Ask not what your country can do for you and what you can do for your country.
Either you were with us or you were with the terrorists. Was he betting that they would get him or they wouldn't get him? It sounds like he was betting on his removal from office up a euro when he's like Peter's betting on his own jam and it's a little like Peter Rose. I'll look into it. It's the Ricochet Podcast with Stephen Hayward Charles Cook. I'm James Bonicce. So we're going to talk to Elio Shapiro about all things legal. Oh trust me, it's fun. Let say Rosel's a podcast.
Welcome everybody. It's the Ricochet Podcast, number seven hundred and eighty six. I'm James loloxs in Minneapolis on a beautiful spring day. The flowered trees are blooming and Stephen Hayward I assume as in California, Charles C. W. Cook in Florida. We span the continents, gentlemen, how are you today? Okay, okay, it's a very British ant. It could be worse, that's okay, right right, compared to what could be at could be
a rabbit hedgehog above. Let's get right to it. Jerry Mandering one of those things that people seemed to whenever somebody talks about it and say, we again jerry matter. The Republicans are trying to jerry mander. Somebody always posts a picture of Illinois, which has these districts that resemble no natural shape on Earth and seem almost consciously carved out block by block to achieve the desired effect. But Virginia is the latest. They have a sorde of controversy
about it. So who wants to explain to everybody what to think about that?
Well, I'll go first, because I've been living with the jerrymandering wars out here in California since the nineteen eighties, if not sooner than that, and I always love it. The double standard showing up once again with the left. They ruthlessly jerrymandered California in the nineteen eighties, and Republicans tried twice to run ballot measures to overturn it and failed badly both times, and it then became a scamp
to democracy when Republicans got good at it. Well, guess what, suddenly Democrats are good at it again, and we're not hearing that anymore. So, not just Illinois, but you may know that the northeast the New England States, Republicans get about forty percent of the net House vote in the New England States and have zero House seats. So how's that representation. And then in Virginia they're going to go what it's going to go from five to four to nine,
eight to one, something like that. And one of the districts, never mind the salamanders of Illinois, James, one of the districts in Virginia is being called the Lobster district because it stretches out from Fairfax County, which is now very democratic because it's government employees and consultants and beltweight bandits, and it stretches out into some of the rural counties to dilute the Republican vote. So the lobster clause are kind of an appropriate metaphor for what they've done there.
And we'll just have to see if the court challenges get anywhere. I have no idea whether they will or not. But I'm just sitting back and saying, and finally, last lesson which Charles will make if I don't. Republicans started this, you know, Donald Trump thought it'd be a good idea to have Texas use its redistricting power, and the Democrats said, oh yeah, well we can do that too, And it looks like they're going to come out ahead in this this year's skirmish.
Charles, I'll bet you're one of those people who doesn't believe it, doesn't understand that these measures are essential to preserving our democracy a democracy. Once our democracy is restored and the court is packed and there's permanent majorities and the rest of it, we can make sure that the fashionst nightmare that we've been living there for the last
two years or so, it can never be repeated. I mean, isn't this like just making sure that the governance of post war Germany never provides for the opportunity for a Hitler to rise again. I suppose you're going to make some sort of argument that our democracy is actually not served by all this.
Yes, our democracy, it means the Democratic Party. I basically agree with everything Steve said. I'm pretty sangument about jerry mandering. I think it is a political exercise. I don't think you can abolish politics. The notion that we could hand over control to independent commissions. I think would go about as well for Republicans as others supposedly independent organizations usually do.
I had Shawn Trending on my podcast this week and I asked him about this, and he essentially said, both independent commissions and computers.
The other proposed solution are garbage in garbage out.
That is to say, all of the political decisions that you have to make in the process of jerrymandering you have to make if you hand over the process to an independent commission or a computer, so you can't abolish the politics of it. The only thing I would add is I think Steve's right, the Republicans did lose this.
I think it's a short term lass.
If you look at that Virginia jerrymander, I am of the view that it's probably a dummy mander, as the
Texas one maybe as well. The trend in total not this year where I think Republicans will have a disastrous midterm, but over the next five years it's probably going to yield a Republican win because you've got the Virginia gerimander, which will backfire, and if it doesn't return to the status quante in twenty thirty, you've got the census of twenty thirty, which is not only going to finally count.
The population properly, but.
Incorporate all of the changes that should have been made in twenty twenty but weren't. That census was a catastrophe. Every single controversial question went against the Republicans. Amazing, and you've also got the Texas gerrymander which started this. But we'll still be there. And so I just think that in four or five years, the crowing that you're hearing from the left may seem a little premature.
Now.
That's not to say the Republicans aren't playing hardball here too. They are, but jerrymandering is hardball, and so I just have very little time for those who are trying to turn it into something else. It's been there right from the beginning of the republic. There's no way of avoiding it, and we should just grow up.
Well, there's something interesting you said in there that's sort of tangential to this or not related at all. That you believe it's going to be a blood bath. Is that because people are I mean, midterms are midterms, but the Democratic platform is not a popular one, at least as they're talking about it now. And we have better border security, lowered drug prices, the economy is not cratering,
Or do you think it's gas prices? I mean, I think entirely that people could fail to make the distinction between gas being high because of regulatory prohibitions and drilling and gas being high because we're engaged in a high stakes geopolitical contest in order to control a certain regionally the world. Maybe people make that distinction, maybe they don't. Is it just gas? Is gas's three seventy nine. I'm not voting for try Why.
