The Supreme Court strikes down President Biden's student loan plan as an executive overreach, and strikes down a state law that requires Americans to violate their First Amendment rights to free speech. Megyn and her guest, Kristen Wagoner of the Alliance Defending Freedom, reacts to the ruling and calls for President Biden to be impeached.
00:00:00.440Welcome to The Megyn Kelly Show, your home for open, honest, and provocative conversations.
00:00:11.560Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show, and what a day. Huge, absolutely huge.
00:00:19.080Two new major rulings, landmark rulings in one case, from the U.S. Supreme Court on this, the final day of its session.
00:00:26.900The court today striking down President Biden's student loan, quote, forgiveness plan as an executive overreach, finding he lacked the executive authority to do this.
00:00:38.620And in a genuinely landmark ruling on free speech, the high court ruled that states cannot order Americans to violate their own religious beliefs,
00:00:49.460even when a state law purporting to be battling discrimination against protected groups tries to require it.
00:00:58.320We'll get into the specifics of that ruling.
00:01:00.580You may remember the Colorado woman behind that second case, the one about the public accommodations and free speech.
00:01:07.920She came on this program, and in just a bit, her lawyer, Kristen Wagoner of Alliance Defending Freedom,
00:01:13.780who was also with her when she appeared on this program, will be here with her first reaction to their enormous win.
00:01:20.620I'm also going to be joined by Charles C.W. Cook, absolutely one of, if not the fiercest critic of the president's student loan plan.
00:01:28.400You may recall he's been calling for President Biden to be impeached over this executive overreach.
00:01:34.100Charles is not prone to that kind of incendiary rhetoric, but that's how strongly he felt about the egregiousness of what Biden did here.
00:01:42.880So we'll have his reaction on the high court agreeing with him.
00:01:47.400But first, we are honored to begin today with Judge Amul Thapar.
00:01:52.760Judge Thapar sits on the United States Court of Appeals for the Sixth Circuit.
00:01:57.880He was President Trump's first appellate court nominee back in 2017.
00:02:01.700He was also on the shortlist of Supreme Court justices of names for the high court when Trump was choosing during his presidency
00:02:10.280and is believed to be again to be on that list if Trump wins in 2024 and, frankly, if any Republican wins.
00:02:18.240He has a perfectly timed book out right now called The People's Justice, Clarence Thomas and the Constitutional Stories That Define Him,
00:02:25.560which I absolutely loved and blurbed because I loved it.
00:02:29.740And we just got lucky that Judge Thapar was booked to come on this program today, the biggest day of the high court's term.
00:02:37.600Judge, it's an honor to meet you in person.
00:02:50.900I think the first thing the American people should take away and hopefully the book demonstrates this is that the majority of the majority in both cases is trying their best to get back to the meanings of the law and the original meaning of the Constitution.
00:03:08.480And they're spending a lot of time talking about that.
00:03:12.320I haven't had a chance to fully digest the opinions, but I think it just proves the thesis in my mind of The People's Justice, the book.
00:03:22.400Because Clarence Thomas, who you zero in on, is fighting with the majority in all of these cases.
00:03:29.460Yesterday's case striking down affirmative action in college admissions process.
00:03:34.480Today's ruling against Biden on his executive overreach with student loans and critically, this free speech case.
00:03:40.640I have to tell you, and we'll get to more of the book in a minute, but I have to tell you, for me as a lawyer, it it made my heart sing to see an opinion like this so strongly reminding the American people of the power of the First Amendment and chastising states who, in the name of equity, wokeness, however you want to phrase it, try to trample on those rights.
00:04:01.640Yeah. And one of the important things, Megan, not to forget, is what the originalists are doing.
00:04:07.820They're not then textualists. They're not stating their opinion.
00:04:11.740They're they're honoring the American people's opinion.
00:04:14.840And so when you point to the First Amendment, for example, it's the American people that decided that the First Amendment was a critical foundation in our rights,
00:04:23.080so much so that they enshrined it as the first in the Bill of Rights, in the Constitution.
00:04:28.060In fact, the Anti-Federalists fought tooth and nail for a right of conscience.
00:04:32.640And it was spelled out in more detail by James Madison in the First Amendment.
00:04:37.120And the whole point of originalism and textualism is to honor the will of the people.
00:04:42.680And when you do that, you most often favor the little person, because if the American people want to change it,
00:04:50.560the beauty of the court enforcing the Constitution as written is the American people, if they disagree, have a mechanism to change it,
00:04:58.180whether it be amendments or through laws.
00:05:00.240But here, when it's a bill of right, a right they enshrined in the Constitution, as you point out,
00:05:07.120they have the court has an obligation to enforce those rights as they were understood at the founding.
00:05:14.260The free speech principles that are at the bedrock of the foundation of this country have been getting eroded bit by bit,
00:05:22.040whether it's by state laws that go unchallenged or by laws like this that a lower court will uphold in the name of,
00:05:31.360well, you know, we have a state law that protects, that's basically an anti-discrimination law in public accommodations.
00:05:37.220And we just don't think that the First Amendment really is going to trump that.
00:05:40.580But this this court really put the lie to it today, saying that's not true, saying you can have anti-discrimination laws.
00:05:48.060In this case, it's in public accommodations, like it was a web design proprietor who would absolutely serve LGBTQ members.
00:05:56.100Absolutely. If you went in there and said, I'm going to launch, you know, a realty company,
00:06:01.440she would have built your realty company for you, your website, despite your LGBTQ status.
00:06:07.320She didn't want to do same sex websites for them. That was the place she drew the line.
00:06:11.420And she came on this show and said, I'm not only fighting for people like me who don't want to do that.
00:06:15.120I'm fighting for people on the other side, same sex marriage proponents who don't want to accommodate somebody who wants to have them do a website opposing same sex marriage and maybe bashing something they believe in.
00:06:28.580So this win is a win for all of us. However, I have to say, I've been shocked at the amount, the amount of jurists who won't stand up for this principle.
