who were youngin
Speaker 3: has been trying to put on the board of overseers
Speaker 3: for the universities. The fact that they're fighting back so
Speaker 3: vigorously makes it evident that Democrats understand that universities are
Speaker 3: adjunct organizations of the Democratic Party. Nothing could be more
Speaker 3: clear than the way they're fighting this. I think it's
Speaker 3: unprecedented in Virginia for the political the legs to block
Speaker 3: the governor's appointees. Okay, Trump lowered the boom on China,
Speaker 3: and at the end of the week the stock market
Speaker 3: reached a whole new high. So it could hardly get
Speaker 3: any better than that unless it would be passing the big
Speaker 3: beautiful bill, which I'm certain is going to pass, if
Speaker 3: not by the end of next week, then at least
Speaker 3: by the end of the month.
Speaker 1: So with or without all of elizabeths Elizabeth cuts, Elizabeth Cuts,
Speaker 1: who's Elizabeth is the the Senate parliamentary and cutting everything
Speaker 1: of value out of the big beautiful bill.
Speaker 3: Yeah, well it'll be a moment to see whether they
Speaker 3: realize that effect have the power to overrule the parliamentarian.
Speaker 3: And so we'll see. But Trump's working the phone's hard,
Speaker 3: you know again, you know, Reagan worked the phone's hard
Speaker 3: in nineteen eighty one, very hard on behalf of his
Speaker 3: tax and budget bills. Other presidents, I think have let
Speaker 3: their their advisors and you know, head of this and
Speaker 3: that do But think of all the phone calls that
Speaker 3: Trump made over the years to get his real estate
Speaker 3: deals through. So this is natural to him to be
Speaker 3: on the phone twisting arms. And so that's why I
Speaker 3: think this thing is going to pass in one form
Speaker 3: or another anyway. That's that's sort of my opening is uh,
Speaker 3: you know Trump is living a charmed life. Anybody will.
Speaker 2: So your your your daddy, And what me and Lucretia
Speaker 2: are Israel and dorn is that right? Is that your comparison?
Speaker 2: I just would like to so I'd like to be
Speaker 2: Israel in this, of course you would. And fighting against Lucretia,
Speaker 2: the religious extremist soon to be armed with nuclear weapons.
Speaker 2: So I so, I mean, she's already got all the
Speaker 2: conventional weapons one withoud what in the home arsenal, So
Speaker 2: the next step up is nuclear, biological or chemical on her. So, look, Steve,
Speaker 2: I think I think we should be cautia is not
Speaker 2: to be exaggerating how well Trump's doing. I think it
Speaker 2: is completely the case that the strategic situation the Middle
Speaker 2: East has been changed. But I think that's because of Israel.
Speaker 2: We've been helping Israel. Basically, what we did is we
Speaker 2: unleashed Israel. I think that's what Trump's insight is. I
Speaker 2: don't think Trump right, you know, destroyed Hamas and you know,
Speaker 2: crippled Hezbolah and taken out all of Iran's air defenses
Speaker 2: to point that it's incredible there's air supremacy over Tehran
Speaker 2: for the Israeli Air Force. But it's important to recognize
Speaker 2: that past American presidents had kept Israel from doing exactly this,
Speaker 2: and so I think this is, you know, to explain
Speaker 2: my sense of what Trump has done is that he
Speaker 2: is letting the Allies take care of their own business
Speaker 2: in the region. So I actually don't think of the
Speaker 2: nuclear strikes like a lot of people do or mega
Speaker 2: people worry about that's an an increase in American intervention.
Speaker 2: Mostly what we've done is armed Israel and let it go,
Speaker 2: and let Israel armed with the right values that we
Speaker 2: agree with, remake the Middle East. And then we did
Speaker 2: the one thing they couldn't, which was drop those gigantic,
Speaker 2: massive ordnance penetrators on the newcles. But that's because that
Speaker 2: was an art interest. So I wouldn't overstate what. And
Speaker 2: there's going to be setbacks, I think because Israel is
Speaker 2: a very tiny country and they're fighting much larger countries.
Speaker 2: I wish them all the success, and I think they're
Speaker 2: going to, you know, hopefully be able to put into
Speaker 2: place their wins. I don't think it's because of Trump necessarily.
Speaker 1: And that's the part I disagree with John, the conclusion.
Speaker 1: I agree with all of you the facts as you
Speaker 1: laid them out. But let me remind you that two
Speaker 1: years ago, probably when we would discuss why it would
Speaker 1: be appropriate to arm Israel and not the Ukrainians, my
Speaker 1: argument always was, never mind the moral issues and so forth,
Speaker 1: but that you don't know that we necessarily need to
Speaker 1: arm out of our treasury the Israelis. We just need
Speaker 1: to provide them with weapons, and we need to give
Speaker 1: them the moral authority of the United States to continue
Speaker 1: what they're doing, to be on their side. That was
Speaker 1: always my argument, and I'm going to say that that's
Speaker 1: a little bit of what you just said. But when
Speaker 1: you say Trump doesn't deserve that much credit, the point
Speaker 1: of my article was all previous presidents listened way too
Speaker 1: much to their advisors, to the foreign policy establishment. You
Speaker 1: know that you can't have peace unless there's a state
Speaker 1: and a two state solution, and you know, all of
Speaker 1: these things that prevented them from thinking about the conflicts
Speaker 1: in the Middle East in a whole new way. Trump
Speaker 1: was willing to do and in that way, and he
Speaker 1: was not. This was the underlying theme that was meant
Speaker 1: to be a slam mostly at you, John, but a
Speaker 1: little Steve, because he's always bringing up these damn stupid
Speaker 1: theories international relations. There's game, theory, real is, whatever all
Speaker 1: of those are. If you think in those terms, your
Speaker 1: thinking is necessarily bounded by the outlines of those theories.
Speaker 1: And that's you know, Trump probably does never read an
Speaker 1: international relations book in his life, lucky him. But it
Speaker 1: also means that he just doesn't buy into those theories,
Speaker 1: and that every every single conflict across the world that
Speaker 1: the president wants to address or ignore has to be
Speaker 1: understood in terms of some foreign relations, some foreign policy
Speaker 1: theory that somebody from some stupid think tank came up.
Speaker 2: We know theory just makes the world is trusting effort
Speaker 2: to simplify the world, to make it easier to understand
Speaker 2: what I don't when I didn't get from your peace,
Speaker 2: I think it's fair that you criticize other ways of
Speaker 2: thinking about the world. I didn't understand for your piece
Speaker 2: how Trump actually makes decisions, Like how does he choose
Speaker 2: what's in America's national interest and what's not I can't tell.
Speaker 2: And I don't think your piece says what it is.
Speaker 2: It just sort of says, well, he's got sort of
Speaker 2: common sense, and he looks at the circumstances and he
Speaker 2: does something reasonable. But reasonable is just a word for
Speaker 2: you know, it's just like a fudgy word that you
Speaker 2: can use to say, well, that's you know, you got
Speaker 2: to figure out something more than just reasonable. Right, he's decided.
Speaker 1: I don't think you did. I don't think you do
Speaker 1: what I think that you can figure out what his
Speaker 1: goals are, his goals are America first, America, strong, America,
Speaker 1: prosperous economic freedom for people. That's what he wants for America, Patriotism,
Speaker 1: all those things. I think that's pretty easy to understand,
Speaker 1: the mag of movement and all of that. And then
Speaker 1: his vision for the world is we don't control the world.
Speaker 1: We even saw that when he went to the Middle
Speaker 1: East and talked to you know, those the different countries
Speaker 1: and look, I'm not here, I'm not here to tell
Speaker 1: to change you and make you like the United States.
Speaker 1: You should embrace your your ethnic identity, your national identity.