How long have you got James?
Is such a long answer, but I'll try and give you the back of the envelope answer. First, I think people are tired of Trump. He's been the main character in our politics for eleven years. Second, I think Trump's made some mistakes tariffs. I think going into Iran without telling anyone was a mistake. Here's the main reason. There are, of course, great presidents in history who make a difference, and sometimes that difference is economic. The Roaring twenties, I
think were the result of policy in many ways. The shift in the nineteen eighties was the result of policy. I'm not being a nihilist and saying nothing matters. But a lot of the time, it's really much easier to screw things up than make them good. And yet we have presidents who seem willing to tie themselves to the vicissitudes of the economy. And I think people are somewhat wrong on this economy. I think it's much better than
people think, but they don't like it. The best case I've heard in favor of the economy is, well, it's not that much different than it was at the end of the Biden years.
People didn't like that.
And so I think that Trump, because he's such a personality, basically promised that he would fix everything.
That was his pitch.
He said, again, I alone can fix People believe they were going to go back to twenty nineteen when the economy was fantastic, and we haven't got there. And I don't think that's necessarily Trump's fault. There are a few things that are, but I think he suggested otherwise, and therefore he's been bitten by the same bug Joe Biden.
Biden promised that he would fix things. Biden then proceeded to make things horrible by signing off on a massive two trillion dollar spending program that caused inflation, but we're not in a golden age, despite Trump saying so. And I think the Republicans are going to get bitten because Trump has now been around a long time and people aren't happy with how things are going. And I think, as as simple as that.
It's interesting. I don't think he takes up as much oxygen as he used to, at least not to me. Or maybe I've just been so preoccupied and busy that i haven't noticed. Stephen, do you agree with Charles back of the envelope and it was a legal pad legal, that's fine, that's what we want here. We don't want to be scanned and quick. We want to be detailed and meaningful and all the rest.
Yes, although I'll give this caveat. I mean, all those reasons are correct. I'll at a couple Residents in their second term usually have the worst midterm outcomes historically, although that's been scrabbled a lot the last twenty years. Sometimes the first term goes worse, so it's a little unclear. But second, this could be a rerun of twenty twenty two, when, as Charles points out, things were really bad. Inflation was soaring all the polls show Republicans are going to roll
and they underperformed. Let us remember and Henry Olsen thinks, and you know, Henry's my guru, and all these things that could repeat itself this time for the Democrats. Now, having said that, my last point is this will shock people, maybe even Charles for a moment until he thinks about it. I kind of hope that it is a disaster for Republicans for this reason. I don't root for a disaster for Republicans on the merits, but it will make Democrats
over confident. They will come out of it thinking, oh, we don't have any problems we need to fix, when their party is more underwater than it's ever been with the public on general approval ratings, and they will nominate someone crazy in twenty twenty eight and get clobbered. So
that's the upside of a Republican shlacking in November. So in a certain long run point of view, and here I'm what Charles, we should think for the long run always, I think this is some ways a no lose outcome, even though the sting will be very sharp in the short run. If it's a.
Debacle interesting, yes, I would rather get the presidency back and have power and go to agenda and the rest of it, and spend the next four years then undoing what might be done in the next two years after the mid terms. I mean, nobody wants exactly what as you're saying, they're underwater. Nobody wants what they're selling. Nobody. New York may Park Slope may feel awfully darned proud of itself for giving them them Mandami, but I don't
feel that surge amongst the national moderate Republican Democrats. Just don't. But they're going to get democratic socialism, whether they like it or not. Interesting story this week there was a member of the Delta for I think it was Delta Special Forces guy who was canned unceremoniously because he had bet in a market on the likelihood of Maduro being snatched from power, and he made a lot of money on it. He made four hundred thousand dollars on it.
Did you see this story and do you think, oh, well, you know, these guys are good at their job and they're a precious few. We really really shouldn't lose them. I rather an appallingly stupid thing to have done, but it certainly did catch my attention and twin that with something else. There is in Britain a move amongst their special forces to quit because they don't believe that anybody's going to have their back. They believe that they're going
to be held up on by human rights lawyers. We're going to go back and look at their action after action reports and say that this was wrong, you shouldn't have done this, and bring them up in the hag. It seems two different approaches. The robust American approach is to go to the casino and bet on the fact that you're going to go in with guns and secret weapons to get a guy. And the British version is to quietly retire because you are fear You are fearful
of a government that doesn't have your back. I'm not sure there's anything to say about that except to ask you if there's anything to say about that.
Well, I'm sorry, I really take no pleasure in saying this. Ships but isn't that just emblematic of Britain right now? Special forces have a real new plan of what's that to quit?
Yeah?
Yeah, I mean.
That's just where things are on the island. It's just it's depressing. I kind of love this guy who definitely should have been caned, by the way, the special Forces guy in the US. But I do think that's a fundamentally American story.
It absolutely is, It absolutely is. Oh yeah, I hope he had a big shrewd screwed in the corner of his mouth. And he was when he was doing it too.
You know.
