Latest / Before You Speak / Before You Speak | Episode 21 | Judicial Activism

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Before You Speak | Episode 21 | Judicial Activism · Before You Speak

• Derek Peterson: What's up y'all? Welcome back to the Before You Speak podcast. I am your host, Derek Peterson. ⁓ Welcome back after a week off for both Elwin and I for spring break, which was kind of a necessary thing. But yeah, we're over here still processing the fire hose of our newsfeed and, you know, living life. How you doing, Elwin? Elwin, tell us judicial activism Elwyn: So basically, judicial activism is the idea that judges will ⁓ go outside of the existing case law or beyond what a statute says or beyond what the Constitution says when they write their decision. And I think it's fair to say that they would do so in order to craft a decision that they want. Yeah, yeah. Good, Derek, thank you. I'm Elwin and ⁓ over this past week, the fire hose my newsfeed continued unabated and spilled everywhere just like the water pipe I tried to fix by myself ⁓ and then had to call a plumber. Derek Peterson: That's at least you at least you call the plumber Elwyn: I have a standing rule to never work with water because I always wind up fucking it up and having to call a plumber and I decided to use AI to help me and I still had water everywhere and called a plumber. That's kind of the easiest way to decide it, to describe it. If a judge, ⁓ there's ⁓ a branch of judicial theology that says the role of the judge is to look simply at the statute, simply at the Constitution, and that is it. And of course, at the trial level, look at the facts of the case and all that stuff. But we're going to talk Supreme Court. So basically, the Constitution is the king. And how does a law, Derek Peterson: Well, AI is still not as good as a plumber so we've got it, you know There's still a few things in still a few things that needs to advance in before we give it too much credit Interestingly enough, so I downloaded ⁓ true social this week and I have been following true social accounts ⁓ I think the most thing the thing that's been most glaring to me about true social thus far is Elwyn: That's right. to the Constitution. Is it unconstitutional or constitutional? We look at the law, we look at legislative history, and we look at ⁓ the Constitution, and that's kind of it. To do anything else in order to ⁓ achieve a desired result would be called activist. So, you know, on its face, the idea of judicial activism, as I just described it, it shouldn't sound partisan, certainly. Derek Peterson: ⁓ Hey, mean, some of the comments are just so overtly like insane and racist and like awful, to like also the lack of activity. Like I guess I'm just accustomed to Instagram and threads and like some of these posts, if it's not a Donald Trump post, like some of them have like no traction at all. I'm like, this is like a major like Fox news posts that has like 150 likes or something like that. And I'm like, I guess it's just not. Elwyn: Right? Like, I think at this point in 2026, we all kind of accept that judges have an agenda and that they're going to seek to write an opinion that gets them, that fulfills that agenda. And that's not always necessarily wrong either. Like, I would not say that that is necessarily bad. And we'll talk about that in a bit. that's basically judicial activism. Now, Derek Peterson: I guess the platform itself, I thought it was more active than apparently it is. So I don't know how valid the stuff that I'm reading on there is to try to kind of understand the other side a little bit more. ⁓ But I don't really feel like I'm getting much understanding on the other side. Yeah. Elwyn: except for the fact that that is the medium through which government policy is apparently set. Yeah. There are, I think it's worth noting that when we think about conservative and liberal justices, there are two kind of prevailing ⁓ ideologies, and this is reductive, but it's not wrong, where a conservative justice would be known as one that ⁓ they do look to the Constitution. They want to stay within the four corners of that document or within the four corners of the law. They're not going to look to legislative history, or they don't care that society has changed in 200 Derek Peterson: Apparently, yes, with you know a couple hundred people looking at it so outside of it Yeah, that's what I was gonna say it gets more activity on the other platforms than its own which is hilarious ⁓ Well, let's jump into the news today so Emily Gregory flips a seat in Florida, which has been the theme does this know? Elwyn: And then everybody just cross posts it to Twitter and Blue Sky. 40 years or since the Constitution was written. What does the Constitution say? That's it, right? A very originalist reading of the Constitution. Scalia was probably the most prominent of that one in our recent pasts. Right now you have, know, I'm going to be kind to Thomas and Alito and say that they are also originalist, but we'll get to that. Derek Peterson: Democrats aren't undefeated since Trump took office because there was the election in, was it Tennessee, where think a Republican still took the seat. ⁓ Elwyn: Yeah, they've lost one or two. Derek Peterson: Yeah, like one or two, but for the most part, you know, like the people are speaking, which is nice to hear that, ⁓ you know, some of these deep red districts historically are flipping blue a little bit, ⁓ especially Trump's Mar-a-Lago district, which is hilarious. So, ⁓ that's a good sign, at least, ⁓ if we're still voting come November. and, ⁓ I will also wanted to, did you have anything you wanted to jump in on that with? You don't need to ever be kind to Thomas and Alito. Elwyn: Yeah, just a kind of p***y piece of s***. So, are liberal justices. It's fair to say, see the Constitution more as a living, breathing document. And in order to write law in 2026 and evaluate laws in 2026, we need to acknowledge the fact that we live, in fact, in 2026. So that's... Derek Peterson: Fuck that guy. Elwyn: Yeah, I mean, think it is absolutely a good sign. was Emily Gregory. There was also another state house seat that flipped from red to blue. I think Emily Gregory was an 11 or 12 point swing. And this other seat was like an eight point swing. It was a Trump seven district that went to this guy, to the Democrat by one. Even in the seat in Tennessee where the Republican held, that was still like a 13 point swing to the Dems. you have, even when People will call that progressive, whatever. But that's basically the difference between the conservative wing and the liberal wing on the Supreme Court. ⁓ Now, and I'll jump right into how judicial activism is used. For decades, judicial activism has been used by the conservatives as a smear against liberal judges. ⁓ these activist judges, they just want to get on the bench and do whatever they want. They don't care about the Constitution. the seat doesn't flip you really have a consistent narrative since he took office of the democrats moving the needle ten plus points ⁓ in their direction in all these elections so yeah i mean it if if everything goes ⁓ unabridged or