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- [00:08]
A
Hello, and welcome to another very special episode of the City Journal podcast. My name is Raphael Mangual. I am your host, and I'm so excited to be joined by two of my favorite people. We've got Jim Copeland, Ilya Shapiro. And what you may not know is that Jim Copeland actually hired me when I first started at the Manhattan Institute in 2015. So anything that you're upset with me about, you can blame him for.
- [00:31]
B
He's also responsible for me being here as well. I mean, it wasn't him wreaking all kinds of havoc. Absolutely. I called him at the tail end of my Georgetown troubles, as it were. I'm like, Jim, which we're going to talk about. I think we need to deepen our relationship here rather quickly. And he made that happen.
- [00:47]
A
So we're going to have a really fantastic conversation today. And what I really want to talk to you both about is where does the Manhattan Institute sit within the broader conservative legal movement? And I think the best place to start is just to talk about what that even is. I think a lot of people use that term sometimes pejoratively. I don't think everyone has a good idea of what that is in their own head. So when you hear conservative legal movement, or is that a label that you accept and what does it mean to you? Jim, we'll start with you.
- [01:16]
C
I think it is a label I accept. It had seeds that were before anything formal. Right. So the Federalist Society was founded as late as 1982. Right. So after Ronald Reagan's election. There were intellectual precursors before this. And of course, some of this was a reaction against trends in the law. In Ilia's world of constitutional law, that was sort of the vast expansion of judicial authority, sometimes without clear textual rudders in the Constitution.
- [01:46]
B
1968, as a pivot point, kind of the birth of the modern conservative legal movement. Forget about arguing over Lochner and things in the past, whatever. But the modern movement, when Nixon ran against the Warren Court in 68.
- [02:00]
A
Talk to us a little bit about that, because I do think that that's a proper pivot point.
- [02:03]
B
Right.
- [02:03]
A
So 1968, why does that matter? What is the Warren Court? What did they do?
- [02:07]
B
I talk a lot about this in my last book, Supreme Disorder, about the role of politics in. On sale on Amazon, on sale wherever you buy books. I'm sure it's like lots of percent off on Amazon, but whatever. Paperback as well. Updated through the Ketanji Brown Jackson confirmation. So there we go. In the 60s, Earl Warren, former governor of California, was put on the court, became the chief justice. And there were all these revolutionary decisions about criminal procedure, about church, state relations, constitutional separation of powers, Lots of different things that concomitant with the kind of trends in terms of the sexual revolution, you know, the 60s, counterculture, all of that sort of thing that were roiling society. And Nixon came in in the late 60s and campaigned against all of this, including saying this Warren court, they're activists. We need to have law and order. So it spawned as kind of this conservative legal movement. Spawned as no, we need law and order. We need not activism. We need restraint. You can't make up stuff as you go along.
- [03:10]
A
Which I think that's actually an important core theme in what the conservative legal movement has meant to me. It's always been this kind of counterweight, right? Like you have judicial activism, you have judicial restraint. The conservatives had been on the side of restraint. What exactly?
- [03:25]
B
I don't think that's right, by the way. We can get to that. I don't think you should be activist or restrained. You should say what the law is, and then we can debate whether you.
- [03:30]
A
Get it right or not. Well, this to me is like, that was what being restrained meant, right? That you were constrained by the text of whether it's the Constitution or the statute at issue.
- [03:39]
C
It wasn't going to be penumbras and emanations of the Constitution, inventing broad new theories without a textual basis or any historical foundation.
- [03:48]
B
And indeed, in the law schools for a long time, if you took constitutional law there, wouldn't even read the Constitution, right? That eventually it migrated into Appendix H of your textbook. Now it's front and center. Now it's the first thing that even if the professor ignores it, it's in the case books, right? And administrative law that Jim gets into the law of administrative agencies, the bureaucracy, the law that governs the government, if you will. It used to be that. Why would we want to know what the text means? Just try to figure out what the text might help us understand what the purpose of the law is, which is what we tried to rule on. It's completely backwards.
- [04:23]
A
So you've mentioned the word text several. And when you talk about judicial activism, judicial restraint, to me, the debate always goes back to textualism, originalism. That seemed to be the sort of key dispute that defined what a legal conservative was as I was going through law school. Right. The difference was you had people who believed in this idea of a living Constitution of the law kind of evolving without legislature stepping in to amend it. And then you had people that said, no, no, the law means what the text says, and we should be constrained by that. Talk a little bit about how that shift happened, where it seems like now, as Ilya says, the text of the constitution, of our statutes are very much front and center in how legal education is done. But that wasn't always the case. When did that start to change the.
- [05:12]
C
Way law is typically taught? Still today in the sort of common law classes, which are torts, contracts, property, you follow a common law tradition where you have case law building case upon case upon case. So for a long time, constitutional law was also done that way. Regulatory law to some degree, was also done that way. The interesting thing is, I mean, Ilya is a UChicago law guy, I'm a Yale law guy, But Ilya's school is. He's the con law scholar, but his school is the one that developed the law and economics field most robustly. Yale is where you sort of had the originalism, methodological.
- [05:49]
B
I thought you developed long poetry.