I remember someone asked Franklin Roosevelt why he appointed Joseph Kennedy to be the first chairman of the Securities and Exchange Commission, which was created in the mid thirties, and Roosevelt's answer was, it takes a thief to catch a thief. And I just do these thought experiments about how Joe Kennedy would have played the futures market or the prediction
markets if he was around today. Look, I mean the old story Ronald Reagan's you know, the nine most scary words rhyme for the federal government, and I'm here to help. I think in Europe and also in America, especially Europe, the three most fearsome words are human rights lawyer and of course, who does Britain have as a prime minister now a human rights lawyer? And so it's not surprising that you're seeing this insanity go on. And then of course, yeah,
the prediction market sky. His mistake there was being greedy, right, You can make a little bit of money if you're subtle and quiet about it and don't get greedy. But my hunch is, and we'll learn more I guess is that's maybe the only bet he ever placed, and so it really sticks out like a sore thumb when suddenly you make a killing on the first bet you've ever made. And oh, by the way, you were on the helicopter or wherever he was.
Right, Well, it depends on what he bet. I mean, if you bet in the likelihood of a duro going, that's one thing. But if his bet consisted of the strike package will approach at three am and a neutralizing force will then use the suppression he actually laid out what they were going to do, I can see. Yeah, that would be a bit of a p but it's not a problem to have our next guest, and we're
happy to have him. We welcome I Lea Shapiro. Now he's a senior fellow and director of Constitutional Studies at the Manhappen Institute. Contributing editor of City Journal, of our Favorites. He runs Shapiro's Gavel substat and he's the author of twenty twenty Supreme Disorder, Judicial Nominations in the Politics of America's highest Court, and last year's Lawless The Miseducation of American Elites. Welcome, good to be with you.
It's a great group. I'm I think this is my first time with the full compliment, not not just me and Steve drinking his wine.
Well, I've never got the opportunity to drink Steve's wine, but perhaps that is will avail itself some time. Elites we loved, We love those elites, especially in they're misbehaving and being miseducated in the rest of it. And we saw a perfect example of it this week where that
it was a UCLA law school. Right, I think some high spirited youth disrupted a federal Federalist Society event in in old days, you'd like to think they would have been bodily carried out, but no, they prove their willingness to debate ideas by insisting that the ideas they don't like should be shut down, not seasonable.
Like, what I don't get is okay, fine, you should be civil and I, you know, not use actual arguments and whatnot. But why even attend, Like if there was someone who at my law school whose views I just didn't like, I just wouldn't go, Like, I just don't understand the impetus to sit there and to come and just holding up signs that make you look idiotic.
Yeah, well, first of all, you're probably ill, you feeling like you have some company today, so listeners should know or they might remember that you were shouted down at Hastings Law School what's six seven years ago? By the way, it's not called hater, you're.
Dead naming them, Steve, it's you see law SF Rings had turned out did some things that are now considered politically incorrect.
Yeah right, just like Bold at Bold, Haul at Berkeley. But you know, I can't understand what's wrong with UCLA and Stanford when believe it or not? Berkeley? Right, John, You and I had you to speak at Berkeley shortly after you've been shouted down Hastings, and it went off fine, even though you got it.
There was a plane closed cop who blended in and I even said a statement against the recent antisemitic resolution that they I mean it was and John you was there. I mean it was, but nothing. And I tell you all, that wasn't my only time. I've spoken to Berkeley probably half a dozen times in my life and nothing. It's always these random other places, right that have these run ins.
Well, one difference is I think you may know, is that you know our dean at Berkeley, law Irwin Chemerinsky, who's very far out to the left on constitutional questions, but on this question. He put out a message to students after your appearance at Hastings saying essentially, you do that here, there will be consequences. And he said that again after Stanford. He likes the thumb as nose of those other schools, and so he really does mean it.
And so you know, we had you, we had Heather McDonald who had a lot of upset students, but they did not interrupt or disrupt it. We did have a problem with Simka Rothman from Israel, where I think they The point is is that it's not hard to stop this. All you have to do is say, there will be visibly Jewish.
See I was just speaking words, but he was doing physically right.
You stand used to being visibly Jewish? Right, Well, you say, I mean you, in your sort of who cares what happens to society way, say well, I just wouldn't go. They are going because these ideas must be shut down and kept from being disseminated. These are the ideas that will lead to the end of our democracy and the rise of the booth that trod's eternally on our face. Right, I mean they have a moral duty to do these sorts of things.
That seems to be the as I paraphrased to circle back to Bill Crystal, as I phrased one of his recent tweets, we have to burn down the village in order to save it. It's and look, it's it's particularly disturbing. This is why I wrote my book, my last book, Lawless, that that this is happening at law schools.
Right.
If if an English or a sociology, let alone a blank studies department goes off the rails, I mean, that's sad for the accumulation of human knowledge and pedagogy and whatnot. But law schools graduate the gatekeepers of our legal and political institutions. So if certain points of view are anathema of certain topics simply can't be discussed because they're unsafe for triggering that we got a huge problem with the foundations of our society.
If tossed it to terms in just a second. But I wanted to say, this is because how much of this is due to critical theory, because it's infected journalism as well, where you have young stats my profession or was, you have students coming out who are saying that the old standard of objectivity was just a way by which the old forms and systems asserted their power and perpetuity.
