Verdict with Ted Cruz - July 10, 2020


Train Wreck at the Supreme Court


Episode Stats

Length

29 minutes

Words per Minute

165.15698

Word Count

4,929

Sentence Count

331

Misogynist Sentences

8

Hate Speech Sentences

10


Summary

Ted Cruz is a conservative Supreme Court lawyer who has served as a clerk on the Supreme Court. He has been on the bench for over 20 years and served as the Chief Justice of the United States from 1988-1993. Ted has been a member of the Texas Supreme Court for over 15 years and has served on the Texas Rules Board, the Texas Bar Association, and the Texas Democratic National Committee. He is a regular contributor to conservative publications such as The Weekly Standard and The Daily Caller.


Transcript

00:00:00.000 This is an iHeart Podcast.
00:00:02.440 Guaranteed human.
00:00:04.460 We need to appoint originalist judges,
00:00:08.460 textualist judges, conservative judges.
00:00:11.080 That has been the battle cry
00:00:12.560 in every Republican presidential campaign in my lifetime.
00:00:16.620 And yet time and time again,
00:00:17.880 on all the consequential cases,
00:00:19.940 the judges let us down.
00:00:23.440 Conservatives lost three important court cases this week.
00:00:26.860 We will get into all of them
00:00:28.520 with a man who knows a thing or two about the law
00:00:30.580 and the Supreme Court.
00:00:31.940 This is Verdict with Ted Cruz.
00:00:38.860 Welcome back to Verdict with Ted Cruz.
00:00:40.540 I'm Michael Knowles.
00:00:41.680 And before we get into anything,
00:00:42.980 I just want to thank you all for listening and subscribing.
00:00:47.460 The show is now,
00:00:48.740 I think it's at 11 and a half million downloads total.
00:00:51.940 Our recent episode with the Attorney General Bill Barr
00:00:54.520 has already gotten half a million,
00:00:56.780 more than half a million downloads.
00:00:58.660 So thank you so much.
00:00:59.560 We really appreciate you subscribing
00:01:00.960 wherever you listen to podcasts
00:01:02.440 and leaving those five-star reviews.
00:01:04.300 It's very kind of you.
00:01:05.860 That's the only positive, nice thing
00:01:07.640 I'm going to say all show
00:01:09.080 because Senator,
00:01:10.400 we have had a terrible couple of weeks
00:01:12.620 at the Supreme Court.
00:01:14.220 So the last two weeks
00:01:15.240 have been a train wreck at the Supreme Court.
00:01:17.120 We had three disastrous decisions,
00:01:19.780 lawless decisions.
00:01:20.700 We actually had one good decision.
00:01:22.620 So we're batting 250,
00:01:26.020 but three decisions that were just horrendous
00:01:29.740 and deeply disappointing.
00:01:31.400 Senator, I want to go through them.
00:01:32.920 I think the cases that people have seen in the news,
00:01:35.620 you know, they've got names,
00:01:36.700 Ostok versus Clayton County,
00:01:38.480 June Medical Services versus Russo,
00:01:40.780 Espinosa versus Montana Department of Revenue.
00:01:43.560 The way that I think about these cases,
00:01:45.680 more simply in that order,
00:01:46.880 is you got a transgender case on employment law.
00:01:51.320 You've got an abortion case in Louisiana,
00:01:53.520 and then you've got a school choice case
00:01:56.260 that came out of the Espinosa versus Montana.
00:02:00.640 And don't forget the amnesty case,
00:02:02.120 the DACA case.
00:02:03.060 So that was another train wreck decision
00:02:05.580 in the last two weeks.
00:02:06.760 I thought,
00:02:07.680 I actually thought it was a better situation
00:02:09.580 because I had forgotten
00:02:10.560 about that terrible case.
00:02:12.180 Senator, I don't know anything about the law.
00:02:13.500 You know quite a lot about it.
00:02:14.540 Obviously, clerked at the Supreme Court,
00:02:15.980 you've argued cases before the Supreme Court.
00:02:18.900 Just take us through it.
00:02:20.260 All right, well, so let's go one at a time.
00:02:21.640 Let's start with the DACA case
00:02:23.360 because the DACA case was horrific.
00:02:26.860 This was a case challenging
00:02:28.740 the Trump administration's reversal of DACA.
00:02:32.800 Now, what is DACA?
00:02:33.640 DACA, as you know,
00:02:35.040 was Barack Obama's executive amnesty,
00:02:37.920 where Obama illegally ordered amnesty
00:02:42.200 to people who came illegally to this country.
00:02:47.700 You know, it's interesting.
00:02:49.220 Immigration activists had pushed Obama
00:02:51.620 over and over and over again
00:02:53.240 to issue executive amnesty.
00:02:55.780 And Obama had told them,
00:02:56.760 I can't, I don't have the authority.
00:02:58.260 It's contrary to federal law.
00:02:59.420 It's contrary to federal statute.
00:03:00.940 In fact, Obama said,
00:03:01.940 I am not a king.
00:03:03.340 I am not an emperor.
00:03:05.200 And then as he was moving
00:03:06.800 into the election cycle,
00:03:09.660 apparently he became a king.
00:03:11.320 He became an emperor.
00:03:12.720 He illegally issued executive amnesty.
00:03:16.040 All right, fast forward
00:03:16.820 to the Trump presidency.
00:03:17.940 The Trump presidency reverses
00:03:19.640 Obama's illegal executive amnesty.
00:03:22.060 That case goes to the U.S. Supreme Court.
00:03:24.820 And by a vote of 5-4,
00:03:27.160 Chief Justice John Roberts
00:03:28.620 joins the four liberals.
00:03:30.720 And remember that,
00:03:31.460 that's going to be a pattern.
00:03:32.420 We're going to discuss this entire show.
00:03:35.240 Roberts joining the four liberals
00:03:37.200 over and over and over again.
00:03:39.800 So in this case,
00:03:41.260 all nine justices,
00:03:43.600 not a single justice,
00:03:45.940 disputes that Obama's executive amnesty
00:03:48.400 was illegal
00:03:49.120 and contrary to federal immigration law.
00:03:51.600 So none of them dispute that.
00:03:54.140 Not only that,
00:03:55.760 all nine justices explicitly agree
00:03:58.500 that President Trump
00:04:00.980 has the authority
00:04:01.840 to stop following
00:04:03.520 an illegal policy.
00:04:05.220 So they say,
00:04:06.160 of course,
00:04:06.640 the Trump administration
00:04:07.520 can stop executive amnesty.
00:04:09.680 Of course,
00:04:10.220 they can stop
00:04:11.040 an illegal policy.
00:04:12.840 But then what happens is
