Our old pal Damon Root, author of Overruled: The Long War for Control of the U.S. Supreme Court, stops by to explain why the world is ending and racism won and all new websites will be homophobic and paying your debts is fascism or something. So yeah, the lads discuss the court, affirmative action,
This is a bit of an abstract, maybe orthogonal point but: if you were to compile color photos of every SCOTUS bench since its inception and show them to the partisan and Twitter-addled asking, “which one of these groups of people would worry you? or “which one of these groups shows a country with a meritocracy?” what do you think their answers would be? It’s sad but not surprising to watch people denigrate a court with *four* women and multiple visible minorities as some kind of bastion of paleo-conservative thought.
On the flip side: perhaps this could be a lesson in how groups aren’t monolithic and individuals can show agency even if it’s idiosyncratic within their cohort. I’d like to hope so. But I’m not optimistic.
Absent Matt's dogged efforts to pull Damon Root back into the center of the discussion, this episode tips into the 'cocktail party conversation death spiral' in which the person that knows the most says the least. Disappointing utilization of an All-Pro guest, gentlemen.
Michael makes a very good point. If we accept the radical evaluation of current American society, that the state of racism is bad as it has ever been, then we have to accept that the liberal solutions we instituted the last 60 years, affirmative action, Civil Rights Act, etc. have been complete and utter failures. You can't have it both ways.
Thanks as always for the Ask A Jew love. Michael & Matt, we know where to show up with our suitcases if things go south (why do you think Chaya Leah wanted you to meet her family? Hope you have a big basement, there’s like 73 of them)
As a South Bay denizen the fact that two of the greatest podcast hosts in history were so close to me, down the road in the LBC, gives me that warm, swelling feeling in my bosom that Mormons get when they feel the presence of God.
still waiting for plausible explanations from the "antiracist" folks who claim admitting Asians based on merit scores is "White Supremacy?" Wouldn't actual White Supremacy be about admitting more white folks and fewer Asians? Maybe I don't understand because I lack the "melanin force field" that seemingly has the magical ability to make screwing Asians out of the admissions they've earned somehow benefit me as a white guy? The causal link eludes me.
Asians are like the wave/particle duality of light. If the argument requires Asians to be oppressed, they are Asian. If the argument requires they be oppressors (even if they live in Asia) they're "white adjacent."
I think you need to interview Sarah Isgar, or if she is unavailable, David French. She is hilarious and has the best non-biased break-down in the Justices. Did you know that J. Jackson and J. Gorsuch are in a workmance? Soon, they will need their own cutsie nickname like “Jacksuch” or “Gorkson.” I like the latter. Their pod “Advisory Opinions” is almost as good as yours. I think you need a more nuanced opinion on these decisions.
Oh, cute nickname! May 31st excessive fines and strange bedfellows. Maybe there are rational reasons for their alliance, but, in my mind, they are secret besties stuck on warring sides, Romeo & Juliet style. I hope they get a happy ending.
Is it just me or is MM’s Baghdad Guy impression also a dead ringer Triumph the Insult Comic Dog? “I tell you Conan, I burned de pride flag and then I peessed on eet! But ah, you know I peess on everything, so that part waseen’t personal.”
Also thanks to you all, as usual, for being an oasis in the vast, vast desert (of idiots.) 🙏
Regarding the weird fake diversity of the Ivy League, I've had two experiences that really show how phony it is, and maybe provide an alternate way to pursue the goals of helping the disadvantaged, whoever they may be.
I went to boarding school, and thanks to the generous founding endowment granted by a certain wealthy chemical manufacturing family, they have been admitting half of their students on full financial aid since 1923. They work with feeder programs in Newark, New York, Philadelphia, Camden, and Baltimore to identify talented, disadvantaged kids and then give them the opportunity to attend a very academically rigorous four year high school that will position them to successfully apply to selective colleges.
The black and Hispanic kids in my class were SMART. No one thought anyone was there as a "diversity admission" because the school worked hard to find kids who could not just keep up but excel in their schoolwork. It was a very stereotypically progressive elite institution when I went there at the turn of the century, but there was no one who expected less of a student there because of his or her race (which seems to be at the center of modern progressive education).
