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June 27, 2024 - Dinesh D'Souza
54:51
IN THE BELLY OF THE SUPREME COURT Dinesh D’Souza Podcast Ep 863
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Hi everyone, I'm Danielle D'Souza Gill and I am hosting Dinesh's podcast this week while he is away in Australia.
He is doing a grand tour with Tucker Carlson.
They're stopping in all these cities, Perth, Sydney, doing speeches.
And so if you live down there, make sure to check them out on the tour.
It's pretty great.
And if you're following on social media, you may have seen some pictures.
on Dinesh's platforms, but if you don't know me, I am Dinesh's daughter.
I'm also the author of two books, The Choice, The Abortion Divide in America, where I debunk the left's most prominent pro-choice arguments.
I'm also the author of Why God?
An Intelligent Discussion on the Relevance of Faith.
I also am a mom to my daughter, Marigold, and I support my husband, Brandon Gill's campaign for U.S.
Congress in North Texas, where we live.
But the best way you can find out more about me and to stay in touch with me is to follow me on social media.
I am on TruSocial, the best platform, Rumble.
I'm also on X, Facebook, Instagram, so make sure to find me on there.
I'm at DanielleDeSouzaGill.
All right, well, we have a lot of content to get to today.
We are going to be talking all about the Supreme Court.
We're going to be diving into the cases that have come out.
We're going to talk about Murphy v. Missouri, which is about the U.S.
government colluding with social media companies.
We're also going to talk about Upcoming cases that have not yet come out yet, like the January 6th one, the presidential immunity decision.
So we are awaiting those, but we're going to dive into some deep analysis with Josh Hammer.
He is with Article 3 Project, a senior legal counsel and host of the Josh Hammer Show.
And we are going to really just this entire show dive deep into Supreme Court conversations and of course tonight is the CNN debate so that will be pretty big presidential debate Trump versus Biden and we will be covering that tomorrow so make sure to come back tomorrow to hear more from us but today we are focusing on the Supreme Court.
This is the Dinesh D'Souza podcast.
The times are crazy, in a time of confusion, division, and lies.
We need a brave voice of reason, understanding, and truth.
This is the Dinesh D'Souza podcast.
I am delighted to welcome our guest today.
He is the host of a new show called On Trial with Josh Hammer, as well as the Josh Hammer Show.
He's also senior counsel to the Article 3 Project.
Josh, thanks so much for joining us.
It's a pleasure.
Thanks for having me.
Yeah, of course.
Well, Josh, there's a lot to talk about.
I was hoping we would have more Supreme Court decisions today to discuss, but I think the court is maybe waiting to release these until after the CNN presidential debate.
Maybe you can start by telling us a little bit about why you think they might be doing that.
What's the strategy there?
Is there any strategy?
Maybe there isn't.
I know that they have released some decisions which we'll talk about after this, but they seem to be some of the maybe less controversial ones, so what might be the logic there?
Yeah, you know, the Supreme Court does this basically every year.
I mean, there's no hard and fast rule as to when they release opinions.
It's entirely subjective and depends on what the justices want to do.
But, you know, we can broadly look at the trend lines going back 10, 20 years.
And, you know, Danielle, they always save the big cases for the end of June.
And, you know, they don't literally always save, like, the absolute biggest cases for the very last day.
They definitely do do that sometimes.
For many years now, we get the marquee high-profile decisions in the last few days of the term.
The Dobbs abortion case came towards the very end of the 2022 term.
The same-sex marriage case in 2015 was one of the final days, maybe the very final day of that term.
So, any number of other examples here, but, you know, when it comes to the debate tonight, You know, the justices are attuned to that.
I mean, they're human beings, they live in the real world.
So it wouldn't shock me if they had internal discussions about possibly delaying the immunity case until after the debate.
I would be surprised if that was the reason, but it wouldn't shock me if that came up in internal deliberations.
But the most likely explanation, which is also the simplest explanation, which is why they're holding this for the end, is because it's the biggest case.
And typically the biggest case gets decided at the very end.
Got it.
Okay, cool.
So maybe we can talk a little bit about the immunity case.
So the immunity case, is that going to influence pretty much how the Supreme Court is depicted for the rest of the year?
It seems like there's always this This hatred of the Supreme Court by the left, even though the Supreme Court has come out with decisions that have actually been beneficial to the left, which we can get into.
So at the same time, I feel like conservatives will say, well, this is horrible.
This decision happened.
But then the left still continues their narrative that the Supreme Court is some kind of just conservative ideologues.
So do you think it kind of all hinges on where they decide on this immunity case?
Or do you think that, you know, the left is just going to say these things no matter what decisions they come out with?
How do you think the court is going to come out on the immunity case and then how do you think that may impact some of the narrative this year?
You know, Danielle, for two years in a row now, for two years in a row, the left has had this months-long disinformation orchestrated operation, this disinformation operation against the U.S.
Supreme Court.
You know, it was over a year ago where we had months and months of ProPublica, the left-wing information, which was drip, drip, dripping all these allegedly controversial pieces about Clarence Thomas jetting off with Harlan Crowe, the billionaire in Texas, and how he was allegedly not disclosing that.
And then Politico got in on the app.
Politico ran this ridiculous piece last year about how Neil Gorsuch had some allegedly sketchy real estate transaction back in his home state of Colorado.
It was nothing of the sort.
They actually even went after John Roberts, you know, who's not exactly a rock-ribbed conservative.
