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