00:06:36.620And I wonder how big you think this landmark decision is in shutting down this erosion of the free speech principles.
00:06:43.800Yeah. So let me stand up for my colleagues just a little bit here, because I think it's important that all your listeners know that we are trying to do our best.
00:06:53.280And it's helpful when the Supreme Court does this and gives us clear guidance, because a lot of these we struggle through the briefs.
00:06:59.300The arguments aren't raised. The right arguments aren't raised. And we're bound by the arguments that are raised.
00:07:04.140I truly think, for example, on my court, I've got a total of 15 active judges right now and a bunch of senior judges, and I see them struggle all the time with difficult issues.
00:07:14.540But I think every one of them is trying to get it right. We may approach it from different angles, but we're all trying to get it right.
00:07:21.180And it's really one of the great hallmarks of the court as an institution is that despite the kind of what you see on the outside, on the inside, we all get along really well.
00:07:32.540And we're like brothers and sisters that have disagreements and we work really hard. And I think my circuit is emblematic of that.
00:07:40.500Yes, I agree. It's one of the best circuits, definitely better than the Ninth Circuit and the Second Circuit, in my view.
00:07:45.560So but let's talk a little bit about the opinion, because, you know, the court really gets into it and says the following because we had Lori on this program, Lori Smith, and she is a small town woman who launched her own business designing websites and said, this is where I'm going to draw the line.
00:08:01.960I'm not going to do the ones that promote same sex marriages. And there was a local law in California saying she must that she has no choice and that she was also prohibited from even posting on her own website that she is opposed to same sex marriages.
00:08:15.280Would not even allow her to say how she felt and then tried to compel her speech. Right. So they silenced the speech in one lane and they compelled the speech or tried to in another lane.
00:08:24.660You will do the website. You will use your own words to support same sex marriages. And this is what the court wrote. Colorado defended its law.
00:08:33.700They said under Colorado's logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic, no matter the message.
00:08:42.680If that topic somehow implicates a customer's statutorily protected trait taken seriously, that principle would allow the government to force all manner of artists, speechwriters and others whose services involve speech to speak.
00:08:56.120What they do not believe on pain of penalty. The court's precedents recognize the First Amendment tolerates none of that.
00:09:04.600And then it goes on to say, look, to be sure, public accommodations laws play a vital role in in protecting the civil rights of all Americans.
00:09:11.200But they say at the same time, this court has also long recognized that no public accommodations law is immune from the demands of the Constitution.
00:09:21.000In particular, this court has held public accommodation statutes can sweep too broadly when deployed to compel speech.
00:09:29.620So what they're saying is a local law, a state law that is meant to protect these communities, you know, minority rights cannot trump the Constitution's free speech protections.
00:09:44.000When it's the state versus the Constitution and the right to free speech, the Constitution is going to reign supreme.
00:09:51.840Yeah, and I think the court's really been consistent of that.
00:09:53.940If you go all the way back to their Skokie case, for example, and the right to march and speech we might not want to hear, you'll remember, and this this kind of goes to Virginia v. Black, too, which is in the book.
00:10:05.000You'll remember that speech we may not like, others are entitled to say.
00:10:09.440And this goes, I think the important thing is really that this goes all the way back to the founding where the federalists and anti-federalists, the anti-federalists were going to stop the Constitution from being ratified if we didn't have rights of conscience.
00:10:21.540It was so important to them that people be protected from being forced by any government to say what they didn't believe.
00:10:30.120I mean, it's one of the great hallmarks of our country.
00:10:32.540In fact, it's why people can protest our rulings and often do.
00:10:36.460It gives them the liberty, the American people, the liberty to take an unpopular voice.
00:10:42.780And in fact, if you think about it, those unpopular voices, sometimes they're unpopular 30 years ago, become more popular now because they're entitled to be voiced.
00:10:53.600And countries that don't allow people to have a right of conscience are the very countries where the separation of powers breaks down or their dictatorships or monarchies.
00:11:03.240And that just isn't the United States.
00:11:05.020And I really think the court has been consistent here from the Skokie cases to these cases, to Virginia v. Black and other cases, as as I document in the book, I think.
00:11:15.620To your point, this listen to how Justice Gorsuch, a Trump appointee to the high court, ends the opinion.
00:12:11.300And the other thing, Megan, that you're highlighting so well, but I think is important for your listeners, is we should all imagine a government official we vehemently disagree with, and then imagine them compelling us to give a message we disagree with.
00:12:24.980So that's the point you were making about this protects everyone.
00:12:29.000It doesn't protect one side or the other.
00:12:30.980And I hope everyone walks away from this decision and recognizes it reinforces the rights in the Constitution there from the founding to protect everyone's right to think differently than their government.
00:12:43.200Yeah, it's, of course, not the way it's being spun today.
00:12:54.820Slate, of course, a left-wing publication.
00:12:58.100The Supreme Court's blessing of anti-LGBTQ discrimination will haunt gay couples.
00:13:04.360PBS Supreme Court rules for Christian graphic designer who didn't want to work with gay couples.
00:13:09.460This will be misrepresented in pretty much all of the press other than, you know, Fox News and digital media.
00:13:16.920But this is why the book, if I can bring it back, is so important because the people's justice talks about how the criticisms that originalists favor the rich over the poor, the strong over the weak, the corporations over the consumers just isn't true.
00:13:31.860And when you read the real stories of the cases, not the headlines, but the real stories of the 12 cases included in the book, you see firsthand that originalism actually favors more often the little guy because that's honoring the will of the people or the will of the Constitution.
00:13:48.660And that's what you're pointing out here.
00:13:50.220It's often protects you from the government.
00:13:53.000Because when the American people gave up and allowed the government to infringe on certain God-given rights, it was a limited infringement that they allowed.
00:14:00.720And they retained the remainder of their rights so much so that they put the Bill of Rights in place right away.
00:14:06.640That was a condition of the Constitution being approved, was the Bill of Rights being there.
