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Will the Court Help Trump Steal the 2026 Election? · The Oath and The Office

• 0:09
  Speaker 1: Welcome to another episode of the Oath in the Office podcast.
• 0:11
  Speaker 1: I'm John Fugelsang, and today we ask what happens when
• 0:14
  Speaker 1: the formal checks on presidential power stay in place, but
• 0:18
  Speaker 1: the administration won't stop pushing those boundaries of those checks,
• 0:22
  Speaker 1: and what happens when the courts, Congress, the military, and
• 0:25
  Speaker 1: the public are the institutions expected to respond. Apparently, the
• 0:30
  Speaker 1: Postal Service has just found a brand new constitutional power, folks,
• 0:33
  Speaker 1: deciding who gets the privilege of exercising what used to
• 0:36
  Speaker 1: be a basic right voting by mail. For more, let's
• 0:39
  Speaker 1: go to the star of the oath in the office,
• 0:42
  Speaker 1: the author of the oath in the office and the
• 0:43
  Speaker 1: presidents and the people, everybody's favorite constitutional law professor, Corey Bretschneider. Hello, sir.
• 0:49
  Speaker 2: Thanks so much, John. You know, when you and I
• 0:51
  Speaker 2: started this podcast, we're about a year and a half in.
• 0:54
  Speaker 2: The idea was a president takes an oath to preserve,
• 0:57
  Speaker 2: protect and defend the Constitution. And this guy, this president,
• 1:00
  Speaker 2: Donald Trump, looked like he was doing the opposite. And,
• 1:03
  Speaker 2: you know, I've used the phrase to really emphasize the
• 1:06
  Speaker 2: threat to democracy and self-coup, the idea of a president
• 1:10
  Speaker 2: destroying the checks and balances. And unfortunately, rather than that
• 1:14
  Speaker 2: being paranoid or overstated, it looks like that's exactly what's happening.
• 1:19
  Speaker 2: And this post office story, which we've been covering again
• 1:22
  Speaker 2: and again, it's just getting worse. And you don't have to,
• 1:25
  Speaker 2: here's my thesis of this part of the show, but
• 1:30
  Speaker 2: really it's a theme that covers the second Trump presidency.
• 1:34
  Speaker 2: You don't have to actually have not only a violent
• 1:37
  Speaker 2: coup or You don't have to suspend elections. You don't
• 1:40
  Speaker 2: have to suspend Congress in order to destroy democracy. You
• 1:43
  Speaker 2: just have to find these little ways of subtly changing
• 1:47
  Speaker 2: the rules, changing the system. And that's what's going on here,
• 1:50
  Speaker 2: that Donald Trump working with his new CEO of the
• 1:54
  Speaker 2: post office, somebody who seems extremely complicit in Trump's demands
• 2:00
  Speaker 2: to destroy democracy, They've come up with a way to
• 2:03
  Speaker 2: do it, and it's coming up with convoluted rules that
• 2:06
  Speaker 2: they want to implement to essentially deny ballots from even
• 2:10
  Speaker 2: being delivered in the first place or from being counted.
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  Speaker 1: Well, let's talk about that because you're right. It is
• 2:16
  Speaker 1: sort of death of democracy by a thousand little cuts.
• 2:19
  Speaker 1: And I want to begin by asking about the mail voting.
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  Speaker 1: The administration is saying, Corey– This isn't an election rule.
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  Speaker 1: This is just a mail rule that happens to affect elections.
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  Speaker 1: So it's very convenient. But the administration is asking the
• 2:31
  Speaker 1: Supreme Court to allow all new postal service rules to
• 2:36
  Speaker 1: make it harder for Americans to exercise their right to vote,
• 2:39
  Speaker 1: restricting different aspects of mail voting. All of it to
• 2:43
  Speaker 1: take place really fast before the midterms, because as you know, Corey,
• 2:46
  Speaker 1: there was no fraud there. Barack Obama and Joe Biden
• 2:49
  Speaker 1: were president. But when Donald Trump's the president, there's a
• 2:52
  Speaker 1: lot of fraud, apparently, and Trump wants to warn us
• 2:54
  Speaker 1: about it. So what is the fundamental constitutional question that
• 2:58
  Speaker 1: justices are being asked to resolve here?
• 3:01
  Speaker 2: Well, the question that the way, you know, there are
• 3:03
  Speaker 2: really two questions, depending on who's asking the questions. And
• 3:06
  Speaker 2: that's the problem. If it was me asking the question,
• 3:09
  Speaker 2: and this is certainly what you're going to hear from
• 3:12
  Speaker 2: those challenging this new Rule doesn't quite, you know, it's
• 3:15
  Speaker 2: sort of abstract way of talking about what agencies, how
• 3:19
  Speaker 2: they implement policy. This rule would really do nothing less
• 3:22
  Speaker 2: than destroy our election system. So it's a pretty serious
• 3:26
  Speaker 2: rule that understates it. The way I would ask it is,
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  Speaker 2: does the president of the United States have the right
• 3:31
  Speaker 2: to usurp the right to vote guaranteed in legislation and
• 3:36
  Speaker 2: in the Constitution? The answer that I would give to
• 3:38
  Speaker 2: that question is, is no, now let me ask it
• 3:41
  Speaker 2: the way the Solicitor General and the President of the
• 3:44
  Speaker 2: United States and the CEO of the Post Office want
• 3:47
  Speaker 2: to ask it. Does the Post Office, under the direction
• 3:50
  Speaker 2: of the President, have the right to administer the details
• 3:54
  Speaker 2: of how mail is delivered or not? And, you know,
• 3:57
  Speaker 2: in that way, it sounds very innocuous. And we have
• 4:00
  Speaker 2: a series of events. We've been covering it again. Listeners
• 4:04
  Speaker 2: know these details, but I want to update them. we
• 4:08
  Speaker 2: had an initial moment where a lower court judge heard
• 4:11
  Speaker 2: about this rule and saw the danger of it and
• 4:15
  Speaker 2: stopped it from being implemented. And the Supreme Court came
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  Speaker 2: in and said, hey, you can't do that. It's too early, basically.
• 4:22
  Speaker 2: And so they used this procedural maneuver of saying that
• 4:25
  Speaker 2: the issue wasn't ripe, it wasn't time to hear it,
• 4:28
  Speaker 2: in order to really allow it to move forward. Well,
• 4:31
  Speaker 2: now they've implemented it. A lower court judge has stopped
• 4:35
  Speaker 2: it and the administration is again now, as I predicted
• 4:38
  Speaker 2: last week, now it's happening, going to the Supreme Court
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  Speaker 2: and saying, help us, help stop these lower court judges
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  Speaker 2: who are trying to so-called protect voting rights. No, that
• 4:47
  Speaker 2: is what they're doing. And the administration is saying to
• 4:50
  Speaker 2: the Supreme Court, we need an order that allows us
• 4:53
  Speaker 2: to implement this quote unquote rule. What is the rule? Again,
• 4:56
  Speaker 2: it's to really deny the delivery of ballots that are
• 5:00
  Speaker 2: valid to deny them from being delivered in the first
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  Speaker 2: place and certainly from being delivered once they've been cast.
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  Speaker 1: We have to keep on stressing there is no fraud
• 5:10
  Speaker 1: that could ever affect the outcome of any elections that
• 5:14
  Speaker 1: these policies are designed to fix. Just as with voter
• 5:18
  Speaker 1: ID laws, you know that those are racist scams because
• 5:20
  Speaker 1: there has never been an election in our country where
• 5:23
  Speaker 1: the outcome was affected by voter impersonation. The only reason
• 5:27
  Speaker 1: you have voter ID laws is to prevent voter impersonation.
• 5:30
  Speaker 1: But the mainstream liberal media doesn't ask these questions too much.
• 5:33
  Speaker 1: And now with this one, Corey, it's basically an emergency
• 5:36
  Speaker 1: application saying, can we please change the rules right before
• 5:40
  Speaker 1: the election and then litigate whether we were allowed to
• 5:42
  Speaker 1: change them after the election? I mean, that's it, right?
• 5:45
  Speaker 1: Like they're saying that the Postal Service is just settling
• 5:48
  Speaker 1: mail handling requirements. They're not regulating elections. It's just doing
• 5:53
  Speaker 1: what they do. It just happens to involve ballots, right?
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  Speaker 2: Right.
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  Speaker 1: Why does that distinction matter constitutionally?
• 5:59
  Speaker 2: Well, you know, I mean, I'll just use the argument,
• 6:02
  Speaker 2: you know, the Solicitor General keeps making these arguments in
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  Speaker 2: the Supreme Court of why they should intervene on the
• 6:06
  Speaker 2: behalf of the President. And he's saying things like, look,
• 6:09
  Speaker 2: the President of the United States, if he fears that
• 6:11
  Speaker 2: munitions or dynamite is being sent through the mail, he's
• 6:16
  Speaker 2: got to act to protect our safety. And that's not
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  Speaker 2: a matter of law or a matter of the Constitution
• 6:22
  Speaker 2: or a matter of rights. It's just the President's judgments.
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  Speaker 2: And the Solicitor General is saying essentially that's what's happening
• 6:28
  Speaker 2: here too. Now here's the problem. What's the equivalent of
• 6:31
  Speaker 2: the dynamite being sent through the mail? And what they're
• 6:36
  Speaker 2: saying is it's these so-called fraudulent ballots. What fraud? Where
• 6:41
  Speaker 2: is this? It goes back to the same theme of
• 6:43
  Speaker 2: how Trump tried to steal the election. You said something else, John,
• 6:46
  Speaker 2: that's really important. I want to always connect the dots
• 6:49
  Speaker 2: between our different podcasts. We're honored to have Stacey Abrams,
• 6:53
  Speaker 2: one of the best um out there when it comes
• 6:56
  Speaker 2: to protecting democracy about the save act and she was
• 6:59
  Speaker 2: campaigning as we were to stop this act being passed
• 7:03
  Speaker 2: by congress which would have created you know as stacy
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  Speaker 2: abrams made it very clear on our show you know
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  Speaker 2: all localities really require some form of id but what
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  Speaker 2: the save act was doing was finding those ids that
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  Speaker 2: by and large democratic voters didn't have now that never
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  Speaker 2: passed so what did trump have to do he still
• 7:23
  Speaker 2: wants to steal the election He can't cancel it. At
• 7:26
  Speaker 2: least he's decided not to try that. He sees that
• 7:29
  Speaker 2: that would cause too much chaos and resistance. So he's
• 7:32
  Speaker 2: come up with this other scheme, this so-called rule, which
• 7:35
  Speaker 2: would essentially deny ballots from being mailed. And, you know,
• 7:39
  Speaker 2: it's something like a third of Americans cast their ballots
• 7:42
  Speaker 2: through the mail. So we're not talking about a small
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  Speaker 2: amount here.