Speaker 1: He wants a world of peace, and he wants to
Speaker 1: do what he can with the power of the United
Speaker 1: States to pursue that. But he doesn't want to do
Speaker 1: it by intervening in the ways that the foreign policy
Speaker 1: apparatus has said we should do. Over the last say,
Speaker 1: I don't know, since Vietnam probably make the world safe
Speaker 1: for democracy, shall we say? I think that that Trump's
Speaker 1: it just doesn't fit into a theory because because you're right,
Speaker 1: the theories are really there to make the world simpler
Speaker 1: to understand. But my problem with them is exactly that
Speaker 1: once you simplify things too much, you're not looking at
Speaker 1: all the possibilities. You're not looking at all the opportunities
Speaker 1: and so on. Sorry, Steve, go ahead.
Speaker 3: So that's right.
Speaker 2: Well, John, I'm a podcast with political theorists who are
Speaker 2: against theory. Understand why this is so frustrating.
Speaker 3: No, wait a minute, John, all right, let me first
Speaker 3: of all, I just want to register the objection that
Speaker 3: usually when I'm bringing up like theory of international relations,
Speaker 3: it's to mock them and make fun of them. The
Speaker 3: partial exception of game theory I applied to law fair,
Speaker 3: not foreign relations. By the way, if you want to
Speaker 3: go back and never mind that I'm the one.
Speaker 4: Who does that, yeah, okay, right, but look, John, the
Speaker 4: fact that you can't figure out what Trump's decision process
Speaker 4: is that is a feature, not a buck.
Speaker 3: And here's what.
Speaker 2: No, no, no, it's not good if you just got
Speaker 2: a guy who just thinks he can make important decisions
Speaker 2: like dropping huge bombs on people just because of some
Speaker 2: instinct instinct. Yeah, that's what I'm saying. Well, what is
Speaker 2: it then? Well, first of all, I mean, all the
Speaker 2: things that Lucretius said are nice slogans that every president
Speaker 2: would say they agree with. Look, the question is, how
Speaker 2: do you implement it and achieve it. That's what I
Speaker 2: didn't understand from the peace, or understand from listening to
Speaker 2: Trump and listening to what these mega people work in
Speaker 2: his administration say. The words are all the same thing
Speaker 2: every president's. Every president wants peace. Every president says their
Speaker 2: America first, right, Every president says they're defending our security.
Speaker 2: We're not ordering everybody around. But then how they well,
Speaker 2: let's let's take a closer look here John, and here I'm.
Speaker 3: I'm pretty strongly four square with Lucrete on this. Let's
Speaker 3: go back several weeks.
Speaker 2: For see, your daddy is siding with one child over
Speaker 2: the other. I know, yeah, go figure, Yeah, I'm gonna
Speaker 2: demand that. Now we go to McDonald's and I get
Speaker 2: my mcribs as payback.
Speaker 3: Look here here's the theme here, and then we'll go
Speaker 3: to a break and move on to other subjects. Trump
Speaker 3: showed extraordinary machiavellian skill over the last several weeks or
Speaker 3: several months. So you go back to when net and
Speaker 3: Yahoo came to Washington what two months ago, and the
Speaker 3: headline was, well, we don't know exactly what they said,
Speaker 3: but from the body language and what was said, it
Speaker 3: looks like Trump is with holding back Iran or Israel
Speaker 3: from attacking Iran, and there's there's a distance between the
Speaker 3: US and Israel right now. And then the fact that
Speaker 3: Trump did not visit Israel on that trip that Lucretia
Speaker 3: referenced was now I think, by the way, that was
Speaker 3: all deliberate misinformation deception by US and Israel, because it
Speaker 3: has emerged enough details have come out that in fact,
Speaker 3: Trump and NETANYAHUO were in very close communication and agreement
Speaker 3: as to giving the green light to Israel to attack
Speaker 3: and then after the sixty day period to let negotiations
Speaker 3: play out, and then so say more about that. But
Speaker 3: then the other thing is Trump said, you know, I'm
Speaker 3: going to give him two weeks to decide to make peace,
Speaker 3: and we now know that he already decided that he
Speaker 3: was inclined to use our bunker busters to strike before
Speaker 3: the two weeks was up. He sent the B two
Speaker 3: planes westward to Guam as a faint, which I think
Speaker 3: was also a signal to Chinese. But never mind that
Speaker 3: for the moment sending carrier strike groups and then suddenly
Speaker 3: we wake up and discover, oh, he didn't wait for
Speaker 3: two weeks after all, he went and did it, and
Speaker 3: once again we know that he was in close communication
Speaker 3: with that Yahoo. They were putting out more disinformation to
Speaker 3: deceive everybody about this. That to me shows some real
Speaker 3: Machiavellian skill on Trump's part.
Speaker 2: And you know, the tactics not in strategy.
Speaker 3: That's all.
Speaker 2: I love it too. Once you decide to carry out
Speaker 2: the strike, all that was great. But that's different than
Speaker 2: how does he make you know what to do and.
Speaker 3: Not do well.
Speaker 2: I'll just say that I would say, once he does it,
Speaker 2: our military has no power or equal in the world,
Speaker 2: and carrying it.
Speaker 1: I think it's because you refuse to believe the simple things. John.
Speaker 1: He doesn't want to around to have a nuclear weapon.
Speaker 1: That's the strategy. The tactics get him there. The strategy,
Speaker 1: how do we prevent Iran from getting a nuclear weapon
Speaker 1: without causing World War three? How do we support Israel
Speaker 1: and make sure that they can.
Speaker 2: Here's the thing that his side is not that. The
Speaker 2: MAGA people all upset with, right, They're saying, why is
Speaker 2: it our view that Iran doesn't get a nuclear weapon
Speaker 2: and that we have to stop them? No, No, I
Speaker 2: don't agree with this. I don't agree with this.
Speaker 3: At all.
Speaker 2: But I'm reading our friends many of them are angry.
Speaker 1: No, they're not as angry as they were because they
Speaker 1: said for sure this was going to start World War three,
Speaker 1: and now they of course have egg on their face.
Speaker 1: I do believe that there is a huge element, I'm sorry,
Speaker 1: of anti Semitism on the right that drives much of
Speaker 1: this anti Israel thing. If you cannot see how Israel
Speaker 1: is a force for peace in the Middle East and
Speaker 1: by extension, in the world, you're just not You're you're
Speaker 1: not paying attention, You're not worth It's kind of like
Speaker 1: what I know, we'll get to it, but I'll bring
Speaker 1: it up and do my manaculpos. It's kind of like
Speaker 1: Amy saying to Kaitanji, you're not We're not even going
Speaker 1: to address your stupid ass opinion.
Speaker 3: Well, look, I think, first of all, John, I think
Speaker 3: it's not true that maga world is upset with this.
Speaker 3: There are certain voices that are like Tucker Carlson, who,
Speaker 3: if you pay it tension, Trump has kind of kicked
Speaker 3: to the curb right pretty directly. I take one example.
Speaker 3: A good representative example is my pal Dan McCarthy, who
Speaker 3: is no anti Semite. By the way, but he's a
Speaker 3: very strong anti interventionist, and he was saying, no, Trump
Speaker 3: shouldn't do anything to help israel Is, Well, can do
Speaker 3: it by themselves. We should stay out of it. He
Speaker 3: shouldn't drop a single bomb. Well, he's turned on a dime.
Speaker 3: And that's because he recognizes that. As Walter Russell meet
Speaker 3: puts it in the Wall Street Journal over the weekend,
Speaker 3: this is Jacksonian foreign policy. This is Jacksonian move by Trump.
Speaker 3: And Dan said, yep, that's right. And so I think
Speaker 3: you're seeing a lot of the thoughtful skeptics of American
Speaker 3: involvement have come around, and the polls show this. I mean,
Speaker 3: there have been polls of sort of maga Republicans and
Speaker 3: it's like eighty percent support for what he did. So
Speaker 3: it's a minority fringe, some with I think bad motives,
Speaker 3: some the sort of libertarians who don't want us to
Speaker 3: even police our borders, right, but as a whole, I
Speaker 3: think Oh. And the final point would be, even if
Speaker 3: you thought that this was an opening to possible American
Speaker 3: involvement in the Middle East, again, ask yourself this question.
