[MUSIC] >> Bill Whelan: It's Tuesday, July 4th, 2023, and welcome back to Matters of Policy and Politics, a Hoover Institution podcast devoted to governance and balance of power here in America and around the world. I'm Bill Whelan, I'm the Hoover Institutions Virginia Hobbs Carpenter Distinguished Policy Fellow in journalism. I'm not the only Hoover fellow podcasting these days. In fact, I suggest you go to our website, which is hoover.org.
Go to the tab at the top of the homepage, it says commentary. Slide over to where it says multimedia and up will pop 17, 16 or 17 audio podcasts in all, including mine, which is at the top of the page Matters of Policy and Politics. And I think we're at the top of the page because we get terrific guests today being no exception. My guest today is John Yoo. John is a Hoover Institution Visiting Fellow and non-resident senior fellow at the American Enterprise Institute.
He is also the Emmanuel S Heller Chair in Law and distinguished professor of law at the UC Berkeley School of Law. When he's not teaching or on television trying to make sense of court rulings, John Yoo is a prolific writer that includes a book released just last week. Its title is The Politically Incorrect Guide to the Supreme Court. He co-authored it with Robert J Delahunty.
It explains what goes on inside that beautiful building in past and present and includes a ranking of best and worst justices. I'm looking forward to reading. It also recaps controversial decisions in the court's future, which is going to be today's podcast about some controversial decisions where the court is going. John, welcome back to the podcast. >> John Yoo: Thanks, Bill, happy 4th of July. >> Bill Whelan: Here we are in the 4th of July. What are we doing? We're working on the 4th of July.
We were talking before we started this podcast. It's kind of a strange holiday to be in California for the fourth. I'm not saying California is not patriotic, but just you were born and raised in Philadelphia. I grew up in Washington, DC. It's a big holiday because it really is part of the city's DNA. But here in California, not so much, John. >> John Yoo: No, because you don't want to hurt the environment when you celebrate the 4th of July in California. I think no fireworks.
And people feel guilty eating hot dogs and hamburgers because they want to make sure the animals had a nice life looking over the ocean before they went. Sometimes the fireworks sounds sound like AK 47s going off in downtown Oakland. I think you probably need a metal hat. [LAUGH] Be wise to wear at midnight tonight. It's a strange holiday here, Bill. What do they do in Palo Alto? Maybe top up the electric charge on their EV's and, [LAUGH] drive a little less.
[LAUGH] And- >> Bill Whelan: There you go. Hey, speaking of hot dogs, John, very good California news. The Coney Island hot dog eating contest earlier today, I don't know if you got up and watched it. Yes, Joey Chestnut rules again. >> John Yoo: How many did he eat? >> Bill Whelan: I don't have a count, I'll check it up for you, John. >> John Yoo: [LAUGH] >> Bill Whelan: He held the belt. You are no stranger to consuming food. Would you ever dare get into a hot dog eating contest, John?
Are you kidding? >> John Yoo: Today I have some friends visiting from Italian universities and I'm going to take them to an all you can eat hot dog hamburger extravaganza to celebrate July 4th. I'm going to be in competition. I'm going to tell the Italian guys that this is actually a hot dog eating competition, [LAUGH] and see who wins. >> Bill Whelan: I love it very much.
John, let's talk about the, I'm just looking up Joey Chestnut here right now, Joey Chestnut believes protester at last year's contest cost him five hot dogs. On it goes. [LAUGH] Joey Chestnut, a California treasure. Let's talk about the book, John, The Politically Incorrect Guide to the Supreme Court. What prompted you and Mr. Delahunty to write this? >> John Yoo: It's interesting, Bill. I think it was about last term.
We were supposed to write this book we wrote at the end of the term last year after the abortion decision in Dobbs and the second amendment case and a case called Bruin. And we decided that the court was undergoing extraordinary attack from critics. And we wanted to explain why the court is not a political actor in the sense of trying to be pro Republican or pro Democrat, but that it was an ideological body because the constitution has an ideology and that there's nothing wrong with that.
And I think this year we're going to see it get worse because as we know this last week the Supreme Court struck down racial preferences in the last area allegedly where they were allowed in college university admissions. They stopped Biden's student debt cancellation program. They upheld the right of freedom of conscience from diversity requirements. So I think that these attacks on the court are only going to get worse. I think they're going to redouble.
And I just wanted people to realize this is not normal. Calling on the president and the majorities in Congress to expand the size of the Supreme Court, impose term limits, cut back on the jurisdiction of the court. Leaking opinions, assassination attempts, daily protests in front of the justice houses, this is not normal. This is an effort, I think, to attack the independence of the judiciary. >> Bill Whelan: Yeah, well put. So what surprised you during the course of your research?
Because you clerked for Clarence Thomas, you know the Supreme Court very well to begin with. What surprised you to find out as you were doing this? >> John Yoo: So many people, when they take constitutional law or learn about the Supreme Court in political science, they're told this story about how the Supreme Court has been activist over its years and had to be slapped back by, most prominently, FDR.
The moment people really read about, the two moments people really come across the Supreme Court would be John Marshall at the beginning and then the new deal fight with FDR. And in the Marshall court period, people will learn that John Marshall sort of twisted the constitution's meaning to expand the power of the government and of the judiciary, but that this was a good thing.
And then when they read about FDR, they'll read about how the Supreme Court stood in the way of progress, which was the New Deal, and that FDR used the threat of packing the court to tame the justices and to allow the great progressive bureaucratic state to come into being.
And so what we tried to do in the book, I think, is surprising, is to say, actually what's important is for the court to agree on a consistent, again, ideology about how to interpret the Constitution and the constitution's place in the country system. And that the way we argue, the way I think, that we trace through where the court has been, best has been, and this may sometimes lead it to strike down laws.
This is a, quote unquote, being activist, and sometimes lead it to deferring to the elective branches, quote unquote, not being activist. If it sticks to, I think, an ideology or approach of originalism, just interpreting the constitution based on its original meaning and then letting the political chips fall where they may, rather than trying to, you know, tack here, tack there in response to where they think politics requires them to be.