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  Speaker 1: And of course the constitution gives Congress election authority and
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  Speaker 1: the administration's argument seems to be, well, somewhere in the
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  Speaker 1: postal service manual, there's an appendix and that means just
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  Speaker 1: as much, right? I mean, like, like Congress has not
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  Speaker 1: delegated the postal service authority to regulate elections in this way.
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  Speaker 1: That's what I keep coming back to.
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  Speaker 2: Okay.
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  Speaker 1: So, you know, when did Congress cede control over this?
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  Speaker 1: I mean, what is the constitution's actually say about who
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  Speaker 1: has authority over elections?
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  Speaker 2: Right. I mean, there's no, you know, when it comes to,
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  Speaker 2: and that is, I should say, what repeatedly the lower
• 8:21
  Speaker 2: courts have said, and district courts, and in this case,
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  Speaker 2: there was, you know, a decision that essentially said that,
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  Speaker 2: that elections, you know, are a combined authority of localities.
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  Speaker 2: Congress also has power over elections. And although they might
• 8:36
  Speaker 2: have the power to say, hey, we want the post
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  Speaker 2: office to have sole decision over voter fraud or something
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  Speaker 2: like that, They didn't say anything of the sort. There's
• 8:46
  Speaker 2: been no legislation. And in fact, the legislation that Trump
• 8:48
  Speaker 2: tried to pass through Congress to destroy our democracy, the
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  Speaker 2: SAVE Act, didn't pass. So now what you're really asking is, like,
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  Speaker 2: isn't this obvious? Like, aren't we, you know, in a
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  Speaker 2: moment in which the Supreme Court, of course, should come in. OK,
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  Speaker 2: they said it wasn't right now that it is being
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  Speaker 2: implemented or they're trying to implement that. I should say, too,
• 9:09
  Speaker 2: just to update people. This new rule, which would upend
• 9:13
  Speaker 2: our elections, has been stopped by the lower courts. And
• 9:16
  Speaker 2: Justice Jackson, who's got initial control over the procedure at
• 9:20
  Speaker 2: the Supreme Court in this particular case, has not lifted that.
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  Speaker 2: So the post office is now being prohibited from using
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  Speaker 2: the rule. But why are we even talking about this?
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  Speaker 2: Why is the Supreme Court even going to consider it? Well,
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  Speaker 2: there is this idea that goes back to the Reagan
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  Speaker 2: White House and lawyers like now Justice Alito, then White
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  Speaker 2: House lawyer Alito, now Justice Roberts, then White House lawyer Roberts,
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  Speaker 2: who wanted to emphasize the complete control of the president
• 9:53
  Speaker 2: over all the administrative agencies, including the post office. So
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  Speaker 2: what they're trying to say is this isn't a legal decision.
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  Speaker 2: We don't need power to be handed over by Congress.
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  Speaker 2: It's just an administrative decision. And I gave the example
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  Speaker 2: before of the president's control over, does he write on
• 10:12
  Speaker 2: white paper or yellow paper that he orders for the
• 10:15
  Speaker 2: White House? I'm not sure he's writing on any legal paths,
• 10:18
  Speaker 2: but let's imagine a hypothetical where this president did write notes.
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  Speaker 2: If he chooses yellow over white, they're like, that's not
• 10:25
  Speaker 2: a matter of law. That's just an administrative decision from
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  Speaker 2: within the executive branch. Well, that idea, which I've been stressing,
• 10:32
  Speaker 2: is now going to the Supreme Court, and they have
• 10:35
  Speaker 2: to decide whether or not This is a matter of law.
• 10:39
  Speaker 2: In other words, did Congress delegate the power to decide elections?
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  Speaker 2: They clearly didn't. Or is this more of an administrative decision?
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  Speaker 2: So that's a real example that I gave about worrying
• 10:50
  Speaker 2: about explosives being sent through the post office. And they're like, well,
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  Speaker 2: that would be an administrative decision. And this is one, too.
• 10:57
  Speaker 2: And I would say it's got no chance. It's a
• 10:59
  Speaker 2: crazy argument. Except look at who the justices are. They
• 11:03
  Speaker 2: are the same people who are pushing for this idea
• 11:06
  Speaker 2: of more administrative control over the agencies, over the post office.
• 11:12
  Speaker 2: They're the designers, the lawyers who design this idea. So
• 11:16
  Speaker 2: is it undermining law? Absolutely. Is it undermining Congress? Totally.
• 11:20
  Speaker 2: But yet they're able to do it by just saying, no,
• 11:22
  Speaker 2: this is just an administrative decision.
• 11:25
  Speaker 1: Well, I mean, this is the same Supreme Court where
• 11:27
  Speaker 1: we know from the birthright citizenship case that three of
• 11:30
  Speaker 1: them think the president should be allowed to overturn the
• 11:34
  Speaker 1: Constitution with an executive order if that president's a Republican.
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  Speaker 1: So in many ways, it just seems like he's appealing
• 11:41
  Speaker 1: to an umpire he hopes will be friendly. Because is
• 11:45
  Speaker 1: there a constitutional principle here that goes beyond mail voting?
• 11:48
  Speaker 1: I mean, it seems to be about whether, again, an
• 11:51
  Speaker 1: executive agency can just discover brand new powers inside some
• 11:55
  Speaker 1: old statute.
• 11:56
  Speaker 2: Yeah, I mean, you know, I just want to emphasize,
• 11:59
  Speaker 2: you hear me talk about hope all the time, And
• 12:01
  Speaker 2: on birthright citizenship, if you want to go, people can
• 12:03
  Speaker 2: go back and listen to it. We had Cecilia Wang,
• 12:06
  Speaker 2: who argued the case. But before, you and I discussed
• 12:08
  Speaker 2: it extensively. And what I said, and I was vindicated
• 12:12
  Speaker 2: by what they did, is, look, this is too embarrassing
• 12:15
  Speaker 2: for them to take the side of the president. It
• 12:17
  Speaker 2: says on birthright citizenship, right in the 14th Amendment, if
• 12:20
  Speaker 2: you're born in the United States, then you are a citizen.
• 12:23
  Speaker 2: And yes, it uses the phrase subject to the jurisdiction,
• 12:26
  Speaker 2: but that's a very narrow idea.
• 12:28
  Speaker 1: It's not embarrassing for white supremacists, Professor. It's not embarrassing
• 12:31
  Speaker 1: for white supremacists at all. It is just order.
• 12:34
  Speaker 2: But the Supreme Court there did what I predicted, right?
• 12:36
  Speaker 2: They struck it down. Here, we're in a different world.
• 12:40
  Speaker 2: There is an idea of this unitary executive, increasing executive
• 12:46
  Speaker 2: presidential control specifically over the agencies on administrative decisions that
• 12:51
  Speaker 2: they really have developed these justices, including justices who voted
• 12:55
  Speaker 2: to strike down birthright citizenship, Justice Roberts in particular, he
• 12:59
  Speaker 2: loves this idea. He loves this idea of the unitary
• 13:03
  Speaker 2: executive control over executive agencies. What's the principle on the
• 13:06
  Speaker 2: other side? We talked about laws passed by Congress. It's
• 13:09
  Speaker 2: called separation of powers. It's called checks and balances. The
• 13:12
  Speaker 2: idea that there's a limit when it comes to the
• 13:15
  Speaker 2: executive branch and that limit, by the way, Madison tried
• 13:19
  Speaker 2: and failed to spell this out in an amendment. I
• 13:21
  Speaker 2: wish he did. that emphasize it's a balance of powers,
• 13:24
  Speaker 2: that you have to make laws in order to implement them.
• 13:28
  Speaker 2: And that's not how Roberts sees it. They really emphasize
• 13:31
  Speaker 2: this vast and essentially inherent power of the executive. The
• 13:35
  Speaker 2: executive power is vested in one person, the Constitution says,
• 13:39
  Speaker 2: a president. And they're going to use this, well, malarkey,
• 13:42
  Speaker 2: but I gave you the legal argument for this malarkey,
• 13:45
  Speaker 2: in order to you know, do what? To undermine the law,
• 13:50
  Speaker 2: to try to steal our election. That's why I'm so
• 13:52
  Speaker 2: worried at this moment. Let me say one more sentence, John.
• 13:55
  Speaker 2: Sometimes they do this through opinions, but this well might
• 13:58
  Speaker 2: be done just through what's known as an emergency order,
• 14:01
  Speaker 2: through a decision where we never really get to see
• 14:04
  Speaker 2: why they did it. They have been reluctant under this
• 14:08
  Speaker 2: shadow docket, these emergency orders to give us reasons. And,
• 14:12
  Speaker 2: you know, I have no doubt Justice Jackson will give
• 14:14
  Speaker 2: us her reasons for but it may well be a dissent. Well, yeah.
• 14:18
  Speaker 1: And I mean, that brings us to the crux of
• 14:20
  Speaker 1: the thing, right? What changes when the Supreme Court is
• 14:22
  Speaker 1: asked to intervene on an emergency basis rather than through
• 14:26
  Speaker 1: the ordinary appeals process, right? This brings us back. You
• 14:29
  Speaker 1: said the shadow docket. We got to tell people once
• 14:31
  Speaker 1: again what that means. Why is emergency litigation, Corey, potentially
• 14:37
  Speaker 1: different from the ordinary usual legal process of constitutional adjudications?
• 14:43
  Speaker 2: Yeah, we're combining two really disturbing trends that's understating it
• 14:47
  Speaker 2: of the Supreme Court. One is the destruction of separation
• 14:50
  Speaker 2: of powers and the tendency to ignore the law in
• 14:53
  Speaker 2: favor of this idea that there are all these solely
• 14:56
  Speaker 2: executive functions, the president controlling the agencies, controlling the post office.
• 15:01
  Speaker 2: And here's what that's disturbingly combined with, a failure of
• 15:06
  Speaker 2: the court to give its reasons. One of the main
• 15:08
  Speaker 2: ideas of law is that the court is different than
• 15:12
  Speaker 2: the other branches and that it has to tell us
• 15:13
  Speaker 2: why it's doing what it's doing. What part of the
• 15:16
  Speaker 2: Constitution is it or is it not respecting separation of powers? Why?
• 15:21
  Speaker 2: And they do that through extensive opinions. That's the meaning
• 15:24
  Speaker 2: of law. But increasingly, this court, this Roberts Court, the
• 15:28
  Speaker 2: same Roberts Court that has really taken this unitary executive
• 15:32
  Speaker 2: idea and run with it, And the way they're making
• 15:35
  Speaker 2: decisions is through this so-called shadow docket or emergency docket.