00:14:12.340And so when you honor those rights, you often honor the little guy against the government.
00:14:17.980You it's a great it's a very timely book because it, in essence, rehabilitates Justice Thomas, who required no rehabilitation to any of us who have been following his career and his jurisprudence.
00:14:30.660But he's been so demonized by the left.
00:14:33.040It was a great idea to do, especially from somebody like you with your credentials and the respect that you have in the legal community.
00:14:38.700But it comes at a great time because he's really getting bashed right now, not only for his alleged they alleged these were improper gifts he took from donors.
00:14:49.160But because of what they've been saying about him in the wake of the decision yesterday on affirmative action and now in the wake of these, I bring to you, forgive me for playing you a soundbite from Joy Reid.
00:15:00.200This is in the wake of the affirmative action decision yesterday in which had in part Justice Thomas warring with Justice Sotomayor in the dissent and Justice Ketanji Brown Jackson in the defense in the dissent about what this would mean for minority communities.
00:15:13.320You point out in the book, Justice Thomas consistently, consistently in his opinions, whether they're the majority or the dissent, cites people like Frederick Douglass, Thomas Sowell, you know, brilliant, legal black men who have sort of set the stage for his arguments.
00:15:28.540None of that matters to somebody like Joy Reid, who's representative of many on the far left.
00:15:36.520He, like Samuel Alito, appears to operate from a kind of rage, a sort of cold rage against the entire 20th century, the second half of the 20th century, which they find to be an affront to their own self-image and to their image of America as this country that is known.
00:15:58.540And that has been noble and that has always been noble and whose slaveholding founders were noble.
00:16:03.860He has been assisted, you know, by white patrons, really, his whole life.
00:16:09.380He seems to deeply resent all of the assistance he got, and he wants to make sure that nobody like him ever gets that kind of help again, because it helps his self-image so that he can lie to himself and fool himself and maybe hate himself a little less for having gotten help all along his path to the Supreme Court.
00:16:29.000And it was only black people's support in those polls that got wavering Democrats to vote for him.
00:16:37.140And he has repaid black people with scorn ever since.
00:16:47.260Well, I would say I would point to the first chapter of the book and say the one thing I tell people is give the book to a critic and make them ask them to read it and then discuss it with them.
00:16:58.280The first chapter of the book talks about Suzette Kilo's struggle to keep her home from a partnership with Pfizer and the city of New London.
00:17:05.640And I'm going to fast forward. The opinion reaches the Supreme Court and who the one justice that takes the NAACP's invitation to return to the original meaning is Justice Thomas.
00:17:16.800And he's in dissent, along with Justices Scalia, Chief Justice Rehnquist and Justice O'Connor.
00:17:22.240And the reason he points out, among others, is that often eminent domain, the taking when the government takes it for it's supposed to be a public use, although, as he said, it was suspiciously agreeable to the Pfizer Corporation.
00:17:37.180When they do that, they most often harm poor minorities.
00:17:41.040And in fact, in a predecessor case, 97 percent of the people that were displaced were black.
00:17:47.500And so he goes through and chapter by chapter, you're going to see, as you just pointed out, he often cites Frederick Douglass.
00:17:54.500He often cites Thomas Sowell, as he did yesterday.
00:17:58.020And he has a little bit of Malcolm X and Martin Luther King in him combined yesterday, a little bit of Martin Luther King.
00:18:04.580Sometimes it's a little bit of Malcolm X.
00:18:06.380I think the difference that people are missing is Justice Thomas, one of the things the book proves, and it's for ordinary people, is it proves that Justice Thomas has a strong black voice.
00:18:19.260But what he has, and it comes from his upbringing, he was born dirt poor.
00:18:24.280He he his mom made ten dollars a week and couldn't afford to raise a young Clarence Thomas and his brother.
00:18:30.960So she gave him to their grandfather and their grandfather ruled with an iron fist.
00:18:35.860But he also understood that education means emancipation, to quote Frederick Douglass and something Justice Thomas later quoted in the voucher case, the second chapter in the book.
00:18:45.780And he whenever Justice Thomas would complain to his grandfather, he'd say, oh, man, can't is dead.
00:18:52.460You know how I know I helped bury him.
00:18:55.080And I think you saw that in yesterday's opinion.
00:18:58.400His view was you could either choose victimhood.
00:19:01.240And if you chose victimhood, you'd use it as an excuse or you can show that you, too, deserve to get things done.
00:19:09.000And it's amazing because if you look at Chapter three, he predicts that grutter will be used to segregate, resegregate America.
00:19:20.760And there was the case that upheld the use of race as a factor in college admissions.
00:19:30.160Forty three percent of colleges now offer segregated housing.
00:19:34.180Forty six percent offered segregated orientation programs and seventy two percent sponsored segregated graduation ceremonies.
00:19:42.400He points out that HBCUs he's been championing, championing HBCUs since he got on the bench, which is not which is contrary to the narrative you'll hear out there.
00:19:54.880And he points out yesterday that HBCUs have produced 40 percent of all black engineers, 80 percent of black judges, 50 percent of black doctors and 50 percent of black lawyers.
00:20:06.040Think about that. And Xavier, a historically black college, has had more success than Harvard at moving low income students into the middle class.
00:20:20.340You point out you mentioned the voucher case.
00:20:22.960It's another example of him fighting not just for the little guy, but of course, for students of color who get stuck in minority communities where the schools are not good and they can't get into a charter school or they can't get a voucher because of the teachers union.
00:20:35.120And he's been fighting for those kids, too.
00:20:38.120But he gets no credit for that from somebody like Joy Reed, who only wants to see racial preferences in in the way that she understands that that term enforced and promoted by Thomas.
00:20:50.360Yeah. And chapter two talks all about that voucher program.
00:20:53.880And, you know, he points out that the affirmative action at the end of that case, he points out affirmative action is an unconstitutional bandaid in his mind.