>> Bill Whelan: John, were you struck in doing this book, the connection between the courts and the times in which they live? For example, if you look at the most controversial cases with this court this year and last, for example, this year, a case involving a web designer in Colorado, this becomes an issue of free speech and will be morphed into gay rights.
A Supreme Court in the 1930s, they wouldn't know what a web designer is, and they wouldn't be having this conversation involving gay rights. The Dobbs decision last year, a court in the 1930s, John, there was no Roe v Wade. That's not germane to those times. Affirmative action, courts in the 1930s and earlier, they wouldn't know what affirmative action is. So when you look at these courts and the ruling, how much is that tied into really, the issues of the day?
>> John Yoo: That's a good question. That is a theme of the book, is that sometimes the court gets too tied in with the ideology of the day. The New Deal court buys into progressivism. The pre-Civil War court upholds slavery in the territories. And I think this is happening, the threat of that is happening today. We see that in the affirmative action case in particular. But these other cases you mentioned, this idea that the justices should accept or defer to elite expert opinion of the day.
A lot of times, elite expert opinion is wrong. And so when the court accepts it, whether it's, Dred Scott, slavery is inherent in the constitution. Blacks can never become citizens. That helped precipitate the civil war or buying into the progressive era idea of basically unlimited federal power and government by experts. We saw the culmination of that in the COVID response. Actually, we argue it can be a mistake for the court actually to buy into the politics of the day.
In fact, the court, we argue, is the one who says slow down. Don't rush to judgment. Return back to the founders and the idea of limited government that they had in mind. The second element of your question, Bill, also is, but of course, the founders, there's no way they could have known about the Internet, wedding planners, but they did put into place certain kinds of principles.
Freedom of thought and conscience through the First Amendment, freedom of speech, and freedom to exercise your religion, the 14th amendment, the Reconstruction amendments, which I think created a colorblind principle in the Constitution. Here's the pitch. And actually, I got this idea a long time ago from one Richard Epstein, [LAUGH] who wrote a book about 30 years ago. He's still talking about it now. [LAUGH] >> Bill Whelan: [LAUGH] >> John Yoo: It was called simple rules for a complex world.
He's writing about economics and law, but actually, I think the Constitution creates some pretty simple rules. And you saw the court stand up for some of them, right? Colorblind constitution, freedom of conscience, things like that. Congress has the power of the purse, and it's only when the court gets seduced into these overly sophisticated, elaborate contemporary theories of the day by, I think, intellectual elites, where they misstep, sometimes grievously so.
>> Bill Whelan: All right, let's get into the affirmative action case, I should say cases, because there actually were two before the court, John. There was one filed against Harvard and the other against University of North Carolina Chapel Hill, which UNC graduates bristle at because they're UNC, not UNC, Chapel Hill, but the court ruling against the two colleges in this regard. John, are you familiar with the joke about how the major newspapers cover the end of the world?
Have you heard this one? >> John Yoo: No. >> Bill Whelan: The joke is, world ends. How do three newspapers handle it? The Wall Street Journal headline, world ends, markets down sharply. >> John Yoo: [LAUGH] >> Bill Whelan: New York Times world ends, details on page B Three. >> John Yoo: [LAUGH] >> Bill Whelan: But then the Washington Post, John, world ends, women and minorities seen hurt the most. >> John Yoo: [LAUGH] I've never heard that before.
>> Bill Whelan: I thought of that joke when this decision came down, because this is a proverbial. If you see the world that way, this court decision is a ten strike, because affirmative action does tie into both women, minorities. But let's begin this way, John, how do you define affirmative action? I ask because this gets complicated very quickly. If you read public opinion polls about this topic, voters tend to like affirmative action. We ask them, do you like affirmative action?
Yeah, sounds good. Do you like, you know, do you like racial quotas? Do you believe that university admissions, public hiring, should be should race be a factor? No. It seems to, John, we have a challenge here, just defining what exactly affirmative action is. >> John Yoo: So the affirmative action that the court took up in this Harvard case, in the UNC Chapel Hill case, is the use of race, consideration of race, and making a decision. >> Bill Whelan: Factoring into the decision.
>> John Yoo: May not be quotas, exactly, but race giving an advantage, or as the Harvard admissions office calls it, a tip. [LAUGH] When you buy something at Palo Alto and you check the little box, it says, give them 20% or 15%. >> Bill Whelan: Full disclosure, you're familiar with Harvard admissions because you attended Harvard. >> John Yoo: But as I say, I went to Harvard during the time they were allowed to discriminate against Asians and had quotas against it. I must have been really good.
[LAUGH] It must be really hard for me to get in. [LAUGH] I think that's different than, as you say, Bill, when some people talk about affirmative action, they sometimes think about something different, which is taking account of someone's lifetime experiences. Maybe they came from a background where they were poor, didn't have access to education, had other broken home. If we're allowed to call them that anymore, challenges, that kind of affirmative action is not unconstitutional.
The Constitution doesn't address any of that. But what the Constitution addresses is the use of race by the government. That's what the Supreme Court struck down this week. >> Bill Whelan: Okay, so California went down this road 25 years ago, John, with Proposition 209. That initiative was revisited a few years ago in the form of proposition 16. Voters voting very strongly in both instances against the idea of race based admissions and also race based public hiring, if you will.
Since the end of legal actions, when it comes to affirmative action, because we've had various cases heading toward the court or before the court over the past 25 years, it always seems to come back in one form or another. >> John Yoo: [LAUGH] It was sort of like the vampire, the racial quota that wouldn't die. So this is the thing that, and this is why I think this is Chief Justice Roberts greatest opinion.
What the Supreme Court does is it shows, again with the simple principle starts in the Declaration of Independence. It's what the civil war is fought over. It's embodied into the constitution by the reconstruction amendments, produces Brown versus Board of Education, civil rights movement. It's a simple idea, the constitution is colorblind. That phrase comes from Justice John Marshall Harlan's dissent in Plessy versus Ferguson.