• 15:39
  Speaker 2: And what that means... is essentially they're not going to
• 15:41
  Speaker 2: tell us their reasons. They're going to say, whoa, there's
• 15:45
  Speaker 2: a lot of speed here. There's an emergency. Think of
• 15:47
  Speaker 2: this timing. We are so rushed.
• 15:49
  Speaker 1: Yeah, no time to tell you.
• 15:50
  Speaker 2: We're in a rush. It's not an emergency. They create
• 15:52
  Speaker 2: the emergency.
• 15:53
  Speaker 1: Oh, there's weapons in the mail.
• 15:55
  Speaker 2: Oh, that's nuts.
• 15:56
  Speaker 1: Hide the children. We don't have time for this. Exactly.
• 15:58
  Speaker 2: We don't have time for this. We don't have time
• 16:00
  Speaker 2: to tell you why we're doing it. Just do it.
• 16:02
  Speaker 1: We have time to take apart the Voting Rights Act.
• 16:05
  Speaker 1: We don't have time to explain to you why we're
• 16:07
  Speaker 1: doing this. So, I mean- Yeah, the timing is what
• 16:09
  Speaker 1: makes this thing really, really stink like Steve Bannon's hamper.
• 16:13
  Speaker 1: I mean, there's a constitutional problem with election rules that
• 16:17
  Speaker 1: didn't exist four years ago that has to be changed really,
• 16:20
  Speaker 1: really close to an election. I mean, if the court
• 16:24
  Speaker 1: allows these rules to take place, even temporarily, Professor, without
• 16:27
  Speaker 1: resolving the whole constitutional question, what should we the people
• 16:31
  Speaker 1: understand about what that decision establishes for the rest of time?
• 16:37
  Speaker 2: Well, you know, I'm always trying to find the hope.
• 16:39
  Speaker 2: And sometimes through this discussion, I will find it, I promise. But,
• 16:43
  Speaker 2: you know, it is the abdication of law. And, you know,
• 16:47
  Speaker 2: the hope is going to come in us telling the
• 16:49
  Speaker 2: truth about what's happening and recognizing that this Supreme Court
• 16:52
  Speaker 2: and its current configuration is not inevitable. But, you know,
• 16:56
  Speaker 2: I don't want to hide from it. What makes it
• 16:58
  Speaker 2: law when the courts decide is they give reasons that
• 17:02
  Speaker 2: are legal reasons. And when they refused to do that
• 17:05
  Speaker 2: because of so-called emergencies, again, I mean, you know, we
• 17:08
  Speaker 2: were joking, but it is a deeply serious point, an
• 17:11
  Speaker 2: emergency created by this president and then used as an
• 17:14
  Speaker 2: excuse by this court to refuse to tell us, we
• 17:17
  Speaker 2: the people, what's going on, to even explain things to us.
• 17:21
  Speaker 2: And one of the shocking things, too, is, you know,
• 17:23
  Speaker 2: Jodi Kantor, who that really was an amazing moment that
• 17:28
  Speaker 2: we got to have her on the podcast, but she
• 17:29
  Speaker 2: explained in depth what's going on. She found memos about
• 17:34
  Speaker 2: Justice is sort of acting in a kind of partisan,
• 17:37
  Speaker 2: frustrated way with Joe Biden that launches the massive amount
• 17:41
  Speaker 2: of the shadow docket. By the way, this is an
• 17:43
  Speaker 2: idea that's been around for a while, this emergency docket.
• 17:46
  Speaker 2: But it has just massively increased, and it coincides with
• 17:49
  Speaker 2: the threat to democracy. So, no, it isn't law that
• 17:53
  Speaker 2: they're doing. It's a kind of politics. It's a raw politics.
• 17:57
  Speaker 2: They're not even pretending to hide it. They won't give
• 17:59
  Speaker 2: us reasons.
• 18:00
  Speaker 1: We can't pretend that this administration cares about law. They
• 18:03
  Speaker 1: care about order. But this is a convicted felon. This
• 18:07
  Speaker 1: is grabbing by the pussy. This is Trump University. This
• 18:10
  Speaker 1: guy stole from Americans, including vets, with a fraudulent online university.
• 18:14
  Speaker 1: This guy had cops beaten for a lie. And pardon
• 18:19
  Speaker 1: the terrorists who beat the cops. Don't ask us to
• 18:22
  Speaker 1: pretend they care about law. And The Supreme Court justices
• 18:25
  Speaker 1: know it as well. Some of them care about their reputation.
• 18:28
  Speaker 1: Most of them just care about the order. And they're
• 18:31
  Speaker 1: having this large federal effort now to identify this alleged
• 18:35
  Speaker 1: non-citizen voting, which doesn't exist. Donald Trump's official point of view, Professor, still,
• 18:41
  Speaker 1: is that Hillary Clinton only won the popular vote of
• 18:45
  Speaker 1: the American people in 2016 because over 3 million undocumented
• 18:49
  Speaker 1: immigrants voted illegally. They were somehow, Corey, 3 million were
• 18:53
  Speaker 1: able to register, show up, vote, because I don't know
• 18:58
  Speaker 1: if you know this, the main thing that undocumented immigrants
• 19:00
  Speaker 1: want to do is get caught. So that's why they
• 19:03
  Speaker 1: did it. I mean, it's that lie has festered for
• 19:06
  Speaker 1: 10 years because no one cares. Oh, grandpa's robe is
• 19:10
  Speaker 1: open again. That's just his old lie. So, I mean,
• 19:13
  Speaker 1: they're trying to have comparisons of federal and state databases
• 19:17
  Speaker 1: right now. And that's a big distinction. There's a big
• 19:19
  Speaker 1: difference between someone illegally voting and someone's name appearing on
• 19:23
  Speaker 1: multiple databases. This is the fraud. The fraud is this
• 19:28
  Speaker 1: search for fraud. I mean, where are the legitimate government
• 19:31
  Speaker 1: interests here, Corey? And where do the constitutional worries begin?
• 19:36
  Speaker 1: Because there's three kinds of people, those who know what
• 19:39
  Speaker 1: they're doing, those who don't care what they're doing, and
• 19:42
  Speaker 1: those who remain blissfully ignorant to.
• 19:44
  Speaker 3: What they're doing.
• 19:45
  Speaker 2: Well, you know, I think one of the most important
• 19:48
  Speaker 2: services that we're doing on this podcast, and I'm not
• 19:52
  Speaker 2: unfortunately seeing it all the time in the mainstream media,
• 19:55
  Speaker 2: if at all, is taking these individual stories that journalists
• 19:58
  Speaker 2: are often good at reporting and connecting them. And these
• 20:01
  Speaker 2: two stories, the story of the order to Homeland Security
• 20:05
  Speaker 2: to find so-called fraud and this post office story are
• 20:08
  Speaker 2: really one in the same. And so I'll say how
• 20:10
  Speaker 2: they're connected. The story of telling Homeland Security to search
• 20:17
  Speaker 2: for voter fraud comes from the fact that if Trump
• 20:21
  Speaker 2: wants to justify this really radical new rule in the
• 20:25
  Speaker 2: post office that's going to deny the distribution of massive
• 20:29
  Speaker 2: numbers of ballots. I mean, we're talking about millions of
• 20:31
  Speaker 2: people who vote by mail. Listen to how many. It's
• 20:34
  Speaker 2: in the hundreds. of examples of even on the side
• 20:39
  Speaker 2: of the right, the Heritage Foundation and similar groups, when
• 20:41
  Speaker 2: you ask them, what are the examples of documented voter fraud?
• 20:46
  Speaker 2: They can come up with a few hundred examples.
• 20:49
  Speaker 1: So how can a few hundred examples- Out of billions.
• 20:52
  Speaker 2: Exactly. This isn't just one election. This is what they've
• 20:55
  Speaker 2: come up with, period. And so that's not enough. And
• 20:59
  Speaker 2: the administration knows that, that if they're going to justify
• 21:01
  Speaker 2: this new rule by the post office- They have to
• 21:04
  Speaker 2: go out and they have to manufacture lots of examples
• 21:08
  Speaker 2: of voter fraud. And that's what essentially the federal government
• 21:11
  Speaker 2: in large– remember, Homeland Security is supposed to be doing
• 21:13
  Speaker 2: things like tracking down sex traffickers. And now what are
• 21:16
  Speaker 2: they doing? They're tracking– trying to track down fake voter fraud,
• 21:22
  Speaker 2: manufacturing it essentially.
• 21:23
  Speaker 1: Well, we protect the sex traffickers now, Corey, if they're
• 21:25
  Speaker 1: rich enough. I don't know if you've heard, but yeah.
• 21:27
  Speaker 2: Yes, I have heard about it. A little man named Epstein,
• 21:29
  Speaker 2: a good friend of the president.
• 21:31
  Speaker 1: Can I ask you about this then? I mean– What
• 21:34
  Speaker 1: kind– I get it, right? Like this whole effort to
• 21:36
  Speaker 1: identify illegal voting and this is– it's there to undermine
• 21:40
  Speaker 1: confidence in legitimate voters because, hey, if the government can
• 21:44
  Speaker 1: generate large numbers of false positives or even a couple
• 21:47
  Speaker 1: of hundred, that's all you need to cast doubt on
• 21:49
  Speaker 1: any election you want, whether you have evidence or not.
• 21:52
  Speaker 1: So here's the serious question, Professor. What kind of evidence
• 21:56
  Speaker 1: would be necessary before the government– any government could legitimately
• 22:01
  Speaker 1: conclude that someone had committed election fraud?
• 22:04
  Speaker 2: You know, it would have to just be many multiples
• 22:06
  Speaker 2: of the 500 or several hundred or so examples. And,
• 22:11
  Speaker 2: you know, it's not beyond them that they will try
• 22:14
  Speaker 2: to manufacture those numbers and that they'll use all sorts
• 22:16
  Speaker 2: of surreptitious lying techniques in order to do so. But
• 22:20
  Speaker 2: the bottom line is it's manufactured. And no matter what
• 22:23
  Speaker 2: number they give us, we know that the real number,
• 22:26
  Speaker 2: by their own analysis, by the Heritage Foundation and similar
• 22:30
  Speaker 2: groups who are allies of the president, is nothing like
• 22:34
  Speaker 2: anywhere close to the amount of fraud that you would need.