This is all happening a year ago, and now they're obviously doing it again this year.
That's what we've seen in the headlines.
This ridiculous manufacturer controversy over Sam Alito with his wife flying these two particular flags, including the Appeal to Heaven flag, which literally was flown outside San Francisco City Council.
You know, that noted far right fascist bastion of the city of San Francisco's saw fit, saw fit to fly the Appeal to Heaven flag that the left is now just just crying outrageous about.
And now they're bringing back the Clarence Thomas Harlan Crowe stuff again.
Danielle, none of this has anything to do whatsoever with the actual ethics of the Supreme Court, with the fact that judges should or should not be recusing in some cases.
Literally all this has to do, this great left-wing disinformation operation, has to do with what I think you're getting at in your question, and you're picking up on it accurately, which is the left cannot abide by the fact that there is one institution in America Which is not even right-wing, but it is probably center-right.
It is center-right at best.
It is one of the only major institutions of political, legal, or frankly cultural importance currently standing in America that is not predominantly or exclusively left-wing.
And the fact that the left does not have an absolute monopoly of all the institutions, rather they're stuck at like 98 to 99 percent, but the fact that there is one major institution That they do not have their talons, their claws on in its entirety.
That really, really sits poorly with them and they cannot abide by it.
That is the only explanation for all these attacks.
So no, I don't think that they're going to stop shouting no matter what happens in the Trump immunity case because it's not fundamentally about the cases.
It's not about the law.
It's about the fact that they just yield, they yearn for power.
And when there is a power void for them, they're just going to keep on yelling and shouting and doing everything that they need to know.
As far as the immunity case itself, I'm predicting, like most lawyers that I've spoken with, I'm predicting something of a middle ground opinion, whereby they basically say that some acts that a president commits when he is in office implicate core constitutional Article 2 functions.
You cannot be prosecuted after your presidency for those acts.
I'm talking here about war powers, commander-in-chief clause, military operations, hiring and firing decisions of personnel, court executive functions.
Can't be prosecuted for that.
They probably will say that you can be prosecuted for something entirely personal.
You know, if there was something that just that's not even remotely close.
So the example that I've been giving, it's a stark example, but just to illustrate the point, you know, let's say, God forbid, you know, the president finds out that his wife is having an affair with someone.
He goes in the deep bells of the Internet and he hires a hitman to take out this guy.
You know, that's a bad example, but it illustrates the point.
That decision could probably be subject to prosecution because it's not anywhere close to a constitutional duty, right?
So it'll probably be a middle ground decision along those lines.
And at that point, I don't expect the left to take it very well.
Yeah, it seems like the left is ready for that.
I mean, it's so crazy.
I was literally just listening to Mark Elias.
He was talking about, you know, the January 6th case and all these other things just because I was like, I just want to hear what these liberals are saying.
And the amount of just like mental gymnastics they have to go through in order to make their arguments. He was acting like their arguments are originalist. And I thought the last time I checked in on liberals that their whole argument was basically that it's like a living constitution and all this stuff. And you know, the Supreme Court is, I guess, has like a different lens with which to
read things. And now they're acting like they're the ones who are the originalists and they're the the ones who are into law and order. I don't know if that's just because of January 6th or whatever.
They're trying to act like that's their thing.
He was talking about that case.
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Maybe you can tell us a little bit about what you expect to happen to the January 6thers.
I know that the left is obviously obsessed with that topic for the last couple years.
They keep talking about it.
I don't think most Americans even care at this point anymore.
And of course, This was, you know, something that was just completely blown out of proportion.
Meanwhile, the George Floyd rioters, they went off scot-free.
But in any case, where do you think that the Supreme Court may fall on what will happen to the January 6thers?
So let me touch on the first part first, then I'll get to the J6A.
So you raised a very interesting point there that I wanted to explain for the viewers and listeners a little bit, which is the left for decades now has failed to come up with any kind of viable alternative to constitutional originalism.
They sometimes call it living constitutionalism.
That was Ruth Bader Ginsburg's rough term.
But Stephen Breyer, who retired from the court in 2022, His new thing is like judicial pragmatism.
You know, they're all over the map.
You know, some some leading liberal theorists, which is, you know, I guess I'll nerd out for a second here.
I mean, Jack Balkin at Yale Law School, Larry Solomon, UVA Law School.
There are certain law professors who essentially espouse what they refer to as progressive originalism, which may sound oxymoronic because it frankly kind of is.
But the point is that they're not unified as to what their counter to originalism on the right is.
They have largely failed to do so.
In fact, as Elena Kagan famously said at her Senate Judiciary confirmation hearing about, you know, 10-15 years ago or so, she famously said, we're all originalists now, in response to an interesting question from a U.S.
Senator.
So, they have failed, and increasingly they actually are trying to kind of do the whole, like, we're the true originalist thing.
You know, sometimes their opinions don't exactly read like that.
Katonji Brown Jackson's dissent in the affirmative action case last year certainly did not read to me like an originalist opinion, to put it mildly there.
But anyway, that's kind of what's going on there, is that they have failed so clearly to come up with any kind of viable alternative to the right's predominant methodology of constitutional interpretation, that at this point they're increasingly kind of coming to this idea of, you know, we're actually the true interpreters of the Constitution.
It's farcical, no one's buying it, but that's what's going on there.
Is it that they've changed the name, but they've not actually changed the way that they're coming up with their decisions, right?