He was the only dissenter from the Supreme Court's decision after the Civil War, after the Reconstruction mentions that racial segregation in the south was okay. But that simple principle has been deviated from. And every time we deviated from it, the court says, Chief Justice Roberts says it's been a disaster.
Deviated from Dred Scott when we said Congress couldn't stop the spread of slavery, civil war, we deviated from Plessy versus Ferguson in 1890s and introduce Jim Crow segregation in the south. And then Chief Justice Roberts says, and now we have allowed for the, as you said, for the last 20, really, 50 years, since Bakke versus University of California.
And then over and over again, the court allowed one exception, and that was for college and university admissions probably extends to hiring, probably extends to how universities operate. And he says that has to be ended because the court should not allow another disaster like the ones we have in the past. I think that will always be chief Justice Roberts greatest opinion because he said it so forcefully.
He also took the time to look at the history of the country and the court's relationship with politics by trying to, again, buy into the ideology of the day, accept what the experts were telling the court rather than interpreting the Constitution and upholding principle. >> Bill Whelan: The courts have said, now, John, for Harvard, UNC, no tips for race. But two questions here, John. Number one, how do you actually monitor this?
How do you make sure that universities are abiding by this decision? And then secondly, how do these schools get around it? My thought, John, is they'll just probably put more weight into, let's say, essays and.
Try to, if we can't pick John New or Bill Whelan based on the ethnic background, we'll just get into their essay and try to make this sort of more admissions based on maybe a harrowing tale woe, in other words, how far you've come from not how you identify, but maybe what your journey is. >> John Yoo: It's a tough question, Bill. It's hard to say. So first, I hate to use this phrase, but I think it's true.
I think we're gonna see massive resistance by government bureaucracies, college bureaucracies. I use that phrase cuz that's what the southerners called their resistance to brown versus board of education. They tried everything to escape the colorblind principle in public schools that the court announced. And I think it's fair to say it took about 15 to 20 years before serious desegregation occurred in the south.
And it wasn't just the Supreme Court and the lower federal courts closely monitoring what the South was doing, it took Congress. Congress passed a 1964 Civil Rights Act, 1965 Voting Rights Act. That was essential to pushing desegregation forward. I think if the courts had had to do it by itself, it might have taken even longer, so that's one.
Second thing, maybe, Bill, and this is I think you and I since we're in California, we might have a more ground eye view of it is we are in a state which has had to live under the colorblind principle and there has been resistance. I mean, the University of California administrators today said in the Harvard case, we want to have the ability to discriminate on the basis of race. But those pesky voters, they won't let us. In fact, I think you mentioned, it's still, Prop 209 is popular, right?
When the initiative came up to overrule Prop 209, was it two years ago or three years ago, it failed, I think by a larger margin than Prop 209 was passed, [LAUGH] right? >> Bill Whelan: If you go back to 1996, John, when 209 was approved by voters, I think about 54, 55% of voters sign off on that Prop 16 which meant that a yes vote was to overturn 209, but a no vote was to keep 209. The no side had about 57% of the votes.
So you can actually show, John, that more people today support this notion. >> John Yoo: Let me ask you, why do you think that's true? I mean, this is the interesting thing to me because the ideal. So you worked for Governor Wilson. Governor Wilson was really behind prop two nine. I was a young professor then I tried to help. I did not think the ideology of racial diversity was so hardwired into our institutions then as it is now.
I think it's much more difficult fight now to uproot racial quotas, racial diversity ideas. But still, the voters want it even more. They want colorblindness even more than they did almost 30 years ago. >> Bill Whelan: I think, John, a basic mistake in California politics is to put a measure on a ballot and assume that certain voting blocs will vote in a certain way. For example, we had a big debate over the definition of marriage here in California years ago, proposition eight.
I'm sure you remember that. >> John Yoo: Yeah. >> Bill Whelan: It passed. In other words, we put in the constitution that marriage is defined between a man and a woman. The backers of that were shocked when the vote came down, because they assumed that it would carry well with minorities.
They thought that black voters would support it, seeing it as a civil rights issue when, in fact, there are black voters who are very grounded in religion and they struggle mildly with the issue of same sex and marriage. I think putting this into the context of affirmative action though, Prop 209, John. You look at polls right now, our colleague at Hoover, Doug Rivers, he does polling for YouGov, but a really interesting poll on it the other day.
>> John Yoo: I always listen to those podcasts, they're hilarious. Listening to guys, are you, [LAUGH] Dave Brady and Duggars argue about percentage points, differences in the polls. You guys are hilarious. >> Bill Whelan: They are the Waldorf and Statler of Hoover, no question about that. >> John Yoo: [LAUGH] >> Bill Whelan: They do like each other, our buddies. But anyway, that poll, John, it showed, it asked a very simple question. Do you believe that race should factor into admissions?
And majority of white voters said no, but then they asked Latinos and blacks, John. And about 60% of Latinos said no and about 47% of blacks said no. In other words, the assumption might be that blacks overwhelmingly want race. Well, you can build an argument that for some black Californians to black Americans. They might think that, no, I wanna get in based on my merits. I don't want pity, I don't wanna favor anything like that.
So again, let's just not assume that certain ethnicities are just so break one way on this issue. It's more complicated that. Plus, I think also anecdotally, John, I can tell you my sister had a daughter who applied to the University of Virginia years ago. My family is deep into UVA. There's just legacy, legacy, legacy all over the place. She had pretty decent grades, she did not get in.
It was a numbers game, explained to her and that's because two kids in her class in Fairfax County and one was black and one was Latino and they got in and she didn't. And so I think there are, for some Americans out there, just anecdotal evidence of how this hits as well. So I think that explains this. And to close out of the wiggle side of this, John, I don't think this is a good hill for Democrats to climb on 2024.
>> John Yoo: Well, in a weird way, I was thinking the political consequences in a weird way might help Democrats because they don't have to defend one of the most unpopular policies, [LAUGH] in American politics which most people hate. At the polls, I saw, say, close to 70% now disapprove of the use of race. Just to finish a point you asked me about earlier, about what the University of California does, what we see in California, right?