• 22:37
  Speaker 2: I mean, here's the other thing, though, just to kind
• 22:40
  Speaker 2: of get into the nitty gritty. Even if you could show,
• 22:45
  Speaker 2: and they're not going to be able to show this legitimately,
• 22:47
  Speaker 2: that it is in the millions, what the post office
• 22:51
  Speaker 2: does as a remedy, the remedy to the fraud, has
• 22:53
  Speaker 2: to be logically connected. And nothing in this post office
• 22:57
  Speaker 2: rule is logically connected. And we know that partly because
• 23:00
  Speaker 2: a whistleblower from within the post office has told us this,
• 23:04
  Speaker 2: and Senator Blumenthal has really been doing, talking about heroes
• 23:07
  Speaker 2: and fighting back. Senator Blumenthal this week gets called a
• 23:12
  Speaker 2: hero in defense of democracy because what he's done in
• 23:15
  Speaker 2: publicizing this whistleblower report is show us that they're planning
• 23:19
  Speaker 2: on doing things like showing that if a barcode doesn't
• 23:22
  Speaker 2: quite scan right, that an entire cache of ballots, thousands
• 23:28
  Speaker 2: of ballots under this rule are going to be invalidated.
• 23:32
  Speaker 2: that they're requiring the states to engage in uploading onto
• 23:36
  Speaker 2: a platform that's being developed, and evidently there are a
• 23:40
  Speaker 2: lot of questions, to say the least, about what this
• 23:42
  Speaker 2: will work, to upload legitimate voters to the post office
• 23:46
  Speaker 2: so then they could see who's legitimate and who isn't.
• 23:49
  Speaker 2: But the problem is that technology almost certainly won't work.
• 23:53
  Speaker 2: What all these examples show from this whistleblower report is
• 23:56
  Speaker 2: that if this rule is allowed to be implemented, it
• 24:00
  Speaker 2: will create chaos. And that's the point. A lot of
• 24:03
  Speaker 2: ballots just won't be mailed. They've concluded that this mail-in
• 24:08
  Speaker 2: system and the chaos that will emerge from it will
• 24:11
  Speaker 2: result in the denial of much, not that no Republican
• 24:15
  Speaker 2: ballots will be affected, but there'll be many more Democratic ballots.
• 24:19
  Speaker 2: And that's what they're trying to do, to sort of
• 24:20
  Speaker 2: shave the points, to find the way of carving out
• 24:24
  Speaker 2: The numbers so that Democratic votes are, you know, the
• 24:28
  Speaker 2: election will happen, but that the Democratic votes essentially are
• 24:31
  Speaker 2: never delivered.
• 24:32
  Speaker 1: And this brings us to Georgia, because we saw back
• 24:34
  Speaker 1: in 2020, right, the presidential pressure on the state attorney
• 24:38
  Speaker 1: general of Georgia. Find me the votes. Find me the votes.
• 24:41
  Speaker 1: He did it on tape because he's stupid. It's very
• 24:44
  Speaker 1: different strategically, Corey, for a federal administration to stop pressuring
• 24:50
  Speaker 1: state officials and just start searching the voter rolls themselves.
• 24:54
  Speaker 1: That's why this is happening, right? Because it didn't work
• 24:56
  Speaker 1: with strong-arming these clowns in 2020.
• 24:58
  Speaker 2: Yeah, you know, is it Wile E. Coyote that's always
• 25:01
  Speaker 2: trying to trap the roadrunner?
• 25:04
  Speaker 1: It's a solid movie, by the way. Best film in
• 25:06
  Speaker 1: theaters right now.
• 25:07
  Speaker 2: Terrific movie. Terrific satire.
• 25:08
  Speaker 1: Different versions of it?
• 25:09
  Speaker 2: Yeah. That's what we're really seeing. You know, Trump is
• 25:11
  Speaker 2: Wile E. Coyote. He's tried one thing, which is to
• 25:14
  Speaker 2: demand the votes from the Secretary of State of Georgia.
• 25:16
  Speaker 2: That didn't work. Well, go somewhere more friendly. Who's more
• 25:19
  Speaker 2: friendly than the new CEO of his post office, who
• 25:22
  Speaker 2: seems more than willing to to implement his own fraudulent
• 25:27
  Speaker 2: denial of delivery of ballots. And let's combine that, too,
• 25:31
  Speaker 2: with an order to his Tom Holman, his friendly Homeland
• 25:34
  Speaker 2: Security agency, who he wants to order to go out
• 25:38
  Speaker 2: and find examples of voter fraud. And, you know, it's
• 25:41
  Speaker 2: the same story as the attempt to steal the election. And,
• 25:45
  Speaker 2: you know, here we are again. But this is what's different,
• 25:48
  Speaker 2: and this is why, you know, listeners can hear me
• 25:50
  Speaker 2: worried about this, Because he's doing it from within the
• 25:53
  Speaker 2: executive branch. And as much as law is supposed to
• 25:56
  Speaker 2: constrain that, the Supreme Court may well fine for him.
• 26:00
  Speaker 2: And here's another thing. This is not a new story
• 26:05
  Speaker 2: where even if there are orders against them to do something,
• 26:08
  Speaker 2: the administration is willing to do it anyway. And there
• 26:10
  Speaker 2: already are documented instances, as there were with the deportation
• 26:15
  Speaker 2: of of Obrego Garcia, they were told to turn those
• 26:18
  Speaker 2: planes back, being sent to the Gulag in El Salvador.
• 26:22
  Speaker 2: They didn't do it. And once again, it looks like
• 26:25
  Speaker 2: they are refusing to listen to the courts when they
• 26:29
  Speaker 2: say don't implement this rule. So right now, there is
• 26:32
  Speaker 2: an order in place, Justice Ketanji Brown Jackson upheld it,
• 26:37
  Speaker 2: that says do not do this new anti-voter fraud rule,
• 26:41
  Speaker 2: supposed anti-voter fraud rule. Are they listening? I'm not so sure.
• 26:46
  Speaker 1: All right. We got to take a quick break. But obviously,
• 26:48
  Speaker 1: this is what we're facing. There's a huge difference between
• 26:52
  Speaker 1: investigating real demonstrable fraud and then starting with a convenient
• 26:57
  Speaker 1: conclusion and shopping around for evidence, which is what we're
• 27:00
  Speaker 1: witnessing right now. When we come back, the Supreme Court
• 27:03
  Speaker 1: has opinions, Corey. It has arguments. It has transcripts. And
• 27:07
  Speaker 1: then it has the really interesting stuff. locked up in
• 27:10
  Speaker 1: the basement. Let's talk about why these people are being
• 27:13
  Speaker 1: so secretive when we return on The Oath and The Office.
• 27:19
  Speaker 3: These are difficult times, and if you believe in justice, progress,
• 27:22
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• 27:25
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• 27:52
  Speaker 1: Welcome back to The Oath in the Office. I'm John Fuglesingh,
• 27:54
  Speaker 1: along with Professor Corey Bretschneider. And Corey, I think if
• 27:57
  Speaker 1: we want to understand how a Supreme Court decision has
• 28:00
  Speaker 1: been actually made, the answer is we'll have to ask
• 28:04
  Speaker 1: a historian first. In about 50 years. There is a
• 28:07
  Speaker 1: really weird story coming out about the court's justices keeping
• 28:11
  Speaker 1: their working papers and internal records sealed for decades. These
• 28:17
  Speaker 1: men and one of the women have a lot to
• 28:19
  Speaker 1: be ashamed of. But why should ordinary citizens care about
• 28:23
  Speaker 1: the archival practices of the Supreme Court? Why is this
• 28:26
  Speaker 1: story more suspicious than it sounds?
• 28:29
  Speaker 2: Yeah, I mean, it sounds like, who cares? Newsflash, historian
• 28:34
  Speaker 2: denied access to some papers in archive. This doesn't maybe
• 28:37
  Speaker 2: grab listeners at first glance. As somebody who works in
• 28:41
  Speaker 2: archival work and does a lot of historical research, it
• 28:44
  Speaker 2: affects me, but it's not a normal story about an
• 28:47
  Speaker 2: archive because it connects directly to exactly what we've been
• 28:50
  Speaker 2: talking about. So to remind listeners from our first part
• 28:55
  Speaker 2: of our conversation that The administration might well get an
• 28:59
  Speaker 2: emergency order from the Supreme Court with no reasoning that
• 29:03
  Speaker 2: allows them essentially, I mean, let's not hide it, to
• 29:05
  Speaker 2: steal this election.
• 29:06
  Speaker 1: Thank you.
• 29:07
  Speaker 2: So how are we going to find out what their
• 29:09
  Speaker 2: reasoning is? The only way to really find it out
• 29:13
  Speaker 2: is through their papers. And what that means is their emails,
• 29:16
  Speaker 2: their letters, their memos, their notes. about what's actually going
• 29:20
  Speaker 2: on in this place that we call the Supreme Court,
• 29:23
  Speaker 2: a once sacred institution. I'm not going to call it
• 29:25
  Speaker 2: that anymore with what's going on there.
• 29:27
  Speaker 1: Thank you.
• 29:28
  Speaker 2: And the bottom line is they're aware of that. They
• 29:31
  Speaker 2: don't want us to know. They know that journalists, and
• 29:34
  Speaker 2: I keep mentioning Jodi Cantor, not just because she was
• 29:36
  Speaker 2: a guest, but because she's the one getting all of
• 29:39
  Speaker 2: these documents. And she's documented the story too of how
• 29:43
  Speaker 2: they're trying to hide the documents. They are reading her work.
• 29:47
  Speaker 2: They are seeing what she's getting access to, and they
• 29:49
  Speaker 2: are petrified about it because it reveals them not to
• 29:52
  Speaker 2: be a court of law, but one that is consistently
• 29:55
  Speaker 2: undermining the democracy. So what are they doing? They're increasingly
• 29:59
  Speaker 2: taking control over their own papers and basically refusing to
• 30:04
  Speaker 2: allow us to see them.
• 30:05
  Speaker 1: That's so creepy. It's like they're treating we, the people's
• 30:08
  Speaker 1: papers for our laws as if they're their family heirlooms,
• 30:12
  Speaker 1: you know, do not open until everyone involved is dead.
• 30:15
  Speaker 1: I mean, imagine if a president says my records as
• 30:19
  Speaker 1: serving the people. Yeah, you can have them in 2076, right?
• 30:21
  Speaker 1: I mean, But unlike presidents, Supreme Court justices are not
• 30:27
  Speaker 1: subject to the same federal records laws. I did not
• 30:30
  Speaker 1: know this. How did that arrangement develop?
• 30:33
  Speaker 2: Well, let me just say something about why we do
• 30:36
  Speaker 2: have access to presidential records. And as you know, I've
• 30:40
  Speaker 2: been spending a lot of time in the Nixon archives
• 30:42
  Speaker 2: going through a lot of.
• 30:43
  Speaker 1: Oh, stop bragging about your partying on the weekends. Stop bragging.
• 30:47
  Speaker 1: Go on.
