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We need to appoint originalist judges, textualists, judges, conservative judges. That has been the battle cry in every Republican presidential campaign in my lifetime. And yet, time and time again, on all the consequential cases, the judges let us down. Conservatives lost three important court cases this week. We will get into all of them with a man who knows a thing or two about the law and the Supreme Court. This is a verdict with Ted Cruz.


Welcome back to Verdict with Ted Cruz. I'm Michael Knowles. And before we get into anything, I just want to thank you all for listening. And subscribing of the show is now I think it's at eleven and a half million downloads total. Our recent episode with the attorney general, Bill Barr, has already gotten half a million, more than half a million downloads. So thank you so much. We really appreciate you subscribing. Wherever you listen to podcasts and leaving those five star reviews, it's very kind of you.


That's the only positive nice thing I'm going to say all show. Because, Senator, we have had a terrible couple of weeks at the Supreme Court for the last two weeks, have been a train wreck at the Supreme Court. We had three disastrous decisions, lawless decisions, which had one good decision. So so we're batting 250. But but three decisions that were just horrendous and deeply disappointing. Senator, I want to go through them. I think the cases the people have seen in the news, you know, they've got names, Austock versus Clayton County, June Medical Services versus Russo, Espinosa vs.


Montana Department of Revenue. The way that I think about these cases more simply in that order is you've got a transgender case on employment law. You've got an abortion case in Louisiana. And then you've got a school choice case that came out of the Espinosa vs. Montana. And don't forget the amnesty case, the docket case and the dust. So that was another train wreck. Oh, my God. As two weeks, I thought I actually thought it was a better situation because I'd forgotten about that terrible case.


Senator, I don't know anything about the law. You know quite a lot about it. Obviously clerked at the Supreme Court. You've argued cases before the Supreme Court. Just take us through it. All right.


Well, so let's go one at a time. Let's let's start with the docket case, because the docket case was was horrific. This was a case challenging the Trump administration's reversal of DACA. Now, what is Doc? Doc, as you know, was Barack Obama's executive amnesty, where it where Obama illegally ordered amnesty to two people who came illegally to this country. You know, it's interesting. Immigration activists had pushed Obama over and over and over again to to issue executive amnesty.


And Obama told them, I can't. I don't have the authority. It's contrary to federal law. It's contrary to federal statute fact. Obama said, I am not a king. I am not an emperor. And then as he was moving into is into the election cycle, apparently he became a king. He became an emperor. He illegally issued executive amnesty. All right. Fast forward to the Trump presidency. The Trump presidency reverses Obama's illegal executive amnesty.


That case goes to the U.S. Supreme Court and by a vote of five four. Chief Justice John Roberts joins the four liberals. And remember that that's going to be a pattern. We're gonna discuss this and this entire show. Roberts joining the four living thing over and over and over again. So in this case. All nine justices, not a single justice, disputes that Obama's executive amnesty was illegal and contrary to federal immigration law. So none of them dispute that.


Not only that, all nine justices explicitly agree. That President Trump has the authority to stop following an illegal policy. So they say, of course, the Trump administration can stop executive amnesty. Of course they can stop an illegal policy. But then what happens is John, John Roberts for the court plays a little trick. He says, well, they just didn't explain their reasoning well enough. So we're going to strike it down because we don't think the reasoning had enough detail.


Course, you can do it perfectly legal. Just go back and start over and end the game is playing is it's obviously trying to kick the ball down the field just long enough to get past the election where they're hoping they'll be a different president who will embrace amnesty and end. It was really. It was. It was lawless and disgraceful. So, all right, that's the that's the dock, a case which you reminded me of. I mean, it might be the most egregious one because you've got you've got Obama himself saying that this would be unconstitutional.


And yet here's what happens. That's the court literally ordered Trump keep breaking the law because Obama broke the law like it's asinine. It's asinine that there's one justice who held that, much less than that five justices held. Well, I want to get to one justice in particular, John Roberts, in a moment. But first, I want to build up my fury and frustration at the chief justice. So can you take us through the other cases as well?


Sure. You've got June medical services. So June Medical Services is an abortion case. And it dealt with a statute that the state of Louisiana passed that was focused on women's health. And what it provided was that if someone's going to perform abortions, that they have to be licensed at a hospital within 30 miles of where they're performing the abortion. So, so, so, so that if if something happens to the mother's health, to that endangers her life, that the doctor be able to treat that that woman at a nearby hospital.