Like they just want to call themselves originalists, but it's not?
Whereas before they were kind of like, oh, we don't need to even pretend like we are originalists.
Is that kind of what the shift was?
Yeah, I think it's part of that.
Look, I guess I will give like the slightest modicum of credit and say that for the most part, you know, even liberal jurisprudence these days, When you're interpreting the Constitution or a statute, we'll typically start with the words of the statute or Constitution.
And, you know, people are like, oh my God, what's the alternative?
Well, believe it or not, actually, you know, 50, 60 years ago, you know, during the days of the Warren Court in the 1960s, the very freewheeling days back then, it was actually customary to essentially not even start with the text, to basically look at like the legislative history, what was Congress saying here, trying to discern the subjective meaning.
So just starting with the words is actually a very nice improvement, but certainly, Danielle, you know, what you said is also true, that they're basically just trying to kind of, you know, tweak the terminology without actually trying to tweak the underlying methodology.
Okay, okay.
Maybe we can go back to the January 6th.
I know you were about to respond to that, and then I kind of jumped in.
Yeah, for sure.
So the Fisher case is interesting.
So this is actually, it's a straight up statutory interpretation case.
It is not a constitutional case at all.
So you basically have, this is over 20 years ago now in the aftermath of the infamous Enron accounting scandal with Arthur Anderson, the accounting firm.
So Congress passes the Sarbanes-Oxley Act, which is called Sarbox for those of you who, you know, the policy wonks out there.
The 2002 law, and there is a provision within the Sarbox law, which again I must emphasize here was passed in the aftermath of an accounting scandal.
This has nothing whatsoever to do, you know, with anything remotely resembling the events of January 6, 2021.
But there is a provision kind of deep in the bowels of that particular statute that prohibits obstruction of certain proceedings.
And it is not a clear and natural fit that the language of the obstruction charge here actually fits the conduct of January 6th, but that nonetheless has been the actual predicate offense that prosecutors have used to prosecute dozens and dozens of J6ers.
In fact, perhaps even more to the point, this is actually the provision that is the basis of two of Jack Smith's four charges in his Washington, D.C.
indictment.
A lot of people don't realize this.
The Fisher case is actually It's really not just about the individual J6ers.
It also has massive ramifications for Donald Trump himself because, again, two of those four charges in D.C.
brought by the special counsel, Jack Smith, involved this exact same reading of the Sarbox Law from 2002.
Now, it's hard for me to predict how the court's going to go because it ends up just being a very kind of legal, just statutory interpretation debate, frankly.
But I'm cautiously optimistic, actually, that it might come out the right way.
You know, the oral argument seemed like it was going the right way for the J6ers.
It's very hard to know with this court.
You know, John Roberts, Brett Kavanaugh, Amy Coney Barrett are, you know, not always the most reliable, I guess would be a polite way of saying it.
So it's hard to know, but I'm actually cautiously optimistic about this one.
Hmm, okay.
When you look at something like, I guess, obstruction, or whatever that was, has there ever been a situation where there have been more, like, liberals who are being obstructionist?
I mean, I guess I just think of the fact that I know that, you know, A lot of the time, like Democrat politicians, they actually will incite violence more.
And I mean, I guess we don't really hold them accountable for that.
But it's like, I think you may have seen that video of AOC where she's like dancing like crazy and she's saying like, we're gonna fight and like all this stuff.
And it's like very, you know, like talking to people in that way.
I mean, I think, you know, she can say that, but I guess And in this situation, it's like, do they, do they have to go so far as to, maybe this is getting more into like President Trump, but it's like, they'll try to act like, oh, you know, he caused this insurrection with January 6th.
And it's like, what about all these Democrat politicians who say things like that all the time?
It's like, well, what if one of those people at her rally then did something that was illegal or something?
I mean, who knows?
Well, what about Jamal Bowman?
I mean, the underlying statute here is about obstruction of official proceedings.
And, you know, it gets into a debate over what is a proceeding versus what is an investigation and investigatory activity there.
But, you know, Jamal Bowman, who just lost his primary, obviously, earlier this week to George Latimer, You know, he also he had the whole fire alarm pulling thing, and he did that.
He tried to prevent a government shutdown.
You know, is that not obstruction of an official proceeding?
I mean, I'm pretty sure it is.
Now, prosecutors at the time, surprise, surprise, decided not to press charges there.
But, you know, it seems to me like that is a far more obvious use of this particular obstruction statute.
You want to talk about obstruction of official proceedings?
I mean, literally pulling a firearm, fire alarm to prevent a vote from taking place.
That seems to me like, kind of like the black letter definition of what the underlying statute is getting at.
Certainly it is a much more natural definition, Danielle, than, you know, people who found themselves in the Capitol and, you know, Capitol Police was, the doors were open, they just kind of wandered into the Capitol.
That's a, that's a stretch as to whether they were obstructing proceedings, but Jamal Bowman pulling a fire alarm to literally disrupt Congress?
That seems to me like a more natural fit of the statute, honestly.
Right, and definitely clearly something that was intentional with the plan of, you know, making it so that it couldn't take place.
But I want to ask you about the Murphy vs. Missouri decision.
This is the decision regarding the government, whether or not they can Collaborate or collude or send, you know, kind of signals to social media companies.
This was a really upsetting decision, of course, because of the government's involvement with elections and being able to kind of, you know, collude with massive companies like Facebook.