Speaker 3: Would Trump sign off on building a seven hundred million
Speaker 3: dollar embassy complex like the Bush and Obama administrations did
Speaker 3: for Afghanistan, or a billion dollar embassy complex for Baghdad
Speaker 3: which the Bush and Obama administration signed off on. The
Speaker 3: answer to that is obvious. That was never going to happen.
Speaker 3: There was never going to be nation building or direct
Speaker 3: regime change from Trump. And so I don't know why
Speaker 3: people have got their nickers in a twist about it.
Speaker 2: I just want to welcome you both to the neo conclict.
Speaker 4: No, that's well, you remember in last week, in last
Speaker 4: week's episode, we were unanimous saying, yeah, you know Trump
Speaker 4: ought to do this, and you know you were blaming
Speaker 4: victory then.
Speaker 2: But neo conflict, our neo cons are. You're the ones
Speaker 2: who are plauding and giving compass standing ovations.
Speaker 1: So the quintessential neo con by the way, last week
Speaker 1: on on X posted, I am I'm to the point
Speaker 1: of that, I'm anti anti what's that idiot's name, b
Speaker 1: Babon whatever, his stupid name is. William Crystal, the ultimate
Speaker 1: Neil con is now not he's he's shattered.
Speaker 3: I call him shattered Crystal a right, But well, you
Speaker 3: know the commentary magazine crowd, which is usually pretty hard
Speaker 3: on Trump, boy, are they really liking him now, which
Speaker 3: I think is so. I mean, Crystal is hopeless. But
Speaker 3: and speaking of hopeless, we can go on forever, but
Speaker 3: I think we need to take our first break for
Speaker 3: a sponsor, and then we'll come back and get to
Speaker 3: our main subject, recapping the end of this very climactic
Speaker 3: Supreme Court term. So don't go away, listeners will be
Speaker 3: right back. Okay, we are back now to turn to
Speaker 3: the main event of which we have the most expertise.
Speaker 3: It's the end of the Supreme Court. Several cases released
Speaker 3: in a batch here at the end of the week.
Speaker 3: I think the biggest one was striking down the universal
Speaker 3: injunctions for the most part. We'll talk about the caveats there,
Speaker 3: but a couple other wins I think, and I don't know.
Speaker 3: Let's start with you, John. I'm going to say for Lucretia,
Speaker 3: recapping Barrett's SmackDown of Jackson, because that was fabulous. But
Speaker 3: so what do you say about the decision and what
Speaker 3: are the limitations or caveats we should take from a
Speaker 3: more close reading of it.
Speaker 2: The decision involves an issue, a legal issue which is
Speaker 2: of average importance in the law, even and I doubt
Speaker 2: we'll be discussed much within a year and may fade away.
Speaker 2: It's just that has enormous political consequences because it is
Speaker 2: that procedural issue that has allowed any one district judge
Speaker 2: in a country that has I think about seven hundred
Speaker 2: active district judges and another one hundred or two senior
Speaker 2: judges who also can hear case is from stopping the
Speaker 2: elected president's legal agenda throughout the country for quite some
Speaker 2: time if he wants. The legal issue is It's interesting.
Speaker 2: I wrote Argle about this law thirty years ago. I
Speaker 2: find it really interesting, but I don't think it's that
Speaker 2: important in the grand scheme of things, certainly not as
Speaker 2: important as birthright citizenship. And that's the question. Does a
Speaker 2: court excuse me, have the power under Article three of
Speaker 2: the Constitution, or is authorized by statute to give relief
Speaker 2: to issue decisions that go beyond the parties before the court?
Speaker 2: And Justice Barrett shows and this is what we were
Speaker 2: talking about before. Courts just didn't understand that to be
Speaker 2: their power. At the time of the founding thin It's
Speaker 2: pretty easy. There were no such things as nationwide in junctions.
Speaker 2: The power of the courts then, as you decide the
Speaker 2: case they're controversy. That's the phrasing the Article three of
Speaker 2: the Constitution, and that means pointiff wins, defendant loses, or
Speaker 2: vice versa. And then you give relief to those parties.
Speaker 2: You don't then say, and therefore, not only do I
Speaker 2: order the state department to give this person a passport,
Speaker 2: I order every the state department to give everyone in
Speaker 2: the country who's not before me who's qualifies for a passport.
Speaker 2: That was the abuse of powerful, very simple, straightforward. Yeah,
Speaker 2: that's I mean. The legal issue was really boring and
Speaker 2: simple and obvious. It's obvious it was going to come
Speaker 2: out to it. The political issue, of course is and
Speaker 2: this we'll get to, what's you know, the political you
Speaker 2: know issue is how do you reconcile a limited judiciary
Speaker 2: with an elected president. I think they didn't cite him,
Speaker 2: as far as I know, I looked at the major opinion.
Speaker 2: I didn't see them cited. But this is really also
Speaker 2: I think, a nod to Lincoln's theory of how you
Speaker 2: deal with the Supreme Court.
Speaker 3: Right.
Speaker 2: They adopted essentially the dread Scott. Lincoln's approach to dred Scott.
Speaker 2: Remember that he said, I will hand the slave back
Speaker 2: in dred Scott back to the owner when the Supreme
Speaker 2: Court say, you hand dred Scott back. But I'm not
Speaker 2: going to then go ahead and find all the other
Speaker 2: people like dred Scott and hand them back to their
Speaker 2: owners unless the courts ordered me, one by one, case
Speaker 2: by case to do it.
Speaker 3: Well, I had saved that question for Lucretia. But glad
Speaker 3: to see you come around to our point of view, John, because.
Speaker 2: Well, in your point of view, in my point of view, well.
Speaker 3: I found an old article of yours from like ten
Speaker 3: to fifteen years ago where I thought you completely botched
Speaker 3: the question. But I'll find it a minute, Lucretia. I mean,
Speaker 3: what do you want to add to what John said?
Speaker 1: I would just argue that I do agree with that,
Speaker 1: but I agree with your take about it being Lincoln's
Speaker 1: approach to the dread Scott issue, because dread Scott got
Speaker 1: it so wrong, and this is actually a restatement of
Speaker 1: what we understood Marshall to do. My piece in Civitas
Speaker 1: reminded everybody who's, oh, Marshall said that, you know, the
Speaker 1: court gets to say everything. No, Marshall did not. He
Speaker 1: did say that it is the province and duty of
Speaker 1: the judicial department to say what the law is, but
Speaker 1: the practice of judicial review in the case of Marbury
Speaker 1: versus Madison, where Marshall overturned a law, portion of a
Speaker 1: law passed by Congress dealt only with the court's own powers.
Speaker 1: And I think that that's a really critical point. It's
Speaker 1: not anti Lincoln, but Lincoln just said the country should
Speaker 1: not necessarily accept this notion that all slaves an you
Speaker 1: know everything about dread Scott. I won't go into it.
Speaker 1: But also Lincoln wasn't president at the time, and so
Speaker 1: Lincoln wasn't not necessarily concentrated on the argument, which I
Speaker 1: totally agree with him on this that the people should
Speaker 1: not accept as a binding precedent for the whole country
Speaker 1: a decision by that imminent tribunal, because then they've they've
Speaker 1: handed over their republic. What's important about Amy's decision here
Speaker 1: is that this is about who gets to decide their
Speaker 1: own powers, right, And she made that very you know,
Speaker 1: scathing comment to Katji, you're worried about an imperial executive,
Speaker 1: what about an imperial judiciary? This is not the judiciary's role.
Speaker 1: And if you're worried, that was the only thing I
Speaker 1: didn't really like about it. There was a hint at
Speaker 1: the idea that maybe the courts would need to step
Speaker 1: in and do something about a president. I don't even
Speaker 1: think the Supreme Court should have the power to do that,
Speaker 1: but we don't have to get into that now. Anyway.