• 30:47
  Speaker 2: I know you're jealous. Going through the secret details of well,
• 30:53
  Speaker 2: the unknown crimes of Richard Nixon is part of what
• 30:55
  Speaker 2: it will be about. Details that, as I release them,
• 30:58
  Speaker 2: I think are going to be increasingly shocking, even for
• 31:01
  Speaker 2: those who are already shocked by Nixon's presidency. But why
• 31:05
  Speaker 2: can I get in them? Why do we have these records?
• 31:07
  Speaker 2: It's because there was a long battle between Congress, actually,
• 31:11
  Speaker 2: and lawyers from the Ford administration were pretty heroic in
• 31:15
  Speaker 2: all of this, and Nixon himself. Nixon wanted to keep
• 31:18
  Speaker 2: these papers for himself, He didn't want them released because
• 31:22
  Speaker 2: he knew how much damaging, frightening stuff was in it.
• 31:25
  Speaker 2: But Congress pushed back and passed legislation that demands that
• 31:29
  Speaker 2: we have access to it. And so when Donald Trump
• 31:31
  Speaker 2: tried to steal these records, which are the public's, and
• 31:35
  Speaker 2: bring them to Mar-a-Lago and put them, for instance, in
• 31:37
  Speaker 2: bathrooms in Mar-a-Lago in order to hide them from us,
• 31:41
  Speaker 2: he was eventually prosecuted. Now we know that he never
• 31:45
  Speaker 2: was successfully prosecuted because he became president and the Department
• 31:48
  Speaker 2: of Justice has a policy against prosecuting sitting presidents. There
• 31:52
  Speaker 2: was also the block of the immunity decision. But that
• 31:55
  Speaker 2: was only, the crime came from the fact that he
• 31:58
  Speaker 2: was disobeying this post-Nixon decision by Congress to make these
• 32:04
  Speaker 2: records public. There is no such law when it comes
• 32:07
  Speaker 2: to Supreme Court justices. They might themselves, by the way,
• 32:10
  Speaker 2: try to block it. If you say, if Congress says,
• 32:12
  Speaker 2: these are our records to the Supreme Court, they might say, hey,
• 32:15
  Speaker 2: we're the court, we can stop We have the power
• 32:19
  Speaker 2: of judicial review to strike down legislation on separation of
• 32:22
  Speaker 2: powers questions, but we haven't even gotten to that point.
• 32:25
  Speaker 2: There just is no legislation that demands it. So the
• 32:28
  Speaker 2: justices have essentially decided it's up to them, and they
• 32:32
  Speaker 2: don't want to release it. Now, that makes me pretty suspicious.
• 32:35
  Speaker 2: I don't know about you. Why don't they? What is it?
• 32:37
  Speaker 2: They don't want us to see. They don't want us
• 32:39
  Speaker 2: to see the real reasoning that goes on behind this
• 32:41
  Speaker 2: shadow document.
• 32:42
  Speaker 1: Yeah. When I first saw this, I was like, oh,
• 32:44
  Speaker 1: so you're just making historians have like this constitutional scavenger hunt.
• 32:48
  Speaker 1: But the more I looked at it, it's like this
• 32:49
  Speaker 1: isn't about the historians of the future. This is about
• 32:53
  Speaker 1: accountability in the present. And it includes justices that our
• 32:58
  Speaker 1: listeners might like. The article talks about Justice Ginsburg's papers
• 33:03
  Speaker 1: being sealed until every justice who served alongside her has died.
• 33:07
  Speaker 1: and even Justice Souter's 50-year restriction. And these are the
• 33:12
  Speaker 1: ones that, you know, the history books will probably look
• 33:14
  Speaker 1: kindly on. I mean, are those unusually long periods of secrecy?
• 33:18
  Speaker 1: Because I find that a little weird.
• 33:21
  Speaker 2: Yeah, and the fact that, you know, more liberal justices
• 33:24
  Speaker 2: have been signing on to this is a sign of
• 33:27
  Speaker 2: a real problem. I think that, you know, even liberal
• 33:30
  Speaker 2: justices and judges, I'll add, on the lower courts are
• 33:33
  Speaker 2: in a mindset that, you know, we're the court. We
• 33:36
  Speaker 2: have this institutional... independence, this institutional neutrality. I might not
• 33:41
  Speaker 2: agree with my colleagues, but I respect our rights, essentially,
• 33:45
  Speaker 2: to reason as we want and our rights of privacy.
• 33:48
  Speaker 2: And I think in a time when we've destroyed the
• 33:51
  Speaker 2: public part of the court's operation, which are decisions, and
• 33:54
  Speaker 2: replaced them increasingly in alarming numbers in the most important moments,
• 33:59
  Speaker 2: by the way, this post office debacle is could destroy democracy.
• 34:04
  Speaker 2: I mean, it could result in Trump, you know, cheating
• 34:07
  Speaker 2: in the election. And yet, the court is going to
• 34:09
  Speaker 2: decide it on this shadow docket, and we won't have
• 34:13
  Speaker 2: access to it. And that's why it really is a crisis.
• 34:16
  Speaker 2: And that's why, too, we really need to call out
• 34:19
  Speaker 2: not just conservative justices who have hidden their papers, but
• 34:24
  Speaker 2: liberal ones, too. And you mentioned Justice Ginsburg. Absolutely, that
• 34:27
  Speaker 2: was a huge mistake that she made.
• 34:30
  Speaker 1: Let me make it even weirder then, because I'm not
• 34:31
  Speaker 1: just going to call out liberal justices for being part
• 34:34
  Speaker 1: of this, Mishigas, let's call out one of the most
• 34:37
  Speaker 1: evil conservatives of all time for not being part of this, Scalia.
• 34:42
  Speaker 1: Both Thurgood Marshall and Scalia show the opposite behavior, right?
• 34:45
  Speaker 1: Thurgood Marshall's papers, his wishes were, you know, historians should
• 34:50
  Speaker 1: have access to my records, and Scalia donated all of
• 34:53
  Speaker 1: his papers to Harvard. So, I mean, doesn't that demonstrate
• 34:56
  Speaker 1: the current system could allow for greater historical transparency without
• 35:01
  Speaker 1: requiring Congress to rewrite the whole thing? I mean, if
• 35:05
  Speaker 1: Scalia's got nothing to hide, for God's sakes.
• 35:08
  Speaker 2: You know, I think as much as we want to
• 35:11
  Speaker 2: criticize Scalia, I think he was less a partisan in
• 35:15
  Speaker 2: the exact way. I'm not saying there was never a
• 35:18
  Speaker 2: partisan decision. Bush v. Gore was a purely partisan one.
• 35:22
  Speaker 2: But he thought that his views were defensible. And I'm
• 35:24
  Speaker 2: not sure that characterizes Justices Alito and and Roberts, that
• 35:28
  Speaker 2: they really are making decisions that I think in their
• 35:30
  Speaker 2: heart they know are not based on principle, but are
• 35:34
  Speaker 2: based in partisanship. And that's why they don't want us
• 35:36
  Speaker 2: to see this stuff. And I think that is not
• 35:39
  Speaker 2: what characterizes Scully. I think he was a true believer
• 35:42
  Speaker 2: in his, well, it wasn't just a philosophy he agreed with.
• 35:45
  Speaker 2: It was one that he really created almost out of
• 35:48
  Speaker 2: thin air, originalism and the unitary executive. Those are his
• 35:51
  Speaker 2: ideas and also Judge Bork's ideas. And he wanted, I think,
• 35:55
  Speaker 2: people to know about them. And what I would say
• 35:58
  Speaker 2: about Thurgood Marshall, you know, before he was on the court,
• 36:01
  Speaker 2: he wasn't somebody who had never defended the people's rights.
• 36:05
  Speaker 2: He is the lawyer who argued Brown versus Board of Education.
• 36:09
  Speaker 2: And so I think he understood the importance of democracy,
• 36:13
  Speaker 2: the importance of transparency. And that really couldn't be further
• 36:15
  Speaker 2: from today's justices.
• 36:17
  Speaker 1: I mean, Thurgood Marshall said, let the historians see the papers.
• 36:20
  Speaker 1: And somehow democracy did survive. I should ask Could there
• 36:26
  Speaker 1: be legitimate reasons for keeping judicial deliberations confidential even after
• 36:30
  Speaker 1: the cases have been decided? Again, I hate to bring
• 36:33
  Speaker 1: it up, but these people do work for us, Corey.
• 36:37
  Speaker 2: You know, I think authoritarians fear transparency. They fear information
• 36:41
  Speaker 2: getting out. And so there is an instinct that goes
• 36:44
  Speaker 2: back to Nixon, who really tried to claim everything was
• 36:47
  Speaker 2: national security. Why can I essentially break the law? And
• 36:51
  Speaker 2: he said, well, because America's in a civil war and
• 36:54
  Speaker 2: national security requires me being above the law. He said
• 36:58
  Speaker 2: that to David Frost. He cited Lincoln inappropriately as if
• 37:01
  Speaker 2: that was Lincoln's belief. It absolutely was not. And what
• 37:05
  Speaker 2: Nixon's idea was is it tied secrecy to emergency. It
• 37:11
  Speaker 2: was the justification. He opposed Daniel Ellsberg's release of the
• 37:14
  Speaker 2: Pentagon Papers. He thought it was a great evil. And
• 37:17
  Speaker 2: so that's what authoritarians do. They try to clamp down
• 37:20
  Speaker 2: on information. I think Justice Thurgood Marshall was on the
• 37:23
  Speaker 2: side in many ways of democracy. And what does that require?
• 37:26
  Speaker 2: It requires a kind of transparency. And the republic doesn't
• 37:29
  Speaker 2: get destroyed by releasing and making public information. Quite the contrary.
• 37:34
  Speaker 2: We destroy a republic by disallowing the people to even
• 37:38
  Speaker 2: have a role in seeing what's going on in their name.
• 37:41
  Speaker 1: Exactly right. I mean, the public is being asked to
• 37:43
  Speaker 1: trust this court. while also having to wait decades to
• 37:48
  Speaker 1: examine this court's own history? I mean, that's a wacky
• 37:51
  Speaker 1: definition of transparency, right, Professor? Like we're told, hey, trust
• 37:54
  Speaker 1: the institutions. And I'm like, all right, fair enough. But
• 37:57
  Speaker 1: don't the institutions have to make themselves available for inspections
• 38:00
  Speaker 1: so we can trust them?
• 38:03
  Speaker 2: Absolutely, John. You and I on this one are in
• 38:06
  Speaker 2: heated agreement. All righty.