And so when you have these massive companies that are basically monopolies, and then you have massive government, they can work together.
It just, it seems like it's very un-American, but unfortunately the decision came out where the court sided with them being able to do that.
So, can you explain a little bit about Why?
Why, I guess, they did this.
And I guess maybe the arguments of... I think Barrett wrote the majority opinion, unfortunately.
Alito, I think, was spot on in his dissent.
But maybe you can explain both sides a little bit and think a little bit about what this means.
Yeah, it's a devastating case.
It is nothing short of devastating.
So this, I've been following this case very closely since it launched over two years ago now.
So it was brought initially by the states of Missouri and Louisiana.
They essentially alleged, Danielle, that the federal government was working in coordination with Facebook, with the Jack Dorsey regime at Twitter and the other companies to suppress COVID-19 related quote unquote disinformation as well as 2020 election.
Disinformation, quote-unquote, especially pertaining to the Hunter Biden laptop and the New York Post story and all of that.
And the evidence that came up as a result of the discovery in this case was shocking.
The evidentiary trail was unbelievable.
They had literally marked emails, thanks to FOIA, thanks to Discovery, where you saw People in the highest ranks of government, from DHS to HHS to all the top agencies, in weekly, bi-weekly emails, phone calls with Facebook, literally saying this individual is spewing misinformation, this individual is a public health hazard, you know, Alex Berenson is a thought criminal, how dare he get his content boosted in your algorithm, stuff like that.
And, you know, they didn't put it necessarily in those explicit terms.
But it was very clear what was going on there.
And, you know, Jen Psaki, when she was the former White House press secretary before Kareem Jean-Pierre, you know, she was up there on the White House press secretary podium two summers ago, literally saying, you know, we're working closely with Mark Zuckerberg to root out COVID disinformation.
And It's horrific stuff.
And you know, the First Amendment doctrine here is actually quite clear.
There's a 1973 U.S.
Supreme Court case called Norwood v. Harrison, where the court said that it is, quote, axiomatic, so it is self-evident, is axiomatic, that the government cannot induce Private entities to do that which the government itself cannot do.
So you can't incentivize or induce the private sector to do that which the government can't do.
So meanings here are censorship.
So you can't encourage the private sector to quote-unquote censor in a way that the government cannot do.
That's exactly what was happening here.
The federal government was not so subtly threatening to withhold Section 230 legal immunity.
They were not so subtly threatening to whip out antitrust enforcement and break them up.
They didn't do the Biden administration's dirty work.
So it's absolutely horrific stuff.
There was a massive preliminary injunction that stayed any communication between the government and the social media platforms in a Literally, like, a 160-page ruling last July 4th.
It was a very fitting July 4th ruling.
It was a vindication of free speech by Judge Terry Doty in Louisiana.
He called this the largest attempt by the government to censor speech in American history.
He called it, quote-unquote, Orwellian.
And it was.
And I was very encouraged at that time, but I guess, alas, that encouragement was not meant to be for the long haul.
So what the court essentially said on June 26th, on Wednesday, was they said, There's not standing.
And look, the court's standing doctrine is really all over the map, frankly.
But standing essentially means that not everyone can bring a federal claim in court.
You need to show that you have been directly harmed, you have to trace your injury to the defendant's conduct, and the court has to be in a position to actually remedy that injury.
I think that standing personally, I think was clearly met here.
And then one thing that I will also mention, you know, the liberal justices, Danielle, are all over the map, all over the map when it comes to standing doctrine.
Here, they took a very narrow, cramped view of standing.
You know, back in 2007, there was a case called Massachusetts versus EPA, where the liberals on the court allowed the Commonwealth of Massachusetts to sue the Bush-era EPA On the grounds that they weren't doing a good enough job regulating greenhouse gases and that therefore the shoreline in Martha's Vineyard in Cape Cod were receding.
They allowed that to get in as legitimate standing and now somehow like Jay Bhattacharya of Stanford, you know, the hero doctor when it comes to COVID, he doesn't have standing where his speech was literally suppressed and we saw that in the evidentiary record.
It's absolutely outrageous but You know, on the First Amendment merits, it's a devastating outcome here.
This state-corporate fusion of power is one of the single largest threats currently facing our country and, frankly, Western civilization, I would argue.
And the fact that the court has punted on this to another day, they've not rejected it, albeit they have just punted on it, it is a very, very, very bad result.
And unfortunately, we can probably only expect more censorship due to it.
Yeah.
Do you think that there's ever any chance they would revisit this again or look at it where they said, oh, this person does have standing and this is our decision?
I just feel like...
I don't know.
With the standing decisions, it's like some people say, oh, well that means that it wasn't really final.
It's kind of like with the abortion pill one.
They think said, oh, you know, you guys don't have standing.
This kind of like doctor coalition group, they said, you know, you guys don't have standing.
I read a political article saying that that was, in other words, like a dog whistle or something to the conservatives to say, hey, but this is how you could come back and kind of try again, except you would have standing because this was just a procedural sort of argument or decision that they made as opposed to something on the merits.
So it's like different if it's procedure versus merit.
So how do you see procedure versus merits as playing out with this case with the collusion between government and the private social media companies.
Yeah, so the Miffin-Preston case, the abortion pill case, where they also found no standing.
So multiple states, including Missouri and Idaho, if I recall, have already said that they're going to step in and try to bring this suit now going forward.
So hopefully standing is found there.