00:04:14.920 John Roberts for the court
00:04:16.420 plays a little trick.
00:04:17.780 He says,
00:04:18.640 well,
00:04:19.260 they just didn't explain
00:04:21.340 their reasoning well enough.
00:04:22.680 So we're going to strike it down
00:04:24.020 because we don't think
00:04:25.480 the reasoning had enough detail.
00:04:27.400 Of course,
00:04:27.740 you can do it perfectly legal.
00:04:29.160 Just go back and start over.
00:04:30.560 And the game he's playing
00:04:32.640 is it's obviously
00:04:33.600 trying to kick the ball
00:04:34.700 down the field
00:04:35.340 just long enough
00:04:36.280 to get past the election
00:04:37.940 where they're hoping
00:04:39.380 there'll be a different president
00:04:40.580 who will embrace amnesty.
00:04:41.960 And it was really,
00:04:43.000 it was lawless
00:04:45.920 and disgraceful.
00:04:47.540 So,
00:04:47.940 all right,
00:04:48.260 that's the DACA case,
00:04:50.380 which you reminded me of.
00:04:51.620 I mean,
00:04:51.840 it might be the most egregious one
00:04:53.700 because you've got
00:04:54.420 Obama himself saying
00:04:56.160 that this would be unconstitutional.
00:04:57.780 And yet,
00:04:58.260 here's what happens.
00:04:59.300 The court literally
00:05:00.760 ordered Trump
00:05:02.000 keep breaking the law
00:05:04.200 because Obama broke the law.
00:05:07.180 Like,
00:05:07.400 it's asinine.
00:05:09.080 It's asinine
00:05:10.080 that there's one justice
00:05:11.140 who held that,
00:05:11.940 much less that
00:05:12.760 five justices held that.
00:05:15.000 Well,
00:05:15.240 I want to get to
00:05:16.480 one justice in particular,
00:05:18.040 John Roberts,
00:05:18.720 in a moment.
00:05:19.380 But first,
00:05:20.000 I want to build up
00:05:21.240 my fury and frustration
00:05:23.060 at the chief justice.
00:05:24.400 So,
00:05:24.820 can you take us
00:05:25.660 through the other cases as well?
00:05:27.540 Sure.
00:05:27.880 You've got June Medical Services.
00:05:29.580 So,
00:05:29.820 June Medical Services
00:05:30.700 is an abortion case.
00:05:32.060 And it dealt with a statute
00:05:34.020 that the state of Louisiana passed
00:05:35.880 that was focused on women's health.
00:05:38.320 And what it provided
00:05:39.320 was that
00:05:40.080 if someone's going
00:05:41.380 to perform abortions,
00:05:42.640 that they have to be licensed
00:05:44.360 at a hospital
00:05:45.680 within 30 miles
00:05:46.800 of where they're performing
00:05:47.640 the abortion.
00:05:48.440 So,
00:05:48.640 so that if,
00:05:50.060 if something happens
00:05:51.560 to,
00:05:52.040 to,
00:05:52.300 to the mother's health,
00:05:53.280 that endangers her life,
00:05:55.060 that the doctor be able
00:05:56.260 to treat that,
00:05:57.200 that woman
00:05:57.900 at a nearby hospital.
00:05:59.380 And,
00:06:00.020 and what happened,
00:06:01.740 so the statute
00:06:02.440 Louisiana passed
00:06:03.440 was very,
00:06:04.060 very similar
00:06:04.580 to a statute
00:06:05.460 that Texas had passed.
00:06:07.500 So,
00:06:07.640 Texas had done
00:06:08.340 the same thing
00:06:08.940 and said,
00:06:09.320 look,
00:06:09.500 we want to protect
00:06:10.160 women's health.
00:06:11.020 So,
00:06:11.500 so you've got to be licensed
00:06:12.720 at a,
00:06:13.160 at a nearby hospital.
00:06:15.700 Uh,
00:06:16.220 the Texas law
00:06:17.900 went to the U.S.
00:06:18.780 Supreme Court
00:06:19.400 and the U.S.
00:06:20.040 Supreme Court
00:06:20.600 struck it down
00:06:21.580 by a vote
00:06:22.740 of five to four.
00:06:23.720 This was in 2016.
00:06:24.860 So,
00:06:25.020 this was four years ago.
00:06:26.700 Rather,
00:06:27.240 a vote of five to three.
00:06:28.080 It was five to three.
00:06:29.100 So,
00:06:29.300 Justice Scalia
00:06:29.980 had died.
00:06:31.040 So,
00:06:31.420 there were only
00:06:31.820 eight justices
00:06:32.560 in the court
00:06:33.000 when the Texas case
00:06:33.820 went up there.
00:06:34.720 And so,
00:06:35.320 it was five to three.
00:06:37.220 Uh,
00:06:37.540 one of the dissenters
00:06:39.300 was John Roberts.
00:06:42.040 Fast forward
00:06:42.780 to the Louisiana case.
00:06:44.040 Virtually identical
00:06:45.200 statute.
00:06:46.560 And five,
00:06:47.640 four,
00:06:48.000 the Supreme Court
00:06:48.860 strikes down
00:06:49.800 the Louisiana statute
00:06:50.920 and John Roberts,
00:06:52.180 who had been a dissenter,
00:06:54.180 magically flips over
00:06:55.380 to the majority
00:06:56.140 and,
00:06:57.860 and joins
00:06:58.820 the four liberal justices
00:07:00.360 in striking it down
00:07:01.520 and his reasoning.
00:07:02.920 So,
00:07:03.080 he had written a dissent
00:07:04.180 in the Texas case.
00:07:05.040 He said,
00:07:05.340 this is wrong.
00:07:06.360 The Constitution
00:07:07.020 doesn't require this.
00:07:08.700 And four years later,
00:07:09.680 what he said was
00:07:10.640 stare decisis.
00:07:12.000 Now,
00:07:12.100 now,
00:07:12.260 now,
00:07:12.340 what does stare decisis mean?
00:07:14.260 Uh,
00:07:14.520 it,
00:07:14.720 it,
00:07:14.920 it is a Latin phrase
00:07:16.460 for,
00:07:16.920 that,
00:07:17.020 that,
00:07:17.140 that means respect
00:07:18.060 for precedent
00:07:18.700 following previously
00:07:20.680 decided cases.
00:07:22.720 And,
00:07:23.360 you know,
00:07:23.480 the thing that is
00:07:24.280 maddening is
00:07:25.380 stare decisis
00:07:26.300 tends to be
00:07:27.020 almost always
00:07:27.900 a one-way ratchet.
00:07:29.180 That you have
00:07:29.880 justices who call
00:07:30.960 themselves conservative
00:07:31.960 and they will
00:07:33.480 respect stare decisis
00:07:35.180 for left-wing,
00:07:37.380 lawless,
00:07:37.860 unconstitutional
00:07:38.580 decisions.
00:07:39.520 The liberal justices,
00:07:41.080 they don't care about
00:07:41.740 stare decisis
00:07:42.540 at all.
00:07:43.280 They're happy
00:07:43.980 to overrule.
00:07:45.440 They'd be more than
00:07:46.440 happy to overrule
00:07:47.480 Heller,
00:07:48.080 which,
00:07:48.340 which upheld
00:07:48.940 the individual
00:07:49.440 right to keep
00:07:49.980 and bear arms
00:07:50.580 under the Second
00:07:51.100 Amendment.
00:07:51.840 They'd be more than
00:07:52.500 happy to overrule
00:07:53.420 Citizens United.
00:07:55.200 And,
00:07:55.300 and so it was