And what happened? So the statute Louisiana passed was very, very similar to a statute that Texas had passed. So Texas had done the same thing and said, look, we want to protect women's health. So so you've got to be licensed at at a nearby hospital. The Texas law went to the U.S. Supreme Court and the U.S. Supreme Court struck it down by a vote of five to four. This was in twenty sixteen. So that's four years ago, rather a vote of five to three.


It was five to three. So Justice Scalia had died. So there were only eight justices on the court when the Texas case went up there. And so it was five to three. One of the dissenters was John Roberts. Fast forward a Louisiana case, virtually identical statute. And five, four, the Supreme Court strikes down the Louisiana statute. And John Roberts, who had been a dissenter, magically flips over to the majority. And and joins the four liberal justices in striking it down.


And his reasoning. So he had written a dissent in the Texas case. He said this is wrong. The Constitution doesn't require this. And four years later, what he said was stari decisis. And I what a star decisis mean. It is a Latin phrase for that. That means respect for precedent following previously decided cases. And you know, the thing that is maddening is stari decisis tends to be almost always a one way ratchet that you have justices who call themselves conservative and they will respect stari decisis.


Or left wing, lawless, unconstitutional decisions. The liberal justices, they don't care about stari decisis at all. They're happy to overrule. They'd be more than happy to overrule Heller, which two which upheld the individual right to keep and bear arms under the Second Amendment. They'd be more than happy to overrule Citizens United. And and so it was a maddening decision to see Roberts flip his decision and flip the result in the court. Yeah, I think this raises a worry in the minds of a lot of conservatives, which especially seeing Roberts flip on this, which is that the conservative legal movement, it's gotten us some great dissents.


You know, man, no movement could produce better dissents than than this legal movement. But when it comes time to actually going down on the side and winning a case, it seems to fall away. The other funny thing that's that you notice about this case is that it totally undermines the left's argument about abortionists as medical providers because they always tell us abortionists are just regular health care providers, which doesn't seem to be the case to me, but that's their argument.


And yet when we say, OK, well, we're gonna treat them like every other health care provider. They say no, absolutely not. That would be unconstitutional.


And this is the legislature acting to protect women's health, protect women's lives. If you have an abortion that that that there's a medical complication and the mother's life is in danger, you want to be able to to save that mother's life. And now the Supreme Court is saying that that's not permissible for the legislature to do. And I'll tell you what we're saying more broadly here, Michael. John Roberts is the new Sandra Day O'Connor. John Roberts becomes terrible, the quintessential swing vote in the middle, like Goldilocks, not too hot, not too cold, liking her purple porridge just the way the way she likes it.


Now, John Roberts, there is a bloc of four on the left and there on the left every single time. And if John Roberts decides to go, go join them suddenly. We have a five four court that is disregarding the law. Well, I have two questions on this, and you can take them in whatever order you want. One, why is John Roberts, a Bush appointee, supposed to be a conservative? What why does he do this?


Why does he want to flip even on his own, even on the same issue in two different cases? And then and then my second question on this is the left always votes with the left. There they are in lockstep. The right is not in lockstep. And actually, in one of the important cases that we saw in the last couple of weeks, Bostock versus Clayton County, you saw even Neil Gorsuch, who was the replacement for the very conservative Antonin Scalia.


You saw him side with the liberals so that the left is always in lockstep. But the so-called conservative jurists never seem to be there. So let me take take your questions in reverse order. Let's start with the second one. All right. The Bostock cases is the third disastrous case and that concerned the Civil Rights Act of 1964, which which puts in place what's called Title seven. It's the general protections on employment discrimination, and it prohibits employment discrimination based on a whole series of specified characteristics.


And the one that is relevant here is is the Civil Rights Act of 1964 prohibits discrimination because of sex. What the court did in Boston was six three. So Roberts joined with the four liberals, did the same thing, but this time, even more maddeningly. Neil Gorsuch also joined with the four liberals, and Gorsuch wrote the opinion. And what the court did is, is it added to the civil rights laws, sexual orientation and gender identity? Essentially, they wrote them in there.


They added them. And the court concluded that because of sex, that the word sex now also means sexual orientation and also means gender identity. As a policy matter, that's not an unreasonable proposition, they're actually a lot of people who agree with that as a policy matter. And in fact, Congress has both houses of Congress have passed legislation to add sexual orientation or gender identity to the federal civil rights laws. The House has passed it twice. The Senate's passed it once, not at the same time, but at different times.