Speaker 1: My point is is that Marshall's opinion in Marbury was
Speaker 1: so misused in dred Scott. They didn't listen to Lincoln.
Speaker 1: You've made that point many times, and very well, John,
Speaker 1: they didn't listen to Lincoln. And it has been downhill
Speaker 1: for the Supreme Court ever since. This is this, this
Speaker 1: whole session of the Court might be the tiniest step
Speaker 1: on trying to ratchet that back a little bit. And
Speaker 1: of course, you know, it's the end of the world
Speaker 1: as we know it if the Supreme Court can't, you know,
Speaker 1: give transsexuals children the right. Anyway, I'm done, Steve, you
Speaker 1: go ahead.
Speaker 2: I let me just throw one other thing about the descent,
Speaker 2: because the descent is really notable for being over the top, right,
Speaker 2: because if the legal issue is sort of a modest one,
Speaker 2: as we described this is this is not justified saying
Speaker 2: what Justice Jackson said, which is the rule of law
Speaker 2: is ending this is a you know, dictatorial powers in
Speaker 2: the hands of a president and so on and so forth.
Speaker 2: As I think Justice Barrett rightly said, oh gosh, the
Speaker 2: republic seemed to function pretty well into the first nationwide
Speaker 2: injunctions really started to get going in you know, the
Speaker 2: two thousands. In fact, you might say the country was
Speaker 2: better off before there were nationwide injunctions than after. And
Speaker 2: so I think she was fully deserving of the SmackDown.
Speaker 2: But let me give some you know, there is some
Speaker 2: support for the descent, but I think it's easily handled.
Speaker 2: The descents. Real worries should just be that you're going
Speaker 2: to have right passports given out in Massachusetts to illegally
Speaker 2: children of illegal aliens, but in Texas perhaps you won't.
Speaker 2: And so you have federal law being a ministered very
Speaker 2: differently all across the country. That is, you know, that
Speaker 2: is undesirable. And so what's going to have to happen is.
Speaker 1: That this I just had just a question about that
Speaker 1: before you go, and I didn't mean but you could
Speaker 1: have that, but I mean technically the even in the
Speaker 1: state where it was three states that brought this this
Speaker 1: suit right challenging the executive order about birthright citizenship for
Speaker 1: things like passports. Three states, So that doesn't even the
Speaker 1: district court opinion should be limited, not should be limited
Speaker 1: just to those parties who were then before the court. Right,
Speaker 1: it doesn't make in that district a permanent injunction against
Speaker 1: the president's executive order? Am I making sense? Just what
Speaker 1: I'm asking?
Speaker 2: But yeah, so the but you can tell in that
Speaker 2: district every judge will then start issuing the passports because
Speaker 2: that's the rule in that district. Actually, there's an interesting
Speaker 2: question about whether states should even be allowed to sue
Speaker 2: the way you've been doing and claiming we're representing everyone
Speaker 2: in Massachusetts. I'm not sure that's permissible too. But the
Speaker 2: thing is that you're going to have different rules throughout
Speaker 2: the country and something is important as who's a member
Speaker 2: of the we the people and who are not. But
Speaker 2: that happens all the time. That's the thing where the again,
Speaker 2: the descent is over the top. We always have cases
Speaker 2: where federal law is interpreted differently. That's why we have
Speaker 2: appeals courts, and that's why we have a Supreme Court.
Speaker 2: So what it really means is that and this will
Speaker 2: be interesting because what people said, yes and this decision
Speaker 2: expands the power of the presidency, or I would just
Speaker 2: say restores it. But what it also does, what people
Speaker 2: have not noticed, is that it dramatically expands the power
Speaker 2: of the Supreme Court over the rest of the judiciary,
Speaker 2: because now the Supreme Court is going to grab cases
Speaker 2: earlier and earlier out of the hands right of Chriald
Speaker 2: judges and Peel can accelerate them to the Supreme Court,
Speaker 2: so they can decide something like birthright systemship And that's
Speaker 2: a good thing. Well, they have to, because you don't
Speaker 2: want passports given out to a versus b throughout the country.
Speaker 2: That's the only thing you can do. Now, I think
Speaker 2: that's I think that's a better thing than having, you know,
Speaker 2: six district judges decide the issue differently all around the country.
Speaker 2: I think that's a poltry.
Speaker 3: Yeah, yeah, I mean you mentioned John of some question
Speaker 3: about whether states can bring these kinds of lawsuits. I'm
Speaker 3: having flashbacks to Chisholm versus Georgia. I mean, you know,
Speaker 3: long ago case nobody right. So it's kind of reverse
Speaker 3: of all that. But look, there was also an addition
Speaker 3: to the question of can states bring these actions on
Speaker 3: behalf of all of its citizens. There was also it
Speaker 3: Section twenty three or rule twenty three. Essentially there's still
Speaker 3: maybe the doors open a crack for certifying class actions
Speaker 3: in some of these And so you know, well, now
Speaker 3: these district judges are gonna First of all, lefty lawyers
Speaker 3: will go to district judges and say this is a
Speaker 3: class action case, and lefty judges will say, yeah, I listen.
Speaker 2: I listened to your discussion of this with Charlie Cook
Speaker 2: on Ricochet this morning. And this is why you should
Speaker 2: never let people practice law without a license. Because neither
Speaker 2: of you guys knew what the all you were talking about.
Speaker 3: Well, that's why we're popping.
Speaker 2: At least no, no, no, but at least the good
Speaker 2: thing was you both prefaced it. But with I have
Speaker 2: no idea what I'm talking about. But let me now
Speaker 2: explain real twenty three of the Federal Rules of Civil Procedure.
Speaker 2: What the hell are you guys doing? Well, so that
Speaker 2: that is true, Justice Alito writes a concurrence saying real.
Speaker 2: So when charlieps saying real twenty three, that's the rule
Speaker 2: that creates the class action or recognizes it. Class actions
Speaker 2: are very hard to get. But the other thing that
Speaker 2: it's slow. It's really slow, so that yes, you could,
Speaker 2: you could still get class actions. A lot of these
Speaker 2: might not be you know, these kind of issues are
Speaker 2: not preferable for or suited for class actions. But it
Speaker 2: takes a lot of time to get a class action.
Speaker 2: So if you're an opponent at Trump, yeah you could
Speaker 2: go down the class action route, but it's still better.
Speaker 2: You'll still do You'll get the issue faster to the court,
Speaker 2: which is what you should want by just filing individual
Speaker 2: separate actions and trying to get them to conflict.
Speaker 3: All right, John, I said earlier that you came around
Speaker 3: to our point of view about Lincoln. Here's why I'm
Speaker 3: saying that. I found your article from the Vermont Law
Speaker 3: Review from I don't know fifteen years ago, called Lincoln.
Speaker 2: At Lincoln at War is a great piece.
Speaker 3: Well, except in your first paragraph. You say this in
Speaker 3: the text, and then I want to refer to the footnote.
Speaker 3: On November nineteen, eighteen sixty three, Lincoln gave the Gettysburg
Speaker 3: Address and turned the Constitution's mission toward popular sovereignty. Footnote
Speaker 3: Abraham Lincoln Address. On this point, see Harry v. JAFFA
Speaker 3: New Birth of Freedom Abraham Lincoln the coming of the
Speaker 3: Civil War. I think that's a been haigges.
Speaker 2: Aren't you happy? Aren't you be happy and rolling like
Speaker 2: a pagan mud over that?
Speaker 3: No? No, no, because you.
Speaker 2: Have just what I think you were doing in Norway
Speaker 2: and Scandinavia the last four weeks, because that's the only
Speaker 2: way they have fun up there.
Speaker 3: You had it exactly backwards there. John Lincoln was dedicated
Speaker 3: to criticizing and pointing out the limits of popular sovereignty.
Speaker 3: You just came on unwittingly. I think the Douglas point.
Speaker 3: Am I being too harsh? Lucretia on that?
Speaker 1: I haven't read his piece.