00:21:03.800On a much bigger problem that they're using the bandaid so they don't have to solve the bigger problem, which is failing schools that often fail poor and minority students.
00:21:14.400And if we fix that, those students would succeed.
00:21:17.380And the Zellman case is a perfect example that 25 buildings, school buildings in Cleveland had been condemned.
00:21:23.200And yet the students were still going there without toilet paper and soap.
00:21:27.980And they set up a voucher program and it was challenged from the outset.
00:21:32.460And the chapter two just details in gripping detail how that voucher program goes all the way to the Supreme Court.
00:21:39.420And Justice Thomas is consistent in saying, look, this is what we need.
00:21:44.140We need to give people a chance and we're trapping them in failing schools so they never have a chance.
00:21:50.020And the way what he calls the cognoscenti, meaning the elites, what they do is they put an unconstitutional bandaid on it by using affirmative action rather than setting people up for success.
00:22:01.380And he shows in the book shows how people like Warwick Dunn and Kathy McKee are amazing black, amazing people who happen to be black and accomplish amazing things under the hardest circumstances imaginable.
00:22:16.860So it proves that no matter your race, you can accomplish great things.
00:22:21.420And I think what people should step back and see is what Justice Thomas is really championing is the poor and the people that aren't given the tools to succeed.
00:22:33.800If you read the people's justice, you'll see at every turn he's championing those people.
00:22:40.680And and yet he is portrayed as the devil incarnate by the left.
00:22:44.280I mean, everyone's reaction to his dissents, whether it was in Dobbs overturning Roe or in the wake of the decisions of the past few days, zeroes in on him.
00:22:54.320He gets it in a particular way because they they see him as some sort of a race traitor and they ignore, you know, like Nancy Pelosi was out just the other day scoffing at the store at this.
00:23:07.000Her own story of how somebody had defended Justice Thomas to her as a good person.
00:23:12.160And she just openly scoffed at it as if it was impossible.
00:23:16.060And one of the things I love about the book is you get into who Justice Thomas is as a man to talk about when they honored him at Yale Law School.
00:23:24.600I've heard you tell that story and how he was Justice Sonia Sotomayor's comments about Justice Thomas.
00:23:29.920And, you know, this is his polar opposite, I would say, on the high court pointing out what a good man this is.
00:23:40.280I would say coming from her, it means a lot because she also cares passionately about people.
00:23:44.940And he says Justice Thomas is the one person in the building that knows everyone's name, that he cares deeply about the institution and people, the people in it.
00:23:57.560And in fact, the other day, Megan, there's this counterman case about truth that threats.
00:24:01.640And remember, Kathy McKee, if I just may for a minute, Kathy McKee wanted to sue Bill Cosby to write her name.
00:24:08.900And they said she couldn't because by suing him, she became a public figure and she had to prove actual malice, which Justice Thomas notes under New York Times versus Sullivan is almost impossible to prove.
00:24:20.660He then writes a separate opinion saying Kathy McKee should have this right.
00:24:24.660Two years later, he remembers Kathy McKee and he says by accusing a powerful man of rape, she was not given the opportunity to sue.
00:24:32.520And just the other day, Encounterman, in his dissent, he again cites Kathy McKee's case.
00:24:38.980So he never forgets the real people in front of the court.
00:24:43.620And when the book starts with an amazing story, and I don't know if I have time to tell it, but if I do, I'd love to tell a story about him, his interaction with the homeless person.
00:24:54.640He walks out of a daily mass with a few of his long law clerks and a homeless person comes running up to him and says, Justice, Justice, I have a petition for you.
00:25:02.680His law clerks brace and he waves them off and goes and talks to him and the man's animated.
00:25:09.840And when he comes back, the law clerks say, what's going on, Justice?
00:25:14.120Justice. And he says to them, these are hard days for him.
00:25:18.140He then relays the story that the homeless man was addicted to drugs a few years ago.
00:25:23.320And Justice Thomas counseled him to get off drugs because his mom and him had had a falling out over his drug use.
00:25:31.180He got off drugs and reconciled with his mom and his mom had just passed away.
00:25:35.760These are the stories that aren't told. That's what the people's justice is for, to tell the character of Justice Thomas and show how the cases are different than everyone portrays them.
00:25:46.400And you read the facts alongside the litigants and see firsthand.
00:25:50.220The evidence is right there in the case law and what he's written, whether it was his majority opinion writer or as the dissenter.
00:25:57.600A couple of quick questions before. It's just too great an opportunity to have somebody like you here.
00:26:01.740We talk a lot on this show about how, you know, the left's diehard push for equity at all costs and wokeism is affecting law schools.
00:26:11.100You know what we saw at Yale Law School when we had a judge from the Third Circuit get shouted down.
00:26:16.860You know, just sort of this complete abandonment of core principles to students who want to see hate speech banned, notwithstanding the provisions of the First Amendment and so on.
00:26:26.300And we wrestle a lot on the show with whether the courts will be, you know, a bulwark, bulwark against that, whether they will stop that because the law will not allow these kinds of things or whether the law is slowly but surely surrendering to this agenda as these law students become lawyers and then judges.
00:26:46.860You know, again, I work with colleagues, including all of my new nominee, all the new nominees to our court, and I find them to be incredibly thoughtful, willing to discuss different ideas.
00:26:59.880Like Justice Thomas, I recognize that, quote unquote, what we call the elite schools aren't always the best schools at times.
00:27:08.540And you can look at Justice Thomas's hiring record.
00:27:11.520He proves that when he hires from a diverse set of schools because he doesn't want to listen to what the elitists say to him about who he should hire.
00:27:20.140And so he hires from the widest cross-section of schools and hires people from schools that don't have these issues and they have thoughtful discussion and debate.
00:27:29.580I would say I've heard that after the incident at Stanford, even Stanford and the dean there should be commended.
00:27:36.100She's done a good job of stamping it out and saying, look, we are going to have these discussions.