- [05:52]
C
Well, they did that too, but Alex Bickle. Alex Bickle, after Brown v. Board. And listen, Brown v. Board created a lot of backlash. And Brown v. Board, I think, was rightly decided this was the case that got rid of segregation in the school.
- [06:04]
B
It ruled that segregation was unconstitutional. It took another decade, more court decisions and inserting the National Guard and the Civil Rights act to actually have something more.
- [06:15]
C
Where I live today in North Carolina was 17 years after Brown v. Board, before they integrated the public school. So it took a while. But, you know, Alex Bickle was like, well, I think this is right, but how do we draw the line? And he wrote this book, the Least Dangerous Branch, riffing off of the Federalist Papers line about it, about the courts. And then he sort of came around later in life to this sort of, no, we really want to look at the meaning of the words at the time it was written. That was sort of the first volley. And then his faculty colleague Bob Bork, who came up as an antitrust scholar, a law and economics tradition scholar, started refining this. And then Nino Scalia started refining this. And so you had this sort of intellectual development of what it meant. And it took a while for there to be some sort of consensus on the right.
- [06:59]
B
So originally it was just not that. Not Earl Warren making it up as you go along, kind of waving your hands, penumbras and emanations you mentioned that was in a case about the right to have contraceptives, which I think you can justify, but not by saying, oh, it's because you take These provisions and they overlap these, you know, I didn't take much physics in school. It's bizarre theory of constitutional interpretation. So anyway, so it started off with that and, and being very restrained, the bickle. But then what if what the government is doing is wrong? You're going to be restrained and not stop it. So then it moved to oh, we have to look at the originally with, with Bork originally, no pun intended, the original intent of the founders. You have to get into their heads what did they intend? And we try to instantiate that. And then as you said, Scalia built on that and said no, I don't care what James Madison has to say about video games. Right. I care what the words on the text say and not what they say now, what they meant when they were enacted. That's how we do law.
- [07:54]
A
And so when you think about what is conservative about that approach. Right. To me, one of my favorite Federalist Papers is Federalist number 10, wherein Madison lays out how difficult it is to actually get things done through the system of government that we developed here in the United States. And it was by design that it was supposed to frustrate the passions of factions. Right. I mean this was the idea that in order for Congress to act, you had to meet a significantly high threshold of agreement. When you subordinate the text of either a statute or the Constitution, what you're essentially doing is end running those counter majoritarian protections. And that was to me the sort of conservative argument in favor of originalism. What made me sort of immediately identify with the conservative legal movement the second I stepped onto law school campus.
- [08:43]
C
Yeah, I think that's right. I mean I wrote my book 2020 the Unelected Encounter also available. You still get it online talking about all these ways sort of outside the con law field where ILYA focuses, where we do these end runs, be it through administrative rulemaking, through enforcement actions, through the private law sector of torts and product liability, where the government goes outside bicameralism and presentment. And the hard way of making law governs our lives and our elections don't really change that unless there may be state judicial elections for state law questions or presidential elections can affect the yo yoing of administrative law rulings, et cetera. The easiest way around this is with life tenured federal judges. So if they can just sort of say what they think and what you want, it's very hard to change that. But it's very hard intentionally very hard to amend the Constitution. That's not conservative. Right. It's really just sort of Rule by whim. But that's sort of the more democratic critique. There are other critiques as well.
- [09:40]
A
I think this is actually a good opportunity to start talking a little bit about where the Manhattan Institute has kind of fallen within this movement. Because, you know, even as we mentioned the conservative legal movement, we immediately start talking about the Constitution and originalism. And those are very important debates that I do think, you know, lay out the fault lines, you know, pretty clearly in terms of where people can be categorized. But the Manhattan Institute, which has been around since arguably right around the time that the conservative legal movement really started to kick off, has always had a legal team doing important work, but has never really been part of these, you know, sort of core big constitutional debates until relatively recently with the arrival of Mr. Shapiro here. But Jim, you've been here for much longer than I have, I think to 2003. Talk a little bit about sort of what identity the Manhattan Institute had kind of taken on within that movement. What were the issues that we focused on and how do those relate to these sort of conservative versus activism kind of debates?
- [10:37]
C
Yeah, so the Manhattan Institute was founded in 1977. So it's in between that 1960, same.
- [10:42]
B
Year I was founded.
- [10:45]
C
He's relatively young, but with that General ARC between 68 and 82, the founding of the Federal Society that we're sort of talking about. And it was founded originally, it was sort of an international economics politics center, really focused on things like supply side economics, undergirding the Reagan revolution. Things like racial non discrimination have been successes of the legal movement, but took a long time to get there and was really focused on the policy things. We still do this today. Jason riley's work. In 1982, the same year the Federal Society was started, we did our first.
- [11:16]
B
And just to be clear, the Federal Society group of now it's like 80,000 conservative libertarian right of center lawyers and law students was started by a group of Yale and Chicago law students with then Professor Scalia as their advisor at Chicago. Actually, I'm wearing, underneath this, I'm wearing a T shirt from the University of Chicago Federalist Society with a silhouette of Scalia on the back. And it says the original originalist.
- [11:37]
A
I love it. Anyway, you're going to have to show that up.
- [11:39]
C
Before the episode, the Yale faculty advisor was Ralph Winter, for whom I clerked on the second Circuit, who was in this law and economics tradition.