In some part encouraging about California depressing when you think about what it means about university administrators. So this last year, the University of California, all the campuses counted together, enrolled the most racially diverse class in its history even though they can't use race. Now, there's some cheating going on. There's definitely efforts to take account of race through different proxies, but you can't do it in the ways they were doing it before.
So you see, Asian enrollment went up quite a bit. Actually, I think Hispanic enrollment now has come up quite a bit since the years before Prop 209, but they're fluid. They're not fixed, they're not quotas anymore. And as we have a multiracial society here in California where there's no majority race, that shouldn't be surprising over time, the depressing thing. And so actually, the lawyers for the Asian students against Harvard, I think I know almost. I think I do know all of them.
They're mostly friends of mine. They made a big deal of this. They said, it's not the end of the world if the court says you can't use race. Look at the University of California, they've enrolled the most racially diverse class history. So what happens? The University of California files a brief at the Supreme Court in the Harvard case saying, we want to distance ourselves from those Asian students. We wish we could use race.
Yes, we enrolled the most diverse class in our history, but that's not good enough. We need to do more. And then they would say, but we're never going to say when it's over. We won't say when racial diversity is achieved. It may never be achieved because there can't actually be targets. So not only do we wanna have racial diversity now, we wanna have racial preferences, so that we can also socially engineer our student class and the way we see fit.
And so that's a depressing thing about the university administrators. One last point is I hope readers, when listeners, if they do read the opinion of the majority here, the one other thing you can see here is the court is so suspicious of educators. So suspicious of bureaucracies and elites. >> Bill Whelan: Right. >> John Yoo: Because Bill, you asked me like we've seen these cases from back in 78 to this case called Grutter in 2003, to this case called Fisher in the 2010s.
Every time the court has tried to strike down race in college, the Grand Poobah's of the university come forth, [LAUGH] and the Grand Poobah's of the CEO's, Grand Poobah's of the military come forth and they all say, trust us. We need racial diversity. It'll lead to better classrooms, it'll lead to better research, better corporations and a better military. And Chief Justice Roberts says, we don't trust you anymore. We trusted you these last two times.
We gave you 25 years where we're gonna look at it again. And he said, there's not a single reliable study, not a single one produced to the court that shows that racial diversity leads to better grades, better classroom outcomes, better research. You could tell the court thinks they've been lied to for the last 50 years by university presidents and they've had it and this is part of the broader trend that the court has. It's become very suspicious of experts.
It's become very suspicious of bureaucracies. And the affirmative action case is maybe the heist expression of that suspicion, but you're gonna see it start to come forward in all kinds of other cases too. >> Bill Whelan: Yeah, I would note, John, that there were some other remarkable claims made in the dissent. We'll get to that in a minute. Let's talk about shoes that might drop next here.
Question for you, John. If you are a white professor in a university, do you think we're gonna see a lawsuit in which you will sue against DEI requirements? >> John Yoo: Bill, [LAUGH] you read my mind, actually. So just in full, as a matter of full disclosure, I'm a member the board of the Pacific Legal Foundation, the board of trustees of Pacific Legal Foundation which is a sort of libertarian public interest law firm.
And they are indeed, they just did file a case by a professor who did not get and did not get a job at a UC campus. And he claims that the diversity requirements meant he never really got by the early filtering stage. I think that's you're gonna see more lawsuits like that. At the University of California every time I come up for a salary increase and let me reassure the listeners and the taxpayers of California, these are pitiful appendage.
Tiny, tiny pay increases below the rate of inflation, let me assure you. But when we get a pay increase, I have to file a report on my contributions to diversity. Every single employee and professor of the university has to explain why they helped diversity if they want to get a pay increase. So guess this, Bill. I used to say, I am a conservative Asian faculty member of the University of California. I am per se diverse on this campus, but I'm thinking next time I won't file one at all.
I might just say this violates my right to free speech. I'm not gonna file a diversity statement, see what happens. >> Bill Whelan: Let's back up a second. If you file that statement, John, and you put on that statement zero, you did not take a penny out of your pocket for any contribution. Does that affect your raise? >> John Yoo: Well, so it's not the financial contribution. It's just like your contributions like for example, they wanna see things like this.
Did you add a week in your class about racial injustice? Did you write a piece of scholarship looking at social injustice? It's not financial, you're supposed to spend your time and energy as an employee helping racial diversity on campus. And so everyone knows what's going on. And I think because of this Harvard case as you say, people are gonna start taking a stand against DEI.
In fact, I think that's even more sharply raised by the 303 creative case, the case of the wedding plan- >> Bill Whelan: Web designer, Colorado, right? >> John Yoo: Yeah, because she believed, right? She's a devout Christian. She doesn't want to make these websites for gay marriages. She just believes and she takes a literal approach to the Bible. She doesn't think that gay marriages is moral. So she's happy to design websites, but not to celebrate gay marriage.
And so there the court said, you're right under the free speech clause. And maybe because of your freedom of religion, it means the government can't make you say things you don't want to say. That also might come up with these anti dei lawsuits, not just in universities, but also, I think, in other places, like businesses, the workplace. I think the two together, the Harvard. I hadn't really thought of it this way, Bill, until you asked.
But if you combine the Harvard case and the 303 creative case, you have the makings of a good lawsuit against these DEI initiatives not just against the government, but also against companies. >> Bill Whelan: Right, the other shoe which I'm looking at here to drop, John, is the idea of legacy as a factor in university admissions. Some universities have already gone down this road. Amherst, MIT, Johns Hopkins no longer consider legacy their admissions processes.
However, your alma mater, Harvard does. And actually- >> John Yoo: Yes. >> Bill Whelan: On Monday, a lawsuit was filed. A Boston based nonprofit called Lawyers for Civil Rights filed a suit on behalf of black and Latino groups in New England, claiming that Harvard's admissions policy violates the Civil Rights Act. I did a little homework on this, John. According to the website, admissionsite.com, Harvard Legacy acceptance rates for the class of 2025 was about 16%.