00:07:56.060 a maddening decision
00:07:57.300 to see Roberts
00:07:58.060 flip his decision
00:07:59.020 and flip the result
00:07:59.860 in the court.
00:08:00.920 Yeah,
00:08:01.060 I think this raises
00:08:01.920 a worry in the minds
00:08:03.320 of a lot of
00:08:03.820 conservatives,
00:08:04.800 which,
00:08:05.180 and especially
00:08:05.700 seeing Roberts
00:08:06.540 flip on this,
00:08:07.760 which is that
00:08:08.420 the conservative
00:08:09.180 legal movement,
00:08:09.920 it's gotten us
00:08:10.660 some great dissents.
00:08:12.000 You know,
00:08:12.480 man,
00:08:13.020 no movement
00:08:13.620 could produce
00:08:14.140 better dissents
00:08:15.060 than this legal
00:08:16.520 movement.
00:08:17.120 But when it
00:08:17.540 comes time to
00:08:18.160 actually going
00:08:19.080 down on the
00:08:19.640 side and winning
00:08:20.260 a case,
00:08:21.200 it seems to
00:08:21.980 fall away.
00:08:22.480 The other funny
00:08:22.960 thing that you
00:08:23.920 notice about
00:08:24.380 this case
00:08:25.060 is that it
00:08:26.100 totally undermines
00:08:27.380 the left's
00:08:28.720 argument about
00:08:30.120 abortionists as
00:08:31.120 medical providers
00:08:32.100 because they
00:08:33.020 always tell us
00:08:33.680 abortionists are
00:08:34.400 just regular
00:08:35.200 healthcare providers,
00:08:36.140 which doesn't
00:08:37.080 seem to be the
00:08:37.500 case to me,
00:08:37.980 but that's their
00:08:38.440 argument.
00:08:38.980 And yet,
00:08:39.360 when we say,
00:08:40.000 okay,
00:08:40.180 well,
00:08:40.320 we're going to
00:08:40.700 treat them
00:08:41.200 like every other
00:08:41.960 healthcare provider,
00:08:43.220 they say,
00:08:43.600 no,
00:08:44.100 absolutely not.
00:08:45.200 That would be
00:08:45.900 unconstitutional.
00:08:47.360 And this is the
00:08:48.120 legislature acting
00:08:49.060 to protect
00:08:49.680 women's health,
00:08:50.500 protect women's
00:08:51.220 lives.
00:08:52.520 If you have
00:08:53.400 an abortion,
00:08:54.360 that there's a
00:08:55.400 medical complication
00:08:56.380 and the mother's
00:08:57.080 life is in danger,
00:08:58.580 you want to be able
00:08:59.380 to save that
00:09:00.780 mother's life.
00:09:01.640 And now the
00:09:02.240 Supreme Court
00:09:02.740 is saying that
00:09:04.340 that's not
00:09:04.900 permissible for
00:09:05.560 the legislature
00:09:06.040 to do.
00:09:07.140 And I'll tell
00:09:08.460 you what we're
00:09:08.920 seeing more broadly
00:09:09.940 here,
00:09:10.220 Michael.
00:09:10.520 John Roberts
00:09:12.520 is the new
00:09:13.740 Sandra Day O'Connor.
00:09:15.080 John Roberts
00:09:15.700 has become
00:09:16.660 the quintessential
00:09:18.520 swing vote
00:09:19.500 in the middle
00:09:19.960 like Goldilocks,
00:09:22.020 not too hot,
00:09:22.880 not too cold,
00:09:23.900 liking her
00:09:25.040 porridge
00:09:25.720 just the way
00:09:27.140 she likes it.
00:09:28.320 Now,
00:09:28.560 John Roberts,
00:09:29.360 there's a block
00:09:30.160 of four on the
00:09:30.920 left and they're
00:09:32.260 on the left
00:09:32.920 every single
00:09:34.380 time.
00:09:35.940 And if John
00:09:36.440 Roberts decides
00:09:37.380 to go join
00:09:38.720 them,
00:09:39.240 suddenly,
00:09:39.700 we have a
00:09:41.160 5-4 court
00:09:42.060 that is
00:09:42.480 disregarding
00:09:43.040 the law.
00:09:43.780 Well,
00:09:44.020 I have two
00:09:44.700 questions on
00:09:45.500 this and you
00:09:46.100 can take them
00:09:46.520 in whatever
00:09:46.860 order you
00:09:47.380 want.
00:09:47.840 One,
00:09:48.640 why is
00:09:49.100 John Roberts
00:09:49.720 a Bush
00:09:50.180 appointee,
00:09:50.740 he's supposed
00:09:51.040 to be a
00:09:51.400 conservative,
00:09:52.260 why does
00:09:53.080 he do this?
00:09:53.700 Why does
00:09:54.000 he want
00:09:54.320 to flip
00:09:54.720 even on
00:09:55.260 his own,
00:09:56.000 even on
00:09:56.380 the same
00:09:56.760 issue in
00:09:57.460 two different
00:09:57.900 cases?
00:09:58.840 And then
00:09:59.180 my second
00:09:59.980 question on
00:10:00.680 this is,
00:10:01.820 the left
00:10:02.220 always votes
00:10:02.820 with the
00:10:03.140 left.
00:10:03.540 They are
00:10:04.140 in lock
00:10:04.580 step.
00:10:05.460 The right
00:10:06.100 is not in
00:10:06.820 lock step.
00:10:07.380 And actually,
00:10:07.860 in one of the
00:10:08.480 important cases
00:10:09.200 that we saw
00:10:09.960 in the last
00:10:10.240 couple weeks,
00:10:10.780 Bostock
00:10:11.120 versus Clayton
00:10:11.700 County,
00:10:12.440 you saw
00:10:12.880 even Neil
00:10:13.320 Gorsuch,
00:10:13.820 who was the
00:10:14.160 replacement
00:10:14.500 for the
00:10:14.920 very conservative
00:10:15.700 Antonin Scalia,
00:10:17.560 you saw him
00:10:18.300 side with the
00:10:18.980 liberals.
00:10:19.380 So the left
00:10:20.040 is always in
00:10:20.580 lock step,
00:10:21.240 but the so-called
00:10:22.000 conservative
00:10:22.480 jurists never
00:10:23.560 seem to be.
00:10:24.480 Yeah.
00:10:25.120 So let me
00:10:25.680 take your
00:10:26.340 questions in
00:10:26.880 reverse order.
00:10:27.540 Let's start
00:10:27.880 with the
00:10:28.120 second one.
00:10:28.760 All right.
00:10:29.060 The Bostock
00:10:30.660 case is the
00:10:31.480 third disastrous
00:10:32.460 case.
00:10:33.220 And that
00:10:33.840 concerned the
00:10:35.240 Civil Rights
00:10:35.680 Act of
00:10:36.040 1964, which
00:10:37.280 puts in
00:10:38.180 place what's
00:10:38.620 called Title
00:10:39.100 VII.
00:10:39.540 It's the
00:10:39.840 general
00:10:40.420 protections on
00:10:41.780 employment
00:10:42.200 discrimination.
00:10:42.680 And it
00:10:43.180 prohibits
00:10:43.620 employment
00:10:44.080 discrimination
00:10:44.840 based on a
00:10:45.900 whole series
00:10:46.500 of specified
00:10:47.220 characteristics.
00:10:48.280 And the
00:10:48.580 one that is
00:10:49.260 relevant here
00:10:50.460 is the
00:10:51.120 Civil Rights
00:10:51.740 Act of
00:10:52.060 1964
00:10:52.780 prohibits
00:10:53.520 discrimination
00:10:54.880 because of
00:10:56.220 sex.
00:10:58.080 What the
00:10:58.880 court did,
00:10:59.560 and Bostock
00:11:00.060 was 6'3",
00:11:00.920 so Roberts
00:11:01.700 joined with
00:11:02.460 the four
00:11:02.800 liberals,