- [11:47]
B
It was meant to be the counterweight to the law schools that were not teaching good law, whether you're talking about administrative law, constitutional law, Torts and property rules. And I think this is where we get back to you because you know, New York, the financial center of the world, had bad financial legal rules. Right.
- [12:04]
C
You know, at the time Manhattan City was coming out, you already had other heritage. Shell Nation was getting founded a little before that. AEI had a long history, regulation, two.
- [12:13]
A
Other kind of conservative think tank, conservative.
- [12:14]
C
Think tanks, American Enterpr Institute, the longest standing of the sort of right of center, major policy think tanks. And it started in 1977, the same year as Manhattan Institute, Regulation magazine and various of the editors there. Nino Scalia was the editor in chief.
- [12:31]
B
He was Walter Olson's boss for a while. Walter Olson, old friend who used to.
- [12:34]
C
Be at mi, was a colleague of mine at MI is now at Cato, was a longtime colleague of Ilya's as well. And Wally Olson was working right under Nino Scalia. And Bill Hammett, who was the president of Manhattan institute in the mid-80s, hired Wally Olson and then hired Peter Huber. Peter Huber. You talk about smart people. Peter Huber was the only person to graduate from Harvard Law School in over a 20 year period who was summa cum laude. And he did it while he was teaching a full course load as an associate professor at MIT. He already had a PhD from MIT and then he clerked for Ruth Bader Ginsburg on the DC Circuit, Sanderdale Collar and Supreme Court and spent a year before he started with mi, basically writing the rules to deregulate telecom for the Reagan administration after the breakup of AT&T.
- [13:20]
A
So, so Patton Institute comes into this.
- [13:23]
C
Peter and Wally come in here and the principal focus was on tort reform.
- [13:28]
A
Talk to us a little bit about what tort reform is. Right, yeah.
- [13:30]
C
So tort law, three basic sorts of private law that everyone studies in law school, contract law, you know, written agreements, property law, sort of protecting your property, the rules of real estate, basically. And then tort law, which is sort of everything else, but it's a kick, you pay.
- [13:44]
A
Yeah, that's right.
- [13:45]
C
You injure someone else. And what had happened over time, concurrent with this sort of expansion of the Court's role in constitutional law, you saw an expansion of liability from where it was very difficult to recover in liability for most of American history. And then in sort of this post war era emanating out of California through some efforts to restate tort law, a judge in California or Justice and some professors really sort of expanded this field of tort law. And it was growing and growing and growing and becoming an impediment to business and hurting American competitiveness.
- [14:17]
A
And I think the sort of paradigmatic case that everyone who maybe isn't a lawyer will identify with is the case that everyone's heard of, which is the McDonald's coffee case.
- [14:25]
C
Yes. Which is from the 90s. So it was after this.
- [14:27]
A
Sure.
- [14:27]
C
And made popular because Seinfeld basically spoofed it.
- [14:30]
A
That's right.
- [14:31]
C
But you know, that was sort of where MI wanted to plant its flag. Three years before it brought in Wally and Peter written a book on securities regulation by Roberta Carmel, a New Yorker who'd been a commissioner on the securities and Exchange Commission Regulates the stock market. Regulation through Prosecution was her book. And then we said, well, let's tort law is really blowing up. All our friends in the insurance industry are telling us how it's just blowing their premiums out of the water. They're losing money, they're having to ratchet up premiums on business, on healthcare. And we came in with this sort of tort reform effort. And in 1988, Peter wrote his first book, Liability, followed by Olson in 91. The litigation explosion that really sort of charted MI's course in this sort of private law field.
- [15:10]
A
So why is it that tort reform kind of falls in the conservative line, conservative side of these debates? Like what is it about sort of protecting business from massive liability?
- [15:19]
C
Yeah, yeah. Once I was on a panel with some folks and was called by the American, the Trial Lawyers association, what was then called the association of Trial Lawyers of America, a well known defender of corporate negligence and malfeasance. And I said that's really untrue because I'm not that well known. Right. But the point's not that we support corporate negligence and malfeasance. The point is it's part and parcel of our belief in free markets. A large chunk of the conservative movement, and I think Maya and ill of the conservative movement, it's comfortable with free markets. And when you're dealing with free markets, you're dealing with repeat games, by and large. So if you don't like the place where Ilya or I just got lunch, we don't have to go back. Right. There are exceptions to that. It's not that there's no place for tort law in the business world, but historically you regulated that through contracts. And another Yale law professor, Grant Gilmour, wrote this book, the Death of Contract, which really was sort of the intellectual germination of what Peter Huber later ran with in the 80s on this. If you have judges and juries second guessing all these market transactions that obviously affects the free market.
- [16:27]
B
And in general, if you have a growth of a web of inefficient rules that lead to all sorts of what economists call deadweight losses, basically lose lose scenarios, that's no good. And as Richard Epstein, who's had some affiliation with MI in the past, my professor at Chicago wrote, you need simple rules for a complex world. So you need rules that are straightforward, everybody knows them, that they can be applied, rather than kind of nobody knows when they're violating the law, when they're impinging on somebody, has some sort of liability imposed on them, and they sort of just price in. Okay. It's just a cost of doing business that every year we lose 8% due to some random judgments against us, not through anything that we're actually consciously doing.