unfucked with ⁓ in november it should be good it should be good They're just looking for a result and they're going to completely disregard precedent. They're going to completely disregard the Constitution and the Constitution is the founding document of our country and blah, blah, blah, blah, blah. They're going to glaze the Constitution for a little while and say that all Democrats want to do when they're on the bench is rewrite the laws way outside of the Constitution. So judicial activism has been used as a smear and a political cudgel from the right against the left. Derek Peterson: Yeah, that seems to be the consensus so far with what we're seeing. Even with like deep Texas, you know, like it's interesting though to see some of like ⁓ this week I've had a few conversations with different people about Talarico and some of the dude, some of the noise about Talarico is like the Republican, you know, attacks are actually working a little bit. ⁓ Elwyn: to incredibly ⁓ great effect. It's a very effective smear. ⁓ I hope maybe not as much anymore. But that's kind of a quick overview of judicial activism and the theories on the court. Derek Peterson: The two people I spoke to were like, yeah, he believes some weird stuff in Christianity. I'm like, man, like some of them, them chopping up his clips is working a little bit. But, you know, if somebody was going to vote red anyway, they're going to vote red. just need, we don't need everybody. We just need enough. Right. So. So give me like give me two examples if you can think of them off the top of your head that you would be maybe more examples of like a case on the left that would be considered judicial activism and then maybe a case on the right that would be judicial activism. Elwyn: Yeah, that's the thing, right? Like with any of this, we always have to, I think, keep in mind, like, who is looking for a justification to not vote for Talarico, right? To vote. Who's looking to justify, like, well, Paxton's terrible, but, you know, they just need anything that they can put a toe on to find foundation to not vote for Talarico. They're not gonna vote for him anyway, right? They're just... Sure. On the left, Brown versus Board of Education. We know that one, right? ⁓ Important case, critical case, and a just case. But in order to find Brown versus Board of Education, the court had to overturn some precedent, and the decision itself relies a lot on social science. It does not rely on the Constitution. doesn't say, excuse me, the 60s, right? It doesn't say, hey, the Equal Protection Clause They're not honest when they say like, oh, you know, I was interested, but now I'm not. No, that's bullshit. They were never going to vote for him. The thing though in Texas is he did a lot of work in Southwest Texas in the primary. He, I think, has really good traction right now with the Hispanic community out there. And that community is pissed off at Donald Trump. And that's where, you know, we should see it. Hopefully we may see it in the House, let's say. in the 14th Amendment demand that students of any color be allowed to go to public schools, that segregation is bad. It doesn't, it really doesn't do that. It uses a lot of social science and a lot of sort of studies about how segregation doesn't work, how it impacts minority communities outside of just not being able to go to the school, how the schools that they do have access to are much worse and more poorly funded. So... where Republicans took the Hispanic swing in a state like Texas in 2024 and kind of put it in their back pocket as a lock. And, you know, there's no reason to believe that it's a lock at all. And Talarico has spoken to them and he's not going to get white magas. He doesn't need to get white magas. I don't think he cares to get white magas. If he can get the Hispanic, that's right, Paxton. Derek Peterson: Yeah. Elwyn: That's 1000 % an activist decision. So is Roe versus Wade. So is Obergefell, the gay marriage case. And I'm naming a couple because I'm going to get back to that in a second. On the right, we can look at the case that overturned Roe v. Wade. Roe v. Wade was decided in 1972. In 2026 or in 2024, when Roe v. Wade was overturned, I'm getting the dates wrong. It was actually like 2021. Derek Peterson: No one's going to get white Magus. Like those people would be less. Yeah. I don't, to be honest, I don't even know if he gets Magus. think Magus just decide not to vote if they're, if they get to that place, you know what I mean? Elwyn: They overturned Roe v. Wade based on what? And I think the question based on what is important to ask, and I'm going to digress for a moment, because when the court weighs whether or not to overturn a precedent, they look at a few different things. And again, it's reductive, but it's fine. They'll look at, was the case wrongly decided at the time? Have circumstances changed in the world? Well, Paxton will get MAGA's. It's interesting that Trump has decided not to endorse him in the runoff. That's not great for Paxton, but he is leading pretty convincingly in the polls. Derek Peterson: Yeah, but he, well, he didn't, or he endorsed heavily against, ⁓ Emily Gregory the other day. And, ⁓ that didn't help at all. So, ⁓ which is his, his endorsements starting to look a little, a little worse every day. ⁓ but let's, ⁓ let's talk a little bit about the, ⁓ the TSA updates, you know, recently, ⁓ or actually this morning, I was reading that they are some of the wait times are so long that they're thinking they may need to shut down some of these airports. Elwyn: that make that case no longer workable. Those are two pretty big things. And that makes sense, Well, Roe v. Wade decided in 1972, in 2021, 50 years, just shy of 50 years, nothing changed. Society didn't change. The historical context of Roe v. Wade hadn't changed. The judges changed. That's it. That's it. Derek Peterson: if they don't come to a consensus soon, but ultimately like this is just, you know, like the, party that's in power often, like there's no way to flip this on the Democrats. Like they'll try and I've seen them trying and saying, ⁓ this is all the Democrats just funded. And it's like, actually, no, the Democrats have like given up like what nine or 10 different options at this point to get TSA funded. and. Elwyn: So they can say, ⁓ it was wrongly decided at the time, and that's, precedentially, a mechanism that they can use. But in the real world, nothing had changed. In fact, society had grown ⁓ up around Roe v. and a lot of systems had been put in place that relied on Roe v. Wade. So the idea that we're overturning Roe v. Wade simply because the justices have changed Derek Peterson: the ⁓ which there was a bipartisan bill to my understanding that went through that Republicans and Democrats worked on together to fund just about everything except for ice at the moment and till we can get to terms on that. And then Trump just straight said no because he wants to pass the SAVE Act along with it, which doesn't look like it's going to happen. So any any thoughts from your end on this? Mm-hmm. Elwyn: That's activism. That is judicial activism. That's the decision of the conservative justices. They