• 38:07
  Speaker 1: Well, then let's move on because I want to talk
• 38:09
  Speaker 1: about the House Democrats who this week– interesting doings. James
• 38:14
  Speaker 1: Clyburn comes out and says he thinks it's time to
• 38:16
  Speaker 1: expand the Supreme Court. And I'm like, well, if Clyburn
• 38:19
  Speaker 1: said it, then we know it's mainstream and it's not
• 38:21
  Speaker 1: fringe anymore. Waited years for this moment. And so this week,
• 38:24
  Speaker 1: the House of Representatives rejected this desperate proposed constitutional amendment
• 38:30
  Speaker 1: to permanently cap the Supreme Court at nine justices after
• 38:33
  Speaker 1: the vote fell short of the required two thirds majority.
• 38:35
  Speaker 1: This was 212 to 206. Corey, this tells me that
• 38:40
  Speaker 1: this Republican Congress knows that the tide has turned and
• 38:43
  Speaker 1: people do support having the same number of Supreme Court
• 38:46
  Speaker 1: justices as we have appellate courts. Why would Congress need
• 38:50
  Speaker 1: a constitutional amendment to accomplish this permanently?
• 38:54
  Speaker 2: The Constitution doesn't set a number. And in fact, we've
• 38:57
  Speaker 2: had different numbers over time. And there was there, for instance,
• 39:03
  Speaker 2: in many instances in American history, been fewer than nine justices.
• 39:07
  Speaker 1: For a whole year, Corey, for a whole year, the
• 39:09
  Speaker 1: late Mitch McConnell decided we should only have eight.
• 39:11
  Speaker 2: Even recently, right? And earlier in history, in the 19th century,
• 39:14
  Speaker 2: in the 18th century, we didn't have nine at various points. So,
• 39:19
  Speaker 2: you know, there is no fixed number. And yet there
• 39:22
  Speaker 2: is a realization here that I should say, too, there
• 39:26
  Speaker 2: was a famous proposal to increase the number of justices
• 39:29
  Speaker 2: precisely because there is no constitutional bar. That has to
• 39:34
  Speaker 2: be done, by the way, not by a president, but
• 39:36
  Speaker 2: through legislation. And then the president nominates and the Senate
• 39:39
  Speaker 2: would confirm justices beyond nine justices. And the most famous
• 39:43
  Speaker 2: example to increase the number was during the New Deal,
• 39:47
  Speaker 2: when the Supreme Court, as it's acting now, was acting
• 39:50
  Speaker 2: in a hyper-partisan way and striking down the New Deal.
• 39:53
  Speaker 2: And what did President Roosevelt propose with the support of
• 39:57
  Speaker 2: his allies in Congress, increasing the number through legislation? Now, ultimately,
• 40:02
  Speaker 2: they backed down. This is often called the switch in
• 40:05
  Speaker 2: time that saved nine, that what happened in that instance
• 40:08
  Speaker 2: is the justices stopped striking down the New Deal and
• 40:11
  Speaker 2: started to uphold it. And so Roosevelt was like, FDR
• 40:14
  Speaker 2: was like, okay, you know, that's fine. We won't increase
• 40:19
  Speaker 2: the number. But that threat is always looming that the
• 40:23
  Speaker 2: number could be increased. And just to say very clearly
• 40:25
  Speaker 2: what the reason for it would be, would be to
• 40:28
  Speaker 2: dilute the existing justices' votes and to overwhelm them with
• 40:33
  Speaker 2: those who might, you know, not just take the side
• 40:35
  Speaker 2: of an authoritarian president. Now, Republicans see this coming. and
• 40:41
  Speaker 2: they're trying to block it. And they tried to create,
• 40:44
  Speaker 2: not legislation, but an amendment to the Constitution that would
• 40:47
  Speaker 2: just keep this from ever happening. And thankfully, actually, they
• 40:52
  Speaker 2: have not succeeded. Because even if we don't increase the numbers,
• 40:55
  Speaker 2: it is an important threat. That FDR example shows it
• 40:59
  Speaker 2: against a hyper-partisan court. There's nothing about your numbers that
• 41:04
  Speaker 2: are fixed.
• 41:05
  Speaker 1: Well, yeah, and I want to point out that FDR
• 41:07
  Speaker 1: did that to persuade the court, to pressure the court,
• 41:10
  Speaker 1: because they were undoing New Deal reforms. And his plan
• 41:15
  Speaker 1: even included having all justices over the age of 70
• 41:19
  Speaker 1: get to vote together for one collective Supreme Court seat vote.
• 41:22
  Speaker 1: He had a whole plan, and it worked. The judges
• 41:26
  Speaker 1: backed down, and the New Deal preserved. So what I've
• 41:29
  Speaker 1: said all the time is Roosevelt never fought for this.
• 41:31
  Speaker 1: He never tried to do this. He just proposed it
• 41:34
  Speaker 1: as an intimidation technique, and it worked, and he backed down.
• 41:38
  Speaker 1: He never actually fought for it. I mean, the Constitution
• 41:40
  Speaker 1: says nothing, as you pointed out, about the number of
• 41:42
  Speaker 1: the justices. The supporters are saying, well, a constitutional amendment,
• 41:47
  Speaker 1: that would prevent either party from manipulating the size of
• 41:50
  Speaker 1: the court. And opponents say, well, no, it would remove
• 41:53
  Speaker 1: Congress's existing authority from doing that. I mean, that's the
• 41:57
  Speaker 1: constitutional argument on each side, right?
• 41:59
  Speaker 2: Yeah, I mean, let's break it down with common sense.
• 42:01
  Speaker 2: When you have the House Republicans saying, hey, we need
• 42:05
  Speaker 2: a fairness amendment that would increase fairness on the Supreme
• 42:08
  Speaker 2: Court by locking in the current number, you know, come on.
• 42:13
  Speaker 2: They've realized how things have been tilted so far in
• 42:17
  Speaker 2: their side that they want to lock those gains in.
• 42:21
  Speaker 2: The unitary executive theory, the ban on prosecution of sitting
• 42:27
  Speaker 2: and former presidents, at least within the outer perimeter of
• 42:30
  Speaker 2: their official duties, all of those gains from this Supreme Court,
• 42:34
  Speaker 2: this extreme Supreme Court, House Republicans love it. And so,
• 42:39
  Speaker 2: you know, especially the Trumpers. So why would they want
• 42:42
  Speaker 2: to risk that anything could be altered? They want to
• 42:45
  Speaker 2: essentially put the court above the people, above, well, above
• 42:49
  Speaker 2: the law. As much as they're flouting the law, there
• 42:51
  Speaker 2: would be no way of bringing back our constitutional values
• 42:54
  Speaker 2: that have been so assaulted by this court.
• 42:57
  Speaker 1: And just so I understand it fully, because I'm slow here.
• 43:00
  Speaker 2: Please.
• 43:01
  Speaker 1: It's almost ironic. You wouldn't need a constitutional amendment to
• 43:05
  Speaker 1: add seats to the court, but you would need a
• 43:08
  Speaker 1: constitutional amendment to cap the court at nine seats, correct?
• 43:12
  Speaker 2: Exactly, right. And that's what they're trying to do, to
• 43:14
  Speaker 2: sort of, you know, to keep any future, well, they're
• 43:18
  Speaker 2: imagining a world, which hopefully is coming soon, in which
• 43:21
  Speaker 2: we have a Democratic Congress and a Democratic president. And
• 43:25
  Speaker 2: we could well, I think we will, you know, this
• 43:27
  Speaker 2: was seen as very radical. But we talked to Sheldon Whitehouse,
• 43:31
  Speaker 2: the senator from Rhode Island, about the need for court reform.
• 43:35
  Speaker 2: I'm not sure he's quite come out for this yet, but,
• 43:37
  Speaker 2: you know, it's not far off. Biden considered it. He
• 43:40
  Speaker 2: actually had a committee of many of my colleagues who
• 43:43
  Speaker 2: looked into it. And unfortunately, from my point of view,
• 43:47
  Speaker 2: decided against adding seats. I think they should have, certainly,
• 43:51
  Speaker 2: at least to make up for the stolen seat of
• 43:53
  Speaker 2: Merrick Garland. But times are different. You know, we've seen
• 43:57
  Speaker 2: how dangerous this court is, especially in combined with an
• 44:00
  Speaker 2: authoritarian president. And so they see the writing on the wall,
• 44:03
  Speaker 2: the House Republicans, and that's why they're pushing, and Republicans
• 44:07
  Speaker 2: in the Senate, I should add, and that's why they're
• 44:09
  Speaker 2: pushing this amendment that would prohibit future congresses and future
• 44:13
  Speaker 2: presidents from undoing the damage of this court.
• 44:17
  Speaker 1: Let's take a quick break. And when we come back,
• 44:19
  Speaker 1: I want to ask you about how shocking this administration
• 44:22
  Speaker 1: is moving to strip schools that aid minority students because
• 44:27
  Speaker 1: white supremacists know how to stay on task. Back in
• 44:29
  Speaker 1: just a moment, this is The Oath in the Office.
• 44:35
  Speaker 4: Hey all, Glenn Kirshner here. Friends, I hope you'll join
• 44:39
  Speaker 4: me on my audio podcast, Justice Matters. We talk about
• 44:43
  Speaker 4: not only the legal issues of the day, but we
• 44:46
  Speaker 4: also talk about the need to reform ethics in our government.
• 44:50
  Speaker 4: Here's one example, the oath of office.
• 44:53
  Speaker 2: You know the one.
• 44:54
  Speaker 4: I do solemnly swear to support and defend the Constitution
• 44:57
  Speaker 4: against all enemies, foreign and domestic. I Let's add 22
• 45:02
  Speaker 4: words to that oath. Quote, and I will promptly report
• 45:06
  Speaker 4: any instances of crime and or corruption by government officials
• 45:11
  Speaker 4: and employees of which I become aware. Friends, our democracy
• 45:17
  Speaker 4: is worth fighting for.
• 45:20
  Speaker 2: Join us in this.
• 45:21
  Speaker 4: Fight because justice matters. Look for Justice Matters wherever you
• 45:28
  Speaker 4: ordinarily find your podcasts.
• 45:37
  Speaker 1: Welcome back to The Oath in the Office. I'm John Fuglesang. Corey,
• 45:40
  Speaker 1: the Treasury Department and the IRS released these new proposed
• 45:45
  Speaker 1: rules that would deny or even revoke Section 501c3 tax-exempt
• 45:50
  Speaker 1: status from private universities and that have race-conscious policies like
• 45:57
  Speaker 1: targeted admissions or diversity scholarships. This is how much they
• 46:03
  Speaker 1: love white supremacy, that they want to actually take tax-exempt
• 46:06
  Speaker 1: status away from schools that care about racial discrimination. They're
• 46:13
  Speaker 1: relying on Bob Jones University versus U.S., and I'm really
• 46:16
  Speaker 1: glad they're leaning on such a predominantly fake Christian white supremacist.