00:27:41.080So I do think at a lot of these law schools, they might be the silent majority, but a lot of the professors are very intelligent and want to engage in this discussion.
00:27:50.100That's why they went to teach, to tangle with intelligent students.
00:27:53.560And so hopefully incidents like that are going to cause law schools to reassess.
00:27:58.900And I do think Dean Martinez at Stanford should be commended for the steps she's taken to foster diversity of speech and allowing people to voice different views.
00:28:09.440And I hope that's going to be the message going forward.
00:28:12.200And I'm confident with deans like her, it will be.
00:28:14.700I've always tried to respect the Supreme Court because I understand even if I disagree with the justices jurisprudential approach, I respect them.
00:28:27.780You could be making millions if you were in private practice right now.
00:28:30.980You don't get paid very much to sit on the federal bench.
00:28:33.500And that's very much true of every one of the nine justices sitting on the high court right now.
00:28:39.020It's not, unfortunately, the case for everybody.
00:28:41.240And I thought yesterday, Joe Biden made an extraordinary remark when he was asked about this high court on his way out of his quick press conference reacting to the affirmative action case.
00:29:04.860Not a normal court is what how he described this particular court right now.
00:29:10.320I'm sure because it's a 6-3 court in favor of the conservatives.
00:29:14.420But what do you make of that, I think, extraordinary comment by the president of the United States?
00:29:19.300Yeah, I mean, I don't want to get involved in politics.
00:29:21.040But the one thing I will say about the justices on the court is I know all of them, other than Justice Jackson, who I also think the world of.
00:29:30.980And they're all amazing people just trying to do their job.
00:29:34.060And I hope the American people go past that and read their decisions.
00:29:38.080I mean, they spent 237 pages yesterday trying to explain their disagreements and talk about what they thought about affirmative action.
00:29:48.840And I thought it was really telling that the debate was pretty civil.
00:29:54.280And while it was heated in words at times, it still remained that way.
00:29:58.300And I think the court genuinely tries to get it right.
00:30:01.160And I think what a lot of people don't point out is there are a lot of strange alignments at the court to the outside world.
00:30:08.640But to the rest of us, it makes sense because they're all working through the materials and trying to do their best.
00:30:15.220And I really think it's one of the great institutions because we can disagree without being disagreeable.
00:30:20.980And I hope the rest of the country will follow the court's lead in that regard.
00:30:25.020Well, it's exciting to think that, you know, potentially if we got a Republican president next time around and somebody who you love and respect like Clarence Thomas decided he would take that opportunity to step down, we could be seeing you subjected to those Senate cross examinations and possibly as a future Supreme Court justice.
00:30:46.540Thank you so much for your service to the country and for this amazing special book.
00:30:50.120It's called The People's Justice, and it will give you the information you need to defend Clarence Thomas against these vicious critics who malign him without a thought for their own integrity or the truth of what they're saying.
00:33:14.800They decided to decide that case on the merits and said he went too far.
00:33:19.620He went he doesn't have the power to do this.
00:33:23.220And maybe you can explain to the audience why.
00:33:25.760Why doesn't he have the power to just cancel student debt?
00:33:30.760So you played at the beginning of this segment that Nancy Pelosi clip.
00:33:35.320And there's two things that I think are really interesting about that Nancy Pelosi clip, which, by the way, made it into the majority opinion verbatim.
00:33:42.540The first thing is how she says what she says.
00:33:46.280She is essentially what would be called if she were male, mansplaining this to the audience.
00:33:53.660She thinks they don't know this obvious truth.
00:34:11.280She has been a legislator for a long time.
00:34:13.660She was a speaker of the House for many years for the Democrats.
00:34:20.040The U.S. Constitution vests all legislative power, not some, not in certain circumstances, all legislative power in Congress, in the House and in the Senate.
00:34:34.440That includes everything to do with the budget, taxes, spending, borrowing, and so forth.
00:34:44.320Anything that the president of the United States does, and his branch is Article 2, not Article 1.
00:34:50.700I should tell you something about the order of importance.
00:37:09.340We didn't want a king like the British had.
00:37:13.300But the British also did not want the sort of king that Joe Biden was trying to be here.
00:37:19.440The founding fathers and the colonists who preceded them were in love with the glorious revolution of 1688-89 in England,
00:37:29.400which pushed power away from the king, especially when it comes to budgeting, which this falls under, and put it into parliament.
00:37:38.620We also, in Britain, I'm doing we for both now, we didn't want a king either, or at least we didn't want a dictator.
00:37:44.920So even the system that the American founders rejected would have said, no, the king does not have the authority to take this sort of action on his own.
00:37:56.040He didn't go through Congress on any of the two prior items you mentioned, or this item, because he couldn't get it passed.
00:38:04.000And so he just didn't end around the Constitution.
00:38:06.580And in some ways, I see today's decision on the free speech case, you know, with this web design, web designer who didn't want to be forced to compel to have compelled speech in favor of gay marriage as the same.
00:38:20.840You've got a group of state legislators out in Colorado who, in advancing their woke, quote, inclusive, equity-based agenda, said to all of the businesses in their state,
00:38:32.500you must, you must silence your own private beliefs about same-sex marriage, and you must actually, if asked to, support it,
00:38:41.500whether it's through baking a cake or taking photographs at a wedding or doing a wedding website for a same-sex couple.
00:38:48.460You have no choice, entirely forgetting the First Amendment.
00:38:52.360And here again, that overreach was struck down by a same sober Supreme Court reminding them there is a Constitution.
00:39:00.460There's Article 1, there's Article 2, and then on this case, there's the Bill of Rights.
00:39:04.020And then number one is freedom of speech.
00:39:08.040Yes, and this was a freedom of speech case, as you say.
00:39:10.860It's being cast in the press this morning as a religious liberty case or a case about LGBT rights.
00:39:16.500But it's really much broader than that.
00:39:21.640It is simply not true, as I've seen some claim, that this has allowed private businesses to say we will not serve a certain class of people.