don't like abortion. They're going to overturn Roe v. Wade. They've been looking for an excuse for decades. Also, a case like Bruin, was a gun control case a couple of years ago, where they overturned the gun control law based on purely on a Yeah, I think the Democrats have actually done a really good job here of holding tight and being confident that they're right. And I think that by and large, in part because of what you said, they understand who's in power. They've also seen Trump kind of jack up enough stuff in the first year that when they get there and the lines are all jacked up, they're like, ⁓ this is another jacked up thing from Trump, and they're not thinking too deeply about it. history. What's the historical context of gun control laws? Because the statute and the constitution and the prior precedents didn't support overturning this particular law. So that is an activist decision because the court just, they have an agenda and they're fitting the rationale to meet that agenda. It's not grounded in the constitution. It's not grounded in the law or what Congress has desired. But the Democrats have put up nine different bills, like you said, that would fund TSA in one way shape, in one form or another, ⁓ just not fund ICE. And Republicans have voted every single one of them down. And it becomes harder and harder in that case to argue convincingly that you are trying to get TSA paid. ⁓ Derek Peterson: I mean, Citizens United versus the FEC could be considered that as well, correct? Elwyn: Yeah, think, I mean, any case can be activist in its own way. think Citizens United is really bad, ⁓ but it did draw on the idea of political speech being protected and corporations being persons. So it did extend the protections. in that way, it's an interesting case to bring up, actually, because in that way, it's no different than... because you keep voting down, getting them paid. Obviously it's not TSA that you want to get paid, it's ICE. And ICE got $150 billion like less than a year ago. We don't need them to have more money. Like even if you love what they do, why do they need more money? And I think that's what people are seeing. Derek Peterson: Exactly. Yeah, and this actually ties into what you wanted to talk about too, because, you know, we're so we're funding ICE to an even larger tune is what they're asking for. then on top of that, now the war in Iran is costing us, I think what they said 200 billion thus far. ⁓ then so that's the funny. ⁓ that's the funny request. So like, what is it like a couple billion a day or something like that, that they're Elwyn: Obergefell, the gay marriage, the case that recognized ⁓ same-sex marriage, where that case extended protections. Brown v. Board of Ed extended protections. that way, Citizens United extended protections. It just did it for corporations who have millions of dollars to spend on politics. It just did it in a bad way. Well that's the funding request. Derek Peterson: essentially that it's costing us. Yeah, which I think we've seen, I think at this point we've seen enough. I'd like to see some judicial activism going the other direction on that one to get the money out of our politics. don't know that I don't know that there is a single person outside of the political realm that would agree that the amount of money being spent inside of the politics is a healthy thing. Elwyn: Yeah, that's what they say. that's, think, everybody pretty much agrees that that's an underestimate, ⁓ because it doesn't take into account a lot of things like they had to break down a interceptor missile site in South Korea and ship it over to Iran, because the one that was close to Iran got blown up. And that takes a couple weeks. It also costs like $50 million. And there's all these things that are not being counted in that $2 billion. ⁓ Derek Peterson: Like the only people that I think I think the only people that enjoy this are the people that are billionaires and the people that are benefiting from it. So. But. Elwyn: Yeah. But the thing that I wanted to talk about with Iran specifically was the insider trading and grift which has come out this week in particular where you had, if you go back to last weekend, last Friday, you had Trump basically saying, Iran has 48 hours to open up the Strait of Hormuz or we're gonna rain devastation upon them, whatever he said. He always says the same shit in a different way. ⁓ And then the markets on Sunday started to panic. Yeah, and I think that if we think about activist decisions, know, we can, I have no problem admitting that there are liberal activist decisions out there. It's important to note that conservatives, they will never admit that there are activist decisions on their side, right? It just doesn't work both ways. But the truth of the matter is there are activist decisions on both sides. Derek Peterson: Of course. Elwyn: Oil future started to climb. The S &P started to crater. So Monday morning at 7.04, and times are important here, Trump says, oh, we're having great negotiations, great and productive negotiations, which the Iranians say is not true. They're not having any negotiations. But Trump says, we're having great and productive negotiations. So I'm going to put this off for five days, basically a business week, one market week. The issue that I have with this all comes in, when you look at it historically, liberals more often than not are using what we would call an activist decision to expand constitutional protections, to include more people under the 14th Amendment and more people under the Equal Protection Clause to give same-sex marriage, same-sex couples the same rights. at 6.50, 15 minutes before he makes that announcement, there was one trade short on oil futures for $590 million by a couple of people. And at the same time, somebody went long on S &P futures to the tune of $1.5 billion. that couples have had in marriage all the time. know, to, in Brown vs. the Board of Education, to provide public education for minority people, right? So these activist decisions from the left tend to expand rights, tend to protect more people. And I'm in favor of that. I think that if you, I think that's justice. So obviously you want to short oil futures. Trump makes that statement at 704. Oil futures go down. People feel better. Oil is safe for a week. And the S &P, instead of falling, climbs because, hey, there's some stability for a week. So somebody 15 minutes before knew enough to trade $590 billion, a million, sorry, on oil futures and $1.5 billion on S &P futures. Derek Peterson: Yeah. Well, and we've talked at length about this stuff, right? Over the, since we started this podcast, like, you know, without being a Supreme Court podcast, we are, we, tends to come up just about every week as we're looking at, you know, the world and how the United States is being shaped. you know, we've both kind of landed in the place where we're like, man, can we just acknowledge the fact that the Supreme Court and our court system is to some degree politically charged? Like. Elwyn: This is market manipulation and it's insider trading and it's happening every time Trump makes a statement. You'll find this story