Only 12% of the new Clemson students who rolled the class of 2024 identified themselves as legacy students. Legacy here, by the way, gets a little tricky. John, I believe legacy is bloodline, is it not? For example, if your uncle went to Harvard, you could not claim legacy, right? >> John Yoo: Yeah, I think it's your parents or siblings or something like that. >> Bill Whelan: So it's bloodline. Here's what I'm curious about this, John.
It's an interesting idea, but I went up and actually looked up title six of the Civil Rights Act, read the language to you. Quote, no person in the United States shall on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of or be subjected to discrimination under any program or activity receiving federal financial assistance. That's what is at stake here. Harvard and other major universities get federal money, so they have to comply here.
But John, race, color, national origin, I don't see the words Nepo baby in there. >> John Yoo: [LAUGH] Zuckerberg's kids getting in one way or the other. [LAUGH] >> Bill Whelan: Exactly, so how would the court process this? How would you factor legacy into the Civil Rights Act? Is there a Lexus between the two? >> John Yoo: Well, I think this is the important thing that comes from your first question, Bill. What is affirmative action?
And affirmative action can include lots of other things in race. The court's decision only is limited to race because it's the 14th amendment. That right says, no one can be taught, denied the equal protection of the laws, and the government can't take away privileges and immunities. And in this case, Harvard, UNC, Chapel Hill were discriminating against Asians and whites on the basis of their race. That doesn't mean that you couldn't have affirmative action based on socioeconomic class.
So apparently, it seems that Harvard has been having an affirmative action program for wealthy kids. That was their affirmative action, but they could turn right around and have affirmative action for poor kids and the constitution doesn't say a lick. As you said, title VI of the Civil Rights Act which in a way implements the Constitution by using federal funds, right? That's how Harvard actually got dragged into this case, is because they took money from the federal government.
And title VI says, if you take federal funds, then you have to be colorblind. Right, Harvard could still do all kinds of discrimination on the basis of this, discrimination on the basis of that as long as it doesn't include the title VI categories which is race and national origin and gender. Title IX is also about gender. So I don't think on the other hand that legacy, therefore is unconstitutional. It's just a kind of criteria that's not addressed by the laws.
Now if you look at the states that Like California and Texas, that have these non-discrimination. Color blindness requirements for emissions, that's what they immediately went to, right? They went to socioeconomic factors and they tried to expand emissions for the poor. I'm all for that, actually. I'd much rather have that than race-based affirmative action that actually comports much more. And actually, Chief Justice Roberts says this and Justice Thomas says this in his concurrency.
He say, if you look at who race-based affirmative action benefits, the statistics seem to show it affects upper middle class and upper class blacks and Hispanics. And they say, why should a upper class black student who goes to Andover benefit when poor white kid who emigrated from, say, Ukraine and worked their way up through the public schools of Los Angeles get no benefit?
So I think that would actually comport with why you see such high poll numbers in support of, quote, unquote, just affirmative action. Because I think many Americans like the idea of giving a helping hand for people who were poor, didn't have financial educational opportunities. So I think Harvard should do that now, but this lawsuit can't force them to, because using socioeconomic class is not legal or illegal. It's okay.
>> Bill Whelan: Yeah, I wonder if Harvard would dread this case in this regard. I don't think they want discovery into admissions, just as we saw with affirmative action and withering comments about Asian applicants being devoid of personality, so forth. Can you imagine the comments in the admissions files about various idiots, sons and daughters of donors? Because legacy is about one thing. >> John Yoo: [LAUGH] >> Bill Whelan: Legacy is about keeping the money trade rolling, plain and simple.
[CROSSTALK] >> John Yoo: Imagine the rude comments emissions officers will make about Thurston Howell the third, about Thurston Howell the fourth, and the Thurston Howell the fifth. [LAUGH] >> Bill Whelan: Well, when a dad always turned to animal house, John, and when they're looking at the pledge class, and I think the first guy, Larry Kroger, comes up with some guy in the back goes, we need the dues.
[LAUGH] >> John Yoo: [LAUGH] >> Bill Whelan: John, let's shift back, and this ties into your book. I wanna talk about relationships between justices, in particular, two Clarence Thomas and Ketanji Brown Jackson, who are very opposite ends of the affirmative action case. They're an interesting study in this regard, Justice Thomas, your former boss, he just turned 75. I believe he is the oldest serving justice on the court right now.
>> John Yoo: Yes. >> Bill Whelan: Justice Jackson will soon turn 53. She is the youngest serving member or the newest member on the court, I should say. But they are both African American, obviously, but they have a very different view of affirmative action. Let me read to you a portion from what Justice Jackson wrote.
She wrote a 28 page descent John, including this passage, quote, gulf-sized race-based gaps exist with respect to the health, wealth, and well being of American citizens, her dissent began. She later added, quote, with let them eat cake obliviousness. Today, the majority pulls the ripcord and announces color blindness for all by legal fiat by deeming race irrelevant in law does not make it so in life.
To which Clarence Thomas responded in a 58 page opinion, which might be kind of his magnus opus for his career in the court. Concurring from the majority, he wrote the following quote. This is very personal, quote, as she sees things, we are all inexorably trapped in a fundamentally racist society with the original sin of slavery and the historical subjugation of black Americans still determining our lives today.
The panacea, she counsels is to unquestionably exceed to the view of elite experts and re-allocate society's riches by racial means as necessary to, quote, level the playing field. All is judged by racial metrics. I strongly disagree. John, are opinions that personal? >> John Yoo: This is actually an extraordinary exchange, Bill, I haven't seen anything like it in Supreme Court opinions in my lifetime. This very personal exchange.
I think that Justice Thomas, having Cliff, for him, is actually very conscious of formalities, and being polite, and courteous. But I think Justice Jackson wrote an opinion, which I call it the 1619 project. >> Bill Whelan: Yes. >> John Yoo: Opinion, she's a critical race theorist on the Supreme Court, cuz her opinion basically says the United States is structurally racist and it has been from the start.