00:11:03.200 did the
00:11:03.480 same thing,
00:11:04.720 but this
00:11:05.180 time,
00:11:05.620 even more
00:11:06.100 maddeningly,
00:11:06.840 Neil Gorsuch
00:11:07.600 also joined
00:11:08.540 with the
00:11:08.840 four liberals,
00:11:09.840 and Gorsuch
00:11:10.280 wrote the
00:11:10.660 opinion.
00:11:11.800 And what
00:11:12.260 the court
00:11:12.760 did is it
00:11:13.920 added to
00:11:15.600 the civil
00:11:16.040 rights laws
00:11:16.880 sexual
00:11:18.180 orientation
00:11:18.900 and gender
00:11:20.020 identity.
00:11:20.680 Essentially,
00:11:21.200 they wrote
00:11:21.620 them in
00:11:22.000 there.
00:11:22.180 They added
00:11:22.660 them,
00:11:23.220 and the
00:11:23.580 court concluded
00:11:24.420 that because
00:11:24.860 of sex
00:11:25.880 that the
00:11:27.040 word sex
00:11:28.020 now also
00:11:29.340 means sexual
00:11:30.620 orientation
00:11:31.300 and also
00:11:32.480 means gender
00:11:33.460 identity.
00:11:34.860 And as a
00:11:38.160 policy matter,
00:11:39.220 that's not an
00:11:40.540 unreasonable
00:11:41.020 proposition.
00:11:41.820 There are
00:11:41.960 actually a lot
00:11:42.560 of people who
00:11:43.700 agree with
00:11:44.320 that as a
00:11:44.980 policy matter.
00:11:46.840 And in
00:11:47.140 fact,
00:11:47.600 Congress has,
00:11:49.380 both houses
00:11:50.080 of Congress
00:11:50.620 have passed
00:11:51.340 legislation to
00:11:52.480 add sexual
00:11:53.340 orientation or
00:11:54.180 gender
00:11:54.400 identity to
00:11:54.980 the federal
00:11:55.300 civil rights
00:11:55.820 laws.
00:11:56.560 The House
00:11:56.960 has passed
00:11:57.420 it twice.
00:11:57.980 The Senate's
00:11:58.400 passed it
00:11:58.780 once.
00:11:59.100 Not at the
00:11:59.480 same time,
00:12:00.280 but at
00:12:00.660 different times.
00:12:01.360 So it
00:12:01.600 hadn't passed
00:12:02.100 into law,
00:12:02.880 but it's
00:12:03.540 clear there's
00:12:04.300 been a
00:12:04.580 legislative
00:12:04.980 movement headed
00:12:05.800 in that
00:12:06.120 direction.
00:12:07.880 What the
00:12:08.440 court did is
00:12:09.160 said,
00:12:09.480 well,
00:12:09.640 it doesn't
00:12:09.920 matter what
00:12:10.340 the legislation
00:12:10.920 says.
00:12:11.360 We're just
00:12:11.760 going to
00:12:12.000 write it in.
00:12:12.560 We're just
00:12:12.900 going to
00:12:13.180 change the
00:12:13.740 laws.
00:12:14.680 And one
00:12:14.980 of the
00:12:15.180 problems
00:12:15.500 with this,
00:12:15.840 so we
00:12:16.120 talked at
00:12:17.740 the Senate
00:12:18.340 lunches.
00:12:18.760 You know,
00:12:18.960 Senate Republicans
00:12:19.540 all have
00:12:19.900 lunch together
00:12:20.420 every day
00:12:21.720 the Senate's
00:12:22.200 in session.
00:12:22.640 We actually
00:12:23.020 talked about
00:12:23.660 that at
00:12:24.280 lunch today,
00:12:25.120 this case,
00:12:26.120 where I
00:12:26.460 said,
00:12:26.720 listen,
00:12:27.040 some of
00:12:27.360 the Senate
00:12:27.700 Republicans,
00:12:28.280 you agree
00:12:28.600 with this
00:12:28.960 policy.
00:12:29.860 But,
00:12:30.380 you know,
00:12:30.600 if this
00:12:31.040 had been
00:12:31.400 done
00:12:31.800 legislatively,
00:12:33.000 we would
00:12:34.720 have worked
00:12:35.280 through the
00:12:36.180 complications.
00:12:36.840 We would
00:12:37.340 have,
00:12:37.640 in all
00:12:37.940 likelihood,
00:12:39.040 achieved some
00:12:39.940 sort of
00:12:40.400 compromise in
00:12:41.640 the legislative
00:12:42.280 process that
00:12:44.000 would have,
00:12:44.660 for example,
00:12:45.380 protected
00:12:45.780 religious liberty,
00:12:46.680 that would
00:12:47.020 have,
00:12:47.440 for example,
00:12:48.680 protected free
00:12:49.840 speech.
00:12:51.500 That whole
00:12:52.320 legislative
00:12:52.920 compromise,
00:12:53.880 the give and
00:12:54.400 take that
00:12:55.020 our
00:12:55.440 constitutional
00:12:55.920 system
00:12:56.380 designs,
00:12:57.860 when you
00:12:58.280 have
00:12:58.840 Supreme Court
00:12:59.540 justices just
00:13:00.420 legislating
00:13:01.120 themselves,
00:13:02.040 that all
00:13:02.440 gets short
00:13:02.960 circuited.
00:13:03.540 I just want
00:13:03.960 to make this
00:13:04.320 point,
00:13:04.700 Senator,
00:13:05.000 which is
00:13:05.300 that for
00:13:05.560 people who
00:13:05.960 don't
00:13:06.500 understand
00:13:06.980 quite the
00:13:07.420 implications
00:13:08.060 of SOGI,
00:13:09.900 you know,
00:13:10.140 the sexual
00:13:10.640 orientation or
00:13:11.680 gender identity,
00:13:12.460 what this is
00:13:12.860 saying is that
00:13:13.500 this law,
00:13:14.300 written in the
00:13:14.760 1960s,
00:13:15.620 before we had
00:13:16.220 anything even
00:13:17.100 resembling our
00:13:17.900 current gender
00:13:18.860 ideology,
00:13:19.600 that a man
00:13:20.180 can be a
00:13:20.620 woman and
00:13:21.220 vice versa,
00:13:22.000 and 56
00:13:22.540 genders,
00:13:23.380 that really
00:13:23.940 that implied
00:13:24.700 that you
00:13:25.620 could be
00:13:26.000 discriminated
00:13:26.740 against on
00:13:28.480 the basis of
00:13:29.200 sex as a
00:13:29.960 woman,
00:13:30.300 even if you're
00:13:30.800 really a
00:13:31.240 man.
00:13:31.920 It just,
00:13:32.860 it's anachronistic.
00:13:34.700 I mean,
00:13:34.940 you're applying
00:13:35.580 the sort of
00:13:36.320 sexual
00:13:36.760 understanding of
00:13:38.080 2020 all the
00:13:39.180 way back to
00:13:39.960 the 1960s.
00:13:40.880 So this decision
00:13:41.460 is quite radical.
00:13:43.160 In 1964,
00:13:46.260 nobody even,
00:13:47.020 the concept of
00:13:48.080 gender identity
00:13:48.960 is a modern
00:13:49.720 construct.
00:13:50.640 I mean,
00:13:50.880 I challenge you
00:13:51.700 to go back
00:13:52.400 in 1964 and
00:13:54.080 find one member
00:13:55.060 of Congress who
00:13:55.780 would have had
00:13:56.120 any idea what
00:13:56.900 you're talking
00:13:57.300 about.
00:13:57.860 Right.
00:13:58.280 And what the
00:13:59.420 Supreme Court
00:14:00.020 did is they
00:14:00.480 just short
00:14:01.000 circuited it,
00:14:01.920 and that's not
00:14:02.900 the way our
00:14:03.480 system works,
00:14:04.340 and it's policy
00:14:05.740 making from the
00:14:06.560 bench,
00:14:06.920 and we're going
00:14:08.460 to see thousands