of like, 10 minutes before somebody made a trade. And it's becoming more and more possible to me that the entirety of the Iran war is just an insider trading market manipulation ploy ⁓ to make people some billions of dollars every 10 days. this is something that, man, the SEC, who's the Derek Peterson: It shouldn't be fully driven by that. We can all understand it, but ⁓ just pretending like politics don't play an active role in our judicial system is ridiculous. And the byproduct of it is that terms like judicial activism then become these, you know, terms that carry a lot of weight and negative weight in a lot of circumstances where in a lot of those circumstances, they don't, they shouldn't because of exactly what you just said. Elwyn: The chief investigator of the SEC stepped down a couple weeks ago because she wanted to investigate Trump officials and Trump activities a little more, ⁓ particularly around crypto, not this. And the SEC chair said, nope, we're not doing it. The woman stepped down. Like the grift in this administration and in this first administration has always been the purpose. But man, using war to insider trade and to manipulate the markets is some like. Derek Peterson: that these are expanding the rights to more people, which is historically what America has been all about. Elwyn: Yeah, and you know, I think that to me, I think single issue voting is stupid. We've talked about that. You can't. But I do think that like a top three issue in every single presidential election and in 2026, the Senate election should be the makeup of the Supreme Court because senators are up for election every two, every six years, House members every two, presidents every four. We don't get to elect Supreme Court. deeply cynical shit and everybody should, we're not mad enough and we're not aware enough that this is going on. Derek Peterson: Is it more deeply cynical than the ⁓ rape and sexual assault of, you know, eight to 13 year old girls? Because we still don't have the Absteam Files. Elwyn: Justices they're there for 30 years for 40 years, right? They're they are shaping discourse and laws for decades and we only have one shot to influence the makeup of the court and that's in Senate senatorial and presidential elections So this should be a much much bigger part, right when Hillary Clinton ran in 2016 She was making a big deal about you know, Donald Trump is going to get to a point at least one justice because Scalia had died As you started talking, looked at the clock. was like, oh, we made it 13 and a half minutes before Epstein. Is it more deeply cynical? It might actually be more deeply cynical. It's not worse, but it might be more deeply cynical. Derek Peterson: It's a fair point. It's a fair point. The well, yes. And to be honest, there's Democrats ⁓ running now, like anybody running for president. If if this is not a huge part of their agenda, like, yeah, I'm out on you. Like this corruption and ⁓ investigating all of this, you know, there's there's a ton of stuff that needs to happen once this regime is out. ⁓ But. Elwyn: That was correct. She was right on. And more people should have been like, ⁓ yeah. And in order for people to make, I think, informed decision, I think they need to really know what judicial activism means, right? Like, you don't have to be in favor of abortion to care about judicial activism and to realize it's been done to help you. Miranda versus Arizona, you have the right to remain silent, et cetera, et cetera. That's an activist decision, right? That was an expansion of defendants' rights. Derek Peterson: this is a key component of all of it. It needs to be investigated thoroughly and until ⁓ it's all connected. ⁓ Elwyn: of accused criminals' rights that was unfounded in the Constitution. It's absolutely an activist decision. I think we all want that. We all want that. when people just hear, oh, if you elect whoever the candidate is in 2028, they're going to want to put in a whole bunch of activist judges. And 40 % of the country is like, oh my god, that sounds awful. Jared Kushner is one of our chief negotiators in Iran. ⁓ Until today they said they wouldn't talk to him anymore. But he's been one of our chief negotiators. He has a fund he started five years ago with basically nothing. It's now worth six billion dollars. Five billion of that is from overseas, particularly Middle East companies and countries. And at least two billion is held in a Qatari bank. This is the guy, this is the American citizen who is negotiating think about it for second. What does that mean? Right? It just means to me that a judge is going to look at what is just, right? What is the just outcome here? And if it's supported by the constitution, they're going to, they're going to do it, right? And yes, they're going to write a decision like Roe v. Wade and Brown versus Board of Education are legally not sound decisions, right? They're a Middle East war for us. You tell me where his interests lie. Follow the money. It's always follow the money. Derek Peterson: Yeah. Yeah, always. Well, ⁓ today we're going to kind of go back to our old format and we're going to jump into ⁓ and deep dive a topic that is near and dear to both of our hearts. More yours and more me just because I enjoy listening to you get angry about it. ⁓ But we're going to jump into judicial activism. ⁓ Elwyn: There was criticism against Roe v. Wade from the beginning about how that decision was written, that it was too easy to overturn. But it doesn't matter. At some point, the just outcome is what courts are there to ensure. ⁓ And to limit their power and to limit what we expect from courts in that regard is ultimately going to be used to limit our rights and our protections. Derek Peterson: Yeah. so that framework, what is the ⁓ way to use judicial activism? And do we like kind clear, like, what's your take on how to clear this up? there's an element of, ⁓ of ⁓ law. ⁓ And constitutional rights. then there's also outside that is to some degree, common sense ⁓ and ⁓ things need to happen that might not be directly impacted by the Constitution, but that we need ⁓ people ⁓ like ⁓ know, we're the rights and society. we've grown enough to where this has become ⁓ the social norm. ⁓ And same with Brown versus the Board of Education because, you know, like we've grown. We've gotten to a place where we're like, the United States started to recognize everybody as equal. These are all really great things and things that we, well, yes, correct. We're hoping to recognize everybody as equal. Elwyn: Yeah, we've incredibly come a long way. Derek Peterson: Yeah. how do we so meaning like how do we take a term like judicial activism and actually turn it into what it because like for me this all comes down to the difference between like operating inside of like honest values and corruption because the the I think what we're actually talking about is that more often than than not when we're looking at judicial activism. We're looking at using the judicial system to essentially justify corruption and working their way in, is that like, that's why, you know, Citizens United pisses me off so much. it's, yeah, like did we, does it