That to be objective is to lend credence to ideas that ought not to be circulated and should not be considered to be on the same level or plane as the good ideas. And a lot of that comes from the same sort of deconstruction that has infected nearly everything that passes through the academic strength, he said, making a point not necessarily a question.
You went to Chicago, which I don't think was ever infected with critical legal theory, which Harvard was in the nineties.
Well, I went there in a particular time. I was there two thousand to two thousand and three. We had certainly heard of not just critical race theory, but critical legal studies, all of that stuff. It had been something from the eighties and early nineties that had been you know, a curiosity and then was relegated to some niche corner of the sociology department or maybe one professor or something
like that. But then, you know, sometimes it feels, you know, it's been almost twenty five years since I graduated law school, and sometimes that feels like just yesterday. Sometimes it feels like a long time ago on a planet far far away, because we have had the crits come back, and that is the ideological bit, but that's what everyone likes to talk about. That's the red meat. But it's not just
the ideology. It's also the bureaucracy and the leadership. And it's those failures and those change that have really made it an inflection point and led to the illiberal takeover of Higher Ed. Not just the latest iteration of the decades old conservative complaint about the the hippies taking over the faculty lounge. Right, those hippies, the Berkeley free speech movement in the sixties would now be considered retrograde white
supremacists by today's radicals. And you know, that's not just faculty bias, although there is a generational shift of you know, the millennial activists replacing the boomer just standard old school
ACLU liberals. But it's also that the cultures of these institutions are set by bureaucracies, the admissions office, the student services office, not just the dei office, where all the growth has been in the last decade, and the deans and the presidents and the provosts, who themselves are not generally woke radicals or social justice warriors, they cowtow to this crowd because there's lost coward and so you have this vicious circle.
So there's a paradox. We have probably the best Supreme Court we've had in eighty years, really high standard, really good writing, analysis and inquiry, and then we have what
you're describing on college campuses. Do you think and perhaps this is a both answer, but do you think that this is because the right has just got really good at cutting through that, or do you think it's because the nonsense that you describe in the book, and I've heard you talk about many times has led to an atrophying of the quality of left wing legal thought that they've got nothing left and so we're just running circles around them.
Well, the legal left never end it up coming up with something to beat originalism.
Right.
Scalia always said original it was not perfect, and we can keep developing it and things that I'd say are sometimes wrong, but you got to have a theory. You can't beat a theory with nothing. And the left is showing more and more that it's it's mainly about power politics, and it's mainly about instantiating these postmodern theories about baked in power dynamics, and therefore institutions have to be restructured accordingly.
And the you know this, the Supreme Court is the realization of a decade's long, systemic attempt to take back that particular institution, the judiciary, and and that and that finally happened, But that's only one institution among many.
Uh.
And the the problems that we see in higher ed generally and and legal education specifically are somewhat related to, you know, the conservative legal movement attempt to take over the judiciary, but it's also part and parcel of larger social and cultural trends that are you know, far beyond the scope of a you know, constitutional exegesis.
So will it collapse if we don't fix this, because you calm run the country from the Supreme Court.
Well, my friend Sarah Isger has a new best selling book, Last Last Branch Standing, it's the only functioning branch. It seems like you can't, you can't. And the Supreme Court has its own issues, of course, although it's it's overstated by the left, the so called legitimacy issues that the left keeps trying to make a thing. It's not going
to be a thing. But what we do have, at a time of historically low social trust and institutions, we do have a historically big gap in confidence in the courts and in the Supreme Court, especially as between the left and the right, Republicans and Democrats. And that's a problem. If half the country doesn't believe in the institution, if you know, if nobody believes in the integrity of elections, if you know, then that's you know, that's what leads
to the ultimate collapse. As far as law schools go, as far as universities go, it's kind of a case by case situation. Some of them are definitely falling and will fall. Some who have skilled and savvy leaders will reorient themselves and figure out how to capitalize on this. Elena Kagan now of course on the Supreme Court. When she was dean of Harvard Law School, did a lot of great things to help an institution that had been
in decline. Some of it ideological in terms of faculty bias, balance some of it in terms of making it more palatable for students to live there, to get away from kind of the paper chase, old stodgy nineteen forties and fifty style pedagogy to something that was more to the then modern era of the nineties. So, you know, but we're seeing, I think, a churn in terms of prestige, in terms of student applicants voting with their feet, donors, alumni,
all all of that. So that the constellation of higher education is going to look different in twenty years than it does now, as it looks different now than it did, you know, twenty five years ago when I was, when we were students.
And my last question is, you were pretty critical of Katanji Bran Jackson's nomination. Now that she's proven herself to be such an intellectual heavyweight, do you regret speaking out as you did.
Well, I could say you could say that Charles, I couldn't possibly comment, and to be clear, I wasn't criticizing her in particular, I made my controversial tweet before there was a nominee. I was just saying that whoever came out of that kind of failed process that was based on race and sex would be less qualified or lesser, as iron artfully put it. But yes, she's certainly not uh covered herself in in Garlands uh to say the least.
I think it's you know, the left, especially the progressive activists, might go all yes queen on her performance, but it's not exactly moving the ball in their direction.
So I guess I guess it's yes Queen, Yes Queen. We have to give our vowel correctly. If you're going to steal, if you're.
Going to culture, I have and I have I have a mid Atlantic accent on that.