00:14:09.600 of cases in
00:14:10.500 litigation as a
00:14:11.320 result of it,
00:14:11.960 because what the
00:14:12.980 court has said
00:14:13.600 is any time
00:14:14.400 you have the
00:14:14.960 words because
00:14:16.340 of sex,
00:14:17.080 it means because
00:14:17.860 of sexual
00:14:18.380 orientation or
00:14:19.100 because of
00:14:19.520 gender identity.
00:14:20.720 So you're going
00:14:21.500 to have all
00:14:22.260 sorts of instances,
00:14:23.400 whether it is
00:14:24.220 bathroom bills,
00:14:25.700 where you have
00:14:26.580 local jurisdictions
00:14:27.420 saying that
00:14:28.480 biologically male
00:14:31.060 adults can't go
00:14:32.080 in a girl's
00:14:32.560 bathroom.
00:14:33.080 Well, those are
00:14:33.720 all going to be
00:14:34.260 challenged,
00:14:34.920 and they may
00:14:35.400 well be struck
00:14:36.000 down.
00:14:38.260 Girls sports.
00:14:39.920 Idaho just
00:14:40.640 passed a law
00:14:41.360 that says
00:14:41.980 biologically male
00:14:43.660 athletes can't
00:14:45.440 compete in
00:14:45.900 girls sports,
00:14:46.600 and we're
00:14:47.200 seeing, by the
00:14:48.020 way, a phenomenon
00:14:48.620 nationally of
00:14:50.100 people who were
00:14:50.800 born as men
00:14:51.740 who are competing
00:14:53.960 in girls or
00:14:54.880 women's athletics,
00:14:55.640 and they're
00:14:55.960 setting records
00:14:56.660 after records
00:14:57.300 after records,
00:14:58.140 and it really,
00:14:59.060 I think, is
00:14:59.400 unfair to
00:15:01.140 girls, but
00:15:03.000 under the
00:15:05.140 Supreme Court's
00:15:05.900 reasoning, none
00:15:06.420 of that matters.
00:15:07.180 None of that
00:15:07.700 back and forth
00:15:08.800 and balance
00:15:09.360 matters because
00:15:10.020 they just
00:15:10.480 magically rewrote
00:15:11.260 the statute,
00:15:11.740 and that's
00:15:12.520 not a judge's
00:15:13.340 job.
00:15:13.800 That is quite
00:15:14.660 radical, and
00:15:15.240 when you talk
00:15:15.960 about the
00:15:16.680 sports application,
00:15:17.980 which obviously
00:15:18.900 is coming down
00:15:19.640 the pike, I
00:15:20.360 mean, we're
00:15:20.580 talking about
00:15:21.300 some real
00:15:21.840 tangible goods
00:15:22.860 here being
00:15:23.220 taken away.
00:15:23.940 There's the
00:15:24.580 glory of
00:15:25.140 winning the
00:15:25.560 track meet,
00:15:26.400 but then there
00:15:26.800 are also
00:15:27.160 scholarships,
00:15:27.940 recruitment for
00:15:28.400 colleges, so
00:15:29.060 they're going to
00:15:29.840 have a lot of
00:15:30.700 really practical,
00:15:32.300 tangible effects
00:15:32.900 on girls.
00:15:33.740 Please give me
00:15:34.600 any hope that
00:15:35.980 not all is
00:15:37.020 lost.
00:15:37.740 Please tell me
00:15:39.220 that this
00:15:39.700 Espinoza decision
00:15:40.620 is somewhat
00:15:41.840 decent.
00:15:43.240 So it was
00:15:43.940 the one good
00:15:44.840 major decision,
00:15:45.840 and it's a
00:15:46.120 school choice
00:15:46.620 decision, it
00:15:47.120 came out of
00:15:47.780 Montana, and
00:15:48.420 Montana, they
00:15:49.580 established a
00:15:50.400 scholarship tax
00:15:51.340 credit that
00:15:52.680 parents could
00:15:53.720 use for their
00:15:54.920 children to
00:15:55.480 attend a private
00:15:56.160 school or
00:15:56.640 religious school,
00:15:57.460 and the
00:15:58.280 Montana Supreme
00:15:59.160 Court struck
00:15:59.920 that down, and
00:16:00.660 they struck it
00:16:01.240 down under the
00:16:01.920 Montana
00:16:02.360 Constitution.
00:16:03.840 The Montana
00:16:04.460 Constitution had a
00:16:05.560 provision that is
00:16:06.660 widely known as a
00:16:07.760 Blaine Amendment,
00:16:08.360 and the Blaine
00:16:09.660 Amendments have
00:16:11.080 a really sad and
00:16:13.420 sorry history.
00:16:14.580 The Blaine
00:16:14.940 Amendments, they're
00:16:15.720 Blaine Amendments
00:16:16.200 across the country
00:16:17.000 in state
00:16:17.360 constitutions, and
00:16:18.600 it's named for a
00:16:20.080 federal amendment
00:16:20.900 that came within
00:16:21.560 one vote of
00:16:22.200 passing.
00:16:23.340 And the Blaine
00:16:24.160 Amendments were
00:16:24.880 really motivated by
00:16:26.200 deep anti-Catholic
00:16:28.060 bigotry, and if
00:16:29.060 you look at the
00:16:29.580 debates at the
00:16:30.260 time, the
00:16:31.160 political party
00:16:31.880 were called the
00:16:32.420 know-nothings, and
00:16:33.260 it was right after
00:16:34.160 the Irish potato
00:16:36.700 famine when you
00:16:37.460 had a big influx
00:16:39.280 of immigrants, and
00:16:40.080 many of them were
00:16:40.920 Catholic.
00:16:41.400 Actually, some of
00:16:42.000 my ancestors came
00:16:43.160 as a result of the
00:16:43.920 Irish potato
00:16:44.500 famine.
00:16:45.020 Mine too, yeah.
00:16:45.640 And there was a
00:16:46.940 strong backlash
00:16:49.420 and anti-Catholic,
00:16:51.500 vicious anti-Catholic
00:16:52.740 bigotry, and what
00:16:55.300 the Supreme Court
00:16:56.040 did is 5-4, it
00:16:58.280 struck down
00:16:59.280 Montana's Blaine
00:17:00.080 Amendment.
00:17:00.520 It said that
00:17:01.340 having a
00:17:02.160 prohibition on
00:17:04.640 money going to
00:17:07.380 what were called
00:17:07.980 sectarian schools.
00:17:09.260 Sectarian was the
00:17:10.160 code word for
00:17:11.120 Catholic, although it
00:17:11.980 also included Jews
00:17:13.160 and Mormons.
00:17:13.900 It was the
00:17:14.280 bigotry, it was
00:17:15.940 anything that
00:17:16.700 wasn't a WASP,
00:17:17.540 they were against.
00:17:19.340 And the Supreme
00:17:20.520 Court concluded
00:17:21.440 5-4 that it
00:17:22.780 violated the
00:17:23.660 Constitution to
00:17:25.220 discriminate against
00:17:26.120 religious schools,
00:17:27.040 that if you're
00:17:27.880 giving a tax
00:17:28.600 credit, you can't
00:17:29.560 somehow treat
00:17:30.540 religious schools
00:17:32.000 like they're
00:17:34.300 forbidden, like
00:17:35.820 they're somehow
00:17:36.760 evil because they
00:17:37.880 believe in faith.
00:17:39.360 And in that case,
00:17:40.260 actually, John
00:17:40.800 Roberts wrote the
00:17:41.580 majority, and it
00:17:43.420 was 5-4.
00:17:44.300 So Roberts had
00:17:45.000 one good decision
00:17:45.940 and three disastrous