- [17:12]
C
Peter called this the tort tax.
- [17:13]
A
That's right.
- [17:14]
C
And it is a form of tax. What I think we recognized in the 80s was the Reagan administration is doing a lot of good work in cutting tax rates, clearing out regulation. They didn't do it perfectly, but doing a lot of good work in that. But if this tort tax keeps growing, that's going to undo a lot of this good work. And we want to spend that time.
- [17:32]
A
There's a significant percentage of the American economy that is driven by tort liability.
- [17:38]
C
And the percentage varies depending on how you estimate it. But it's at least a couple percent just in direct costs. At least a couple percent in direct costs. And more than that, if you start counting all the indirect costs, because businesses are trying to anticipate this and they're spending money in various ways that are not designed towards making the product better. It's to make the liability lower, which is not necessarily the same thing. And that's what Peter kept pressing on.
- [18:02]
B
Also in the financial world, too, you try to, like, engineer these complicated financial arrangements, not because that gets efficiencies out of the market or promotes sound investment, but again, to avoid these artificial securities violations.
- [18:14]
A
When I think about business regulation through litigation, I mean, one of the issues that comes to mind is like the liability exposure that businesses have experienced over the years as a result of litigation over racial matters. One of the first sort of introductions I had to the conservative movement writ large was watching an old episode of Firing Line with William F. Buckley. One of the episodes that I watched was Thomas Sowell. And during the Q and A, Thomas Sowell was asked about racial quotas in hiring. And he said one of the problems with affirmative action, as it was kind of developed, developing back then, employers are starting to understand that there is an inherent cost that's going to come with hiring someone from a disfavored minority group, because you know that if you fire them, they're going to have an employment discrimination claim. And so what ends up happening is the people who are on the margins, who are members of these minority groups, don't get hired because the risk is perceived to be so high. So because you know that you're sort of inviting a lawsuit if things don't work out, you really raise the bar for who you hire from these groups, and it ends up backfiring. One of the areas in which the Manhattan Institute's kind of really been involved, especially in recent years, are these sort of racial debates within the law.
- [19:24]
B
Colorblind meritocracy.
- [19:26]
C
Why?
- [19:26]
B
It means whatever your merits are, whether as an accountant, as a musician, as a lawyer, you know, as a baseball player, let's see how you perform. Doesn't matter what color you are, what sex you are, how you identify, what you do in your spare time. Can you do the job? Who's the best person for the job? Some of the excesses of the civil rights era have been, well, there's quotas. That's, you know, that's kind of an obvious thing. And the Supreme Court ruled a few years ago to get rid of racial preferences in higher education admissions that is going to be absolutely. Be transferred to the employment world in a matter of years. But also, these kinds of hidden costs that you described that Thomas Sowell was describing, or disparate impact analysis. It's basically looks statistically at the makeup of your workforce, of your employees. And if that doesn't match, you know, what America looks like, quote, unquote, then you must be discriminating in some way. And so completely neutral tests. This came up with firefighters in Connecticut about a decade ago, completely neutral test for promotion. But they weren't generating, you know, fewer of the black and Hispanic firefighters were being promoted because of these. You know, nobody said there was something wrong with the test, wasn't, you know, but. But that's what was happening. And so they were, again, being held liable for something that they weren't saying. We don't like racial minorities.
- [20:39]
A
Right. I think that was then. Judge Sotomayor was involved in that case.
- [20:43]
B
She was on the 2nd Circuit panel that summarily affirmed a finding of liability.
- [20:48]
A
Yeah, right, right. When you say it like that, it sounds normal and reasonable. Right. How could anyone object? And yet we know that there is a counter argument to this. Right. There is a claim that the conservative Legal movement has sort of enabled racism through its positions on questions like affirmative action. What's the other side of that argument?
- [21:06]
B
If someone is actually being discriminated based on their race, fine, you have a lawsuit there. But if you're just saying throwing it out there and imposing costs because it's easier for the company to settle than to litigate, that's a problem.
- [21:18]
C
The fair characterization of the counterargument, and this is something that started the critical race theory movement from the law schools back in the 70s, was this argument that, like, you can have all these neutral equality rules that we support, but you've got unequal outcomes out there and you can't just ignore away centuries of slavery and at a century of dis.
- [21:40]
B
Critical legal studies in general talks about how there are power imbalances baked into the system based and baked into legal rules. Not just civil rights or constitutional law, but securities regulations, property rules, all of these different things. And so there has to be tweaks or thumbs on the scale, if not in its more radical form, Blow up the whole system and reshape it according to the latest hierarchy of intersectionality or, or privilege rankings or what have you.
- [22:10]
C
Is it true that factually on the ground there, there are these disparities out there in terms of outcomes, in terms of wealth, in terms of income? Yes. Yeah, that is true. The question is, what's the right way to deal with it? And I think, you know, from the conservative perspective, it's, you know, we're obviously a little more averse to radical changes to blowing up the system in general. We see that in general, trend lines are cutting in positive directions in a lot of these cases.
- [22:35]
B
And we're also about treating individuals as individuals, not as members of groups.