Just don't culturally appropriate from the drank quing community. So here's the question, though, if they if our democracy has saved and restored, then Democrats get back in power and they decide to pack the courts that they wish to do, and they put in a whole bunch of people who decide that issues of constitutionality shall be decided from the from the posture of learned lived experience, instead of a dusty old document that nobody should really care about anymore. Isn't it over?
You mean they're going to resurrect Woodrow Wilson, you know with AI, I just had a piece along that line, lauding Justice Thomas's speech in Austin last week. Well, this is one place where I can sympathetically invoke Bernie Sanders. This is possibly the only thing I've ever agreed with
him on. When he was running for the twenty twenty Democratic presidential nomination, he and Joe Biden were the only ones to be against court packing, and he said, I'm not going to do the accent, but he said, look, if we add four people, then the next time they get in power, they're going to add four people. In fifty years, we're going to have eighty seven justices. It's no good. And that's that's exactly right.
So I remember that famous, infamous tweet you pointed out that look, the best qualified person or suddenly supremely qualified, was a Strenovasian from what the DC circuit. What a thought experiment to think about how these recent arguments would go if he was on the court. I mean, I think Jackson is a monumental blunder by Biden because he's settled the court with someone who even alienates the other
two liberals on the court. That's quite an achievement. But that's what happens when you limit your pool of potential applicants to only what three percent of the American top four percent of the American population.
Right, even looking among black women, I think Leandra Krueger of the California Supreme Court would have been a better choice, right, more, you know, intellectual heavyweight.
Yeah, let me ask you about Thomas's great speech on the Declaration that you just referenced, and specifically the reaction to it in this sense. You know, there is a I think a weakness of Thomas's argument which none of the critics have bored in on except not a critic, but you know, John, you of course disagrees with the Justice that the Declaration of Independence has any operative relevance to constitutional adjudication.
Right.
He and I argue about this endlessly because I'm on Justice Thomas's side.
Is that an east coast, west coast Straussian thing?
Yeah, partly, But I'm not going to do that, bef. Yeah, I'm not going to inflict that on our listeners. Neil, Yes, I'm just not. But you could have brought that up in your critique of Thomas's speech. Instead you got Paul Waldman at MS now and then completely insane a former judge Mike Ludig saying the same thing. We always thought he was something of a conservative still, but maybe not. They both said, gosh, why is Thomas picking on Woodrow Wilson?
The real architect of progressivism was Teddy Roosevelt, and first of all wrong, but that's a long story. But second of all, why this impulse to suddenly defend, even with just the deflection Woodrow Wilson? And I think it's because what the speech represented was a frontal constitutional attack on the administrative state, and that is the project dearest to the left. And finally, what a switch roo. It was only a decade ago that liberals woke up and said, oh,
Woodrow Wilson was a racist. We have to take his name off the Princeton University School of Public Affairs.
That Wilson's over there. Luckily it's not written in you know, some sort of electronic device, otherwise they would have read contract.
And right, what do you make of this crazy reaction to the speech.
Unhinged and unhelpful to their cause. I think, yeah, I mean, it would serve them well to say, you know, Wilson was racist and here's what he got wrong. And the Constitutional Accountability Center, I think has the correct approach if I were a progressive to say, look, the don't see the Constitution and the Declaration to the conservatives, this is the proper way of doing originalism, and you know, all these good things that we like are actually in there
in this way. It's not that it's antiquated and dusty and and what have you. It's just the conservatives got it wrong and hijacked it. It's a more subtle and I think certainly more receptive in today's judiciary sort of argument. But it's not just the administrative state. I don't think the progressives, either the Capital p one hundred years ago or the current progressives really think about it as such.
It's not, you know, we need to have the bureaucracy, we need to you know, get the decision making away from Congress or any elected representatives. It's more that this whole idea of the right coming from Wilson's One of Wilson's speeches, the Newtonian checks and balances have to have
been obviated by a kind of Darwinian Darwinian evolution. And now that the science of government has evolved in a very late nineteenth century German sense, you know, we can have more expertise in government and and don't need to defer to yokels of of of of any kind. It's it's not, you know, rule by bureaucracy per se, but it's it's ruled by wise experts who would share the the modern values that we that we hold your point.
There that the left of gresses should find their own form of originalism. I'm always keen to understand exactly how the other side thinks. And you have an agile mind and know them probably, So what exactly if they wish to extend the tentacular manifestations of the administrative and bureaucratic state and in every aspect of American life as so to improve it and nudget towards utopia? Where is that? Where is it in the Constitution? Do they? Is everything
going to be under the commerce clause? Or what am I missing? How do they? How do they get that total sort of regulatory power for civil rights?
For civil rights issues Section five of the fourteenth Amendment that gives Congress power to implement uh, you know, vast equal protection protections.
Uh.
That would be from a progressive perspective, interpreted broadly to allow everything from affirmative action to know, you name it, disparate impact on still.
Yeah.
Uh.
In terms of expansive federal power, yeah, it's it's the Commerce Clause. It's national power to solve national problems.
Uh.
And this day and age, everything is everything national. We saw that in the debate over Obamacare and related issues. Now, you know, they make common cause with originalists on certain things. For example, rights need to be in privileges or immunities rather than substance of due process. There's other subtle shifts. I think, you know, the major questions doctrine would work
a different way if it worked at all. But there, you know, there's this progressive originalism Jack Balkin at Yale as well, where it doesn't mean that they are a strong textualists necessarily, So there you might have a bigger difference as between originalism and textualism than you do among conservatives.