00:17:47.040 decisions, and
00:17:47.860 notice the
00:17:49.740 singular point of
00:17:51.080 reference in all
00:17:51.860 four of them is
00:17:53.340 where Goldilocks
00:17:54.480 decided to vote.
00:17:55.480 That's right.
00:17:56.040 Well, because I
00:17:57.180 guess it's good
00:17:57.780 that Chief Justice
00:17:59.060 Roberts came down
00:17:59.900 on the right side
00:18:01.060 of this decision.
00:18:02.960 It's funny, we talk
00:18:03.660 about religious
00:18:04.140 schools, I think a
00:18:04.760 lot of people are
00:18:05.240 looking at public
00:18:05.860 schools these days
00:18:06.700 with some of the
00:18:07.520 crazy theories they're
00:18:08.400 teaching.
00:18:08.980 They think they've
00:18:09.740 got far more
00:18:10.360 religious and
00:18:11.660 superstitious kind of
00:18:12.800 theories being taught
00:18:13.640 there.
00:18:14.300 But I have to tell
00:18:15.520 you, I'm a little bit
00:18:16.100 let down by this case
00:18:17.200 because how on earth
00:18:19.000 is this a 5-4
00:18:20.300 decision?
00:18:21.080 This should be 9-0.
00:18:23.220 Well, and the hard
00:18:24.600 left, there is an
00:18:27.420 animosity, an antipathy
00:18:29.320 to religious faith.
00:18:31.060 And we've seen this
00:18:32.500 in, so the First
00:18:33.760 Amendment protects
00:18:35.340 five rights, two of
00:18:36.640 them concern religious
00:18:37.760 liberty, and it's
00:18:38.440 what's called the
00:18:38.960 Establishment Clause
00:18:39.920 and the Free
00:18:40.320 Exercise Clause.
00:18:41.660 The Establishment
00:18:42.480 Clause prohibits the
00:18:44.420 government establishment
00:18:45.620 of religion.
00:18:46.380 The Free Exercise Clause
00:18:47.600 protects the free
00:18:49.160 exercise of religion,
00:18:50.180 the right for you to
00:18:50.920 practice your faith.
00:18:52.540 The left views those
00:18:53.960 two clauses as
00:18:54.840 intention.
00:18:55.460 They view them as in
00:18:56.180 conflict with each
00:18:56.960 other.
00:18:57.180 And, you know, the
00:18:59.280 last opinion my old
00:19:01.100 boss wrote, Chief
00:19:01.940 Justice Rehnquist, was
00:19:03.300 the plurality opinion
00:19:04.380 in a case called Van
00:19:05.380 Orden versus Perry, and
00:19:06.600 I litigated Van Orden
00:19:08.080 versus Perry.
00:19:09.260 It was the Texas Ten
00:19:10.300 Commandments case.
00:19:11.460 And in that case, Chief
00:19:13.700 Justice Rehnquist
00:19:14.560 described how the
00:19:15.520 Supreme Court case law
00:19:17.600 on religious liberty was
00:19:18.760 Janus-faced.
00:19:19.780 In other words, it
00:19:20.400 faced in two directions
00:19:21.780 at the same time.
00:19:22.820 Right.
00:19:23.520 Because the left
00:19:24.640 interpreted the
00:19:25.640 Establishment Clause
00:19:26.700 as mandating a
00:19:29.300 hostility to
00:19:30.620 religion.
00:19:31.760 That's not, in fact,
00:19:33.120 what the Establishment
00:19:33.980 Clause means.
00:19:35.000 Both the Establishment
00:19:36.080 Clause and Free
00:19:36.640 Exercise Clause are
00:19:38.340 meant to operate in
00:19:39.460 tandem to stop
00:19:40.680 government from
00:19:41.720 persecuting faith,
00:19:43.940 to protect churches
00:19:45.420 from government
00:19:46.660 trying to control
00:19:48.100 them.
00:19:48.640 Yeah.
00:19:48.780 And it's not about
00:19:51.700 scouring the public
00:19:54.020 square to remove a
00:19:55.620 reference to God or
00:19:56.880 discriminate against
00:19:58.420 religion, but sadly,
00:20:01.460 there are four justices
00:20:03.060 in the Supreme Court
00:20:03.900 who have been willing
00:20:04.340 to vote for that view.
00:20:05.280 It's funny.
00:20:05.700 People so misunderstand
00:20:06.600 the Establishment Clause
00:20:07.700 when it comes to religion
00:20:09.100 in the Bill of Rights
00:20:10.340 because, of course, at the
00:20:12.480 time of the ratification of
00:20:13.680 the Constitution, there were
00:20:15.640 states that had established
00:20:17.160 churches that what the
00:20:18.860 Constitution is talking
00:20:19.500 about is at the federal
00:20:20.580 level.
00:20:21.060 But unfortunately, that
00:20:22.220 sort of subtlety has been
00:20:23.580 lost.
00:20:24.340 Well, well, and you're
00:20:26.100 right.
00:20:26.500 And as initially
00:20:27.580 understood and for the
00:20:28.600 first century plus of
00:20:30.800 this this nation's
00:20:31.760 history, the Bill of
00:20:33.440 Rights only applied
00:20:34.280 against the federal
00:20:35.000 government.
00:20:35.360 It didn't apply to the
00:20:36.300 states.
00:20:36.600 It didn't apply to local
00:20:37.420 governments.
00:20:37.900 I mean, you look at the
00:20:38.700 First Amendment, it
00:20:39.360 begins with the words
00:20:40.200 Congress shall make no
00:20:41.840 law.
00:20:42.880 And the evil that they
00:20:44.060 were really worried about
00:20:45.020 the Establishment Clause
00:20:46.060 is they didn't want the
00:20:47.140 government.
00:20:47.660 They didn't want an
00:20:48.200 official church set up by
00:20:50.320 the government.
00:20:50.740 They didn't want the
00:20:51.160 Church of England.
00:20:51.900 They didn't want the
00:20:53.780 government.
00:20:54.560 Remember, we're a country.
00:20:56.140 You look at the pilgrims
00:20:57.640 who were fleeing
00:20:59.260 religious oppression and
00:21:01.040 they didn't want government
00:21:02.860 forcing you how to
00:21:05.420 worship, forcing you to
00:21:08.100 which faith you should
00:21:09.400 choose or whether to
00:21:11.660 worship at all.
00:21:12.520 They wanted it to be up to
00:21:13.900 you.
00:21:14.420 Yeah.
00:21:14.580 But that's very different
00:21:16.280 from saying that the job
00:21:18.760 of a court is basically to
00:21:20.180 be like disinfectant and
00:21:21.440 to remove faith from
00:21:23.240 everything or to
00:21:23.980 discriminate against
00:21:26.160 faith.
00:21:26.960 And I'll give an example,
00:21:28.100 by the way, everyone
00:21:28.660 listening to this podcast
00:21:29.740 understands to get how
00:21:31.160 simple this is.
00:21:32.860 Pell Grants.
00:21:33.700 We've had Pell Grants for
00:21:35.280 colleges and universities
00:21:36.380 all the time, for a long,
00:21:38.560 long time, for many
00:21:39.120 decades.