have a place? Of course, as you just explained, within the terms of the law, it's just an extension of free speech. Yeah. But like common sense would also like, which kind of aligns just outside of that would say, no, this is actually not a good thing. Elwyn: Yeah, so I think there's a couple of things that, to me, if I could shape the debate, I would try to do a couple things. One, lean in to the idea that, a liberal justice is going to have an expansive reading of the Constitution. My bias here is obvious. I think it's insane to look at a document written in 1787. and apply it without any sort of examination to a world 250 years later. I think that's just ludicrous, right? Like, how can you possibly look at the Fourth Amendment, which governs searches and seizures, and not grapple with the fact that we now have much different surveillance technology. We have infrared drones and... you know computers and the internet and and all these things that can be searched and seized how how can you possibly analyze laws using a seventeen eighty seven framework in twenty twenty six so i think that the democrats should say exactly that like yeah no we we believe that the constitution needs to be read in light of our world today ⁓ and i don't care if the conservatives agree or not okay that's the battle that's the debate They can have that debate. Not everybody has to agree. So I think that that's sort of step one. I think that step two is we, and I don't know, there's no way to do this because justices are not ⁓ electable. But I think we have to define and call out just rank hypocrisy in decisions, okay? So I'll use Citizens United and then I'll go back to the gun control case also. Citizens United, like the activist or the expansive liberal reading in Citizens United would be, of course, when there can be millions of dollars donated by a corporation that is going to influence a politician. It's insane to say otherwise. And as a result, we need to limit this because it enforces or imposes an undue influence on the richest people ⁓ against at the disinterest or to the disadvantage of the poorest people or individual citizens. Obviously, that would be the like activist reading there. That's the leftist reading. The originalist reading is just to bury your head in the sand on that and say, well, we don't think so. It's not in the Constitution. That idea is not in the Constitution. So we're not going to discuss that idea because it's not germane to the issue. It's not relevant. That's dishonest. In Dobbs, which was written by Justice Alito, they sort of introduced the right-wing justices sort of introduced this idea that we're going to look to history. We're going look to the historical context of a practice. And that's gonna that's gonna govern how we write our decision. So in Dobbs they go back 500 years To some fucking English Lord, you know They start there and they write about how abortion was disfavored over all these years, right? And of course, it's a misreading of history, but whatever right? So then a couple years later this case this gun control case comes up now the United States throughout its fifty states has a long history of gun control statutes. Texas a hundred years ago had some of the strictest gun control laws on the books. Right? Like, it was very, very strict in Texas regarding gun control. So, if you're talking to a conservative Supreme Court who two years earlier has said, yeah, we are really, really interested in history, you're going to go in and you're going to brief and argue on, it was New York, you're going to talk about New York's... statutory history of gun control. You're to talk about how gun control is pervasive throughout the whole country, how the most gun-free states like Texas used to have strict gun control limits. So there is of course a historical basis for a gun control law. And of course the court, you're going to need to know that because now you're all worried about history and the court basically, this was Thomas who can eat shit, basically was like, nah, we don't care about that history. It's not relevant to this case. And they move on. So I think the other thing that we have to do is to either acknowledge that a purely originalist reading is going to make no sense and decide that we accept that or not. But I think we have to demand and call out, and this really rests on the media and our electeds, to say, hey, guys, here's what's going on. This is not. This is judicial activism. When the right complains about judicial activism, this is probably the most activist court we've ever had. And it's activist in a manner that takes rights away, that takes the right to abortion away, okay? That limits the rights of criminal defendants, that is threatening to take the same-sex marriage right away. It's really important that people know that. This is judicial activism. When the right complains about judicial activism, this is probably the most activist court we've ever had. And it's activist in a manner that takes rights away, that takes the right to abortion away, okay? That limits the rights of criminal defendants, that is threatening to take the same-sex marriage right away. It's really important that people know that. Derek Peterson: Yeah. Yeah. Elwyn: If people know that, and it's understood, and we talk about more, Then it's a debate, and we live in a democracy where debates happen. ⁓ But I think that's key. Derek Peterson: No, you kind of hit the nail on the head there with the overall kind of theme of it. And just in general, my thinking around all of this is just that, you know, ⁓ when rights are expanding, our country is in a better place. Like judicial activism that expands people's rights and ⁓ gives more freedom and more power to the people, the individuals. That is a beautiful thing. Like this is something this is what America, in my opinion, was built on. This was the freedoms that we've all grown up enjoying, especially being white people in America, you know, from the 80s until now. For me, you know, like I've I've I've been probably blessed to be born during one of the best times to be a giant white guy in history. Right. So the but then you're correct. Like we're seeing something that's starting to shift a little bit. And the judicial activism now is that these rights are being stripped away and sometimes very publicly and other times not as publicly. you know, we've it's still surprising to me that a lot of my conservative friends, they don't know that like anything about like the Kavanaugh stops and stuff like that. Right. Where like, now we've also just, you know, ripped away rights for just being brown. that you can be pulled over and be questioned about your citizenship because we've now gotten to a place where we're just making decisions based on whatever the president and his administration wants. Now we're just going to give it to them and we're going to continue to restrict those rights. And we're watching it happen in real time. And ⁓ it's brutal. I think one of the things I wanted you to hit on here too is like, Elwyn: Color your skin. Derek Peterson: And this is feels like it's coming quickly is the birthright citizenship talk it topic