- [22:39]
C
Yeah, I mean, my wife is black, my kids are part black, part white. How do you categorize them? How do you teach them? They're gonna have more and more of that in our society. It's not very easy. The easy answers, I think, don't work. And they particularly don't work over time. I think over time, you breed cynicism, you breed just anger, you breed animosity among these groups. And the reality is, the trend lines were in some ways more positive before all the legal apparatus started jumping in here. Obviously we needed to get rid of de jure segregation and some of these other things. We. But, you know, our colleague Jason Riley points this out. Before him, Thomas Sowell, Walter Williams, in the early days of Manhattanists, who wrote books on this as well. There's a long history of this former colleague, late Abby Thornstrom, and her husband, Steve Thornstrom at Harvard, wrote a volume, America in Black and White. I mean, there's a very complicated question, but I think we are on the right side to treat everyone as individuals. And that doesn't mean there may not be some hidden and pernicious rules out there that we want to think about, but we need to identify those rules and we need to create the logical connections there. You don't just say there's an imbalance here. The rule has to go. Right. That's totally different, or to put it.
- [23:52]
B
In a slightly different way, if public schools, government schools, that in places that are heavily. Where a lot of racial minorities live, are bad, how do you remedy that? By lowering standards of admission for medical school or having lower sentencing based on race for criminals.
- [24:10]
A
Right. And the idea that some of these efforts reflected remedial efforts was itself a rejection of the idea that we ought to be bound by what the law says, because if we're bound by what the law says, it really doesn't matter if there's a situation to be remedied. Right. The question is, what does the law allow us to do and what does it prohibit us from doing if we.
- [24:29]
B
Have problems of housing or education or family policy or what have you? Let's address those policies, you know.
- [24:35]
A
Right.
- [24:35]
B
Address them by warping securities law, property law, criminal sentencing, and all the rest of it.
- [24:41]
C
Some of the stuff Tom Sowell wrote about 40 years ago, you still see those sort of empirical effects in law. For instance, we see it. Richard Sanders written these books on mismatch where you get affirmative action, you get kids mismatched.
- [24:56]
B
They are racial preferences.
- [24:57]
C
Yeah.
- [24:58]
B
Then in every institution, it's kind of a cascade effect. Harvard will admit people who are very, very smart, but maybe should be at Duke, who will admit people who are very smart but should be at whatever. The Davidson. There'll be a disproportionate number of racial minorities in the lower academic quintiles, quartile levels of achievement at all of those schools because they're all given an artificial bump, which. Which breeds resentment. Because, you know, people look around and they say, oh, the school, you know, why. Why is it mostly brown and black people who are failing out? The school must be racist.
- [25:33]
A
Right.
- [25:34]
C
That would have gotten you fired at Georgetown, too.
- [25:35]
A
But not. Not only does it breed resentment. Right. Not only does it breed resentment, but I think it also reinforces unfair stereotypes in a way. And it.
- [25:45]
C
And it arguably hurts at least a significant percentage of the cohort. It's intended to better.
- [25:50]
A
Correct. Right.
- [25:51]
C
And, and, and so what we see is that when you, you get to hard sciences fields like engineering, medicine, 50% of the blacks that go into those specialties come out of historically black colleges and universities, HBCUs. Now, is that because there's a magic mix at HBCUs? I mean, I'm a trustee of an HBCU. I think they do add significant value. But the reality is there is no mismatch at the HBCU on the basis of race for a black kid, because the school is mostly black in most of these institutions. And so the people that are the best students in those classes thrive. But if they're mismatched at another school, there might be someone who'd be a very fine doctor but is going to struggle in the chemistry class at Johns Hopkins or what have you, they wind up slotting into a different field. And so. Which is unfortunate. It's a law school. That's unfortunate. It means there's. There, there are black doctors and scientists that we would have today in the workforce if we weren't mismatching them into the block school.
- [26:55]
B
As Chief Justice Roberts put it in a case involving school busing to remedy racial disparities, it's a sordid business that's divvying us up by race.
- [27:04]
A
That's right. That's right. So, I mean, look, when I think about the conservative legal movement over my lifetime, I feel kind of lucky, insofar as I have been sort of in my prime years, to witness some pretty incredible victories. Right. I mean, we've already talked a little bit about this sort of broad acceptance that we've kind of moved away from this idea that the law kind of shifts with the times and rather is fixed and that we should take an originalist or textualist approach to interpretation. But even on matters of race, I think especially recently, we've had massive wins, culminating with the case of Students for Fair Admissions, which the Manhattan Institute filed the Mikas briefs in. And I'd like for you to talk about that, Ilya. But it also feels like, on the other hand, we've had some losses. And one of those losses comes in the form of it's still clear that these ideas that we've been pushing back against are still very much alive on the left. And it reminds me of an episode you've already alluded to, which is it took the form of former President Joe Biden coming out when there was a vacancy on the Supreme Court and saying that he was committed to filling that seat with A black woman.
- [28:15]
B
While I've been studying candidates, backgrounds and.
- [28:17]
A
Writings, I've made no decision except one.
- [28:22]
C
The person I will nominate will be.
- [28:25]
A
Someone with extraordinary qualifications, character, experience and integrity.
- [28:30]
C
And that person will be the first.