00:21:40.040 Pell Grants are federal
00:21:41.280 grants to low-income
00:21:42.180 students.
00:21:42.680 If you get a Pell Grant,
00:21:44.580 you can use it right now
00:21:45.980 to go to Notre Dame.
00:21:46.960 Notre Dame is an
00:21:47.600 explicitly Catholic
00:21:48.480 institution.
00:21:49.040 You can use it to go to
00:21:49.980 Brigham Young.
00:21:50.600 Brigham Young is an
00:21:51.260 explicitly Mormon
00:21:52.100 institution.
00:21:53.120 Right.
00:21:53.380 There's no constitutional
00:21:54.280 impediment if you've
00:21:56.260 gotten a scholarship, if
00:21:57.520 you've gotten a grant with
00:21:58.760 you as an individual
00:21:59.780 choosing, I want to go to
00:22:01.000 Notre Dame or I want to go
00:22:01.920 to Brigham Young.
00:22:04.500 But yet, everyone agrees
00:22:07.160 that's true with 18-year-old
00:22:08.780 college freshmen.
00:22:10.280 And yet, four justices of
00:22:11.580 the court somehow think if
00:22:12.740 it's 17-year-old high
00:22:14.640 school senior, suddenly
00:22:15.880 the Constitution says,
00:22:17.100 nope, you can't choose
00:22:19.340 child, you can't choose
00:22:20.800 parent that you want to go
00:22:22.420 to a Catholic school or a
00:22:24.260 Jewish day school or whatever
00:22:26.340 faith-based school.
00:22:28.840 The First Amendment's about
00:22:30.160 protecting your religious
00:22:31.060 liberty, and it's your
00:22:32.720 choice, not the
00:22:33.500 government's choice.
00:22:34.300 Of course, you know, the
00:22:35.300 Church of Progressivism is
00:22:37.000 pretty exclusionary, and
00:22:38.480 progressivism is a very
00:22:39.500 jealous God.
00:22:40.320 So I think you're seeing
00:22:41.640 that play out.
00:22:42.600 We have to get, before we
00:22:43.640 go, to some mailbag
00:22:45.440 questions, because there is
00:22:46.980 some actual news.
00:22:49.080 Michael, let me jump in,
00:22:50.660 because you asked two
00:22:51.260 questions.
00:22:51.660 I don't want to forget the
00:22:52.440 first one.
00:22:52.920 I already did.
00:22:53.460 I'm glad that you did not.
00:22:56.160 So let me give you 60
00:22:57.840 seconds just not to admit it.
00:22:59.260 You said, why do we keep
00:23:00.160 getting this wrong?
00:23:01.180 Yes, yeah.
00:23:01.640 The reason Republican
00:23:03.000 presidents keep getting it
00:23:04.280 wrong is because they keep
00:23:06.420 going with nominees who will
00:23:08.140 make an easy confirmation
00:23:09.580 rather than looking for a
00:23:12.240 proven record, looking for
00:23:14.140 someone.
00:23:15.000 If you look at the
00:23:15.860 justices in modern times
00:23:17.140 who stayed faithful to
00:23:18.100 their oath, you look at
00:23:19.740 Antonin Scalia, Clarence
00:23:21.900 Thomas, William Rehnquist,
00:23:24.060 Sam Alita.
00:23:25.440 Every one of them had
00:23:26.360 served in the executive
00:23:27.360 branch.
00:23:27.940 They had stood for
00:23:29.020 constitutionalist principles,
00:23:30.520 for conservative principles,
00:23:31.740 and they had been
00:23:33.320 criticized, excoriated.
00:23:35.280 They'd been pounded, and
00:23:37.640 they didn't wither.
00:23:39.100 That's what we need to
00:23:40.400 look for in Supreme Court
00:23:41.640 nominees.
00:23:42.180 And every time a
00:23:42.880 Republican president says,
00:23:44.580 oh, well, so-and-so will be
00:23:45.920 much easier to confirm, that
00:23:48.440 has ended up a disaster.
00:23:50.440 And so we've got to have
00:23:51.960 presidents willing to
00:23:54.280 take the heat to actually
00:23:56.580 nominate proven
00:23:58.260 constitutionalist judges.
00:23:59.760 That's such a good point.
00:24:01.080 It actually had sort of
00:24:02.040 escaped my thought that
00:24:04.980 it goes back to this
00:24:06.520 political question of
00:24:07.680 the nomination.
00:24:08.820 Are you ready to buckle
00:24:10.080 down and have the spine
00:24:11.440 for a really tough
00:24:12.560 confirmation battle if it
00:24:14.120 means that you're going to
00:24:14.820 be able to shape the
00:24:15.980 court for a generation to
00:24:17.280 come?
00:24:17.720 So with John Roberts,
00:24:19.800 George W. Bush had in
00:24:21.100 one room John Roberts,
00:24:22.780 and George W. Bush had in
00:24:24.060 the other room my old boss
00:24:25.500 on the Court of Appeals,
00:24:27.080 Michael Lutig.
00:24:27.740 Michael Lutig was the
00:24:28.740 strongest conservative
00:24:29.800 judge in the country.
00:24:30.860 Had Michael Lutig been
00:24:32.440 the nominee instead of
00:24:33.460 Chief Justice Roberts,
00:24:34.900 these decisions would not
00:24:36.080 have happened this week.
00:24:36.860 I'm 100% certain of that.
00:24:38.680 And you didn't have to
00:24:39.440 take anyone's word for it
00:24:40.500 because Lutig had been
00:24:41.320 on the bench, had been
00:24:42.160 standing, had been, but
00:24:43.600 at the end of the day,
00:24:45.080 the Bush White House
00:24:45.780 decided they didn't want
00:24:46.660 that fight, that Roberts
00:24:47.600 would be an easier
00:24:48.320 confirmation.
00:24:49.320 By the way, rewind to
00:24:51.340 Bush 41.
00:24:52.720 In one room was David
00:24:54.100 Souter, and in another
00:24:54.880 room was Edith Jones,
00:24:56.040 another rock-ribbed
00:24:57.400 conservative.
00:24:57.900 And Bush 41
00:25:00.400 picked David Souter
00:25:01.380 because he had no
00:25:02.060 paper trail.
00:25:02.980 And as you know,
00:25:04.060 I'm working on a book
00:25:04.880 called One Vote Away
00:25:05.960 that is all about
00:25:07.620 the Supreme Court.
00:25:08.360 It's coming out in
00:25:09.040 October.
00:25:09.660 It's up on Amazon
00:25:11.160 already on pre-orders.
00:25:12.940 But I discuss in
00:25:14.120 great detail
00:25:15.260 the history
00:25:16.680 of the disaster
00:25:18.160 that is Republican
00:25:19.160 Supreme Court
00:25:19.800 nominations,
00:25:20.520 and it's over and
00:25:21.480 over again
00:25:22.320 choosing the easy
00:25:24.400 confirmed path
00:25:25.560 rather than
00:25:26.760 the proven
00:25:27.560 conservative
00:25:28.140 with a record.
00:25:28.860 And that doesn't work.
00:25:29.860 It's so simple.
00:25:30.700 I mean, it's so simple
00:25:31.460 that if you actually
00:25:33.300 take the harder road
00:25:34.500 and you go through