So it hadn't passed into law. But it's clear there's been a legislative movement headed in that direction. What the court did is said, well, doesn't matter what the legislation says, we're just going to write it in. We're just going to change the laws. And one of the problems with this awaked we talked at the Senate lunch is, you know, Senate Republicans all have lunch together every day. The Senate's in session. We actually talked about that at at at lunch today.


This case where I said, listen, some of the Senate Republicans, you agree with this policy. But, you know, if this it had been done legislatively. We would have worked through the complications, we would have in all likelihood achieved some sort of compromise in the legislative process. That would have, for example, protected religious liberty. That would have, for example, protected free speech. That whole legislative compromise, the give and take that that that our constitutional system designs, when you have Supreme Court justices just legislating themselves, that all gets short circuit.


I just want to make this point, Senator, which is that for people who don't understand quite the implications of of Sochi, you know, the sexual orientation or gender identity, what this is saying is that this law written in the 1960s before we had anything even resembling our current gender ideology, that a man can be a woman and vice versa. And fifty six genders that really that implied that you could be discriminated against for on the basis of sex as a woman, even if you're really a man.


It just it's it's anachronistic. I mean, you're applying this sort of sexual understanding of 2020 all the way back to the 1960s. So this decision is quite radical.


In 1964. Nobody, even the concept of gender identity is a modern construct. I mean, I challenge you go to back in 1964 and find one member of Congress who would have had any idea what you're talking about. Right. And and and what the Supreme Court did is they just short circuited it. And that's not the way our system works. And it's policy making from the bench. And we're going to see thousands of cases in litigation as a result of it, because what the court has said is anytime you have the words because of sex, it means because of sexual orientation or because of gender identity.


So you're going to have all sorts of instances, whether it is bathroom bills, where you have local jurisdictions saying that that biologically male adults can't go in a girls bathroom, although those are all going to be challenged and they may well be struck down. A girls sports, Idaho, just passed a law that says biologically male athletes can't compete in girls sports. And we're saying, by the way, a phenomenon nationally of people who were born as men who are competing in girls or women's athletics, and they're setting records after records, after records.


And it's really, I think is unfair to girls and in it. But under under the Supreme Court's reasoning, none of that matters. None of that. Yeah. Back and forth and balance matters because they just magically rewrote the statute. And that's not a judge's job. That is that is quite radical. And when you talk about the the sports application, which obviously is coming down the pike, I mean, we're talking about some real tangible goods here being taken away.


You know, there's the glory of winning the track meet. But then there are also scholarships, recruitment for colleges. So. So they're going to have a lot of really practical, tangible effects on girls. Please give me any hope that not all is lost. Please tell me that this Espinosa decision is somewhat decent. So it was the one good major decision. It's a school choice decision. It came came out of Montana and Montana. They established a scholarship tax credit that that parents could could use for their children to attend a private school or religious school.


And the Montana Supreme Court struck that down and they struck it down under the Montana Constitution. The Mont Montana constitution had a provision that that is widely known as a Blaen amendment. And the Blaine amendments have a really sad and sorry history. The Blaine amendments there, Blaine amendments across the country and state constitutions. And it's named for a federal amendment that came within one vote of passing. And the Blaine amendments were really motivated by deep anti Catholic bigotry. And and if you look at the debates at the time, the political party were called the no nothings.


And it was right after the Irish potato famine when you had a big influx of immigrants and many of them were Catholic. Actually, some of my ancestors came as a result of the Irish potato famine with Monta. And there was a strong backlash and an anti Catholic vicious anti Catholic bigotry. And what the Supreme Court did is five, four, it struck down Montana's Blaine amendment.


It said that that having a prohibition on on money, going to what were called sectarian school sectarian was the code word for Catholic, although it also include Jews and Mormons. It was the bigotry was it was anything that wasn't a wasp. They were against and and the Supreme Court concluded five four that it violated the Constitution to discriminate against religious schools, that if you're giving a tax credit, you can't somehow treat religious schools like like like they're. You know, forbidden, like they're they're they're somehow evil because they believe in faith, and in that case, actually, John Roberts wrote the majority and it was five four.


So Roberts had one good decision and three disastrous decisions and notice. The singular point of reference in all four of them is where go Goldilocks decided to vote. That's right. Well, because I guess it's good, you know, that Chief Justice Roberts came down on the right side of this decision. And it's funny, we talk about religious schools. I think a lot of people are looking at public schools these days with some of the crazy theories they're teaching.