- [28:32]
A
Black woman ever nominated to the United States Supreme Court. There are some people for whom that just doesn't seem like a big idea. When I heard it, I mean, my stomach turned. It was gross to me. And I think the reason for that was he essentially undercut whoever was going to be nominated right off the bat. Because you immediately upped the.
- [28:50]
B
I could have said, I'm gonna appoint the best person and pick a black woman and say, this is the best person.
- [28:54]
A
Right.
- [28:55]
B
But he didn't do that.
- [28:55]
A
So clearly, as the law has been moving away from sanctioning those kinds of decisions, those ideas are still very much on the left. You spoke out against this, Ilya, just as you were starting your very long tenure at Georgetown University. Tell us a little bit about that.
- [29:12]
B
Yeah, so I had been at Cato, at the Cato Institute, libertarian think tank in D.C. for nearly 15 years, and got an opportunity to have a different kind of impact. Professor Randy Barnett, who's a giant of the conservative legal movement, libertarian side Law's Constitution, Right. Among among other very worthwhile books to read at Georgetown, founded the center for the Constitution, which, which we learned is an important center because the rest of the law school is a center against the Constitution. And, and over, over wine one night, we kind of realized he needed somebody to run the center. I was, you know, maybe open to other ways of, of having an impact. And so he hired me to, to become executive director and a senior lecturer at Georgetown Law, which is really cool. So a different kind of thing, you know, appearing on TV with a think tank Chiron, or, you know, Georgetown Law, kind of different thing, and being able to teach and, and all these other things. But with that episode with, with Joe Biden saying he was going to, to hire a black woman, that didn't sit right with me either, Ralph. And unlike you, you were probably stepped away from your tweeting device and just smoked a cigar. But I was on the road, so I didn't have my wife to talk to or anything, and I just offered up. Well, I've been doing media all day because this is what I write about when I talk about Supreme Court politics. And I fired off a hot take saying, taking that basic position, the position agreed to by an overwhelming majority of Americans that I should have considered, considered everybody, but I phrased it poorly. And so I was Suspended even before I formally joined the Georgetown faculty and investigated for over four months on whether I was violated university policies on harassment and anti discrimination by Georgetown's DEI office.
- [30:53]
A
And yet the view that you articulated, however poorly, turned out to be the right one that the Supreme Court signed off on in the Students for Fair Admission case. Why talk about just why that I.
- [31:06]
C
Thought you were talking about Ketanzi Brown's asset.
- [31:09]
A
I mean, I think you could say.
- [31:10]
B
That I couldn't possibly comment.
- [31:12]
A
I think that tweet was just a rejection of this idea that you should elevate.
- [31:16]
B
It was all a scheme to get my book deal. I have my more recent book, Lawless, about the illiberal takeover of legal education. And that is the problem, even as we've had these victories at the Supreme Court level because of finally fortuitous set of presidential appointments, because for a long time Republicans had misfire, fired. It was Eisenhower who appointed Earl Warren to the court and Harry Blackmun. Oh, sorry, Nixon appointed Blackman. Anyway, Ian Brennan.
- [31:45]
C
Brennan was the Eisenhower Oppenhardt.
- [31:48]
B
He'd made two mistakes in his presidency and they were both on the Supreme Court. And Nixon appointed Blackmon. I mean there was all these Mrs. Suitor with George H.W. bush, all of these misfires, but finally we had a string. And so. So not the Warren Court, not the civil rights and criminal procedure stuff of the 60s went out, but the kind of. The more gaudy, really completely baseless judicial activism of the seventies, the Burger Court. And that's everything from racial preferences, affirmative action, abortion, Roe v. Wade, Chevron, that was early 80s, but still the Burger Court, which is deference by judges to administrative agencies, is a number of these precedents from the 70s and early 80s have now been swept away. There's a few more to tinker with. And kind of conservatives are thinking now what's our next steps? But that's in the judiciary, in the law schools, in the legal profession, there is still this issue of rejecting thinking that originalism is either racism or simply the. The kind of papering over of conservative political policy views and kind of papering them as a legal doctrine.
- [33:03]
A
Well, you mentioned law school and I'm a lawyer by training, and that is how we met. I think you remember that. But when I was president of my Federalist society chapter at DePaul University, one of the first events that I organized was having Ilya Shapiro come in and.
- [33:18]
B
I don't remember what I spoke about.
- [33:19]
A
You debated the Hobby Lobby case with.
- [33:23]
B
My con law professor, the subject of my first book.
- [33:26]
A
And I got In a lot of trouble because we got to make little flyers to promote the event. And this is a case.
- [33:32]
B
Explain what the cop is. This is about Obamacare forcing an order of nuns. Well, for. There are related cases. Right. Order of nuns to provide contraceptives. This was a private company, Hobby Lobby, that's a craft store franchise to provide big craftsman. Anyway, that, that, that the, that the family. That that owned the. The agree with on a religious and moral basis.
- [33:58]
A
Right. And the flyer that I had prepared for the event was who should pay for your hobbies? And I put hobbies in.
- [34:05]
C
Oh, that's a brilliant flyer but likely to get your dei.