It should be a stronger argument at a bare minimum than the Alliance for Hippocratic Medicine, which was the plaintiff in the other case there.
You know, similarly here, when it comes to the censorship industrial complex, I mean, I'm sure some people will try to bring another lawsuit.
You know, and just a shout out, I think it's probably appropriate here to the New Civil Liberties Alliance, which was the nonprofit that actually brought this lawsuit on behalf of Dr. Bhattacharya, on behalf of Jill Hines, on behalf of others who were censored there.
It's headed by a brilliant scholar named Phil Hamburger, who does really yeoman's work when it comes to the First Amendment, when it comes to the administrative state.
He's absolutely brilliant.
He wrote Texas's big tech law, which we're going to find out whether or not it's upheld in the net choice case.
So they do really great work, and I'm sure that they will look for additional plaintiffs here.
Here's the problem, Danielle.
The problem is that.
The evidentiary track record here that we discovered via FOIA and Discovery was so, so strong, I find it almost impossible to believe that any subsequent litigation will be able to get a track record of that detail.
Because now that the tech companies have been put through the wringer like this, They're probably going to do a better job of covering their tracks, as will the Biden administration, too.
So even if they can find the right plaintiff for standing purposes, I'm now skeptical that they can actually amount to the actual hard and fast evidence that would be necessary to reach the proper result.
So they really should have just found standing here and done it here, done it the right way.
That's what Alito argued in dissent.
He was emphatically correct.
And I really do worry that this is going to fester and that we might not get, ultimately, a good resolution.
Wow, okay.
So, Alito, Clarence Thomas, and Gorsuch, they dissented.
So, Roberts, I mean, he's questionable always, but why do you think Barrett and Kavanaugh decided to say that this is okay?
Because it seems like even with just elections, it's like, how can you have free elections?
How can you have free speech?
How can you have just Freedom when the government is coming in and controlling and giving all these messages to these, you know, big social media companies.
It just it seems like that's just such a big way that people converse.
That's how they express themselves.
That's how they get information is from these companies.
So why would why would Barrett and Kavanaugh rule that way?
So a lot of conservatives hate what I'm about to say, but I'll say it anyway because I think it's important.
Which is, on the current US Supreme Court, there are literally two consistent conservative justices.
Like, people have to understand this.
There's literally two.
There are Clarence Thomas and Samuel Alito.
They are by far the most consistent conservatives, the most consistent originalists.
You know, all three of Donald Trump's nominees are considerably better, obviously, than someone who would have been nominated by a Democrat, but none of them rise to the level of a Clarence Thomas or a Samuel Alito.
Now, Neil Gorsuch is the best.
He's the one who most frequently joins Clarence Thomas and Samuel Alito.
He was arguably the best justice on the entire court for COVID-19 lockdown purposes, for mandates.
He was an all-star on that stuff.
He's also an idiosyncratic libertarian.
He gave us the infamous Bostock ruling when it came to sexual orientation and gender identity in Title VII of the Civil Rights Act.
That was in 2020.
He is probably the most liberal justice on the entire court when it comes to Indian tribal issues.
There was the McGirt case out of Oklahoma where they ruled that one-third of Oklahoma is Indian country.
So he has various quirks.
He's very iffy on due process and immigration deportation cases as well.
And then Kavanaugh and Barrett, who you mentioned, who were in the majority here in Murphy.
By the way, they also were in the majority in the abortion case out of Idaho, this Moyle case.
They joined that same majority opinion there.
Gorsuch joined CT and Alito in dissent.
You know, Kavanaugh and Barrett, look, Brett Kavanaugh, he's a Bush Republican.
That's probably the best way to think of him.
You know, he was staff secretary in the Bush White House.
He literally worked in the Bush White House.
You know, as my friend Daniel Horowitz said to me many years ago, Brett Kavanaugh is essentially Karl Rove in a robe.
I mean, that's what he is.
He is essentially the judicial embodiment of Bush-era Republicanism.
Now, is he going to reach the right outcome more often than not?
Absolutely.
Like, no doubt about it.
He is typically good on immigration issues, typically reliable, reliable-ish on Second Amendment issues.
But there are some things that he's just not necessarily going to see due to his kind of ideology and his demeanor here.
And this idea of state-corporate fusion, which is kind of a newer development, really, over the past five, ten years, genuinely might just not comport with his worldviews.
That's kind of what I'm thinking is actually happening there.
Amy Coney Barrett, I'm less certain.
You know, she didn't have much of a track record when she was nominated.
She really didn't.
She was only on the Seventh Circuit for, you know, a year and a half, two years.
If I'm being brutally candid here, she was a not particularly impressive law professor when she was at Notre Dame Law School.
Her scholarship was fairly rare and none of it was particularly compelling.
I can't think of a single kind of novel idea that she contributed to legal scholarship.
So, you know, she really ended up being nominated to the Supreme Court largely on the basis of that infamous showdown that she had with the late Dianne Feinstein, where Feinstein said, the dogma lives loudly within you, that infamous exchange, which made Amy Coney Barrett something of a folk hero for social conservatives.
But, you know, the track record was not there.
And I'll be honest with you, I have not been particularly impressed thus far.
She's just she's overly cautious.
She's overly timid.
I think her instincts, more often than not, are definitely right.
But she just doesn't have the courage of her convictions.
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So, I guess this is kind of taking things in a different direction, but it seems like we need conservatives who are, or maybe just, let's just say, I don't know, elites, educated people, I don't know, whatever, who are still very conservative.