They think they've got far more religious and superstitious kind of theories being taught there. But I have to tell you, I'm a little bit let down by this case because how on earth is this a five four decision? It should be nine zero.


Well, and and the hard left, there is a an animosity and antipathy to religious faith. And and we've seen this in. So the First Amendment protects five rights. Two of them concern religious liberty. And it's what's called the establishment clause of the Free Exercise Clause. The Establishment Clause prohibits the government establishment of religion. The Free Exercise Clause protects the free exercise of religion, the right for you to practice your faith. The left views those two clauses as intention.


They view them as in conflict with each other.


And you know, the last opinion of my old boss, wrote Chief Justice Rehnquist, was the plurality opinion in a case called Van Orden versus Perry. And I and I litigated Van Orden versus Perry. It was the Texas Ten Commandments case. And in that case, Chief Justice Rehnquist described how the Supreme Court case law on religious liberty was Janice Face. In other words, it faced in two directions at the same time. Right. Because the left interpreted the establishment clause as as mandating a hostility to religion.


That's not, in fact, what the establishment clause means. Both the Establishment Clause and Free Exercise Clause are meant to operate in tandem to stop government from from persecuting faith it with to protect churches from government, trying to trying to control them. Yeah. And and it's not about scouring the public square to remove a reference to God or to discriminate against religion. But sadly, there are four justices on the Supreme Court have been willing to vote for that view.


It's funny, people so misunderstand the establishment clause when it when it comes to religion in the Bill of Rights, because, of course, at the time of the ratification of the Constitution, there were states that had established churches that what the Constitution is talking about is at the federal level. But unfortunately, that sort of subtlety has been lost.


Well, and you're right. And as initially understood and for the first century plus of this, this nation's history, the Bill of Rights only applied against the federal government. It didn't apply to the states. It didn't play to local governments. I mean, you look at the First Amendment, it begins with the words, Congress shall make no law. And the evil that they were really worried about the establishment clause is they didn't want the government. They didn't want an official church setup by the government.


They don't want the Church of England. They didn't want the government remember where it were, a country. You look at the pilgrims who were free fleeing religious oppression and they didn't want government forcing you how to worship, forcing you to which faith you should choose, what to buy or whether to worship at all. They wanted it to be up to you. Yeah, but that's very different from saying that, that the job of a court is basically to be like disinfectant and to remove faith from everything or to discriminate against faith.


And I'll give an example, by the way, everyone listening to this podcast understands the need to get how simple this is. Pell Grants, we've had Pell Grants for colleges and universities all the time, Phet federal for a long, long time, for many decades. Pell Grants are federal grants to low income students. If you'll get a Pell Grant, you can use it right now to go to Notre Dame. Notre Dame is an explicitly Catholic institution and use it to go to Brigham Young, Brigham Young as an explicitly Mormon institution.


Right. There's no constitutional impediment. If you've gotten a scholarship, if you've gotten a grant with you as an individual choosing, I want to go to Notre Dame or I want to go to Brigham Young. All but yet that's the everyone agrees that's true with 18 year old college freshmen. And yet four justices of the court somehow think if it's 17 year old high school senior, suddenly the Constitution says, nope, you can't choose child, you can't choose parent that you want to go to a Catholic school or a Jewish day school or or whatever, whatever faith based school.


The First Amendment's about protecting your religious liberty. And it's your choice, not the government's choice. So, of course, you know, the church of progressivism is pretty exclusionary and progressivism is a very jealous God site. I think you're seeing that that play out. We have to get before we go to some mailbag questions, because there is some actual news.


Michael, let let me jump in because you asked two questions. I don't want to forget the first one. I already did order that. You did not. So let me give you a 60 seconds. Just not to admit it. You said, why do we keep getting this wrong? Yes. The reason Republican presidents keep getting it wrong is because they keep going with nominees who will make an easy confirmation rather than looking for a proven record. Looking for someone, if you look at the justices in modern times who stayed faithful to their oath.


You look at at at Antonin Scalia, Clarence Thomas, William Rehnquist, Sam Alito, every one of them has served in the executive branch. They had stood for constitutionalist principles, for conservative principles. And they had been criticized, excoriated. They'd been pounded and they didn't. Whether that's what we need to look for in Supreme Court nominees. And every time a Republican president says, oh, well, so-and-so will be much easier to confirm, that has ended up a disaster.