- [34:09]
A
It was, it was not, it was not well received by the administration. But luckily for me, I was doing the event through an outside organization, namely the Federalist Society, which I felt as a young student was just a godsend. Right. It gave me an intellectual home. It gave vehicle through which I could learn about these ideas that I was not going to be confronted with in my normal law school classes. Talk a little bit about just for the both of you. I mean what that organization has meant. Because for me, I wouldn't have known about the conservative legal movement had it not been for the Federalist Society. I wouldn't have become part of it here at the Manhattan Institute after law school if it wasn't for the Federalist Society. I wouldn't have been as well versed on the ideas if it weren't for those programs. And so I suspect that's the case for a lot of people who are coming up. I mean, what role, if any, did it play for you?
- [35:04]
C
Yeah. And I mean ilya's probably their most frequent speaker at campuses for the Federal Society for several years.
- [35:10]
B
Approaching 900th lifetime.
- [35:12]
A
Wow.
- [35:13]
C
But yeah, I mean it's, you know, there wasn't much of a conservative imprint. In fact, we talk about faculty bias in the academy, but it's been a long time the case in law. So much so that when John Paul Stevens was. Was nominated for the Supreme Court by Gerald ford in the 70s, they, they called Ralph Winner for me clerk, the late great Ralph Winner, who was at the time a faculty member at the Yale Law School for comment and he made some comments basically that he thought Stevens wouldn't be a. A solid conservative on the court, more or less. But he did it all off the record and he was cited in the newspaper as. But they didn't name him by name, but they said a Republican professor at the Yale Law School, he said, damn it. John Paul Sievers never spoke to me again, because Bob Bork was off in the administration and I was the only Republican faculty member of the Yale Law School.
- [36:16]
B
So yes, that's more than many law.
- [36:18]
C
Schools, let me say Bob Bork and Ralph Winner. That was the world in which the federals were. Society was birthed and these students, you know, David McIntosh, Lee Lieberman, now Otis, married to my friend Bill Otis, who's a Crim law guy like you and Steve Calabresi, Guido Calabresi, Yale Law, you know, not a conservative, but his nephew started this, this organization and it was, it was a, it was a powerful thing. I mean the interesting.
- [36:46]
B
Bringing students together, bringing ideas together and it doesn't take positions. This is the wonderful thing to this day, I don't think it ever will. It doesn't file amicus briefs. It doesn't take positions because its members debate among each other. I mean, generally among various streams of center right thought, whatever. Conservative, libertarian, social conservative. There's different things that develop in various ways, but it's a convening and a fermenting of, of intellectual development and then professional networking. What law schools and then organizations like the aba, which is really on a downturn, were supposed to be.
- [37:25]
C
Yeah, right. And what it meant for you as a student was if you only had one or two faculty members who were right of center there, you could tap into the whole national network. So Richard Epstein came and spoke every year I was at Yale Law. Randy Barnett came and spoke every year. Year nowadays, probably Ilya Supro would come every year. So you bring in all these other voices and you know, it allows these students to be exposed to ideas that they aren't otherwise in the classroom. And it allows, you know, people to come together and you know, you do a lot of them, I'm sure. I've done these podcasts talking about different cases, development in the law, you know, webinars.
- [38:05]
B
They keep innovating different ways of doing all the time. So sure, they're doing Tic Tacs, TikToks, just like try, try to appeal to the young people.
- [38:14]
A
Yeah, yeah, I do a number of those talks every year. I always try to make time for them because the organization plugs somebody else's book.
- [38:21]
B
Steve Tellis, who's not even a conservative, wrote basically the story of the conservative legal movement. I guess that book came out, you know, different states do, in terms of legalizing, whether for medicinal purposes, recreational or otherwise. It's still completely illegal as a matter of federal law. And so she went to court and wanted, you know, not to be prosecuted by the feds and saying, look, I'm not. Again, like Roscoe Filburn, I'm not selling this weed. I'm not buying this weed. I'm growing it for my own personal conception, personal consumption. And the Court. This is, I think, one of Justice Scalia's big failures. He didn't write the majority opinion. The majority, I think, was Justice Stevens again, on the risk, on, on the, on the, on the Wickard theory that, that this is all part of the market for marijuana nationwide, the illegal market, and so Congress can come in and regulate it. Scalia said, well, that's too tendentious. But using the necessary and proper clause, that is Congress also has the power to do what is necessary and proper to effectuate the preceding authorities, including the power to regulate interstate commerce. Same difference, more or less. But necessary and proper became a key thing in the Obamacare litigations. And so we went in 60 years from, from wheat to weed with the same result. But this is part of the Roosevelt constitutional revolution. You talk about the impact that FDR had. Interestingly, Roosevelt did not have an opportunity to appoint anybody to the Supreme Court in the first five years of his presidency, even though he'd been elected and reelected overwhelmingly. Landslides, super majorities in Congress in both the Senate and the House. House. And he was being stymied by the four old men, he called them. And so he proposed the Court packing bill at that time, which was unpopular and was rejected. And Democrats took losses in the intervening election. But a lot of people died. But yes, well, you know, this is the way that you take over the Court, you stay in power. He himself remained politically popular. And over the following five years, he made eight appointments to the Court.
- [40:24]
A
Right.
- [40:25]
B
So. And they. Eventually there was a switch by a centrist Justice, Justice Roberts. There's always a Roberts. Not, you know, I don't, you know, some. The kind of normal conventional historical account is that he felt pressure from the Court packing scheme. It wasn't that.