And so, as she says, look at all the disparities in wealth, health care, so on and so on between blacks and whites. Given that this is the product of such deep set racism, what's a little thing like affirmative action to make up for? Justice Thomas fundamentally doesn't believe that, and he doesn't think it's the role of government to try to correct it. And you can see in his opinion, he actually accuses Justice Jackson of holding racist beliefs herself for thinking these things.
He says, because Justice Jackson thinks this way, she herself is stereotyping individuals based on their racial group. And then the more important thing is it gets even more personal. I've never seen things like this before. He says, you, Justice Jackson could not do a worse thing to young black kids growing up than telling them everything that happens to them that's bad is because of their race and that they can't do anything good unless they're treated on the basis of their race.
He says, this is the most destructive thing you could do? And he says, look, the right answer is you work hard, you make the best of your God given talents, and you don't play. You don't accept that you're a victim. Yes, this is an extraordinary exchange, but I think Justice Thomas was provoked because he could not stand this critical race theory opinion, basically calling the court and American society as a whole fundamentally racist to the core.
>> Bill Whelan: Yeah, but I think it's worth noting that this is kinda part of Clarence Thomas's life. Turner, he was in a past life the chair of the head of the EEOC, correct? >> John Yoo: Yes, but, and it also has to do with their experience, because if Justice Jackson was upper middle class, black kid in Miami, she probably benefited.
Whereas Justice Thomas is a kid who was born before Brown, who grew up under segregation, and he doesn't think that blacks need affirmative action, race-based preferences to succeed. So it's also personal in that way, because they're both speaking from their own personal experience. >> Bill Whelan: Right, I would point out, though, that the fireworks, keeping with our 4th July theme, the comments in Jackson were the only justices with fireworks. Here's the land of Kagan in St John.
She said, quote, in every respect, the court today exceeds its proper, limited role in our nation's governance, and here is Justice Roberts. Chief Justice Roberts, responding, quote, it has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. It sounds like the chief is taking out a ruler and he's trying to wrap some justices on the knuckles.
>> John Yoo: I actually think that dissents are extraordinary in two respects. Yes, one, Justice Kagan in this opinion, and then in the Biden student debt cancellation opinion, basically attacks the role of the court in democracy. It accuses the supreme court of trying to trample on democracy, which is strange. Actually, in the Harvard case, the court is doing something which is extraordinarily popular.
What's amazing about racial preferences is they've lived on for so long, 50 years, when more than two-thirds of the American people want them gone. And then in the Biden case, it's extraordinary. Justice Kagan says, you're undermining democracy when the The court's holding is if you wanna spend $400 billion, then Congress has to vote on it [LAUGH]. It sounds like you're undermining democracy by making Congress vote on something, the horror.
But then the other extraordinary opinion is that Justice Sotomayor, so the three of them together, basically, but they tried to kind of tell college admissions officers how to cheat. [LAUGH] They try to say, well, even after this decision, you could do this, you could do that, to try to take a counter race. And that really ticks Chief Justice Roberts off.
He says something to the college admissions officers along the lines of, the best place to get legal advice is not from the dissent and a losing Supreme Court opinion [LAUGH]. [LAUGH] That's also very personal and remarkable. And then they get into this discussion which you asked about earlier, Bill, about, well, could you mention race on your college admissions essays? How does a court monitor this?
And so Chief Justice Roberts says, of course you can mention race if you're writing about, well, why were you inspired? Maybe you're a black kid and you're inspired by Martin Luther King, that's legitimate to write about. Or he could, you could, he could say, you could talk about race in terms of something you had to overcome, maybe you're Hispanic, you grew up in inner-city LA, and you have to overcome racial gangs, that's something to take account of, too.
But Chief Justice Roberts says in those cases, you're still looking at the individual. You're not giving, say, every black student or Hispanic student a bump up and every Asian student a bump down just cuz of their membership in a racial group. And so this is the extraordinary thing, which is, he says to college admissions officers, is you can't do indirectly what you can't do directly.
We aren't gonna allow you to you, the colleges to make up an emission system which magically reproduces all the racial quotas you had before. We're gonna be watching, we're gonna be vigilant, so don't listen to these dissenters [LAUGH] who are trying to tell you to cheat and evade a Supreme Court opinion. >> Bill Whelan: One other feature of some dissent, John, was playing rather fast and loose with data and facts.
I wanna point you to two things, here is Justice Jackson linking affirmative action to black infants survival. Her exact words, quote, for high risk black newborns, having a black physician more than doubles the likelihood that the baby will live and not die. She is playing very fast and loose medical data with that John.
Here's Sonia Sotomayor in her descent in 303, Creative versus Atlantis the web designer case you've been talking about, she wrote that a, quote, a social system of discrimination created an environment which LGBT people were unsafe. And then she cited the case of Matthew Shepard, John, who was killed. She said his words, he was, quote, targeted by two men, tortured, tied to a buck fence, and left for dead for who he was.
What she does mention is that while Matthew Shepard, Washington gay evidence points to his murder being the result of a drug deal going bad and not homophobia. So here you have the justices or maybe the clerks working for them, just skewing a lot of facts, and that's bothersome. Do we need to have a Politifact or some sort of fact-checking for the court? >> John Yoo: Unfortunately, the court used to police itself, that's what the dissents and concurrences and majority opinions are for.
Sadly, I think it also reflects how irrational to me the dissenters have become, they're on the losing end of a conservative court. That returned abortion to the states last term which said that right there's a right to bear arms that is becoming very suspicious of a large, unrestricted federal government that stands up for freedom of conscience now. And is, I hope, started the end of this racial diversity craze. And they can't believe it.
Let me say, I think there's a difference here, because when conservatives were on the losing end of the Warren Court decisions or even the losing end of cases going through to the 1980s. I didn't see justices and dissent attacking the institution of the Supreme Court itself, attacking the Constitution in a way, or claiming that society was fundamentally misguided and had to be [LAUGH] corrected.