And it seems like if you are one of these people who comes out of a top law school and you're going to be someone who's maybe considered in the pool to be on the Supreme Court, you're just probably more likely going to be Well, if you're leftist, you're going to be raging leftist because those people were all schooled in raging leftism.
But if you are conservative, you're going to be like center-right-ish because, you know, you've kind of rubbed shoulders so much with liberals and I guess that either, I think, is going to make you hardcore, where you're just like, I don't care anymore.
And, you know, maybe someone like Clarence Thomas is just like, I don't care what you guys think of me.
But I think a lot of these other justices, like you mentioned, maybe being a little bit timid, maybe their Bush era, they just kind of They just think that maybe America's living in a different time period.
Maybe they think that if we just kind of reason with liberals that they will accept us.
And it seems like the Supreme Court in general, and I'm not really speaking about a specific person, but in general, it's like they want to be accepted or revered or they want like the the country to like them and it's like well what do you mean by the country because do you mean like a very select few uh journalists who are really liberal and they control the quote narrative or do you mean like everyday americans Do you mean like people who are voting?
Because everyday Americans, I mean, half of them at least are Trump supporters.
So their favorite justice is maybe Clarence Thomas, maybe Alito.
So it's like, okay, well, if you're one of the other conservative justices, you can still be very liked and be very conservative, but they don't want to be liked by those people.
It's like they want to be liked by, I don't know, the cocktail party circuit in DC type of people.
And so what is the reasoning for being, you know, timid, being just kind of like not wanting to, not wanting to be conservative?
I mean obviously there's one side of things where it's like we're just going to talk solely about the actual constitution and that's going to lead us to make certain decisions, but if we talk about maybe just more of the Personality, social side, those things.
Because, I only ask this because I think, I think that President Trump is going to win this fall.
I think that we will have the chance to nominate more justices in the future at some point.
So, what criterion can be used to make sure that people get in there who are considered, who are really good, I love the Federalist Society, but how do we make it so we're not just getting center right?
Of course, that's better than nothing.
But we need one or two people in the future if, you know, and when Thomas and Alito are no longer there, we need people who are going to be just as strong as they are.
Otherwise, the court's just, it's just not going to be the same.
Yeah, Danielle, you're asking some of the most important questions that exist in our politics, questions I've been thinking about for many years now.
You know, I clerked six years ago in North Texas for the U.S.
Court of Appeals for the Fifth Circuit for Judge James C. Ho.
I was one of Judge Ho's first four law clerks, and we remain very close today.
And Judge Ho?
He's an absolute rock.
I don't know him personally or anything, but...
He's an absolute rock-ribbed patriot, and full disclosure, he would be my top choice for a future Supreme Court Justice pick, but we'll cross that bridge, I guess, when we get to it, right?
But in any event, Judge Ho, like me, we both give a lot of talks to Federalist Society chapters, and one of his go-to Federalist Society talks is on judging and, quote, the fear of being booed.
That is his phraseology, and it's exactly what you're getting at, Danielle.
It's exactly this idea that judges are afraid of being booed.
Anyone who says to you that judges, because they have Article 3 constitutional life tenure, they're not paying attention to what people are reading or to what people are tweeting about them, is total nonsense.
In fact, I will tell you an anecdote right now.
I probably shouldn't say this whole thing publicly, but there is a current Supreme Court justice, okay?
I guess I'll say that.
There is a current Republican-nominated Supreme Court Justice, who, back when he or she was sitting on the courts of appeals, a friend of mine who was a notable legal blogger wrote a blog post criticizing something that this judge did, and within an hour, my friend the blogger received an email from this judge saying, please call me.
Like, the idea that these justices and judges are not constantly reading Who, like, who is saying and what they are saying is nonsense.
They care a lot.
And, you know, it's nuts.
And the listeners and viewers would be forgiven for saying, wait a minute, isn't the entire purpose of Article 3 life tenure is to inoculate them from public criticism?
Well, you, you would think so.
I mean, that was what the constitutionals framers things, but apparently in the real world, that's not quite the way it works.
But You know, it was Linda Greenhouse, the longtime New York Times columnist who coined the term, the greenhouse effect, or I guess people coined it after her, which is this idea that when you get to Washington, D.C.
and you do the whole Georgetown cocktail party thing, which is really not just a talking point, like that stuff actually happens, you inevitably are going to drift further and further left unless you have such a rock-ribbed part of ideology if you are a person of faith if you know exactly what you believe in so to answer the most concrete part of your question what can we possibly look to in a you know god-willing second trump administration when it comes to picking the right justice well first of all you have to actually do the reading so to speak so for example
When it comes to Justice Gorsuch, he gave us the Bostock case in 2020, writing sexual orientation and gender identity into Title VII.
Well, if the people in the room had done the reading, they would have seen that there was a case called Castle back in 2009, where Neil Gorsuch actually said exactly that, that Title VII incorporates sexual orientation and gender identity.
So part of it is literally just actually doing the homework and doing a very deep dive Surveying the record here, you know, no more suitors, as we said after David Souter was the infamous nominee, but let's actually put that put that to task here.
You know, some other ideas that I have, especially in the aftermath of Breck have not turning out as moderate as he is.
He is a DC circuit guy.
He's from Maryland.
He's lived in the Beltway most of his whole life.