00:39:32.060This case involved a woman who said that she would quite happily serve anyone, gay, straight, Muslim, Christian, atheist, or what you will,
00:39:40.920but that she did not want to use her creative talents to express certain viewpoints and certain ideas.
00:39:49.560And I think everyone should support that.
00:39:52.960You know, this is not a left or right thing, or it shouldn't be.
00:39:55.900It's not a gay or straight thing, or it shouldn't be.
00:39:57.980It's not an atheist or Christian thing.
00:39:59.980That's fundamental within the American order.
00:40:03.060And it's telling, isn't it, that the criticisms of the cases that have come down over the last two or three days have not focused on the Constitution or the law, but the results.
00:40:13.980So now, today, we're told the Supreme Court took $10,000 away from people, not the Supreme Court upheld Article 1.
00:40:22.480Wait, let me just give an example of that, and then I'll let you finish your point.
00:40:27.120Well, look, that is a major network host in the United States who seems only to care about outcomes, who doesn't mention the law, who doesn't mention the controversy in the case,
00:40:49.480and who also pretends that anyone who was involved in this had more or less money at any given point, when, of course, they didn't.
00:40:58.340Anyone who owes $10,000 owed it because they borrowed it and spent it and benefited from it.
00:41:02.600And Joe Biden never had the authority to change that, as we found out today.
00:41:06.700But I was going to say that, you know, that's the response you get on this one, not discussion of Article 1 or the statute in question.
00:41:13.300Yesterday, with affirmative action, the responses have all been, look at this thing that might now happen that I don't like.
00:41:19.220Rather than the meaning of the 14th Amendment's equal protection clause.
00:41:22.820This morning, with the 303 case, well, what will happen to this person or that person?
00:41:27.600Not what does the First Amendment say?
00:41:29.700One of the great things about having a constitution, as we do, and it doesn't always yield outcomes that I like, is that you know where you stand.
00:41:37.620The state of Colorado should have known that the First Amendment is in place, and it applies to it.
00:41:43.180And if they want to change that, then they're going to have to repeal it.
00:41:46.420They can't just do whatever public policy they wanted to achieve anyway.
00:41:52.140If the Democratic Party wants to forgive student loans, by which I mean transfer the liability for them to the people who didn't borrow them, then they can do that through Congress.
00:42:01.940I think it is a terrible, divisive idea, and that it would be politically disastrous and deserved to be.
00:44:55.500Justice Alito accepted tens of thousands of dollars in lavish vacation gifts from a billionaire who lobbied to cancel the student loan forgiveness.
00:45:04.580After the gifts, Alito voted to overturn.
00:45:07.460This SCOTUS's corruption undercuts its own legitimacy by putting its rulings up for sale.
00:45:16.380I mean, talk about gymnastics to try to tie two totally unrelated things together in order to further what the left might call a conspiracy theory.
00:45:27.280Well, there's two big problems with what AOC says there.
00:45:32.980The first one is that the scandal that she's referring to is not a scandal and has been exposed as such.
00:45:40.560Because in the report that was written about Alito's behavior, in I think it's paragraph 73, it points out that he was explicitly not obliged to report that trip or to turn it down.
00:45:56.180So she's pretending that there is a scandal where there is not.
00:45:59.880I think the bigger point, and this applies really to criticisms of other Supreme Court justices, is that it's not at all obvious, by which I mean it's invisible, what the post hoc ergo propter hoc is supposed to be here.
00:46:14.440Can you find me an example in the last 10 years, 15 years, with Clarence Thomas, 30 years, of any of the justices who are being targeted writing opinions that are outside of the norm for them and their ideological priors?
00:47:29.880The problem he's got is that even the more limited powers that the court confirmed that the president has under the HEROES Act have now expired because the emergency that was COVID has gone.
00:47:43.180The HEROES Act isn't some freestanding source of power.
00:47:45.680You have to invoke it with an emergency and there isn't one.
00:47:49.640So unless he has some other concocted plan, then I suspect it'll either come to nothing or end up struck down again by the Supreme Court.
00:48:20.240Joining me now, Kristen Wagoner, CEO, President and General Counsel for Alliance Defending Freedom, whose firm represented Lori Smith in the so-called 303 creative case.
00:48:30.960As we've been discussing this morning, they were handed a huge victory at the U.S. Supreme Court this morning, a decisive victory in a landmark case.
00:48:47.840It has been seven years that Lori has waited to have justice and to be able to speak freely and even longer for others who would be impacted by this decision.
00:48:58.400And we know that it is a broad victory that protects the speech rights of everyone, even those who may disagree with Lori or others on marriage.
00:49:07.080When you came on and I should I recommend the episode to all of our listeners.
00:49:56.780So it discussed discuss the significance of what the Supreme Court has just said about free speech in the First Amendment.
00:50:04.160The court said that it's wrong for the government to force someone to create expressive content that they object to.
00:50:12.000That simply the government can't misuse the law to try to compel someone to say something that they don't believe.
00:50:17.880And in the Jack Phillips case, which is referred to as the Masterpiece Cake Shop case, there was a free speech claim that was asserted because Jack's cakes aren't like the kind of cakes you might buy in a grocery store.
00:50:29.180But their custom cakes, particularly his wedding cakes, are all custom.
00:50:33.460They're designed to be unique and one of a kind.
00:50:36.740And they have inherently expressive content in the message they send.
00:50:40.180And he designs other cakes as well that, you know, may have written words on them or symbols.
00:50:44.460So it's not that all cakes would be expressive content, but certainly most of Jack's would be.
00:50:50.480And the court, rather than address the free speech arguments in Jack's case, they focused on the free exercise arguments because Colorado had showed its hand in how hostile it was towards Jack's beliefs by comparing them to owners of the slave owners of slaves, as well as perpetrators of the Holocaust in a hearing.
00:51:14.600It's clear he didn't get a fair shake.
00:51:16.740And now Colorado continues to pursue other people like Lori and suggests that their law can compel speech.