I think these progressive justices are a part, in a way, of the mindset that says, let's attack the institution, let's pack the court, let's do all these things that we haven't threatened since the 1930s. Or which the segregationists in the south threatened but could not achieve after Brown versus board of Education. I do worry that the court is becoming subject to the same forces of polarization we're seeing in the area where you study the political process in electoral systems.
>> Bill Whelan: Let's expand on that, John, I'm going to give you five data points here, and you tell me what they have in common. Number one, in April, ProPublica publishes a piece in which it links Claire and Thomas to the republican donor Harlan Crow, suggesting that Thomas cannot be involved in certain cases in which Crow has any sort of involvement, they basically question Thomas's integrity.
Also, in April, John, Politico reports that Neil Gorsuch, soon after he was nominated, sold 40 acres of Colorado land to a law firm with multiple cases before the court. In June, ProPublica was back with a story on Samuel Lido taking an upscale fishing vacation with republican billionaire back in December. John, we have calls for Amy Coney Barrett to recuse herself from gay rights cases because of her affiliation with a faith group that was deemed anti gay.
And finally, Brett Kavanaugh, there's a documentary out on Kavanaugh which revisits his Yale days and goes down the same path as confirmation hearing, accuses him of all sorts of tawdry behavior. What are those five justices have in common, John, there are five of the six conservative voting justices on this court? So I see a pattern here.
>> John Yoo: [LAUGH] I don't know how true this is, but I've seen accusations that ProPublica, which has published a lot of these and done the research, is funded by progressive dark money groups. You see these attacks on the justices, attacks on the federal society, claims there's this sort of nefarious network of conservatives achieving these results. It's always funny when I read these accusations.
I only wish conservatives were as clever and devious as the left thinks we are [LAUGH], we're an amazing, disorganized, infighting, bumbling group of [LAUGH] people, it's lucky we ever achieve anything. Look, it took 50 years for the conservative legal movement to achieve overturning Roe, achieve overturning Backy in a time period. You start with, say, 1968, when Nixon was president. Republicans have had a large majority of the appointments to the Supreme Court.
What's amazing to me is how long these doctrines, which I think were just totally unrooted in the law, but were the court to progressive ideology, stayed alive for 50 years, that's one. And then the second thing is, again, you see, you don't see the same attacks on liberal justices, even though you have a history of liberal justices actually taking money [LAUGH] from people like Justice Fortis practicing law while he was on the Supreme Court.
Or Justice Brennan taking like, I think Justice Brenner, another justice, just like received cash when he retired from a friend. And then you have these accusations, Justice Sotomayor didn't recuse herself from cases involved her publisher, who gave her quite a large advance. But the thing to me is it's all an effort to bring Justices in the Supreme Court into disrepute. It's ironic.
They're being attacked by members of Congress who actually, it's part of how they do business is they receive campaign contributions in cash from people and then they do them favors. And that's not even seen as problematic. I mean, that's just the way Congress works. >> Bill Whelan: Okay, so what is the end game here, John? Because I see three possible endgames here. One, it's as simple as you're just trying to force these judges off of cases.
You're trying to just make an argument for recusal, so you just pressure them through negative press to have them step down from certain cases. Second argument, John, it's a political one, that you're trying to rally a base. You're trying to get a certain group of voters who respond in a certain way to Supreme Court decisions, such as the affirmative action case, such as a 303 case.
And you're trying to just by dragging the justices through the budget is trying to get them angry to turn out next November to punish Republicans. Or the third piece, John, is you're trying to lay the groundwork to the argument for packing the court. >> John Yoo: You tell me, I'm puzzled in a way. I think the idea of packing the court requires large majorities of the House and Senate and a Democratic president and a Senate that's willing to get rid of the filibuster.
So I don't see, and even when FDR, this is interesting. FDR tried to pack the court in 1937, his party had more than two thirds of the House and the Senate. He could have done anything he wanted, but even his own party turned on him when he tried to pack the court. And I think the Biden White House is very aware that packing the court is extremely unpopular. So I think it's more what you say, the other options bill, I think, but I don't know. I'm curious what you think.
I think it's about rallying the base, getting them to turn out. Elections these days, I guess, are about turn out. But I also think that this turns off a lot of independence. I mean, the people are going to turn out because they want to pack the court, seems to me, are going to turn out already because they're pissed off about Dobbs. And now the Harvard case, [LAUGH] is like, you don't need to turbocharge the far progressive left to show up at the ballot or give money.
So I don't, to me, that's what I think politically, it seems to me to be a loser in our politics to say I want to damage the Supreme Court, I want to reduce its independence, I want to add more members. But what do you think? I don't get it, actually doesn't make sense to me. >> Bill Whelan: So if the choices are a, this is all about trying to get justice to recuse, b, rallying a base or c, trying to some end game of packing the court, I agree with you.
Let's take packing the court out of the game. The fact is, if you wanna change the Senate rules, you kill the filibuster before you pack the court, cuz that has far more impact in terms on your legislative agenda and your judicial agenda and so forth. Recusal, I think I'll cancel that one out, too, cuz that's just kind of a piecemeal thing. I think it's about rallying the base, John, in this regard. You saw what the effect that Dobbs had on 2022.
We saw back in 2016 the effect that this had for republicans. Trump, all Donald Trump does out there. We forgot that one thing he talked about was the court. And this was an issue in 2016 because you had the one seat sitting out there waiting to be filled, and then Trump got two other, by the way, what about instant alternate universe? Trump loses that election, John, it's a 6-3 progressive court.
>> John Yoo: Yeah, no, no. >> Bill Whelan: So let me ask you- >> John Yoo: This might be the most long term and the most long term consequential thing Trump did in domestic policy is his appointments to the Supreme Court. Yes, I think clearly. >> Bill Whelan: But let me ask you this, John. If it were a 6-3 court that went the other way, if it were six Democratic opponent justices, would we be seeing an affirmative action lawsuit? Would we be seeing a 303 case?