because that's been ever since the ice stuff started now everybody's like well now those people that were born here are you actually a citizen or not and to be honest like from from This is frustrating in general because I think in general most people don't actually want this It's just the people at the top are pushing their agenda because it's there are very few people that I've ever talked to that are like, yeah, like birthright citizenship shouldn't be a thing. Elwyn: Yeah, I think... I want to digress for a moment because when you mentioned your conservative friends, I started to think about business and conservative sides on business. And there's a really, really important case that was overturned last year that nobody ever thinks about. this is wild judicial activism. There's a case in 1982 called, it's commonly known as Chevron. I forget what the full name of it is. But basically what that case said was that administrative agencies in the government, ⁓ that courts will rely on the findings of government agencies like the EPA, right? That when a case is brought against an environmental regulation, the court is going to give great weight to the EPA's findings in that area, which makes perfect sense, right? These are experts. These are scientists who study this. They work for the government, so they're not paid by industry. They're supposed to be neutral, right? And let's assume that they are, because I think these are good people. So that has been a big deal because it kind of streamlines a lot of cases. And it's also been a main target for particularly Justice Gorsuch, who overturned it last year. what that means is now, or was Justice Roberts who wrote the decision, and what he said was the courts are the best place to weigh the science in an environmental claim. And that's insane. Why is a judge the best person to determine groundwater, whether groundwater pollution is real or not, or how groundwater flows from one property to another, or whether or not air pollution regulations are needed and properly tailored. But now that's the court's job, not agency experts. I just... Derek Peterson: Yeah, because the courts have now just ⁓ become completely complicit in the entire corruption scheme that this administration has put out that, you know, like the dollars that the justices are taking in for all of these decisions are minuscule to what the current administration. So all this stuff is getting overlooked. Like that's crazy to me. That is absolutely freaking crazy to me. Why exactly? Why should a judge be looking at Elwyn: Well also, think that... Yeah. And the... Derek Peterson: groundwater and making a decision on that when we have experts that for years have been doing this stuff and protecting and to be honest actually doing a really good job in most situations Elwyn: Yes, look at the skyline of New York in 1970 and tell me that's something we want to go back to. It's smog-filled and shitty, right? But when we talk about bribing and corruption in the court, that's where it really matters, right? I guarantee you that most of the big businesses that are funneling money, that are taking Clarence Thomas out on yachts and to private getaways, right? They're way more interested in overturning Chevron so that they can get whatever they want done without worrying about agency regulations. than they are about gay marriage. they get to overturn gay marriage, I'm sure they're fucking delighted, because they're all shitty people. But that's not what they really care about. It doesn't line their pocketbook. that's where the corruption plays in. Now, the birthright citizenship, this is really interesting. I'm going to try and pull up really quickly, I think I have it up already, the actual 14th Amendment. ⁓ Because what the 14th Amendment says is, It does not refer to citizens in most cases. It refers to persons. all persons, blah, blah. The relevant part here for our discussion is ⁓ no state nor shall any state deprive any person of life, liberty, or property without due process of law nor denied to any person within its jurisdiction the equal protection of the laws. Not citizen, person. Derek Peterson: person. Elwyn: Okay, to me this is as clean and undebatable as it can possibly be. Right, if you are in this country, documented or not, you are protected by the due process clause and the equal protection clause of the 14th Amendment. It has been litigated in a case 120 years ago, ⁓ so there is Supreme Court precedent, but... You the idea somehow to me that somehow ⁓ this could be read as only protecting citizens is insane. It's insane. There's no way to justify it. And I promise you, there are four justices who would overturn that right now, who would overturn birthright citizenship right now. ⁓ And is it more activist than that? where this is going to come up, it's going to come up in two places. Sorry, if I'm going on. Derek Peterson: No, keep going. No, no, no, keep going. Elwyn: This is going come up in two places. This is going to come up in the birthright citizenship case that is in front of Supreme Court this year. It's also starting to bubble up in Texas, where Stephen Miller, it came out yesterday, Stephen Miller has been quietly having conversations with Abbott and the rest of the Texas Republicans to deny public schooling to undocumented people. And that is a case there's a case it from the 1980s called Plyler versus Doe Which specifically speaks to this and specifically says no if you are a person in this country under the 14th amendment you are entitled to the due process rights and the rights of life and liberty and and all of that good stuff and that applies to schooling as well It doesn't say citizens. It never it only says citizens when it comes to like who can run for president you know, who is a naturally born citizen. ⁓ That if you're naturally born, you are a citizen, right? So there's two ways where this is going to come up and I feel like people just need to know that like, it doesn't matter how you feel about immigrants. It doesn't matter how you feel about undocumented folks. The Constitution, in its original form, in its original text in the 14th Amendment from 1867, protects all persons. Voter ID, right? All these voter ID laws. Only citizens can vote. This is not a fraud issue, right? But they're going to use undocumented people to shoehorn all of this stuff, right? ⁓ Where, even where it's unjustified. And we really need, like people really need to know about this because this is a question of two things. One, do you give a shit at all about what the constitution says? Because you can't get more plain language than section one of the 14th amendment protecting persons, not just citizens. So do you care at all, if you're a MAGA Republican, do you care at all about what the Constitution says? If you do, this is an open and shut case. Second is, do you have any humanity in your body at all? If you do, you would say, we are better off with people living in this country who are educated. We are better off with people in this country who have access to healthcare, right? We are better off with a better immigration system that tracks people and doesn't let in as many people