00:51:24.440And so Lori filed her case before Jack's was even decided in Colorado.
00:51:29.060Today is a resounding victory for free speech and the right of all artists, both Jack and Lori, in creating expressive content.
00:51:36.220Now, with all due respect to Jack and Lori, I care more about the bigger picture of free speech, right?
00:51:42.880Because most of us don't bake cakes or do websites for any couples, never mind same sex.
00:51:47.140And when I read this order, I'm full of joy because I've talked to you before about some of the other cases you have.
00:51:55.780And the one that came to mind first was the battle on ongoing right now in this country over things like preferred pronouns, where more and more employers and schools are being mandated to say the quote preferred pronouns of choice or they're guilty of a hostile work environment or they're guilty of harassment or some sort of discrimination against the people demanding.
00:52:18.540We use their pronouns, not their biological pronouns, not scientific fact based pronouns, that too is forced speech that goes against sometimes religious beliefs, but separate and apart from our religious beliefs, our biological scientific beliefs.
00:52:34.440And when I read when Colorado's public accommodations law, meaning it's anti-discrimination law and the Constitution collide, there can be no question which much must prevail.
00:52:45.940Well, I think Kristen Wagoner is going to use that line among others in this decision to fight for those of us who don't want to be forced on the preferred pronouns nonsense.
00:52:55.340You're absolutely right. We have a number of cases where people have been fired for using a person's given name or the name they request, but declining to use their preferred pronouns, not using other pronouns, just simply not using a pronoun.
00:53:07.020They've been fired or disciplined for that. And so those cases are ongoing.
00:53:10.680And this decision is going to have a real impact and a decisive impact on them.
00:53:15.100And I would just encourage every American to actually read the decision.
00:53:19.280It is a tour de force of our First Amendment law. It explains why we protect speech, even speech that we might dislike and what that the value of that speech gives us.
00:53:29.500The pluralism that we have, the strong republic that we have, the curve on government authority and why those things are so important.
00:53:36.300So it's reaffirming law that was already in place, but it's applying it to our cultural moment. And that's critical.
00:53:42.300So the high court in the majority opinion writes as follows.
00:53:47.160It is difficult to read the dissent in which the three liberal jurists joined together, Sotomayor, Kagan and Jackson.
00:53:53.680It is difficult to read the dissent and conclude we are looking at the same case.
00:53:57.680Much of it focuses on the evolution of public accommodations laws and the strides gay Americans have made towards securing equal justice under law.
00:54:04.260And no doubt there is much to applaud here. But none of this answers the question we face today.
00:54:09.320Can a state force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?
00:54:19.300How broad is this likely to go? I mean, will it go beyond companies like lorries that provide, quote, expressive services?
00:54:27.660Because to me, that's one of the battles you faced was proving that that was speech.
00:54:32.320If you've got people actually speaking their mind, you know, in subjects like the ones we just discussed, it's an even stronger case.
00:54:39.360It absolutely is. And it is a very, very broad ruling.
00:54:44.660Again, when there is speech involved, the court has said you cannot compel it, that free speech is for everyone.
00:54:50.280It's for the LGBT website designer, the Democrat speechwriter, the pro-abortion photographer.
00:54:55.060We all have the right to enter the marketplace, to enter the public square and to say what we believe without having to fear that the government's going to impose jail time on us,
00:55:04.340which some of these laws actually do have jail time in them.
00:55:07.140And again, I would just reaffirm that the court literally explicitly says tolerance, not coercion, is the path that this nation has chosen and that we need to remain on.
00:55:18.060So it's a great victory for free speech. And I think it's been maligned by some in the media and misrepresented.
00:55:25.880Public accommodation laws and non-discrimination principles continue to exist and apply peacefully and coexist with the First Amendment.
00:55:34.360And that was the court's ruling today.
00:55:35.800I mean, they the people writing about this already, and even the majority opinion points out the dissent suggests this is actually a newfound upholding of separate but equal.
00:55:48.180It's not true. Laurie Smith is not refusing service to people who are part of the LGBTQ community.
00:55:55.860They can come in and have her design any website for them, and she'll do it willingly, just not one that conflicts with her religious beliefs.
00:56:03.520And she can't be compelled to say she supports same-sex marriage when she doesn't.
00:56:07.620But of course, it's an intentional decision to be obtuse about this.
00:56:13.080Well, and it is disappointing and disingenuous.
00:56:17.780Again, as the majority points out, the dissent basically is litigating a completely different case.
00:56:22.760And what's important about this case, too, is that the facts are agreed to by Colorado.
00:56:27.260It's not in dispute whether Laurie serves everyone.
00:56:30.640In fact, Laurie has clients who identify as LGBT, and she's never designed a website or created a message that violated her beliefs, whether those are beliefs about not disparaging people, whether they're political beliefs or other beliefs.
00:56:43.900So certainly marriage is something that she believes is a sacred union between a man and a woman, and she's not going to betray that conviction.
00:56:50.440But there are also other messages she won't express, and it doesn't matter who requests those messages.
00:56:55.240I read some of these earlier with Judge Thapar, but just a sampling.
00:57:02.380You've got People magazine saying, SCOTA sides with anti-LGBTQ web designer.
00:57:07.540You've got PBS saying, Supreme Court rules for Christian graphic designer who did not want to work with gay couples, and so on.
00:57:14.200Lots of spin like that, like she didn't like gay couples.
00:57:17.820Meanwhile, on my timeline, Kristen, on Twitter, I've got lots of gay and lesbian followers on my Twitter account saying, this is a ruling in favor of us all.
00:57:27.760They don't want to be forced to do something that would speak against gay marriage.
00:57:31.900Well, think about, you know, whether it's abolition or it's women's rights, women's voting rights, or the 1964 Civil Rights Act, all of those things, that social progress that took place, took place because we all had the right to speak freely.
00:57:45.540And those who advocated for same-sex marriage had the right to advocate for it and to see, you know, whether to make it popular or unpopular.