And then I remembered that before high school, my summer camp in upstate New York did something similar - they recruited kids from Chicago, the Bronx/Brooklyn, and DC and offered extensive scholarships to people who wanted their kids to get out and experience some nature.
In retrospect I grew up in institutions that prized excellence and real diversity, not box checking based on people's skin tone. It's a shame that some of the most prestigious institutions in the US can't reorient themselves towards excellence and diversity and instead want to die on the DEI hill.
Side note, the molotov cocktail throwing lawyer was a freshman on my hall when I was a a Senior. I think 2002-2003 was the beginning of full on implementation of critical theory approaches in all the humanities courses, and I can't help but wonder if he started on the road to being treated like a martyr for doing something dumb and violent back there.
I have some involvement with a 100% aboriginal school where the kids are from extremely bad situations compared to other aboriginal kids. The goal is to get them at least to average standard at school. The last few years about 5 a year are accepted into elite private schools for free. But all of them have to pass a rigorous exam set by the school. The idea is that other schools can then rely on the fact the graduates have a chance to successfully compete high school at their adopted school.
Imagine being an Asian person and seeing media members essentially saying we want to discriminate against you in order to get other less qualified people into college, and we want you to pay for them to attend
I think it was Thomas Sowell who pointed out that the failure rate of these types of students at the top schools was terrible. He argued many would have been at the next rung down and not be competing with valedictorians.
I've been trying to tune out even more than usual this week. The bit I have seen has been just stunningly racist and dehumanizing. I can't think of a worse week in recent memory. I'm so disappointed that there seems to be so little acknowledgment, let alone resistance to that within the left.
They lavish a lot of praise on Damon, whose books I’ve generally liked and who seems like a smart guy, but the true sign of a serious constitutional thinker is someone who arrives at their conclusions of what the law means that do not always coincide with their policy preferences. I may be being unfair, but (like Randy Barnett), Damon seems always to arrive at libertarian policy positions (I would compare to, say, Akhil Amar...although he is guilty of letting his preferences get in the way at times as well). I teach constitutional law and I get his take on unenumerated rights (substantive due process is much less defensible on textualist/originalist grounds), but it is such a can of worms to interpret what it means--you could make the coy argument that the 9th amendment is “void for vagueness” under the 14 amendment--that I think it’s most reasonable to limit rights to those that were enumerated (including for incorporation against states). Hence Bork called it an “inkblot” 😂
A good example is Roe. I am a pro choice atheist who hopes that every state legalizes abortion. But Roe was wrongly decided, as was Griswold. If you go back to the original dissents, they are correct. It’s frankly absurd to think that there was a right to abortion, or even more general sexual “privacy”, inherent in the--very, very clearly procedural--due process clause.
Or "unsympathetic" re: 303. Imagine Damon being forced to write an article on the 1st amendment supporting censorship in the name of public safety, arguing for REASON to turn over its list of donors and subscribers, or something else he would wholeheartedly oppose. Would that improve his sympathy? As a writer-for-hire, why shouldn't he be forced to write whatever we, the public, hire him to write? Why is he allowed to "discriminate"?
I don't understand how the 9th could be interpreted in such a way as to deny a constitutional right to privacy. Privacy is a necessary part of so much of life, nevermind specific civil rights!
I’m not sure what you’re getting at here. There is of course a strong policy argument to be made in favor of protecting privacy--possibly through passing laws to that effect (and thereby creating statutory rights). Perhaps there should even be a constitutional amendment, creating a constitutional right, if a supermajority agreed to codify such a right.
The constitutional argument, however, is simply whether the text of the Constitution protects privacy. It does not. The word never appears. In 1965, the plurality in Griswold v. CT held, in a case about contraceptives (illegal at the time), that such a right could be inferred from the “penumbra” of other rights in the text of the Rights. As Justice Stewart wrote in dissent, “we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. ...with all deference, I can find no such general right of privacy in the bill of rights, in any other part of the Constitution, or in any case ever before decided by this court.” Similarly, Justice Black dissented: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitution provision.”
Why isn't privacy considered one of the "unenumerated" rights? Why does it need to be "found" in some "penumbra"?
The whole point of the 9th was so that the state wouldn't try to limit our rights to just the enumerated ones. If there is NO right to privacy, isn't the exercise of our rights then subject to all sorts of different levels of governmental whim?