as Biden did in an undocumented manner. That's a fair criticism, right, against Biden, 100%. But once they're here, right, there is a human argument to make, and that's a harder one. People are like, I don't give a shit, they're not here legally, and like, then give them due process before you kick them out. Derek Peterson: Yeah, but this is where it comes down to for me, though. So we talk about judicial activism, and this is exactly why I'm like, can we just stop fucking dancing around the elephant in the room and create term limits and allow whoever is president to appoint people during their presidency that could flip the court in their direction? entice it in a way that makes it that that allows things to actually flow and you know for judicial activism to actually happen in its proper terms because look We what we genuinely want in our country is is to operate from a place of values and oftentimes when judicial activism aligns with values like for example all humans are created equally and should be treated like human beings no matter whether they're from another country or not. And if you want to go further down that rabbit trail and talk about, you know, Christian values, that's a thousand percent of Christian values. So you want to call this a Christian nation and do and go down that path. We can absolutely debate that because I will tell you right now that I think that, you know, the value of a human life is the value of a human life. And it doesn't matter how much money is in your bank account or what ⁓ place you happen to be born in. think every human soul has value. And I think that outside of the line of the Constitution, we need people that are aligned with those values. And what we're seeing right now is just the gross interpretation of the law through the lens that money is more important than people. And it is repeatedly showing up in every law that's getting passed right now. And that is the part of it for me that just goes completely against every part of who I am. like, look, financial decisions and all of these things are critical. if we can't acknowledge that the health and well-being of just other human beings is far more important than what we're going, like then we're off on an entirely. another level, right? And I don't think that that was the intention of why the Constitution was made the way it was. And the beauty of it all is that we're here fighting and having these arguments with other people and we can discuss this and like thank God for that. Thank God the Constitution was strong enough to keep the liberties that we currently have at least still in place to, you know, it makes the checks and balances of successfully worked up until this point. We are probably closer than ever to where they're not working anymore, but I'm not going to say we're there yet because I don't think we are. We'll see how the rest of these this year and next year pans out. I think if voting happens and everything kind of starts to shift a little bit and back because people realize like, yeah, like this isn't what we anybody actually wants right now is to just feed billionaires more money while everybody else gets shit on and all of our rights get stripped away. Which that's the judicial activism that's happening now is just, hey, whoever pays the top dollar gets whatever law they want written in. Elwyn: Yeah, we've become so binary in our analysis when it comes to all things politics or Supreme Court related, where it's either good or it's bad. And that's a really dangerous place to be because, you know, the Constitution itself is a deeply imperfect document. And the founders themselves were deeply imperfect people. But, you know, it does provide the framework. for us to try and run a successful, thriving country where people are treated with equality and with humanity. I don't know, I'm not gonna go so far as to say that's what the founders would say because some of them were slave owners, but whatever. It is possible to look at that document as the founding document of our country as a template upon which we could build. and the court is the mechanism, is one of the key mechanisms for that building because what it does, what the court does, which is really, really important, is it prevents the majority from shitting all over the minority. It allows same-sex couples to say, this is wrong, okay? We're married, we love each other, we want to adopt and raise kids and we want to share in society with all the benefits and I love this person. Right? Yes, they're the same sex as me, but I want to be able to go visit them in the hospital during visiting hours. And I want to be able to inherit their money when they die. And I want to be able to get married. And these are all issues that were litigated. Right? That's what courts are for. Courts are for, the reason they're there is to sit there and say, yes, you same sex couples are 10 % of the population. And the majority has passed laws that are unconstitutional, that deny you equal protection, that deny you due process, and we have the power to make that right. We have the power to say that those laws are not in line with our founding document and our founding values. That's what courts are for, okay? And that is judicial activism. And I'm not saying that courts are for judicial activism, but I am saying that some form of judicial activism is necessary to protect citizens from the overreaches of the state. And when we lose sight of that, then we lose sight of actual justice. We lose sight of the question of is this right or wrong? Right? And you have to be able to ask that question and maybe at the heart of it, that is like the key activist question. We look at the Constitution, we look at the law, we look at what was written, we look at what the legislators said when they were debating and passing the law, and then on top of that we say is this right? is this wrong? And if that's what judicial activism means, then I am all for it. If it means how... Go ahead. Derek Peterson: Well, even simpler than that, like I was gonna say even simpler than that, you wanna boil it down right and wrong, sure, but is this expansive or restrictive, right? Because if we're talking in general, like I love that you hit on that earlier and I'm gonna probably be parroting this forever now is that, yeah, expansive laws that are expanding the rights of US citizens are good. Any laws that are continuing to restrict the, the rights of US citizens, I think are in general are bad. like that that can be the framework for all of this. Like if we're talking about things that benefit the American people, I'm all for it. But when we start to strip rights away from people like no, I'm out. Like it doesn't align with who I am as a person. And I don't think it should be. And look, I recognize I'm not in the majority on some of these things, but. In general, think that what we want and the future that involves peace is one of inclusivity and not exclusivity. And the more people we can bring in and allow them rights, I think that's the actual thing that garners peace and safety and prosperity, which is really what we're all fighting for in the first place. Elwyn: Yeah, that