And so we've got to have presidents willing to take the heat to actually nominate proven constitutionalist judges. That's such a good point. It actually had sort of escaped my my thought that if it goes back to this political question of the nomination, are you ready to buckle down and have the spine for a really tough confirmation battle if it means that you're gonna be able to shape the court for a generation to come? So with John Roberts, George W. Bush had in one room John Roberts and George Bush had in the other room my old boss on the Court of Appeals, Michael Luttig.


Michael Luttig was the strongest conservative judge in the country at Michael Luttig, been the nominee instead of Chief Justice Roberts. These decisions would not have happened this week. I'm 100 percent certain of that. And you don't have to take anyone's word for it because, Lou, to get beat on the bench had been standing, had been. But at the end of the day, the Bush White House decided they didn't want that fight, that Roberts would be an easier confirmation, by the way.


Rewind to Bush 41. In one room was David Souter. In another room was Edith Jones and other rock ribbed conservative. And Bush 41 picked David Souter because he had no paper trail, and as you know, I'm working on a book called One Vote Away, that that is all about the Supreme Court. Its coming out in October. It's it's up on Amazon already on on preorders. But I discussed it in great detail. The history of the disaster that is Republicans Supreme Court nominations.


And it's over and over again choosing the easy, calm, firm path rather than the proven conservative with a record. And that doesn't work. It's so simple. I mean, it's so simple that if if you actually take the harder road and you you go through the onerous process of getting through a rock ribbed jurist, you're going to get better jurisprudence. But a lot of people don't want to do that. Well, that actually ties in with at least one mailbag question we can get to before we go.


This from Clay. Are there any checks on the Supreme Court? If they were to make a really bad decision, in essence, they ruled that the Second Amendment doesn't mean anything like it thinks it means. Can the court legally be ignored? So that's a complicated question. There are a number of checks and the way our Constitution is set up. Each of the branches has checks and balances on the other. So. So one check is impeachment. That that that if a judge or justice is faithless and lawless enough, they can be impeached.


And that that is the House of Representatives can bring impeachment proceedings and the Senate can can vote to convict them. That is obviously an exceptionally high bar, but that is one remedy. A second remedy is that Congress actually has the authority to limit the Supreme Court's jurisdiction. The Constitution gives Congress that authority. So, for example, Congress can say this particular issue of law. The Supreme Court has no jurisdiction over. Huh. That is now, that's a pretty dramatic step.


But but it is it is a clear check and balance that the Constitution gives to Congress. Now, beyond that. An executive can decide to defy the Supreme Court, and that becomes a complicated issue. There has been debate about that from the beginning of our country. And and but the but that remains that at the end of the day, you know, you look at a case like Marbury vs. Madison. Marbury vs. Madison was the first case that established judicial review, which is the power of a court to strike down a law.


And you got to understand the political situation at the time. John Marshall was the chief justice. Great. John Marshall, one of the founding fathers, one of the greatest chief justices ever. His enemies were in power. Thomas Jefferson was the president. And Marshall and Jefferson were enemies. And James Madison was the secretary of state. And so Marshall was thinking, OK. He wanted to establish the court's power to strike down a law. But if he tried to order Jefferson and Madison to do anything, there was a very real risk.


Jefferson and Madison would say, go jump in a lake. You don't have the authority to order us to do anything. We're not going to listen to you. And so what what Marshall does in Marbury vs. Madison is he strikes down a federal law. But but it's a jurisdictional law. So there's nothing, nothing that Jefferson and Madison can do to defy it. He simply concludes, we, the Supreme Court, don't have the jurisdiction that Congress purported to give us in this particular statute.


So that law is null and void because it's contrary the constitution. And it was a very deft. Real politique move that Marshall did because of the risk that the executive might not accept the court's authority. It's that's such a keen insight into what we complain about how politics has infected the courts. But it's a keen insight. How are things perhaps haven't changed all that much in the way that politics does interact with these institutions? Senator, you've given me a little bit of hope, at least, that there may be some kind of check on a lawless court.


I guess it remains to be seen if any of that will actually be put into effect. But hope springs eternal in the human breast. We have got to go for now, but we will, of course, be back very soon. Thank you, Senator. And thank you to all of you listening. I'm Michael Knowles. This is verdict with Ted Cruz.