00:57:53.760What today's orthodoxies are can be tomorrow's heresies, and that's the beauty of the First Amendment.
00:57:59.940This case is about whether the government has the raw power to tell us what to think and what to say.
00:58:06.620And thankfully, our Supreme Court stood in the way of that and said, no, we are sticking with the First Amendment.
00:58:12.740Well, what's so interesting about it is this was a situation in which a Colorado anti-discrimination law, public accommodation law,
00:58:20.060saying it's basically you can't deny service to blacks, gays, women, whoever you want, which is a good law in principle.
00:58:27.360But whether this anti-discrimination law, when it clashes with the First Amendment rights of an individual, which one will rule?
00:59:13.120It's about whether the government has the power to force someone to say something they don't believe.
00:59:17.580And so whether that falls under public accommodation law or some other policy,
00:59:21.580the court gave a resounding answer today that the government does not have the power to do that.
00:59:26.460We know all the way dating back to the founders, all the way forward to all the precedent in the First Amendment,
00:59:32.600that the first thing that those who are in power try to do is to censor individuals.
00:59:37.440It's to assert that power by removing the free speech rights that we have.
00:59:41.860And we see that abroad and have seen efforts in the United States.
00:59:44.800So, again, this is an effort that we should all applaud and a decision that we should rejoice in because it ensures that we all have the right to be able to debate ideas and to explore truth.
00:59:56.960And that's how social progress results is from having this debate and entering the marketplace.
01:00:01.600Does it change if somebody, you know, workplace harassment laws or what have you, they tend to be state statutes.
01:00:07.740But does it change if the litigants in the next proceeding, say, under the Equal Protection Clause,
01:00:15.480we're entitled to be spoken to in a way that's not harassing and diminishing and discriminatory?
01:00:20.540So now you've got a constitutional right versus the constitutional right.
01:00:23.940You know, let's go 14th Amendment versus First Amendment.
01:00:28.420It's constitution versus constitution.
01:00:30.920You know, we do have the right not to be harassed in our workplace setting.
01:00:33.940And therefore, this decision cannot be the end all.
01:00:40.900Well, I mean, the free speech, this applies to the free speech clause of the Constitution.
01:00:45.580And in applying the free speech clause, it applies to whether the government can force you to do something or say something, essentially,
01:00:52.460whether the government can force you to say something.
01:00:54.380So, you know, harassment and that would would not it's not protected speech, you would say, in the workplace.
01:01:01.940But it also I mean, we have to think of the court's recent decision this last term as well on what mens rea is necessary in certain laws and things like that.
01:01:09.860But let me say, but no, no, no, because it would be because like in places like New York, they've outlawed the term illegal alien.
01:01:17.240But they've also said that it's workplace harassment to not you like the government of New York has said it's it's workplace harassment to not use preferred pronouns.
01:01:25.800So now we're getting into not just, you know, a state provision necessarily, but invocation of constitutional rights.
01:01:31.540OK, now I'm tracking with you because I thought what you were suggesting is that a private individual who might have a view on marriage, you know, would that be harassment in the workplace?
01:01:40.460But what you're saying is whether the government can pass a law compelling pronouns and suggest that it is harassment.
01:01:46.760And I think this decision applies to that.
01:01:48.340It applies to the government's actions to mislabel or to relabel speech as discrimination.
01:01:53.940The government cannot relabel speech as discrimination and then censor it.
01:02:20.880Yes. And it's something that we need to continue to be vigilant about and make sure that the lower courts, who sometimes are obstinate, will continue to enforce the rule that the Supreme Court has laid out.
01:03:56.620Because we knew it was she I mean, she's not here right now, but we knew it was coming out this week.
01:04:01.760And so we've been together and it's just been a really candidly and an emotional day for us all to see this victory and to know what she's gone through.
01:04:10.320So it it's a great day today, but you've got seven years of really horrible things happening, being doxed with your home address, having death threats along the way.
01:04:20.220And yet she has been tenacious and persistent to stand not just for herself, but for all of us.
01:04:31.820And by the way, I've never actually looked at I'm sure I should know the answer to this, but do you guys rely on donations to find can we can we donate to you?
01:04:38.440How can we support Alliance Defending Freedom, which is at the pointy end of the spear on this case and so many other important ones?
01:04:45.400Well, all of our work is pro bono, meaning it's free of charge to our clients.
01:04:48.700So we would welcome any help and we will be litigating this decision across the country to ensure that, again, the lower courts and government officials protect the right of free speech, even if they don't want to.
01:05:06.680Oh, it's just so great to finally have a sane Supreme Court doing the right thing, isn't it?
01:05:13.420It's just great to have those principles that we grew up understanding were a fundamental right of ours as American citizens, as humans, and then protected by our government would be there for us.
01:05:23.760And it's maddening when you see them eroded bit by bit by lower courts or by the left and crazy legislation.
01:05:29.280And now we have a whopper of a Supreme Court opinion, six to three, saying, no, no, this ends now.
01:08:53.060I'm so excited because it's just I've lived long enough with the Supreme Court to just learn to be disappointed or just learn that the victories are going to be just eked through.
01:09:01.500Not a strong six to three ruling that is sweeping and clear.
01:09:09.480OK, yeah, let's talk about I would like to ask you, though, Megan, if I could, because you're an attorney.
01:09:14.200And so I'm curious because I was listening to your prior guests and I'm curious, this Michigan law that the House just passed in Michigan saying you can go to jail with a felony and pay a ten thousand dollar fine if you misgender someone.
01:09:49.060This is going to lead to a whole slew of cases and litigation.
01:09:53.900And with this 6-3 majority not going anywhere, I think we're going to get a lot of rulings we like.
01:09:59.640You know, the Supreme Court issued that that case not long ago.
01:10:02.420Gorsuch joined with the liberals saying you don't have the right to discriminate against trans people in the hiring decisions in the workplace.