should be the fundamental sort of humanist question in all these debates. And I think the more people know about what's going on at the Supreme Court and what judicial activism really means, at least to you and I, I hope that it helps to inform them the next time they hear somebody scream about activist judges. Derek Peterson: Yeah, I like it. That's a good place for us to wrap up today's conversation on judicial activism. So which brings us to our last point, who are we telling to shut the fuck up today, Elwyn: Alright, so was at dinner with a guy, I was at dinner at a dive meet and they wanted to have a little team-ish dinner. So I find myself sitting down across from two fellas who I've never met before and I'm sitting next to someone who's very nice who I have met, so I'm talking to her. But I overhear what they're saying and since this is normally a shut the fuck up segment, I'm gonna give myself some props for not joining in the conversation. Derek Peterson: That would have probably ended the conversation. Elwyn: Because that would have been bad. ⁓ Sometimes it's... It certainly would have ruined the dinner. That's for sure. ⁓ So... But what I overhear these guys talking about, and they're both quite clearly Trump voters, and so one of them, they're talking about Iran, and one of them who's doing most of the talking is like, you know, it doesn't matter what you think of him, they took out the nukes and that's good for the world. Derek Peterson: Ha ha! Elwyn: But then he proceeds to go, but you know, don't know what he's doing in Iran. I'm trying to figure out what the goal is. And this is two weeks ago now, almost, right? So I'm trying to figure out what the goal is. It's like, think, here's what I think. I think it's like he's gonna meet with China, and he has the Venezuelan oil, and China and Russia, China and India need to buy oil from Venezuela, and if he can get Iranian oil, then he has some leverage and conversation with China, and it's just this fucking 4D chess. this guy was doing and he kept coming back to like, but you know, I don't know. Like that doesn't, I think that might be, that must be what it is because I can't see any other reason. And you know, and tariffs, like I think he's trying to do this, but I, you know, I'm not sure cause what this isn't working. And I just wanted to say to him, I saw him the next day at the, at the pool and I wasn't going to say hi to him, but I was walking past him and he's stopping to ask a question about the meat. And I just wanted to say to him like, Bro, it's okay. You can criticize the guy. You can criticize Trump. You don't have to agree with everything he does. You can still even support him. That's how shit works. You can say that you love what he's done with the border and love ICE and love all this stuff, but you just don't get Iran and you don't agree until he comes up with a more credible explanation and that's what you're looking for. you can do that, right? So you're allowed, I want to say you're allowed to do that. And I then got back to where I was sitting, where I sitting next to a friend of mine, and I told him this whole story, and he was like, yeah, it's because it's such an identity to that guy, right? Like, following Trump, being on the same page as Trump and supporting Trump and understanding Trump, it's not politics. It's a core part of his identity. Derek Peterson: Mm-hmm. Yep. Elwyn: And it was just really interesting to me to see it. You know, I've never heard someone just kind of go through, you could smell the wood burning from his thought process, but he couldn't get them, he couldn't allow himself to say, yeah, yeah, you could see it, right? But he couldn't allow himself to just say, I love the guy, I loved his first term, I love what he's done on the border. Derek Peterson: Little steam coming out the ears. Elwyn: fuck trans people, whatever it is that motivated this guy. But I think he's wrong. I don't understand Iran. I don't see where this is America first. I don't see where this is good for our country. And I wish he would just kind of declare victory and move on because this isn't right. He couldn't do it. He couldn't do it. So I kind of wish this guy would, and anybody like him, would just, if you've gotten that far, if you've gotten to the point where you're really trying to justify. and you're playing 4D chess in your head that you should shut the fuck up for a second and be like, wait, am I allowed to say that I still like him and I'd vote for him again and he's been unfairly treated and all the bullshit that he wants you to say, but man, he's wrong on this issue. I wish people would shut the fuck up and say that because then we can have a debate. Now, I'm not talking to an insane person anymore. I'm not talking to someone. who's just following the leader of a cult of personality. that was my kind of like, I wish this guy could shut the fuck up for a second and just reflect and come down on the same page regarding Trump, but also give yourself the grace to be a smart human and disagree. Derek Peterson: Yep, fist bump it. It blows my mind when we were processing through this a little bit yesterday. still like, you know, like I always think about this when people cannot see the nuance in all of this stuff. It just blows my mind. Like how can you not like be okay not subscribing to 100 % to Elwyn: Ciao. Derek Peterson: somebody or something and being okay with like criticizing it. Like look some of the dumbest people on the planet are fully engaged in doing this regularly. There are sports fans all over the place that will like die for their team while at the same time criticizing ownership and the coaches and everybody else. Like there is there is absolutely a capable people. like dumb people that doing this, including myself, right? Like you can, you can be a Penn State fan and also hate Jerry Sandusky and Joe Paterno for allowing them to molest young boys. Like both worlds can exist at the same time. ⁓ and it just blows my mind that people are incapable of it. So, you know, kudos this week because I think that that shit needs to be called out. So, ⁓ well, what we talking about next week, Elwin? Elwyn: I never have an answer to this question. ⁓ I dabbled for a second with the idea of talking about ⁓ conspiracy theories. But man, I don't know if I want to do that. Derek Peterson: I know. Well, I don't either. Let's see. We get that old but we got to get it like some specific one I mean I'm always game for an episode on the moon landing if you want to jump into that That'll be fun ⁓ Elwyn: I was thinking Charlie Kirk. Derek Peterson: Whoo, that'll get that'll get that might that might put our podcast on the map and also might put us might put us on the map. Elwyn: Hahaha! Yeah, God knows where it'll put us. Derek Peterson: I'm like I've been pulled over six times this week I have no idea why. Well we've got some we've got a few topics cooking we'll you know talk offline figure out where we want to go but ⁓ I think we've got a number of things that we can we can jump into next week and go from there but so have have a good week y'all. Elwyn: Yeah, strange. We are Charlie Kirk! Sounds good. You should, yep.