Speaker 2: I'm talking about popular sovereignty in the way we talk
Speaker 2: about it in constitutional in the real way, which is
Speaker 2: really just democracy. It's not popular sovereignty. I'm not talking
Speaker 2: abound the way Douglas talked about it. Yeah, the peace. Yeah,
Speaker 2: we don't talk about it something else.
Speaker 1: It's actually something really important. I'll break in and say that,
Speaker 1: because I do think it's important. The whole concept of
Speaker 1: popular sovereignties is exactly what this country's built upon. It
Speaker 1: was a sleight of hand of Douglas to call what
Speaker 1: he said was, you know, leaving the question of voting
Speaker 1: slavery up or down to the territories themselves, and calling
Speaker 1: that this is the essence of popular sovereignty. I mean,
Speaker 1: it was a subtle argument Lincoln had to bring to
Speaker 1: bear in order to prove that Douglas was wrong about that.
Speaker 1: You see that kind of thing. This is why I
Speaker 1: went off on the tangent, Steve. The interesting thing is
Speaker 1: you see that all the time these days you heard
Speaker 1: you said it yourself, John, that Kittinji talked about how
Speaker 1: this was the end of the rule of law. Schumer
Speaker 1: talked about how this was the end of the rule
Speaker 1: of law. Those important concepts that form the very basis
Speaker 1: of our foundational the foundations of our constitutional republic are
Speaker 1: misused by people who don't understand them, and the demagogues
Speaker 1: in our society all of the time. And Douglas was
Speaker 1: one of the first to misuse the our democracy trademark.
Speaker 1: You know. So it's just and you know, we could
Speaker 1: go into for days talk about the reasons that they
Speaker 1: get away with that kind of nonsense. But my point
Speaker 1: is is that if Steve is correct, John, I will
Speaker 1: tell you that because that term figures so prominently in
Speaker 1: the whole Antebellum period and Lincoln's fight against the extension
Speaker 1: of slavery. You probably needed to be more specific, but
Speaker 1: since I have not read the article, I won't even
Speaker 1: accuse you of that.
Speaker 2: So there, daddy, there.
Speaker 3: All right, let's take another quick break.
Speaker 2: Daddy, go back on your daddy, go back on your
Speaker 2: business trip. We don't need you here at home.
Speaker 3: Well, no, I won't do a travel off, although I'm
Speaker 3: sorely tempted. Let's take another quick break for a sponsor,
Speaker 3: and then quickly touch on a couple of the other
Speaker 3: cases decided that I think were important to getting skipped over.
Speaker 3: So we'll be right back. Everybody. All right, we're back
Speaker 3: with I think I need to mention some of the
Speaker 3: other cases quickly. But there were four or five other
Speaker 3: important cases this week. One Supreme Court upheld the Texas law,
Speaker 3: saying that they can require the Internet service providers to
Speaker 3: verify people's addressed access porn, and of course everybody's going crazy.
Speaker 3: This is a violation's First Amendment. I don't think so.
Speaker 3: A separate ruling saying indeed states can restrict medicare access.
Speaker 3: The other one was out of Maryland, the parental rights
Speaker 3: case saying parents absolutely have the right to withdraw their
Speaker 3: kids from the public schools when you're gonna have the
Speaker 3: LGBTQ curriculum, and that's upsetting everybody on the left. I
Speaker 3: think maybe the you guys can pick any one of
Speaker 3: those if you want to say something. Well, before we
Speaker 3: go on, well, one more case. I want to mention
Speaker 3: it's I think the only possible loss. But I haven't
Speaker 3: read the case yet. Was the case John that it
Speaker 3: was a non delegation consumers research, consumer's research. I can
Speaker 3: talk about that.
Speaker 2: They are actually two important administrative law cases. I could
Speaker 2: talk about that. Okay, we'll do that, but not as
Speaker 2: important remotely as the other ones.
Speaker 3: Yeah right, Okay, Lucretia, you wanted to pick up something
Speaker 3: from one of those other three.
Speaker 1: K Well, let me just say first of all that
Speaker 1: both the parents rights case call it and the porn
Speaker 1: case it actually I find it. I find it almost
Speaker 1: appalling that issues like that actually had to go to
Speaker 1: the Supreme Court. I mean, really, have we gone so
Speaker 1: far that we can't say that parents in public schools
Speaker 1: cannot say I don't want my kids to be taught that.
Speaker 1: And it's almost as if when you read it was
Speaker 1: Sodomayor who wrote one of the dissenses I recall. I
Speaker 1: think it's almost as if they are incapable of any
Speaker 1: kind of discernment when it comes to every argument they
Speaker 1: make is a thin end of the wedge argument. I
Speaker 1: guess you could say, and that children should be protected
Speaker 1: from seeing, you know, from books that celebrate transsexualism and
Speaker 1: so on, is so common sense. And but but you know,
Speaker 1: Kagan my or Kitty Aingie will immediately turn this into
Speaker 1: mass censorship. Yeah, and I know that John schooled us
Speaker 1: a couple of weeks ago about that's how lawyers think,
Speaker 1: what are the limits to these things? And maybe that's
Speaker 1: what's wrong with having every single one of these questions
Speaker 1: go to the judiciary. If that makes sense, it.
Speaker 3: Might well, well yeah, I mean I think I think
Speaker 3: of this not so much in legal terms, but in
Speaker 3: cultural political ones.
Speaker 2: It is.
Speaker 3: That's all right, Well, I was just going to say that,
Speaker 3: look that what's behind us is the impulse of the
Speaker 3: left that the children do not belong to families, they
Speaker 3: belong to the collective.
Speaker 2: Right.
Speaker 3: It takes a village. I mean, that's the soft version
Speaker 3: from Hillary, but the hard version of people saying no, No,
Speaker 3: the kids have to be instructed in these things because
Speaker 3: you can't trust the parents to do it. So it's
Speaker 3: it's much more sort of deeper and serious and more
Speaker 3: problematic than just the legal treatment of it.
Speaker 2: But John, so, guys, one so two points. One that
Speaker 2: you know, every time they are these ends of year,
Speaker 2: end of term wrap up stories about what did the
Speaker 2: term mean? I think people are missing it because they're
Speaker 2: so focused on nation wid injunctions. The real story of
Speaker 2: the term as families wine, Grimmti right, scrimtti parents. You know, kids,
Speaker 2: kids can't decide for themselves that they want to change
Speaker 2: their genders, and the state is allowed to protect kids
Speaker 2: from online pornography. And then right the other case. So
Speaker 2: about so you have these three pieces which are all
Speaker 2: pro families. So that's the thing. But I think the
Speaker 2: interesting constitutional issue, which I want to ask you guys
Speaker 2: about what you think, is this is a classic case
Speaker 2: of bringing in political theory from outside the constitution into
Speaker 2: the constitution because there is no provision in the constitution
Speaker 2: that says, right that you have to respect families. I
Speaker 2: am glad that the courts do right. There are these
Speaker 2: cases are peers versus society of sisters and so on,
Speaker 2: where all these cases we're talking about today trace their
Speaker 2: origins to. But that's not in the text of the
Speaker 2: Constitution or the Bill of Rights. Talks about protecting individual liberties,
Speaker 2: it doesn't talk about protecting families. So you guys should
Speaker 2: be super super happy because they are drawing in natural
Speaker 2: rights concepts. But let me ask, why is it that
Speaker 2: natural rights protects families and gives them the sort of
Speaker 2: same status, actually not same superior status to a natural
Speaker 2: right like free speech.
Speaker 1: Let me just let me give Steve a shout out.
Speaker 1: Steve's the one who often wants to put more more
Speaker 1: credence in the idea that our constitution is based on
Speaker 1: common law than I do. But in this particular case,
Speaker 1: of course, you have you have all of recorded history
Speaker 1: up until the Communists came along that understood how absolutely
Speaker 1: critical the family was to the success of a police regime.