I agree that this was the original purpose of the 9th amendment in the compromise between federalists and anti federalists, but subsequently courts have not known what to make of it and treat it as a kind of rhetorical flourish instead of an actual legal command. Because the application of the 9th amendment is so unclear, leading Bork to call it an “inkblot”, it has never been the primary basis of a SCOTUS ruling. (In large part I think it is seen as a “slippery slope” by “both sides”--if we say X is an unenumerated right, why not Y, Z, etc. Better to leave the enumeration of other rights to the states and political branches of our democracy, jot unelected judges.)
If the constitutional right to privacy were based on the 9th amendment, instead of substantive due process (5th and 14th), this would certainly provoke a more interesting discussion about the scope of unenumerated rights and constitutional construction (eg, should the court engage in a detailed “history and tradition” analysis for every asserted right?) I would certainly prefer this to the blatantly a-textual interpretation of “due process” as generating substantive commitments.
Omg... they went out for a pack of cigarettes and actually came home!!!
This is a bit of an abstract, maybe orthogonal point but: if you were to compile color photos of every SCOTUS bench since its inception and show them to the partisan and Twitter-addled asking, “which one of these groups of people would worry you? or “which one of these groups shows a country with a meritocracy?” what do you think their answers would be? It’s sad but not surprising to watch people denigrate a court with *four* women and multiple visible minorities as some kind of bastion of paleo-conservative thought.
On the flip side: perhaps this could be a lesson in how groups aren’t monolithic and individuals can show agency even if it’s idiosyncratic within their cohort. I’d like to hope so. But I’m not optimistic.
Finally!! 🤣🤣
The shakes were setting in.
100%. I've been delaying a long drive waiting for this to drop. 😂
You beat me to it.
This is a great episode, lads. Worth the wait. Thank you. Happy 4th, Fifdom.
Absent Matt's dogged efforts to pull Damon Root back into the center of the discussion, this episode tips into the 'cocktail party conversation death spiral' in which the person that knows the most says the least. Disappointing utilization of an All-Pro guest, gentlemen.
Michael makes a very good point. If we accept the radical evaluation of current American society, that the state of racism is bad as it has ever been, then we have to accept that the liberal solutions we instituted the last 60 years, affirmative action, Civil Rights Act, etc. have been complete and utter failures. You can't have it both ways.
Thanks as always for the Ask A Jew love. Michael & Matt, we know where to show up with our suitcases if things go south (why do you think Chaya Leah wanted you to meet her family? Hope you have a big basement, there’s like 73 of them)
And Kmele...I think it’s time.
Ask a Jew with Kmele could easily be 45 minutes of surprising him with celebrity members of the tribe. “Milton Berle? No way!”
"By the way: I've always wondered why the podcast is called 'Ask a Jew'? Is one of you Jewish? Oh.... Remarkable!"
You said "celebrity member" and "Milton Berle" in the same post - unironically. 🥒
I'd pay to hear that
I had no idea about Milton Berle until this post.
As a South Bay denizen the fact that two of the greatest podcast hosts in history were so close to me, down the road in the LBC, gives me that warm, swelling feeling in my bosom that Mormons get when they feel the presence of God.
Excellent. Chaya Leah can sort out my mother in law trouble and kmele can sort out why I'm going to get fired for saying DEI is discrimination
still waiting for plausible explanations from the "antiracist" folks who claim admitting Asians based on merit scores is "White Supremacy?" Wouldn't actual White Supremacy be about admitting more white folks and fewer Asians? Maybe I don't understand because I lack the "melanin force field" that seemingly has the magical ability to make screwing Asians out of the admissions they've earned somehow benefit me as a white guy? The causal link eludes me.
Asians are like the wave/particle duality of light. If the argument requires Asians to be oppressed, they are Asian. If the argument requires they be oppressors (even if they live in Asia) they're "white adjacent."
Same happening with the Latinos now that we know that any of them who support Trump aren't the real
Latinos, but only that fake kind.
Latinos/Latinas are white adjacent. Latinxs are not(?)
It stopped making sense a long time ago.