• 46:20
  Speaker 1: For those who don't know the case, what happened in
• 46:22
  Speaker 1: Bob Jones?
• 46:23
  Speaker 2: It's one of my favorite cases. I think it's a
• 46:26
  Speaker 2: case that had a great decision, and yet that sometimes happens,
• 46:31
  Speaker 2: that you have a good decision, one that at the
• 46:33
  Speaker 2: time made perfect sense, and then it gets abused by
• 46:36
  Speaker 2: future executive branch officials and, well, by future presidents. So
• 46:40
  Speaker 2: let me say what happened, and this is a case, John,
• 46:43
  Speaker 2: that I was looking forward to talking to you about
• 46:46
  Speaker 2: because it combines our interests in a really strong way.
• 46:50
  Speaker 2: So Bob Jones University allows black Americans, black students into
• 46:54
  Speaker 2: its school. It doesn't discriminate in admissions. But once you're there,
• 46:58
  Speaker 2: let me tell you about some of its rules. This
• 47:00
  Speaker 2: is during the Nixon administration. We're in history at this point.
• 47:04
  Speaker 2: They say that if you go on a date with
• 47:07
  Speaker 2: a person of a different race, you engage in interracial dating,
• 47:10
  Speaker 2: you're thrown out of the school. They say if you
• 47:13
  Speaker 2: advocate for the right of interracial marriage, and this is
• 47:18
  Speaker 2: after the decision was guaranteeing the right to interracial marriage,
• 47:24
  Speaker 2: Loving v. Virginia was decided. If you advocate for that right,
• 47:27
  Speaker 2: you say, I like Loving v. Virginia, that was a
• 47:29
  Speaker 2: good decision, you get kicked out of the school. You
• 47:32
  Speaker 2: see where this is going. It is essentially a deeply
• 47:36
  Speaker 2: segregationist university that justifies its segregation by appeal to what
• 47:42
  Speaker 2: they claim is the literal word of the Bible. I
• 47:45
  Speaker 2: could see you debating Bob Jones himself about this. They
• 47:51
  Speaker 2: have various ways of defending it. So here's what happened.
• 47:54
  Speaker 2: And remember, this was during the Nixon administration.
• 47:56
  Speaker 1: Oh, this was only 55 years ago. And it was
• 47:59
  Speaker 1: only 50 years ago that the IRS revoked their tax-exempt
• 48:02
  Speaker 1: status because they were so goddamn racist.
• 48:05
  Speaker 2: So continuing the story, exactly. So the IRS says, look,
• 48:09
  Speaker 2: this is too much. By the way, we're not shutting
• 48:11
  Speaker 2: them down. They're not going to prison. But they can
• 48:13
  Speaker 2: do whatever they want. But we're not going to have
• 48:16
  Speaker 2: them enjoy 501c3 status. which very specifically means that if
• 48:21
  Speaker 2: I give a donation to Bob Jones University, I get
• 48:24
  Speaker 2: a deduction on my taxes for that contribution. And so
• 48:28
  Speaker 2: it's a way of indirectly subsidizing Bob Jones and the
• 48:32
  Speaker 2: IRS and the Nixon administration.
• 48:33
  Speaker 1: Well, it's a way of subsidizing the bigotry as well.
• 48:36
  Speaker 1: I want to point that out.
• 48:37
  Speaker 2: Right.
• 48:38
  Speaker 1: Because, I mean, this university banned interracial dating until– This century.
• 48:44
  Speaker 1: Only the year 2000 did they drop it.
• 48:45
  Speaker 2: I have more to say about their sudden change of heart.
• 48:48
  Speaker 2: I don't know how pure it was. Quite sudden, yeah.
• 48:52
  Speaker 2: So that's how bad this university, how deeply white supremacist
• 48:55
  Speaker 2: it was that even the Nixon administration was like, hey,
• 48:57
  Speaker 2: that's too racist for us. Now, they had an argument
• 49:01
  Speaker 2: in the Supreme Court, which is we have a right
• 49:04
  Speaker 2: to religious freedom, free exercise, and we have a right
• 49:07
  Speaker 2: to free speech, and you're violating both. And what the
• 49:09
  Speaker 2: Supreme Court said, and this goes back to our license
• 49:12
  Speaker 2: plate discussion, if listeners remember that, they said, look, government
• 49:16
  Speaker 2: here is sending a message of disapproval. It's not... shutting
• 49:21
  Speaker 2: you down or imprisoning you. And our message in defense
• 49:25
  Speaker 2: of the Constitution of disapproval by denying this favorable status
• 49:28
  Speaker 2: is we're not going to support white supremacy.
• 49:32
  Speaker 1: By the way, I should also point out, to be fair,
• 49:33
  Speaker 1: in the year 2008, Bob Jones University formally apologized for
• 49:38
  Speaker 1: their many decades of racist policies. And they even admitted, Corey,
• 49:41
  Speaker 1: that their rules were shaped by the culture, not by
• 49:46
  Speaker 1: the teachings of Jesus, because all white supremacists are revoltingly
• 49:50
  Speaker 1: false Christians. Got to point that out. But now, today,
• 49:54
  Speaker 1: this White House, led by a president who was also
• 49:58
  Speaker 1: too racist for Nixon, let's not forget, they went after
• 50:00
  Speaker 1: Trump and his dad, Imagine being too racist for Nixon, folks. Well,
• 50:04
  Speaker 1: they're now connecting Bob Jones with the Supreme Court's affirmative
• 50:07
  Speaker 1: action decision from 2023. Corey, what is the legal bridge here,
• 50:11
  Speaker 1: good God, between these two cases?
• 50:13
  Speaker 2: Yeah, that's a good way to describe what's going on.
• 50:16
  Speaker 2: But look, this is so disturbing because nothing in what
• 50:19
  Speaker 2: I just said is wrong. And it makes sense that
• 50:22
  Speaker 2: the Nixon administration did that. It's a good thing. I
• 50:25
  Speaker 2: agree with that court's decision. I'll continue to say why.
• 50:29
  Speaker 2: but the devious forces of the Trump administration have realized is, wow,
• 50:34
  Speaker 2: how can we go after Harvard University? How can we
• 50:37
  Speaker 2: go after the Ivies? How can we go after anyone
• 50:40
  Speaker 2: who recognizes that some people in some circumstances have grown
• 50:45
  Speaker 2: up with such adversity, with such racism, that we should
• 50:49
  Speaker 2: at least do something to try to level the playing field?
• 50:55
  Speaker 2: And their answer is, if you do anything that's race conscious,
• 50:59
  Speaker 2: race aware, you're not colorblind in the way that this
• 51:02
  Speaker 2: administration believes, quote unquote, colorblind, that Justice Thomas famously believes
• 51:08
  Speaker 2: the Constitution requires. We're going to give you the Bob
• 51:11
  Speaker 2: Jones treatment. So what they're really trying to do is
• 51:13
  Speaker 2: to take away from, quote unquote, liberal schools, schools that
• 51:17
  Speaker 2: are defiant and not backing down to them, including Harvard University.
• 51:22
  Speaker 2: They're trying to say, hey, Under Bob Jones, we can
• 51:25
  Speaker 2: strip you of your tax exempt status. And is the
• 51:28
  Speaker 2: Supreme Court going to allow it? They just might.
• 51:31
  Speaker 1: This is amazing. Like to me, this is sort of
• 51:34
  Speaker 1: the no, this is like, you know, in a way,
• 51:36
  Speaker 1: it's it's a version of what they did with the
• 51:37
  Speaker 1: word woke.
• 51:38
  Speaker 2: Right.
• 51:39
  Speaker 1: The word woke used to be a word used by
• 51:41
  Speaker 1: anti-racists to describe structural racism. And in this last 10 years,
• 51:47
  Speaker 1: the racists have weaponized that word against anti-racists. Like somehow
• 51:52
  Speaker 1: they turned woke from being a bad word about racism
• 51:54
  Speaker 1: to being, oh, the anti-racists are the bad ones. And
• 51:58
  Speaker 1: I mean, this is a doctrine that was originally used
• 52:01
  Speaker 1: to deny tax benefits to a university because they were
• 52:05
  Speaker 1: racist and discriminatory. And now they want to apply this
• 52:09
  Speaker 1: doctrine to programs that are designed to provide assistance to
• 52:14
  Speaker 1: the groups that have been victims of that same discrimination
• 52:18
  Speaker 1: by saying, having assistance to the historically disadvantaged groups is
• 52:24
  Speaker 1: just a whole new form of discrimination, which is kind
• 52:26
  Speaker 1: of how they gutted the Voting Rights Act this year,
• 52:28
  Speaker 1: isn't it?
• 52:29
  Speaker 2: That's right. You know, there are themes here that we're
• 52:31
  Speaker 2: carving throughout all these stories. And when we talked about
• 52:34
  Speaker 2: the Voting Rights Act and the use of the colorblind
• 52:37
  Speaker 2: idea to try to destroy essentially anti-racist policies that came,
• 52:42
  Speaker 2: that were passed as a result of the civil rights movement,
• 52:45
  Speaker 2: They're doing the same thing here too, that the Nixon
• 52:48
  Speaker 2: administration's decision was part of a civil rights movement that
• 52:51
  Speaker 2: was trying to respect people's free speech rights, their religious
• 52:53
  Speaker 2: freedom rights. Nobody was going to jail in Bob Jones,
• 52:56
  Speaker 2: but to combat white supremacy. And now the script has
• 52:59
  Speaker 2: been flipped. And we've talked, for instance, on the show
• 53:02
  Speaker 2: before about Christopher Ruffo and other conservative activists who have
• 53:06
  Speaker 2: urged the administration to really weaponize the tools of civil rights.
• 53:10
  Speaker 2: And that's what they're doing. They're taking this great case,
• 53:13
  Speaker 2: Bob Jones, and manipulating it and twisting it as a
• 53:16
  Speaker 2: way of not opposing white supremacy, but essentially of defending it.
• 53:20
  Speaker 1: Oh, yeah, of course. I mean, again, they're not defending
• 53:23
  Speaker 1: the racist. They're going after the anti-racist, just like the
• 53:26
  Speaker 1: word woke. I mean, could the government's rules, proposed rules,
• 53:30
  Speaker 1: effectively transform Bob Jones from a case about government refusing
• 53:35
  Speaker 1: to give a tax benefit to racist institutions into a
• 53:38
  Speaker 1: much broader tool? for just policing educational institutions' diversity policies,
• 53:44
  Speaker 1: if you're a bigot who doesn't like that?
• 53:46
  Speaker 2: I mean, we'll see.