Speaker 1: And again it would take it would take a lesson
Speaker 1: from Aristotle, right Steve, in order to carry this out fully,
Speaker 1: which we're not going to do today, but that you
Speaker 1: could even challenge it is really simply as it's communism
Speaker 1: and progressivism being the ideas behind it becoming so forceful
Speaker 1: in our society that we have to fight back with
Speaker 1: something that somebody would never have challenged even one hundred
Speaker 1: and fifty years ago. I mean, it's just all of
Speaker 1: human history is understood that the family is a basing,
Speaker 1: basic building block of any society, and that children belong
Speaker 1: to their parents. They do not belong to the state.
Speaker 1: And the choice about how to how to raise a
Speaker 1: child it's always been understood to be the parent's decision.
Speaker 1: When the state had to intervene. Where on the margins right,
Speaker 1: the parents are abusing the child, the parents, whatever it
Speaker 1: might be, the parents are taking them into a cult.
Speaker 1: Those kinds of things bring up questions nobody ever questioned
Speaker 1: until the Communists came along. You and I talked about this, John,
Speaker 1: when we didn't have Steve. The Communists came along and
Speaker 1: understood that.
Speaker 2: If you daddy was oh yeah.
Speaker 1: When we didn't have Daddy, when they understood if you
Speaker 1: wanted to remake completely remake society, you had to start
Speaker 1: by destroying the family. Yes, and and my point is this, John,
Speaker 1: to ask the question is is to put in stark
Speaker 1: relief the fact that the question could even be asked,
Speaker 1: Whereas it's you know, Aristotle lays it out for us.
Speaker 1: And we've always understood Aristotle to be absolutely right because
Speaker 1: it his view about the family dovetails perfectly, not just
Speaker 1: with common sense, but with all of recorded human history
Speaker 1: until until Marx came along and said, you need to
Speaker 1: destroy that if you want to rebuild society. So there
Speaker 1: you go, Steve, you can do better than that.
Speaker 3: No, that's fine, I think at the interest of time
Speaker 3: and a couple other broader points, John, let's move on
Speaker 3: to the Consumers Research case, which I have a footnote
Speaker 3: for you. We have time on non delegation and you
Speaker 3: said a couple other admin decisions.
Speaker 2: Yeah, so there's actually two. Okay, No, so there's there's two.
Speaker 2: There's consumers Research and then there's another one involving something
Speaker 2: called the Public Health Board, which decides on certain kinds
Speaker 2: of treat I think, treatments that are covered by government,
Speaker 2: you know, government medicare, medicaid. So that interesting thing is
Speaker 2: in both cases the principle that conservatives have been fighting for,
Speaker 2: in the first case, non delegation doctrine. In the second case,
Speaker 2: the Humphreys executive issue firing firing subordinate executive officials. Both one,
Speaker 2: but they're disappointing to conservatives because in application, uh, the
Speaker 2: liberals managed to convince a conservative here there to uphold
Speaker 2: what the government did. So in consumer's research we talked
Speaker 2: about I think this is the case where the FCC
Speaker 2: sticks that tax on all of our phone bills at
Speaker 2: the bottom. Right at the bottom of your phone bill,
Speaker 2: you'll see this tiny universal charge. And the lower court,
Speaker 2: the Fifth Circuit Texas, I thought, quite reasonably said Congress
Speaker 2: cannot delegate to an agency the power to impose a tax.
Speaker 2: If there's anything Congress has to do, it's set taxes.
Speaker 2: The court said, Justice Kagive werthe the opinion, So of
Speaker 2: course you should be suspicious. But she said, we agree
Speaker 2: there's a non delegation doctrine. We just don't think it's
Speaker 2: violated here. We don't think this is really a tax.
Speaker 2: It's just like a user fee, and the agencies can
Speaker 2: impose that they always have. Yeah, so that was a
Speaker 2: missed opportunity. But on the other hand, you now have
Speaker 2: many many I think all the justices now have to
Speaker 2: agree that there is a non delegation doctrine, and there
Speaker 2: are you know, ten years ago the liberal justices would say, oh,
Speaker 2: that's some creature product of the New Deal Court that
Speaker 2: opposed FDR, but they missed their chance. The other case,
Speaker 2: the Public Health Board. This is very interesting. Everyone admitted
Speaker 2: that this board was in the executive branch. Everyone also
Speaker 2: admitted Congress said this board is an independent board, but
Speaker 2: so everyone admitted it's an executive branch agency the exercise
Speaker 2: delegated power. The president must be able to fire everybody.
Speaker 2: The statute was then read by the Court in a
Speaker 2: very creative way to say the president can fire everybody.
Speaker 2: So they had a chance to overturn Humphrey's executor in
Speaker 2: this case, they but they did not. They passed on it.
Speaker 2: But very interesting. Justice Kavanaugh is probably the fifth vote
Speaker 2: on an extending Humphreys overturning Humphrey's executive. He wrote a
Speaker 2: very interesting concurrence which no one's talking about, where he said,
Speaker 2: if an agency exercises delegated power from Congress, it cannot
Speaker 2: be independent from the president. So if that's true, Humphreys
Speaker 2: executor is really dead because what he's saying is there
Speaker 2: can't really be an independent agency that has any real
Speaker 2: power at all. So I think actually reading these two decisions,
Speaker 2: the left should be really upset. But they're so focused
Speaker 2: on right nationwide injunction. Let me ask a question of
Speaker 2: John that's happening.
Speaker 1: Yeah, So, John, do you believe that the that those
Speaker 1: both of those decisions ended up being a little less
Speaker 1: astounding than they might have been because Roberts is kind
Speaker 1: of reeling from the fact that so many of his
Speaker 1: decisions have gone the way of shall we call it
Speaker 1: the right? In this last because you and I have
Speaker 1: had conversations many times about Roberts and his balancing act.
Speaker 1: It is, you know, Amy wrote this thing. Amy's been
Speaker 1: you know, vilified in the right wing media for.
Speaker 2: You know, didn't we say on the podcast, those are
Speaker 2: all little cases. When that big issue comes up, she's
Speaker 2: going to y, yeah, you and you didn't attack me.
Speaker 2: So I took that as agreement sort of they're.
Speaker 3: Waiting, sorry interrupt, I think they're waiting for a better
Speaker 3: case too.
Speaker 2: Explicitly, Yeah, I think I think in both cases. And
Speaker 2: also I think, uh, this might be actually a case
Speaker 2: where the nationwide in junction thing became so important and
Speaker 2: so focused. I could see Roberts saying this is not
Speaker 2: the right year to use up a lot of political
Speaker 2: capital on striking down a dedication returning Humphreys executive I
Speaker 2: don't think I don't think a lot of you know that. Thomas,
Speaker 2: Alito and Gorsa you think that way, But I think
Speaker 2: Roberts and Kavanaugh think that way unfortunately, And I think
Speaker 2: you see it here.
Speaker 1: Yeah, you know, I'm going to give Roberts a shout
Speaker 1: out on this one. To be honest.
Speaker 2: Wait wait, wait, everybody turn your Apple iPhone recording function on.
Speaker 1: As much as it aspies that concept about, you know,
Speaker 1: balancing the political impact of the Court's decisions in the
Speaker 1: national arena. If the Court is going to be so
Speaker 1: critically important in all of these major political controversies, and
Speaker 1: if the Court's power to do that relies upon a
Speaker 1: certain level of trust confidence in the American people in
Speaker 1: making those decisions, I don't think that's how it ought
Speaker 1: to be, by the way, but it is that way.
Speaker 1: We turn every important question now in our national political
Speaker 1: arena over to the Court, And if that's going to
Speaker 1: be the case, then Robert is Roberts is more or
Speaker 1: less obligated to do a little bit of that balancing.
Speaker 1: Does that make sense what I'm trying to say, guys,
Speaker 1: I mean, I don't think the Court should be deciding
Speaker 1: every single political controversy and turning it in somehow into
Speaker 1: this tiny little legal issue that they can pretend really
Speaker 1: covers at all. They shouldn't be deciding it. I mean,
Speaker 1: in my opinion, I won't go into examples, but if
Speaker 1: you're going to do that, if the court is going
Speaker 1: to be profoundly political, then it has to be a
Speaker 1: little bit careful.