I still feel as if they're trying to hammer a round peg into us into a square hole. They don't believe actually in the document itself. They just want to find clever ways to get what they want to do. Well.
They believe in the idea of an ever more perfect union, which I think is actually a European perversion of Lincoln.
But anyway, so I hesitate to mention Jack Balkan's famous book to James for fear of what he might do with it. But Balcon's most prominent book on the subject is called Living Originalism, which sounds one of the great oxy morons. All I knew you'd crack up at that. I have a last question for you. Yeah, And it's another sort of breaking story this.
That reminds me, and sorry to interrupt, that reminds me of Chief Judge Bill Pryor of the eleven Circuit, his critique of common good constitutionalism, this kind of living constitutionalism of the right, if you will, more result oriented and whatnot. But he wrote a trenchant essay called living common Goodism, uh to say that what they're doing is just matching the left game with with with a different results at the end of the of the goal.
And it reminds me of the late Walter Williams, who would say, if somebody sat down across from the table and say we're going to play living poker, the rules will change depending on the city. M anyway, Stephen go.
Yeah, well some oar time'll you will have to talk about ed your interview mule and that whole business, because it's a mess.
He was my administrative law professor. That's before he had that's before he converted, converted on a number of fronts.
Yeah, right, Uh, last question. New York Times this week thought they had a breathless, scandalous scoop about the what is they called the rocket docket of the Supreme Court. And it involved, right, the shadow doc the shadow docket. That's it. It involved the course the case I know a lot about, which goes back to the Clean Air Act, which I'm strangely obsessed with.
Uh.
And but they act like this was some kind of scandal when A, it was an entirely sensible decision for reasons you can explain if you want. And B it's something that the left did for years when they were had the majority on the court, back in the War in Court era and so forth. So I mean, how out of touch are these people to think they've discovered something scandalous. That makes perfect sense.
Now, the big the big scandal from that leak was that there was a leak. Yeah right, it's it's the harmful to court deliberations. I mean, the idea that justices exchange strongly worded memos among each other. That's supposed to be news or you know, we criticize or the left criticizes the so called shadow dockets, sometimes called the emergency docket, but they're not always emergencies, so it's interim relief docket. Anyway, there's this whole meta battle about what to call all
of this. That's not the kind of the regular train of having oral argument and full briefing and months of before the decision and all that. But the criticism that they don't explain themselves fully. It's like, oh, well, finally we get memos. It turns out they were thinking through all of this stuff, and now we don't like it because I'm not exactly sure I mean, the process. This leak showed that the process worked and they weren't just basing their decision on and you know antipathy to Obama.
Well, Eli, you've been the perfect guest, knowledgeable, articulate with an intonation that indicates that you've concluded your point, and you use a word like retcon, which tell me that there's just a whole stuff that we could probably talk about in addition to the law. And so we intend fully to have you back as off as handsome, handsome extraordinarily that's right burly with a man full swath that
that makes the ladies go week at the knees. So there you have it, and read another books that we can have you on, or just don't write an article, do something in the substack and say, hey, guys, you want to talk about it, I guarantee you we will you silver the substack. Tell them what the substack is.
Again, it's Shapiro's gabble. And it's there that I sort of play around with some uh, some more fun stuff than I that I can often do in the pages of City Journal or Wall Street Journal or what have you. And that's where an idea for a satirical piece that I published in the winter's issue of City Journal came out my two decades in the swamp, written kind of
in pg r ark style. He was he was my client, actually, uh, and one time I told him that, you know, he was a. He was a an unpaid fellow, honorary fellow at CATO, and I said that he was worth every penny. And he said that as his lawyer, I too was worth every penny. I work probona. We miss him dearly, we do, but we won't miss you because we'll have you back. Thanks for joining us today, and have a great weekend.
Thank you.
Well.
Big issue today, going green, you might say, and not in a way that a lot of people like. Administration has decided. The Acting Attorney General Todd signed it an order on Thursday to reclassify both FDA approved marijuana drug products and state licensed medicinal marijuana from the Schedule one to Schedule TLAH. This loosens federal instructions on its use. Previously, as a Schedule one drug, the Devil's Cabbage had been considered to have quote no currently accepted medical use and
a high potential for abuse. Yeah, now a medical marijuana will be classified as having quote moderate to low potential for physical and psychological dependence, placing the same category as ketamine. Yes, elon mosk, we see you waving your hand, anabolics, and testosterone. I'm not sure how much this will change the quality, the character of our daily lives and streets and hallways and the rest of it. But I have become weary of weed and the role that it plays in contemporary society.
I think everybody they signed on and said, oh, yes, let's let's decriminalize it. What's the harm. It's just to herb. I think they were remembering sort of the mild, the mild intoxic that they had in the dorms way back in the day, where you'd stare at your hand for thirty minutes, or the gatefold album cover on a Yes album. And now you have something that has apparently been chemically
engineered to smell like a silverback gorilla in heat. And when you walk around in this dead skunk smells hit putrefying skunk smell hits you in the nostrils in American streets, and it doesn't blow. I mean, it takes about a forty mile an hour wind dissipate it. The stuff just sort of sits there like a wraith that you have to walk through. Colorado is considering a law that would make it illegal to smoke in your backyard if it gets over in your neighbor's area. And oh, the editorials
we're saying, how criminalizing a smell? That's just to girtonism with this, But I think they have a point. It's everywhere now people hate it, except for the people who do it, who don't know or care because they like to smell or they're stoned. What do you guys think? Do you think I'm just being an old cotton Mather killed Joy by saying we should not have to smell the stuff when we walk around the street all the time.