• 53:47
  Speaker 1: I mean, that seems to be what they're doing.
• 53:51
  Speaker 2: And, you know, just to continue on with the theme
• 53:54
  Speaker 2: that we were on, the Supreme Court decided the case
• 53:57
  Speaker 2: in Harvard University for years. Let me just give a
• 54:00
  Speaker 2: little background on this. Years and years before the Harvard,
• 54:03
  Speaker 2: and there was also a case about UNC, they were combined.
• 54:07
  Speaker 2: The idea was that if you look in the history
• 54:10
  Speaker 2: of the 19th century, after the Civil War, three amendments
• 54:14
  Speaker 2: were passed in order to stop subordination of black Americans.
• 54:18
  Speaker 2: A 13th Amendment ending the subordination of formal slavery, a
• 54:22
  Speaker 2: 14th Amendment guaranteeing equal protection, and a 15th Amendment guaranteeing
• 54:26
  Speaker 2: a right to vote free from race discrimination. It didn't
• 54:30
  Speaker 2: protect black women, but it protected black men. And that
• 54:35
  Speaker 2: was the idea was anti-subordination and part of reconstruction of
• 54:40
  Speaker 2: trying to recreate the nation under an idea of equality
• 54:44
  Speaker 2: with the recognition that you don't move from a society
• 54:46
  Speaker 2: that is a slave society to one that's equal without
• 54:50
  Speaker 2: some laws that protect against and vindicate past racism. Now,
• 54:56
  Speaker 2: what the Harvard and UNC case does is really get
• 55:00
  Speaker 2: rid of that history. with that non-historian Clarence Thomas saying, oh,
• 55:05
  Speaker 2: I see this word colorblind in an opinion and a
• 55:09
  Speaker 2: dissent by Justice Harlan. He just pulls out literally one word,
• 55:13
  Speaker 2: and that means no consciousness of race. And so the
• 55:16
  Speaker 2: fact that there might be some race-conscious policies in these universities,
• 55:21
  Speaker 2: the right is now using, and they're catering to Justice Thomas.
• 55:24
  Speaker 2: And again, the court might well have the votes to
• 55:27
  Speaker 2: uphold this, to strip these universities using Bob Jones, not
• 55:32
  Speaker 2: universities of nonprofit status who engage in white supremacy, but
• 55:36
  Speaker 2: those who oppose it.
• 55:38
  Speaker 1: Okay, so let me ask the million-dollar question then. I mean,
• 55:41
  Speaker 1: is this a civil rights case, or is this a
• 55:44
  Speaker 1: separation of powers case too?
• 55:47
  Speaker 2: Well, in the same way the word woke was taken
• 55:49
  Speaker 2: from something that meant something decent as a way of
• 55:53
  Speaker 2: chastising the left, The same is true of even the
• 55:56
  Speaker 2: phrase civil rights, because is it a civil rights case?
• 55:58
  Speaker 2: If you ask the Department of Education and Christopher Ruffo,
• 56:01
  Speaker 2: that's exactly the language that they use. What they mean
• 56:04
  Speaker 2: by civil rights and what it meant in 1964 in
• 56:08
  Speaker 2: the Civil Rights Act couldn't be more different.
• 56:11
  Speaker 1: Well, white people are really tired of taking it from
• 56:13
  Speaker 1: the man. Corey, we're glad that these guys are here
• 56:15
  Speaker 1: to finally fight for the real victims. Professor, we covered
• 56:18
  Speaker 1: a lot of ground today. I got to ask, what's
• 56:22
  Speaker 1: giving you optimism and hope and I mean, it just
• 56:25
  Speaker 1: seems like citizens need to really be careful when an
• 56:27
  Speaker 1: administration says we're just enforcing existing Supreme Court decision, but
• 56:32
  Speaker 1: then using that to justify whatever policies they want.
• 56:36
  Speaker 2: Well, here's some cause for optimism. Please. In telling the truth,
• 56:40
  Speaker 2: you start to see these abuses for what's happening. And
• 56:43
  Speaker 2: I think there are a lot of people who have
• 56:45
  Speaker 2: thought for a long time, well, this is just going
• 56:47
  Speaker 2: to be a glitch in our democracy. Things might not
• 56:50
  Speaker 2: be great. I might not agree with the policies of
• 56:52
  Speaker 2: this administration. But we'll get through it. And the more
• 56:56
  Speaker 2: we see them manipulating the law with the Supreme Court,
• 56:59
  Speaker 2: that's been our theme, not just the president here, but
• 57:02
  Speaker 2: the court enabling this destruction of democracy through the post office,
• 57:06
  Speaker 2: through the attempt to manufacture so-called voter fraud, through the
• 57:10
  Speaker 2: weaponization of cases like Bob Jones to shut down rather
• 57:14
  Speaker 2: than protect civil rights, through the shadow docket and the
• 57:19
  Speaker 2: refusal to let us see how this court is operating.
• 57:22
  Speaker 2: We are getting wise to the fact that this court
• 57:24
  Speaker 2: is not operating as a court. It's acting as a
• 57:27
  Speaker 2: partisan enabler of this president. We are seeing the threat
• 57:31
  Speaker 2: to democracy for what it is. And that's where the
• 57:33
  Speaker 2: hope comes from, because there is no chance to recover
• 57:36
  Speaker 2: our democracy until we see what's happening. And that's exactly
• 57:40
  Speaker 2: what's happening now. We're seeing it. And that is why
• 57:43
  Speaker 2: I'm continually optimistic that, as is true throughout American history,
• 57:47
  Speaker 2: that we the people are going to really push back.
• 57:49
  Speaker 2: I think, by the way, and let me give you
• 57:51
  Speaker 2: one other Cause for Hope. I've been talking a lot
• 57:54
  Speaker 2: with people who were deeply involved in the Hungarian rescue
• 57:59
  Speaker 2: of democracy from Viktor Orban, from dictatorship. And he tried
• 58:03
  Speaker 2: to cheat. He gerrymandered. He manipulated votes. He did everything
• 58:07
  Speaker 2: he could to win that election. And the vote was
• 58:10
  Speaker 2: so overwhelming, recognizing his, as we called it last week,
• 58:14
  Speaker 2: mafia leadership. Our own mafia presidency is an equivalent. That
• 58:20
  Speaker 2: It didn't matter the gerrymandering, the cheating. The people fought back.
• 58:24
  Speaker 2: And so I'll say it right now. My optimism comes
• 58:28
  Speaker 2: from the fact that the votes for Democrats, especially in
• 58:31
  Speaker 2: the House, are going to be so overwhelming. I'm less
• 58:34
  Speaker 2: sure about the Senate. I think there's a chance there.
• 58:36
  Speaker 2: But definitely in the House that even with the cheating,
• 58:38
  Speaker 2: we're going to win this election.
• 58:41
  Speaker 1: I couldn't agree more. And that's a great note to
• 58:42
  Speaker 1: end on. Professor, what is the best way for our
• 58:45
  Speaker 1: listeners to follow you and keep up with your work
• 58:47
  Speaker 1: throughout the week?
• 58:48
  Speaker 2: Well, you can listen to the two of us, to
• 58:50
  Speaker 2: the Oath in the Office podcast, wherever you get your podcasts.
• 58:53
  Speaker 2: These reviews have been great. Leave them wherever you listen.
• 58:56
  Speaker 2: You can listen on Spotify, Apple, any of the platforms.
• 59:01
  Speaker 2: YouTube is taking off. My God, John, last week we
• 59:05
  Speaker 2: had an amazing uh, conversation with a former U S
• 59:08
  Speaker 2: attorney from Michigan. And what that YouTube mafia presidency is the,
• 59:13
  Speaker 2: is the title of it did is it blew up
• 59:15
  Speaker 2: to more than 30,000 views within a few hours. And, uh,
• 59:20
  Speaker 2: people really, I think, you know, that's another cause for optimism.
• 59:23
  Speaker 2: People know something is wrong. And when they hear about
• 59:26
  Speaker 2: this corruption, they want more of that information. So, um,
• 59:30
  Speaker 2: Watch us on YouTube. Leave a review. If you haven't subscribed,
• 59:33
  Speaker 2: by the way, please do and tell a friend.
• 59:35
  Speaker 1: Yeah, what's wrong with you people? What are you, moles?
• 59:37
  Speaker 1: Subscribe already. I want to let everyone know I'm on
• 59:39
  Speaker 1: SiriusXM's Progress channel every day at 12 noon Eastern, 9 a.m.
• 59:43
  Speaker 1: on the Pacific Coast for three hours. Corey joins me
• 59:45
  Speaker 1: live every Monday. And if you ever like the podcast
• 59:49
  Speaker 1: so much you want to ask Corey some questions live,
• 59:51
  Speaker 1: you can always call us live on the air every
• 59:54
  Speaker 1: Monday at 866-997-GRIT. My book is called Separation of Church
• 59:58
  Speaker 1: and Hate. The next one's on sale and coming out
• 1:00:01
  Speaker 1: around Easter time. And, oh, the Stephanie Miller Sexy Liberal
• 1:00:04
  Speaker 1: Comedy Tour, which I've done off and on for the
• 1:00:06
  Speaker 1: past few years, is having one date in all of 2026,
• 1:00:09
  Speaker 1: and I've got to plug it. We'll be playing the
• 1:00:12
  Speaker 1: Saban Theater in Los Angeles right before the midterms, Saturday,
• 1:00:16
  Speaker 1: October 24th. If you're on the West Coast, get there.
• 1:00:19
  Speaker 1: If you're not on the West Coast, get on a
• 1:00:21
  Speaker 1: plane and get there. Stephanie Miller for Angela House Sparks
• 1:00:24
  Speaker 1: and our special guest, Glenn Kirshner. and Senator Adam Schiff
• 1:00:29
  Speaker 1: and Jedi Master Mark Hamill all on one stage. Come
• 1:00:32
  Speaker 1: see us live. And I want to thank Wendy and
• 1:00:35
  Speaker 1: Bea Wolf and everyone who puts the show together every week.
• 1:00:37
  Speaker 1: And I want to thank you, Professor, for giving me
• 1:00:40
  Speaker 1: such a smart and yet inspiring podcast at the same time.
• 1:00:43
  Speaker 1: Thanks for the free constitutional law lesson you give us all.
• 1:00:48
  Speaker 2: Thanks so much, John. And, you know, I'll add one
• 1:00:50
  Speaker 2: more thing, which is a lot of the optimism and
• 1:00:52
  Speaker 2: hope comes from talking to you every week. So thanks
• 1:00:54
  Speaker 2: for that. Brilliant.
• 1:00:55
  Speaker 1: Thank you all. We'll see you next time on The
• 1:00:57
  Speaker 1: Oath in the Office.