I think you need to interview Sarah Isgar, or if she is unavailable, David French. She is hilarious and has the best non-biased break-down in the Justices. Did you know that J. Jackson and J. Gorsuch are in a workmance? Soon, they will need their own cutsie nickname like “Jacksuch” or “Gorkson.” I like the latter. Their pod “Advisory Opinions” is almost as good as yours. I think you need a more nuanced opinion on these decisions.
I'm going to need the advisory opinions episode # to hear about Neil-ketanji❤️❤️❤️
Oh, cute nickname! May 31st excessive fines and strange bedfellows. Maybe there are rational reasons for their alliance, but, in my mind, they are secret besties stuck on warring sides, Romeo & Juliet style. I hope they get a happy ending.
Reminds me of RGB and Scalia dressing up as opera characters. I think that's a real photo...googling.
Ohhhh yeah
https://medium.com/@OPERAAmerica/justice-ruth-bader-ginsburg-and-justice-antonin-scalia-as-supernumeraries-in-washington-national-2d802e1d6f95
Adorable!
Is it just me or is MM’s Baghdad Guy impression also a dead ringer Triumph the Insult Comic Dog? “I tell you Conan, I burned de pride flag and then I peessed on eet! But ah, you know I peess on everything, so that part waseen’t personal.”
Also thanks to you all, as usual, for being an oasis in the vast, vast desert (of idiots.) 🙏
Triumph is the mother sauce of all of MM’s impressions.
Comment of the week. I’ve always subconsciously expected him to throw in an elliptical “for me to poop on” each time I’ve heard it.
I think you're right! Here's a Triumph clip for youse.
https://www.youtube.com/watch?v=mY8tVeR5m4s
Regarding the weird fake diversity of the Ivy League, I've had two experiences that really show how phony it is, and maybe provide an alternate way to pursue the goals of helping the disadvantaged, whoever they may be.
I went to boarding school, and thanks to the generous founding endowment granted by a certain wealthy chemical manufacturing family, they have been admitting half of their students on full financial aid since 1923. They work with feeder programs in Newark, New York, Philadelphia, Camden, and Baltimore to identify talented, disadvantaged kids and then give them the opportunity to attend a very academically rigorous four year high school that will position them to successfully apply to selective colleges.
The black and Hispanic kids in my class were SMART. No one thought anyone was there as a "diversity admission" because the school worked hard to find kids who could not just keep up but excel in their schoolwork. It was a very stereotypically progressive elite institution when I went there at the turn of the century, but there was no one who expected less of a student there because of his or her race (which seems to be at the center of modern progressive education).
And then I remembered that before high school, my summer camp in upstate New York did something similar - they recruited kids from Chicago, the Bronx/Brooklyn, and DC and offered extensive scholarships to people who wanted their kids to get out and experience some nature.
In retrospect I grew up in institutions that prized excellence and real diversity, not box checking based on people's skin tone. It's a shame that some of the most prestigious institutions in the US can't reorient themselves towards excellence and diversity and instead want to die on the DEI hill.
Side note, the molotov cocktail throwing lawyer was a freshman on my hall when I was a a Senior. I think 2002-2003 was the beginning of full on implementation of critical theory approaches in all the humanities courses, and I can't help but wonder if he started on the road to being treated like a martyr for doing something dumb and violent back there.
I have some involvement with a 100% aboriginal school where the kids are from extremely bad situations compared to other aboriginal kids. The goal is to get them at least to average standard at school. The last few years about 5 a year are accepted into elite private schools for free. But all of them have to pass a rigorous exam set by the school. The idea is that other schools can then rely on the fact the graduates have a chance to successfully compete high school at their adopted school.
Imagine being an Asian person and seeing media members essentially saying we want to discriminate against you in order to get other less qualified people into college, and we want you to pay for them to attend
I think it was Thomas Sowell who pointed out that the failure rate of these types of students at the top schools was terrible. He argued many would have been at the next rung down and not be competing with valedictorians.
I've been trying to tune out even more than usual this week. The bit I have seen has been just stunningly racist and dehumanizing. I can't think of a worse week in recent memory. I'm so disappointed that there seems to be so little acknowledgment, let alone resistance to that within the left.
Fabulous comment. You left out, and come from an ethnic group who venerates family, hard work, and education.