I would honestly like to see an actual hard cap, an actual moratorium on the number of years that a nominee can have lived inside the Beltway.
Call it five years, ten years, whatever you want.
But it actually genuinely is important for people to have had real experience with real Americans, not to live in this bubble.
Like Brett Kavanaugh, unfortunately, in many ways has there.
And then the other thing is you have to be to have a demonstrable willingness to actually use all of the tools at your disposal for overturning the mountains and mountains of flawed precedent.
So you can't be timid or scared to have an aggressive view of stare decisis of overturning bad precedent.
You have to be able to have to be ready, willing and eager to grant cert in even controversial cases.
You can't be looking for constant escape hatches like they're doing now in the close of this term when it comes to standing doctrine, when it comes to this abortion case in Idaho where they just digged it, they dismissed it as improvidently granted.
None of that crap, pardon my language, but you have to actually have an avowed fire in your belly to do the right thing and ultimately that really does come from a place of deep-rooted conviction and ideally kind of a place of deep abiding faith in our creator as well.
Yeah.
Yeah, I think Clarence Thomas and Samuel Alito definitely have that, and I think that maybe they always had that, but maybe also just from experiencing this and living through this, they probably see
the truth and they see the tea leaves of like this is what happens when and so maybe by being there it either takes you one way or by being there it takes you the other way like Roberts it's like you just kind of think like oh I'm just going to be arbiter of truth on both sides and I'm just going to be the person who who holds this nation together or something I mean I don't know what they tell themselves that makes them like
feel like they're doing the right thing because in my mind I'm just thinking you are just clearly clearly not sometimes I mean I mean so some of these decisions are just abominable and the fact that let's just take Brett Kavanaugh with everything he went through I think the conservative reaction is usually to think wow he probably sees how evil the Democrats are He probably sees how bad things are, so because he went through that, maybe he'll end up like Clarence Thomas.
He'll just be, like, really fearless, and it's gonna be great.
But no!
Brett Kavanaugh's put through the ringer, he goes through all this, and then at the end of the day, he's kind of just like, well...
You know, it is what it is.
So there's nothing that can, there's nothing that can be said to him to, to influence him.
It's like he can read all the blogs, wherever.
I guess you were saying like the founders didn't want the, the justices to be afraid of losing their jobs.
That's why they have the tenure.
But I guess there was no digital world back then.
So maybe if like they heard someone say something about them, it's like someone had to tell you that.
And now it's like, I don't know.
Maybe they listen to podcasts, listen to CNN, listen to news.
I don't know.
But it's like someone like Brett Kavanaugh, I mean, maybe he's just never going to be influenced by it.
But for future people that are being looked at, do you think it's important that they have been through things where maybe that strengthened them in that way?
Or is it that, you know, with some people, you could have gone through everything and you're still just going to cave to the left?
Yeah, great question.
So look, part of honestly what I look for ends up being track record, yes.
I mean, do a deep dive, do the reading like I said, you know, find like the castle opinion that could have prevented the Gorsuch nomination.
But part of it also I think genuinely is personal.
So for example here, You know, my friends in kind of the right of center legal world, people who have worked in judicial nominations in Article One or Article Two, a lot of us talk about the spouse test.
And the spouse test is exactly what it sounds like, which is, you know, basically, if you're trying to find someone who's going to stay conservative, Amidst the upstream currents of the greenhouse effect, amidst the currents of the Georgetown cocktail parties, who is going to withstand, as Judge Ho would phrase it, this fear of being booed?
Look to the spouse.
Try to see whether or not the person's wife or husband is a rocked-ribbed conservative.
Again, in the case of Clarence Thomas, Zero doubts.
Ginny Thomas is amazing.
In the case of Samuel Alito, zero doubts.
Martha Ann Alito is an American treasure.
But, you know, in some of these cases, it's a little more unclear.
So, for example, you know, I hate to pick on Gorsuch too much because he actually is the best of the three Trump nominees.
But, you know, it turns out that Daniel Gorsuch attends a very theologically liberal church, a church, if I'm not mistaken, that sometimes actually does drape the rainbow flag outside of it.
And, you know, again, like from a federalist society kind of, you know, legal right of center, judicial nominee perspective, that should have been a glaring red flag because, you know, that's that's obviously one of the major issues is our time is gender ideology and sexual orientation, gender identity, all that, and religious liberty and conscience protection and all of those issues.
Right.
So that should have been just just a major, major Red flag there.
Now, as far as putting it through the ringer experience, on the one hand, I like the idea of that.
On the other hand, I do have to admit, as you also did, which is that Brett Kavanaugh's experience shows that that's not necessarily kind of a golden ticket.
Watching Brett Kavanaugh I remember this like it was yesterday, Danielle.
I was actually clerking then.
I was clerking in Dallas for a judge show.
It was September 2018 during the Kavanaugh confirmation hearings.
My co-clerks and I are all like, you know, like, we're watching this together.
Like, this is history in the making.
And Christine Blasey Ford has that morning testimony.
And it's like, oh my God, like, is the nominee actually done?
Are they going to have to pull the nominee here?
And then Kavanaugh comes out and he is on fire.
He stares down the Democratic senators.
He's like pounding the table.
Is this revenge for the Clintons?
Because he was, you know, he was working with Ken Starr back in the 90s on the Clinton impeachment.
And I saw that.
I was like, oh, my God, like he's going to come out there.
They have turned this man who's Karl Rove in a robe.