Well, I don't know, James, I'm inclined to agree with you, although I do wonder a couple of things. You know, I went to college in the seventies in Oregon, where we'd smoking was ubiquitous on campus, and I don't remember it being as odorific as it is now. On the other hand, people still smoke cigarettes back then, and you know,
several people on my dorm floors smoked cigarettes. And we were used to that, right, I mean, you know, we're orderly of the age where people still smoked on airplanes and restaurants and even movie theaters, and we were used to it, I think, right. And nowadays most Americans can spot us, you know, a whiff of cigarette smoke from fifty yards outdoors, right, you don't have these signs saying you have to be at least fifty feet away from
a door. It's a great, great essay what thirty years ago now by Peter Berger and commentary on the plight of the furtive smoker. All these people outdoors in the winter in New York shivering to have their smoke break. And now you've got to go to Central Park, and even there it's probably banned, as my.
Guess, I'm sure that it is. But if people smell it, they die right on the spot. They die.
But I do wonder if we haven't just become more sensitized to secondhand smoke. That's a possibility. I'm with you. I think it could be both. By the way, I do think stuff is definitely stronger today. We know that from you know, basic chemical analysis. But I think it's also true that we're now much more alert to it, and there's more of it. I mean, it used to be just in the college campuses, and now it is every street in New York as and everywhere else. As Charles is.
Mentioned, I am just so tired of it as well. And I've changed my mind to some extent on the underlying question, in so far as it just never heard to me, given the way that smoking was being villainized, that if we legalize marijuana, which I was in favor of and I'm certainly in favor of federally because I don't think the federal government has the power to superintend it, then you would smell it everywhere. It's a very, very
weird development. I think we probably talked about this before, but it's just so odd that we got.
Rid of smoking. I can remember being in college.
When smoking was banned, and that smell went away, and that habit went away. And then marijuana was legalized, and either it's explicitly allowed to be smoked on the street where cigarettes aren't, or the authorities just turn a blind eye to it. But whichever one has been picked by most of America's major cities. The consequence has been that you just can't go anywhere without smiling.
Reed and absolutely turn a blind eye to it for social reasons. It's the it's the old effectory version shoplifting. What are you gonna do? What are you going to do?
We can't, Yeah, but if you lit up a cigarette, they would be on you in ten seconds. But right reason it's okay, I'm sweet, and I think people hate this.
I absolutely do. And it's because there's some peculiar number of virtue or coolness or outsiderness or whatever that attends to the people to smoke it. You're right, I mean, Steven's right. I grew up in the same era. I smoked cigarettes, and my gosh, everything smelled like cigarettes. I worked in a bar, no, actually a restaurant which had a small non smoking section that consisted of two little tables. That's where Prince sat when he came into the restaurant.
And the idea that somehow you were insulated from the smell of cigarettes in this place with these two little tables is that there was a guard all shield that just No, of course not everything smelt like a plane, smelled like a lobby, smelled like an elevator, smelled like it. Probably white people, you know, doused themselves in Calvin Kleiner drack. Our new war when they got into the elevator was to combat the smell of the cigarettes. I still have this day. I wrote a piece about this, I think
for National Review Online. Remember that there were ashtrays outside of elevators because the idea the social compact was, do you mind not smoking in the elevator?
Is that?
Okay, it's like twelve floors, we understand. But if you could stub it out here, you can smoke as soon as you get out of the elevator, you know, some light right back up. But if you just stub it out here for that twelve floor, right, we'd appreciate it. So ingrained and then gone thanks to Minnesota, which I had the first law I think in nineteen seventy three.
So yes, we've made that. But we've also gone so far is that if somebody gets a whiff of an aromatic Prince Albert pipe in the park or something, they believe actually that the carcinogens will envelop their body and turn them into a walking tumor within forty eight hours. It's it's ridiculous, it's preposterous. The only thing we can afford that we are supposed to smell right now in public is weed. Okay, well, anything else before we head out the door. Any Iraq war predictions. I think we're
firmly in quagmire position now. No, I mean it's fifty to fifty five days, and it takes a while, and it's work and the rest of it. I thought, frankly the molds would have cracked by now they haven't. But uh, turn off the money, see what happens. I see the guys are still doing what they want to do, and I don't think it's going well for them. But I wish it was more demonstrabily going well for us. But then again, what do we really know?
Well, James, you just quote it the Iraq War, which I think gives us an insight that.
Oh that's telling. Sorry, Sorry, my mind's been, My mind's been elsewhere. Yes, I'm here. I'm stuck in the nineties and stuck in the stuck in the odds. The Iran or the yes, the coalition, not the coalition of the willing, but the I think I saw a tweet the other day about some Indian tanker. I think the captain had had paid off the Iranians in crypto or something and gotten a safe word passage and they were shelling him anyway, and he was he was peeved off.