They lavish a lot of praise on Damon, whose books I’ve generally liked and who seems like a smart guy, but the true sign of a serious constitutional thinker is someone who arrives at their conclusions of what the law means that do not always coincide with their policy preferences. I may be being unfair, but (like Randy Barnett), Damon seems always to arrive at libertarian policy positions (I would compare to, say, Akhil Amar...although he is guilty of letting his preferences get in the way at times as well). I teach constitutional law and I get his take on unenumerated rights (substantive due process is much less defensible on textualist/originalist grounds), but it is such a can of worms to interpret what it means--you could make the coy argument that the 9th amendment is “void for vagueness” under the 14 amendment--that I think it’s most reasonable to limit rights to those that were enumerated (including for incorporation against states). Hence Bork called it an “inkblot” 😂
A good example is Roe. I am a pro choice atheist who hopes that every state legalizes abortion. But Roe was wrongly decided, as was Griswold. If you go back to the original dissents, they are correct. It’s frankly absurd to think that there was a right to abortion, or even more general sexual “privacy”, inherent in the--very, very clearly procedural--due process clause.
Or "unsympathetic" re: 303. Imagine Damon being forced to write an article on the 1st amendment supporting censorship in the name of public safety, arguing for REASON to turn over its list of donors and subscribers, or something else he would wholeheartedly oppose. Would that improve his sympathy? As a writer-for-hire, why shouldn't he be forced to write whatever we, the public, hire him to write? Why is he allowed to "discriminate"?
I don't understand how the 9th could be interpreted in such a way as to deny a constitutional right to privacy. Privacy is a necessary part of so much of life, nevermind specific civil rights!
I’m not sure what you’re getting at here. There is of course a strong policy argument to be made in favor of protecting privacy--possibly through passing laws to that effect (and thereby creating statutory rights). Perhaps there should even be a constitutional amendment, creating a constitutional right, if a supermajority agreed to codify such a right.
The constitutional argument, however, is simply whether the text of the Constitution protects privacy. It does not. The word never appears. In 1965, the plurality in Griswold v. CT held, in a case about contraceptives (illegal at the time), that such a right could be inferred from the “penumbra” of other rights in the text of the Rights. As Justice Stewart wrote in dissent, “we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. ...with all deference, I can find no such general right of privacy in the bill of rights, in any other part of the Constitution, or in any case ever before decided by this court.” Similarly, Justice Black dissented: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitution provision.”
Why isn't privacy considered one of the "unenumerated" rights? Why does it need to be "found" in some "penumbra"?
The whole point of the 9th was so that the state wouldn't try to limit our rights to just the enumerated ones. If there is NO right to privacy, isn't the exercise of our rights then subject to all sorts of different levels of governmental whim?
I agree that this was the original purpose of the 9th amendment in the compromise between federalists and anti federalists, but subsequently courts have not known what to make of it and treat it as a kind of rhetorical flourish instead of an actual legal command. Because the application of the 9th amendment is so unclear, leading Bork to call it an “inkblot”, it has never been the primary basis of a SCOTUS ruling. (In large part I think it is seen as a “slippery slope” by “both sides”--if we say X is an unenumerated right, why not Y, Z, etc. Better to leave the enumeration of other rights to the states and political branches of our democracy, jot unelected judges.)
If the constitutional right to privacy were based on the 9th amendment, instead of substantive due process (5th and 14th), this would certainly provoke a more interesting discussion about the scope of unenumerated rights and constitutional construction (eg, should the court engage in a detailed “history and tradition” analysis for every asserted right?) I would certainly prefer this to the blatantly a-textual interpretation of “due process” as generating substantive commitments.
And I am a pro life catholic who agrees with you. Getting an issue like abortion back doored with a set of judgments many were critical of is insane.
Let each state decide and make laws. Griswold is a very unfortunate name to have up in lights.
Here's the link to the Jay Caspian Kang piece in the New Yorker that Moynihan mentioned near the end.
https://www.newyorker.com/news/our-columnists/why-the-champions-of-affirmative-action-had-to-leave-asian-americans-behind
Is everyone going to ignore the fact that Moynihan unironically made a root causes argument?
Absolutely thought the same thing! I wasn’t going to say anything and just savor the flavor for a bit.
Been waiting sooooo long...