00:25:35.820 the onerous process
00:25:37.360 of getting through
00:25:38.380 a rock-ribbed jurist,
00:25:39.820 you're going to get
00:25:40.380 better jurisprudence.
00:25:41.440 But a lot of people
00:25:41.940 don't want to do that.
00:25:42.840 Well, that actually ties in
00:25:43.800 with at least one
00:25:44.920 mailbag question we can
00:25:45.740 get to before we go.
00:25:47.020 This from Clay.
00:25:49.120 Are there any checks
00:25:50.620 on the Supreme Court
00:25:51.960 if they were to make
00:25:52.980 a really bad decision?
00:25:54.740 In essence,
00:25:55.820 they ruled that
00:25:56.600 the Second Amendment
00:25:57.220 doesn't mean anything
00:25:58.360 like it thinks it means.
00:25:59.820 Can the court
00:26:00.580 legally be ignored?
00:26:03.660 So that's a complicated
00:26:04.860 question.
00:26:05.700 There are a number
00:26:06.540 of checks.
00:26:07.080 And the way our
00:26:07.460 Constitution is set up,
00:26:08.560 each of the branches
00:26:09.280 has checks and balances
00:26:10.420 on the other.
00:26:12.020 So one check
00:26:13.780 is impeachment.
00:26:15.700 That if a judge
00:26:17.040 or justice
00:26:17.600 is faithless
00:26:18.520 and lawless enough,
00:26:19.520 they can be impeached.
00:26:20.540 And that is,
00:26:21.540 the House of Representatives
00:26:22.480 can bring impeachment
00:26:23.460 proceedings and the Senate
00:26:24.500 can vote to convict them.
00:26:26.560 That is obviously
00:26:27.320 an exceptionally high bar.
00:26:29.920 But that is one remedy.
00:26:32.400 A second remedy
00:26:33.700 is that Congress
00:26:34.480 actually has the authority
00:26:35.800 to limit
00:26:36.680 the Supreme Court's
00:26:37.640 jurisdiction.
00:26:38.300 The Constitution
00:26:38.600 gives Congress
00:26:39.440 that authority.
00:26:40.580 So, for example,
00:26:41.480 Congress can say
00:26:42.380 this particular issue
00:26:43.580 of law,
00:26:44.600 the Supreme Court
00:26:45.180 has no jurisdiction over.
00:26:46.500 Huh.
00:26:46.980 That is,
00:26:47.740 now that's a pretty
00:26:48.300 dramatic step.
00:26:49.360 but it is
00:26:52.220 a clear check
00:26:53.840 and balance
00:26:54.420 that the Constitution
00:26:55.480 gives
00:26:56.220 to Congress.
00:26:58.360 Now,
00:26:58.580 beyond that,
00:26:59.700 an executive
00:27:01.680 can decide
00:27:02.540 to defy
00:27:03.160 the Supreme Court.
00:27:04.200 And that becomes
00:27:05.300 a complicated issue.
00:27:06.940 There has been
00:27:07.440 debate about that
00:27:08.540 from the beginning
00:27:09.560 of our country.
00:27:11.340 And,
00:27:12.080 but that remains
00:27:14.160 at the end
00:27:15.120 of the day.
00:27:15.580 You know,
00:27:15.760 you look at a case
00:27:16.620 like Marbury
00:27:17.200 v. Madison.
00:27:19.000 Marbury v. Madison
00:27:20.020 was the first case
00:27:21.000 that established
00:27:21.640 judicial review,
00:27:22.560 which is the power
00:27:23.380 of a court
00:27:24.860 to strike down a law.
00:27:26.660 And you got to
00:27:27.460 understand the
00:27:28.080 political situation
00:27:29.360 at the time.
00:27:30.560 John Marshall
00:27:31.100 was the chief justice,
00:27:32.200 great John Marshall,
00:27:33.200 one of the founding fathers,
00:27:34.160 one of the greatest
00:27:34.640 chief justices ever.
00:27:37.140 His enemies
00:27:38.180 were in power.
00:27:39.900 Thomas Jefferson
00:27:40.600 was the president
00:27:41.420 and Marshall
00:27:42.120 and Jefferson
00:27:42.720 were enemies.
00:27:44.180 And James Madison
00:27:45.080 was the secretary
00:27:45.840 of state.
00:27:47.200 And so Marshall
00:27:48.360 was thinking,
00:27:49.260 okay,
00:27:49.460 he wanted to establish
00:27:50.760 the court's power
00:27:51.880 to strike down a law.
00:27:53.900 But if he tried
00:27:55.040 to order Jefferson
00:27:56.360 or Madison
00:27:56.980 to do anything,
00:27:57.840 there was a very real risk
00:28:00.100 Jefferson and Madison
00:28:01.120 would say,
00:28:01.820 go jump in a lake.
00:28:03.380 You don't have
00:28:04.200 the authority
00:28:04.660 to order us
00:28:05.260 to do anything.
00:28:06.100 We're not going
00:28:06.720 to listen to you.
00:28:08.340 And so what Marshall
00:28:09.660 does in Marbury
00:28:10.460 v. Madison
00:28:11.220 is he strikes down
00:28:12.960 a federal law,
00:28:13.900 but it's a jurisdictional law.
00:28:15.660 So there's nothing
00:28:16.960 that Jefferson
00:28:18.100 and Madison
00:28:18.620 can do to defy it.
00:28:19.860 He simply concludes,
00:28:21.600 we the Supreme Court
00:28:22.640 don't have the jurisdiction
00:28:24.040 that Congress
00:28:24.980 purported to give us
00:28:25.980 in this particular statute.
00:28:27.380 So that law
00:28:28.300 is null and void
00:28:29.040 because it's contrary
00:28:29.720 to the Constitution.
00:28:30.920 And it was a very deft,
00:28:34.260 real politique move
00:28:35.960 that Marshall did
00:28:37.140 because of the risk
00:28:38.660 that the executive
00:28:39.620 might not accept
00:28:41.580 the court's authority.
00:28:42.380 It's that's such
00:28:43.760 a keen insight
00:28:44.560 into we complain
00:28:46.180 about how politics
00:28:46.920 has infected the courts,
00:28:48.180 but it's a keen insight
00:28:49.480 of how things
00:28:50.140 perhaps haven't changed
00:28:51.180 all that much
00:28:51.880 in the way that politics
00:28:53.040 does interact
00:28:53.740 with these institutions.
00:28:55.020 Senator,
00:28:55.180 you've given me
00:28:55.620 a little bit of hope
00:28:56.440 at least that there may be
00:28:57.740 some kind of check
00:28:59.340 on a lawless court.
00:29:00.760 I guess it remains
00:29:01.740 to be seen
00:29:02.320 if any of that
00:29:03.120 will actually be
00:29:04.200 put into effect,
00:29:05.600 but hope springs
00:29:06.460 eternal in the human breast.
00:29:08.080 We have got to go
00:29:09.160 for now,
00:29:09.660 but we will,
00:29:10.160 of course,
00:29:10.360 be back very soon.
00:29:11.060 Thank you, Senator.
00:29:11.980 And thank you
00:29:12.560 to all of you listening.
00:29:13.520 I'm Michael Knowles.
00:29:14.380 This is Verdict
00:29:15.120 with Ted Cruz.
00:29:25.120 This episode of Verdict
00:29:26.580 with Ted Cruz
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