That I mean. I think I think the blockade is uh uh. If if Trump's willing to stay the course, and my guess is he is, I think it's probably going to put maximum pressure on Iran to finally cut some kind of and I think Trouble allowed them a face saving deal. But I think it's the endgame move by Trump. I think it's pretty clever. It depends who's left in power.
I mean, the the whole point of this was to get the Mulas out, was to get the mulas out to have and I don't know, I don't know who he's talking to. If he's talking to some civil authorities, if he's talking to, you know, somebody that the Shaw's Sun gave him in his rolodex, I you know, I don't.
Well, well, well, here's a larger takeaway I have, which is, for years we've been saying, gee, has Iraq War one or two finally put the Vietnam syndrome behind us? And my argument or perception right now is if we see this through, we will have put the Vietnam syndrome behind us. In this sense, the problem with Vietnam was always we had sort of calculated escalations which allowed the North Vietnamese and the viet Cong to set the pace of the war.
And really for the last forty years with Iran, we've let them set the pace of their low intensity warfare against US and everybody else. And so the sweep of this initial attack, which was not slow s collation, it was went big. From the first thirty seconds, I said, an end to all that. We're not playing that stupid game anymore, which, by the way, was a game invented in the fifties and sixties by the liberal technocrats. And so you know, it's important that it be seen through.
But you know, we didn't finally get serious about blockading North Vietnam and bombing them in a serious way until nineteen seventy two when it was too late, right, And then that war, you may remember, James ended pretty quickly because that may you know, Nixon was the crazy man. Now Trump is much crazier than Nixon, I think, we'd say so. I mean, a lot could still go wrong, but right now I kind of like the scene.
Well there's the Afghan I rock syndrome too, you could say, which is the people who had get very, very tired of things that lasted a long time, where we're supposed to be proud of ourselves wet because we put a KFC in cobble and they can vote and now they're part of the family. Of nations and no, it's kind of a parent that they're actually worn societies that will never reform themselves, and we're wasting a lot of money
on this. Charles, what's your opinion. What's your take on the current situation.
I'm not sure it's going well. If well involves are either achieving regime change or opening the street of four moves. I do think that this line I'm starting to hear on the left and from critics on the road too, that Trump's just going to end up with the Obama deal is wrong in that even if he were to agree to the old Obama deal line for line, it would still be the case that their nuclear program has
been destroyed. So the situation is better than it was before we went in in some regards, but I don't think it's a smashing victory, and I think that's because we're not prepared to do what we could do and go in really hard, because the public's not on board and they know it, and they know that far that by closing the straight they can cause domestic problems for the president.
I think we had smashing successes, but victory is still out there. And as I said, I think anything short of regime change. The removal of the molos in the theocratic government is a failure.
Sorry, Jane, I I know you want to wrap. I think it's worth mentioning the I.
Want to sit down with I want to sit down here and wrap with the kids and see exactly. I want to find out what's going on, man, what's happening?
Well, maybe for next week. I do think the story this week of the Southern Poverty Law Center is significant and potentially huge. So put a pin in that one, because I think that's I've been waiting for something like this for a very long time because I've known for a long time a lot of people have that they're totally corrupt.
It is a thing of beauty. I mean, every time that organization's name come up, I get this sort of dark cloud in front of me and I just wonder what they said around all Right, we're center. What kind of a center army? Well, we're a law center. Okay, what kind of a law do we practice? Well, we practice poverty law. I'm not sure what poverty law is. There's something else that we could use to find it. We how about Southern poverty? Oh, Southern poverty.
That's a special flavor of poverty right there that'll get people to open their wallets. Everything between Tobacco Road and the down trodden in the in the rural southern poverty.
Law Yeah, I've been asking for years why there's no northern poverty law center. It seems the ilan Omar has missed a trick here.
Yes, or just midwestern Midwestern poverty, say, would just not sound the same because you just see a bunch of guys in ski caps who are huddling around, you know, the food bank and the rest of it, and there wasn't much law you could do for them. But no, this, they're hate map, their hate charts, their temperatures, they're fundraising
all the rest of it. It is beautiful to see it unmantled, and the idea, as some have frequently said, that the supply of racism in this country is so small that it actually has to be subsidiated, subsidized and produced. That they're paying guys to go of these things and to gin up some transportation. Can you give a ride to that really bad guy there to the Charlottesville rally so he can. It's lovely and the tentacles are going
to be found to be going elsewhere. That's why I fear the loss of the midterms, because you need some sort of initiative to go from, you know, to keep the Doge spirit alive and written brand. I mean, was it the Times or the or the News or the Washington Post that had a story about some USAID people used to pull down a quarter mill and now they can't get a job at Pesny's spice selling. Did you see that article?
Idea that's a cool and I think almost everyone who read it took the opposite message from the one that was intended, which was so this person has no marketable skills.
Well there you go goes right back to blazing settles, as does everything else. Gentlemen, we've got to predict our phony Bologney jobs, one of which is talking from a microphone on a podcast. But we've done it for seven hundred and eighty six. We hope to be here for seven hundred and eighty seven. You can help us by going to ricochet dot com signing up. Why wouldn't you, Well, I wouldn't do you because they are a weight to community, the links of which you are been looking for all
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Charles and Stephen, but been great as ever and we'll see every one of the comments at Ricochet soon to be five point zho bye bye