Because these cases would be dead on arrival with that court. >> John Yoo: I agree with you. What we would have seen was, now, this is the weird thing, and this is too much in the weeds, perhaps. But progressives, they don't really have an ideology that matches originalism, right? There's a very simple thing. People understand, interpret the constitution based on the original understanding.
The thing that's troubling progressive thought is they don't really have a theory how to interpret the Constitution. So it turns into just use the Constitution to achieve progressive goals. We don't really care what the 14th amendment means, but we really want to have affirmative action. We don't really care what due process means, but we really need to preserve Roe. And so I think you would have seen.
Yes, you would have seen a progressive liberal majority on the court with just, I mean, Roberts, Alito, and Thomas huddled, bitter in a corner of the court cafeteria. But I don't think you would have seen these attacks on the court by them. I don't think you would have seen these assaults on the independence of the judiciary that you're seeing now because conservatives are on the losing end.
But I think you would have seen this, unfortunately, this freewheeling approach to the Supreme Court, where it would have just been about achieving or protecting progressive priorities. But without any grander principles at stake, like the kind you saw this week, the Constitution is colorblind.
Instead, the Constitution is just infinitely manipulable to achieve those goals we know are right, whether it's global warming, I mean, whatever, stopping global warming or racially diverse population or what have you. >> Bill Whelan: Yeah, final question for you, John. Two defining features of this year's caseload. Number one, the administrative state dealing with Biden student loans is ultimately a case of the administrative state, the powers that the administration can and cannot have.
But then contentious social issues, getting into affirmative action, getting into an issue of free speech last year, abortion, so forth, is this the foreseeable future for the court, John? This combination of checks and balances on the executive branch, but also social issues that Congress either can't deal with or chooses not to? >> John Yoo: That's a great question, Bill.
And I've been thinking about it this way, is if you look at Dobbs last term and Harvard this term, this is the achievement of the two most important goals of the conservative movement, get rid of Roe, get rid of Bakke. And the question you're asking, Bill, in a way, is, now that that's been achieved, whats in the future for the conservative legal movement? You're not gonna see, I think, issues on a par with abortion and racial preferences.
But what you are going to see, I think two directions, as you suggest. One is cutting back on the power of the federal government. I think the COVID emergency and what the Biden and Trump administrations did to centralize power there is only spurring or accelerating what has been a steady drip, drip confrontation between the judges and unelected technical bureaucrats. Who, Dr. Fauci, for example, claimed great power in our society based on the claim of scientific or technical expertise.
The court has been questioning that. In fact, you could see the Harvard result as part of that. And I think you're gonna see more of that. You're going to see an effort to reduce the sweep of the federal government and to subject bureaucrats to more political control. The other area you put, it's just, I'm not sure they're related in any way but the other area. But maybe they are. But the other you're gonna see this is in freedom of thought, conscience, and speech.
So the wedding planner case, the greater protections for religious freedom is another theme of this court. Maybe the thing that connects them is really this. I would say maybe this is appropriate to say on July 4 is a faith in the common sense of the american people and a rejection of having solutions and decisions imposed upon them from an elite on high.
So the 303 creative case may be more of a sign of the future, a conflict between your right to say what you want or not to say what you want, versus a government that says, no, you must bend the knee. Because our vision of Diversity for the future requires you to.
And there you see again, the court standing against this idea of bureaucracy, this idea of wisdom on high that we've had in our politics ever since Woodrow Wilson and the creation of the Weberian bureaucratic state, if you wanna get fancy about it. But you know what? That reminds me of the American Revolution, thank God. [LAUGH] When the American people said, we're not taking it anymore from these fancy pants lords and ladies in London so, so far away. We know what's best.
Let's use American common sense. I think that's what the court is appealing to. >> Bill Whelan: That's good, and John, how long before we see the lawsuit, you versus County of Marin and one man's right to launch fireworks? >> John Yoo: You know what? My students disappoint me so many times because you know what? In Berkeley, when I lived there, Berkeley put into place a huge tax on soda. Huge tax on soda.
Even though Berkeley studies showed, it's interesting, after the tax went into effect, diabetes and obesity went up in the city of Berkeley. [LAUGH] And so I always wanted there to be a case challenging the ban on soda called Yoo versus Berkeley. But I couldn't get a student to bring the case. They disappointed me. >> Bill Whelan: Yeah, well, for a non-Bay Area residency, any of this is just could not be more, in this area don't do a lot of fireworks now.
It's a combination of, first of all weather. San Francisco fireworks are notoriously hit or miss because of the low cloud level. But a lot of local jurisdictions don't allow fireworks. Some local governments plead poverty. Others cite danger of the dry land and so forth. And so local news talks about this. And what's the first image they show? Tons of fireworks going off over Oakland.
In fact, it looks like- >> John Yoo: [LAUGH] >> Bill Whelan: Baghdad back in the day, which had so many fireworks going off, so many explosive devices. But >> John Yoo: How many of those are fireworks and how much of those are real ammunition, is the question. [LAUGH] >> Bill Whelan: Welcome to California. Hey, John, thanks for taking time out of your fourth to do this with me. I sure enjoyed it. >> John Yoo: Yeah, you too, Bill.
And have a good 4th of July, and God bless the United States of America. >> Bill Whelan: Well said, my friend. Thank you. You've been listening to Matters of Policy and Politics, the Hoover Institution podcast devoted to governance and balance of power here in America and around the globe. If you've been enjoying this podcast, please don't forget to rate, review, and subscribe to our show. And if you wouldn't mind, please spread the word. Tell your friends about us.
The Hoover Institution has Facebook, Instagram, and Twitter feeds. Our Twitter handle is@hooverinst, That's spelled H-O-O-V-E-R-I-N-S-T, @hooverinst. John Yoo's book, The Politically Incorrect Guide to the Supreme Court. John, where do we find it? >> John Yoo: I'm sure the best place to get it would be Amazon or barnesandnoble.com. >> Bill Whelan: And it's out now? >> John Yoo: Yes, just came out a few days ago. >> Bill Whelan: Great, I mentioned our website beginning of the show.
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