Speaker 2: The other thing I would just add on to the well,
Speaker 2: I would add on to Lucretia also that there's a
Speaker 2: bigger thing going on is that if you look at
Speaker 2: the last five years, this is probably the most successful
Speaker 2: conservative Supreme Court in the history of the republic. Right.
Speaker 2: Not only they do three decisions today making clear the
Speaker 2: right of families overcomes other rights like free speech or
Speaker 2: the right of the government to run education, they also
Speaker 2: overturned Dobbs, expanded gun rights, got rid of affirmative I mean,
Speaker 2: this is like a winning streak like we've never seen
Speaker 2: before for conservatives. Maybe not since you know, they struck
Speaker 2: down the first New Deal. It's just that they went
Speaker 2: out on that. So maybe the reason I says by
Speaker 2: Lucretia is maybe in order to make sure this these
Speaker 2: wins are more permanent than the Court of nineteen thirty
Speaker 2: five or nineteen thirty is that you have to you know,
Speaker 2: hedge and you know, sometimes not decide all the issues
Speaker 2: at once to understand the political systems, you don't trigger
Speaker 2: a response. I think that's the best case to make
Speaker 2: on Roberts's part, that even if you're conservative, you can
Speaker 2: only do so many conservative things at once, and they've
Speaker 2: done an unbelievable number of them in the last five years.
Speaker 2: It's like it's like a dream you know, a dream
Speaker 2: team of what I mean, like a wish list of
Speaker 2: what they've actually done. There's the conservatives are running out
Speaker 2: of stuff they want.
Speaker 3: Right Well, our next segment, we're going to press that
Speaker 3: question a little bit further on broad grounds. Let's get
Speaker 3: out with sorry.
Speaker 1: Well, I just want to I do want to say
Speaker 1: one thing that you guys will remember before we go
Speaker 1: on to the originalism. Then you guys will remember when
Speaker 1: I guess it was probably the eighties into the nineties
Speaker 1: that we would talk about judicial activism and judicial restraint
Speaker 1: as if they were morally politically neutral terms, and so
Speaker 1: you know, we don't hear very much. But then when
Speaker 1: there started to be the tiniest, tiniest little break in
Speaker 1: the dam of liberal decision making, an expansion of power
Speaker 1: by the courts, and the idea that you would, for instance,
Speaker 1: overturn well Roe versus Weight. I'll use that as the example.
Speaker 1: Overturning Roe versus Weight is not judicial activism, it is
Speaker 1: judicial restraint. Right, But those terms are nowadays meaningless. But
Speaker 1: I would argue John that the reason I can applaud
Speaker 1: so many of these decisions by the Roberts courts. Okay,
Speaker 1: oh God again, I'm going to say something nice about
Speaker 1: Roberts is he does understand to a great extent that
Speaker 1: the courts I don't think it fully understands it, but
Speaker 1: I still have problems. But he understands that there's not
Speaker 1: that reigning in the power of the courts itself is
Speaker 1: important to maintaining the court's integrity in our system, and
Speaker 1: I think many of the decisions can be understood in
Speaker 1: that way. They are overturning or reconfiguring older decisions that
Speaker 1: gave the court way too much power. Is that unfair?
Speaker 1: But the left doesn't like it because the left wants
Speaker 1: the court to be in their pocket, and they don't.
Speaker 2: They want it to be an engine of social change. Yes,
Speaker 2: they wanted to be an engine of social change that
Speaker 2: makes every kind of process generally stops them.
Speaker 3: Yes, all right, well let's get out and come back
Speaker 3: to this after Well, let me let me do just
Speaker 3: a little historical footnote because I think it's fun. So
Speaker 3: the case on the first case, the Consumer's Research case,
Speaker 3: Consumers Research is now owned by rumbroll. Please Leonard Leo,
Speaker 3: I think.
Speaker 2: Did not know that, John, No, I did not know that.
Speaker 3: Well, so here's the funny thing.
Speaker 2: I thought they were like the guys who put out
Speaker 2: consumer reports. I was like, I know what this has
Speaker 2: to do with what's the best what's the best mini
Speaker 2: van for twenty twenty seven?
Speaker 3: No, no, see that. That's why it's an interesting story.
Speaker 3: I tell the whole story in my biography of Stan
Speaker 3: Evans about Consumer's Research. It was a magazine started in
Speaker 3: the thirties by lefties, by the New Republic crowd and
Speaker 3: by degrees. Is a long story that I have in
Speaker 3: my book, but it got It was one of the
Speaker 3: only organizations and publications that moved to the right and
Speaker 3: explicitly became an alternative to Consumer Reports, which became very
Speaker 3: natorite in the seventies, right, and by degrees, my old mentor,
Speaker 3: Stan Evans became publisher and editor of it, and then
Speaker 3: it declined as magazines did, and Stan retired and later died,
Speaker 3: and somehow Leonard Leo ended up acquiring it. So you
Speaker 3: know what they've done by not deciding the case the
Speaker 3: way I think Leonard wont it was making mad which
Speaker 3: I kind of like. Anyway, No, it did do that, John,
Speaker 3: but it was if you go back and look at
Speaker 3: old episodes of old issues, which I have a few,
Speaker 3: it was very much a right wing consumer magazine which
Speaker 3: has made a lot of fun. So there you go.
Speaker 3: But we're going to take a quick break and come back,
Speaker 3: and we're gonna press this originalism question just one more
Speaker 3: step and then we'll have to get out for the day,
Speaker 3: all right. I don't want to press this originalism question
Speaker 3: just a little further because a week after Scurmetti, which
Speaker 3: everyone celebrated for its outcome, there are people who like
Speaker 3: friends of ours, like Haley Arcis, but certainly not him alone, saying,
Speaker 3: oh wait a minute, Robert's opinion is based on the
Speaker 3: narrowest ground of the stupid rational basis test or what
Speaker 3: Scalia used to call the babbling idiot's test and frustration
Speaker 3: that we're not. I mean, you did mention John that
Speaker 3: families win and that's good and that that is imported
Speaker 3: from the logic of the Constitution and not the plain,
Speaker 3: black and white text of it. But the argument is,
Speaker 3: you know, maybe we should expect better, maybe we should
Speaker 3: now be even more aggressive about pushing a natural law
Speaker 3: originalism and you know, surfacing Thomas's point of view more directly.
Speaker 3: So just very quick comments from both of you on
Speaker 3: that if you have any lucreatia, you had your hand up.
Speaker 1: You want to know so, because I'm going to be
Speaker 1: the most simplistic about this. I you know, taught con
Speaker 1: law to undergraduates for many years, and when I would
Speaker 1: when I would explain the three pronged tests under the
Speaker 1: Fourteenth Amendment's Equal Protection Clause, I would begin by saying
Speaker 1: that every law discriminates, and what the equal Protection Clause
Speaker 1: does is to try to say that when you discriminate,
Speaker 1: you do so on the basis of a rational constitutional reason,
Speaker 1: and what you don't do is discriminate on the basis
Speaker 1: of something like something irrational, like and immutable characteristic a race,
Speaker 1: and so on and the court over time developed the
Speaker 1: three pronged the rational basis tests at the other end,
Speaker 1: the suspect categories, and then the important governmental interest tests
Speaker 1: it seems to take in sex and things like that.