They have turned him into a Clarence Thomas kind of figure who has seen the left what they are, as he did with Anita Hill and probably hates them.
And obviously I was wrong.
I mean, like, it was really exciting, actually, for like a week, maybe.
And then then obviously, you know, reversion to the mean, I guess you would say so.
I don't know.
I mean, like, in theory, I like the idea of someone being put through the wringer.
But the Kavanaugh example is just a just a kind of a glaring example as to how that's not necessarily going to be super indicative, necessarily.
Yeah.
I want to ask you about Amy Coney Barrett because I think this is all really fascinating.
We kind of talked about Gorsuch, talked about Kavanaugh.
Amy Coney Barrett, is she as socially conservative, is she as religious as people thought?
I know you said she kind of became a cult-like figure for social conservatives on the right.
I was a big fan of Amy Coney Barrett at the time.
I spoke at one of those rallies to confirm Amy Coney Barrett in front of the Supreme Court.
Like, I was so happy to see someone who was nominated who seemed like she was guided by her beliefs in in God and it's, I don't know, it just it seemed like a lot of quotes had come out that she had said in the past.
I think she said something like, Um, you know, it's not, I'm not really saying it correctly, but something like it's not, it's not just about what you do here.
It's about like ultimately what, um, what God, what God wants, something like that.
I'm messing it up.
But any, in any case, it seemed like she was, I don't really know if she is that much.
Maybe she is kind of, but what's kind of been the perception based on the facts since she's actually been on the Supreme Court?
So look, I mean, I like Amy Coney Barrett.
I don't want to trash her or anything.
I've met her.
She's a very pleasant, nice woman.
She's hired numerous of my friends as her law clerks, including one of my former roommates, actually.
So, I mean, I've seen her hire some good people over the years.
There was just no track record there.
That's all I'm saying.
So you got to remember the context, Danielle.
So what happened was Ruth Bader Ginsburg passes away in September of 2020, right before this presidential election.
Everyone's like, oh my god, we got a Russian nominee.
And at that time, it was effectively just assumed that Trump would nominate a woman to replace Ginsburg, which, you know, in retrospect, why would we just assume that?
We probably should just pick the best judge, no matter what sex or race or ethnicity that judge is.
But whatever reason, the immediate consensus was that, wow, we have to nominate a woman.
You know, at that point, I mean, was she one of the better options?
Maybe.
I mean, she she might have been, you know, Barbara Lagoa here in Florida, where I live.
She's a judge on the 11th Circuit.
She was she was floated for that chair at the time.
I remember thinking, OK, I mean, like, you know, she's got a little bit more of a track record, at least in the Florida state judiciary than Amy Coney Barrett did.
Look, again, Amy Coney Barrett, very pleasant woman.
I have no reason whatsoever for doubting her personal faith or her Catholicism.
I would never in a million years doubt that.
Not personal, but just in her decisions she's made, it's like she wrote that majority opinion, for example, that we just talked about with the government and the In the private company.
So, like, what do you think is going to be her lens with which to view maybe other decisions?
Yeah, look, I mean, so Amy Coney Barrett, if I'm not mistaken, I don't think that she was a dues-paying member of the Federalist Society until like 2017 or so, which meant that she spent almost her entire career on the Notre Dame Law School faculty, not actually being involved with the major national organ of judicial and legal conservatism.
You know, I don't work for the Federalist Society.
I do talks for them, but, you know, I have been a card-carrying member since my first year of law school.
Most people who kind of grow up or come of age in the conservative legal movement are involved with the Federalist Society, so it should be at least a little bit of a red flag that someone who kind of Was it was a bit of a Johnny come lately to the cause only started going to the convention seemingly to get nominated to the Seventh Circuit and then the Supreme Court there.
So I again, I don't know exactly what's going on there.
She did clerk for Antonin Scalia.
I mean, so she does have a track record here.
I'm not going to take that away from her.
She clerked for an iconic conservative judge.
But, you know, her standout piece of legal scholarship, to the extent that one comes to mind, was this essay that she wrote years ago on stare decisis, where she basically took the Scalia approach, which is kind of more of a middle-of-the-road approach.
I personally prefer the Clarence Thomas approach, which is a little more doctrinaire.
When there was a bad precedent, you just overturn it.
That's your actual constitutional oath.
It's not to Your oath is to the Constitution, not to bad press and interpret the Constitution.
So, Amy Coney Barrett's one piece of stardecised scholarship wasn't particularly illustrative or impressive, to be very honest with you, but again, she's still very young and she has hired some good law clerks, so I'm hoping that things work out a little bit better for her in the years to come.
Okay, awesome.
Well, Josh, I kind of just got so excited running away with time and discussing all these things with you, but thank you so much for your thoughts.
You guys have to make sure to check out Josh Hammer's show, Make sure to find Josh on social media.
And Josh, thanks for all of your insight, and I am looking forward to seeing these final Supreme Court decisions.
Yeah, I think we all are, and this has been a really fun conversation.
Thanks so much for having me.
Well, that wraps up today's show.
If you enjoyed the show, make sure to find me on social media.
I'm at Daniela D'Souza Gill.
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So find me on True Social, on Rumble, on X, on Facebook, on Instagram.
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We will be back tomorrow with much more commentary.
We will talk all about the CNN presidential debate, Trump versus Biden.
So you don't want to miss our show tomorrow.
I'll see you then and MAGA.
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