Speaker 1: There's a logic to it. I'm not sure that you know,
Speaker 1: we're never going to go backwards and not have that test,
Speaker 1: but there's logic to it. And I will give Roberts
Speaker 1: more credit than our good friend Hadley in this case
Speaker 1: because not allowing sexual identity, the power to choose your
Speaker 1: sexual identity to become a suspect category means that the
Speaker 1: courts gives a deference to the government and all those
Speaker 1: other things that you know we teach about about that
Speaker 1: three prong tests. But that was a huge win, and
Speaker 1: I you know, you could, yeah, you could have the
Speaker 1: court go off into some really important things about natural
Speaker 1: law and so forth. But it was unnecessary because if
Speaker 1: the opposite had happened. If the opposite had happened, if transsexual,
Speaker 1: that whole despicable movement had somehow secured from a more
Speaker 1: liberal court that that in and of itself was a
Speaker 1: suspect category, this would have been disastrous. Would have been
Speaker 1: no stopping the worst kinds of horrors in this society
Speaker 1: done to children, and on and on and on. So
Speaker 1: I'm going to again one more time. I'm going to
Speaker 1: give Roberts some credit here. Maybe he could have gone further,
Speaker 1: even as as our friend Hadley said to us, Thomas
Speaker 1: didn't go for the why not It wasn't necessary. This
Speaker 1: is not the place to school the entire country on
Speaker 1: natural law.
Speaker 3: And we're going to get well, we're going to get
Speaker 3: a letter from Hadley. I suspect if he let's suspect
Speaker 3: that I agree.
Speaker 2: I think I agree with now I agree with Lucretia
Speaker 2: that I think there's a difference between natural rights or
Speaker 2: believing in natural rights, and which institution and our separation
Speaker 2: of powers and federalism is the appropriate institution to carry
Speaker 2: it into effect. So I think that what your talking
Speaker 2: about here is just a variation on Hadley's argument about
Speaker 2: Dobbs being wrong too, because he would have said, and Dobbs,
Speaker 2: a court should have banned abortion nationwide, and he's here
Speaker 2: saying Instagrammetti, you should have banned transgender medical treatments, not
Speaker 2: just allow states to make them, but to ban them
Speaker 2: outright right, because you don't recognize transgender I think those
Speaker 2: are perfectly appropriate philosophical views to have and political views
Speaker 2: to have. But in our system of government, that's the
Speaker 2: argument you make to the legislature and the executive branch,
Speaker 2: not the judiciary. So I do think, and you know,
Speaker 2: I signed someone had these work in the classes I
Speaker 2: teach because I want them to see how there are
Speaker 2: people who have this philosophical belief. He's just like the
Speaker 2: Dwarkins and the Rawles on the other side. He has
Speaker 2: a philosophal beief and he wants to use the courts
Speaker 2: to implement it because he thinks the moral view is
Speaker 2: more important than respecting the separation of powers. That's really
Speaker 2: what Scalia's whole career was about on the Supreme Court
Speaker 2: was standing against every right. We talked about this as
Speaker 2: famous lecture he gave at the Vatican where he said, I,
Speaker 2: as a Catholic, agree that the death penalty is immoral,
Speaker 2: but I am not going to strike down the death
Speaker 2: penalty under the constitution. As a judge. You can do
Speaker 2: it through the legislature. That but that's that's the other
Speaker 2: Argan is going to just add on to the creature
Speaker 2: by having the courts do that. You're going to see
Speaker 2: less moral argument in politics, right, because everyone says, oh,
Speaker 2: the Supreme Court is the moral arbiter. But if really
Speaker 2: the legislators should make these moral arguments, like Lincoln is
Speaker 2: the one who should make the moral arguments about.
Speaker 1: Well, and I would just go because we also just
Speaker 1: kind of dismissively said that that's just majority rule and
Speaker 1: you know, as popular sovereignty. But the point of the
Speaker 1: matter is that that's that's what our constitution demands, and
Speaker 1: and and when the legislature, when popular rule dovetails with
Speaker 1: that's my word of the day. I guess with is
Speaker 1: synchronized with what is morally right. Why would you argue
Speaker 1: with that? Why would you go a step further further
Speaker 1: undermine the the uh, you know, reputation of the court
Speaker 1: with the left to do that, and you know, so
Speaker 1: to the point where they no longer pay any attention
Speaker 1: to court opinions. If this, if the Tennessee was a
Speaker 1: Tennessee legislator or Kentucky Tennessee legislature came to such a
Speaker 1: great decision, uphold the decision, you know that that's that's
Speaker 1: what the court ought to do. And I again, like you, John,
Speaker 1: I agree politically, morally with everything Hadley said, but I
Speaker 1: also agreed that it's not the Court's place to do
Speaker 1: those things. Even Thomas didn't do it, you know.
Speaker 2: Yeah, here's the thing about where it involves Lincoln. I
Speaker 2: think Lincoln is right on this because Lincoln Hadley would
Speaker 2: wouldn't Hadley say Lincoln was wrong or in saying that
Speaker 2: we have to allow states to decide slavery, he would
Speaker 2: say the Supreme Court and cred Scott should have struck
Speaker 2: down slavery throughout the country, even though the Constitution plainly
Speaker 2: allows states to decide for themselves at that time. Well,
Speaker 2: I mean, that's just not tolerable under our system.
Speaker 3: Well, what we're going to have to do, because we
Speaker 3: have run out of time, is let had we have
Speaker 3: the last work in a future episode.
Speaker 1: Yes we do.
Speaker 3: We're gonna take that risk, but we are sadly out
Speaker 3: of time, so we're not gonna But the subject of
Speaker 3: the New York mayors race will keep because that's going
Speaker 3: to go on for a while. Yeah, go ahead, Sorry,
Speaker 3: what do you got for us?
Speaker 1: In powerful dissent, Catangi Brown Jackson simply writes, Wakanda forever.
Speaker 3: I know Barrett's already being called a racist of course
Speaker 3: by the CNA whatever.
Speaker 1: I hope they just ignore that stuff. District Court issues
Speaker 1: nationwide injunction on Supreme Court ruling. Okay, so this one's
Speaker 1: for you, John. I smiled when I saw it. I
Speaker 1: thought of you. Iran puts McDonald's signs in front of
Speaker 1: remaining nuclear facilities, so Trump stops bombing them.
Speaker 2: That'll work. Oh yeah, especially if he puts they put
Speaker 2: out some diet cokes right.
Speaker 1: Uh. Supreme Court legalizes Trump presidency. That's the part I
Speaker 1: feel sorry for the Court about a little bit, because
Speaker 1: you know, it just there's no winning on those sorts
Speaker 1: of things if you come down if Trump is right,
Speaker 1: and they come down on Trump's side, you know, anyway,
Speaker 1: you get the point. I've been watching Pete haig Seth
Speaker 1: this week. I watched his uh press conference where he
Speaker 1: just took down Jennifer Griffith, Griffin, Griffith, whatever name is. Uh,
Speaker 1: the dyke with the short hair. Sorry, No, she's not.
Speaker 1: I know she's not. She's married to some awful leftist
Speaker 1: and she decided after she had breast cancer that she
Speaker 1: was gonna make a statement with her short, manly gray hair.
Speaker 2: Okay, I didn't want to know any of that.
Speaker 1: It's true. So but but she's she's always been a
Speaker 1: shill for the left on Fox News, and everybody on
Speaker 1: Fox News hates her. But anyway, Pete haig Seth vows
Speaker 1: military will not discriminate against chicks, broads or dames. Just
Speaker 1: a couple more, I swear in historic six to three
Speaker 1: Supreme Court decision, three justices ruled to be morons, and
Speaker 1: I did not write that headline and last one for
Speaker 1: our friends in New York, Democrats discover innovative strategy of
Speaker 1: promising free stuff to stupid people.
Speaker 3: Okay, okay, I'm done.
Speaker 2: Well to bring it to clothes. Always drink your whiskey.
Speaker 2: Meat and Steve, now that you're back from your wayward travels,
Speaker 2: what did you ask Ai to produce in terms of
Speaker 2: a poem, Because there's no like produce an Icelandic right
Speaker 2: epic poem, produce Nordic haiku? What did you ask it for?
Speaker 3: I'm taking a break from that temporarily for an ending
Speaker 3: that I just love borrowed from you know who, and
Speaker 3: it is thank you for your attempt into this matter.
Speaker 3: By wire Ricochet, join the conversation