- [40:42]
A
Right.
- [40:42]
B
It was instead that he and Charles Evans Hughes, footnote about him, interesting story from earlier in our history about him. They just realized where the political winds were blowing in the country and they decided not to be a roadblock to that anymore.
- [40:55]
C
And what's the footnote?
- [40:56]
B
Oh, so Hughes had returned to the Court. So he had been in the court earlier in the 20th century, resigned in 1916 to run against Woodrow Wilson.
- [41:07]
A
Right.
- [41:07]
B
So talk about the interrelationship or the politics and the court, what have you. You see 2016, with Scalia's death And Merrick Garland and the blockade and all.
- [41:17]
A
Which I line talk about about.
- [41:19]
B
Sure. But you know, I see you that and raise you 1916, where you had a justice running against the President and also another nominee, Brandeis, Lewis Brandeis, the first Jewish justice held up for four months. It was unprecedented. He was a huge social justice crusader of the time, big progressive capital P, progressive Woodrow Wilson appointee. And it was a huge controversy, first ever hearing on a nominee, although he himself did not testify because that was seen as unseemly.
- [41:49]
C
Yeah.
- [41:50]
A
So I mean, I think we've learned a lot so far. You can blame the left for the war on drugs somehow. You know, I, I want to talk a little bit more about the shift because I, I think obviously the FDR court just remade everything moving forward. And we had 50 years of far.
- [42:06]
B
Left judicial activism, plus again, Republican errors. Plastic was followed for a long time. Many more Republicans were elected to the White House than Democrats. And still they had misfires.
- [42:15]
A
And you know, one of the, you know, I don't know if you would call it a misfire necessarily, but you know, it's a name that's already come up. Robert Bork. One of those episodes was the nomination of Robert Bork to the Supreme Court. And it was unsuccessful. And I think that was a really important moment for the conservative legal movement, which was about to get one of its sort of core characters, its main characters on the court. And that effort was frustrating by the left. And I think for a lot of people there was a sense of dejection.
- [42:41]
C
After Bork and even beyond that. Right. I mean, when I started law school, which was, you know, now 25 years ago, about five years before Ilya started and you know, another five, 10 before you started, we were taking losses. Right. I mean, the, the Roe v. Wade was, was re examined, you know, another, you know, little less than, than 20 years after it was originally authored. And then you had KC Parenthood and you had these three Republican appointed justices writing an opinion together that reaffirmed the value of Roe v. Wade. And so when I was in law school and then about the time when Illy was getting out of law school on affirmative action, you had the same sort of thing. You had the Grudor v. Bollinger case coming out of Michigan on affirmative action, reaffirming the case from the late 1970s.
- [43:34]
B
Throwing out mechanical equipment, photos and points. But ironically, by okaying Harvard's black box, kind of holistic review meant that admissions officials could do whatever they wanted. Exactly.
- [43:45]
C
So those big issues from the 70s affirmative action, abortion. It looked like we'd lost. I mean, after all the effort that had gone in. You know, Ed Meese running this show very carefully for the Reagan Former Attorney General. Former attorney General.
- [43:59]
B
An important speech in 1985. 5. About originalism and just really.
- [44:04]
C
So all this effort, it looked like we were losing. We got the appointments, the justices got on the court, and gosh, didn't change anything from then to today. What a sea change we've had. I mean, the affirmative action precedent's gone. Roe v. Wade, the abortion right precedent's gone a lot of the. While you still have the Wickard Gonzalez v. Race commerce clause case, and that's going to be probably harder to pare back. But you've seen a restructuring the case, Chevron on a administrative agency deference to statutes. Lots of cases where the executive branch can sort of go out on its own without congressional authorization. The courts pulled back on that. So you've seen a lot of shifts coming where this movement's been very successful.
- [44:49]
B
Or was probably the start of the modern judicial wars over appointments. I mean, politics has always been part of judicial nominations. Again, the subject of my book. Book. But, you know, George Washington had a nominee rejected for political reasons. So this is. You know, there's very little new under the sun. But Bork was different because there were personal attacks, you know, people looking at his video rental records to see if he had gotten porn. I mean, all these crazy things. And then he didn't do himself any favors. No, you know, he. Well, he had this. He had this beard that was not telegenic. And his hearing was the very first one that C. Span covered, gavel to gavel. They finally got their license just in time for Bob to Bork to be nominated. And he appeared like a professor wanting to win arguments against the senators rather than their votes, rather than to be confirmed. So it was after him that we had what Kavanaugh would refer to as the nominee precedent. You know, the playbook. Talk a lot, make yourself look smart without saying very much. Right. Or as Ruth Bader Ginsburg said, you know, it's a. I can't talk about hypotheticals because judges deal in concrete facts, but I can't talk about specifics because they might come before me. It's got a right. And so we've seen this with every nominee since, but it's interesting.
- [46:04]
A
So there have been some pretty badass moments during confirmation hearings, including Justice Scalia lighting a pipe.
- [46:10]
B
That was before. That was before. And this is the thing. When Scalia was nominated the year before Bork, Right. Republicans still had a majority in the Senate.
- [46:17]
A
They did.
- [46:17]
B
And there was a big debate in the White House, in the Reagan brain trust. Do we go first with Bork or do we go with Scalia? And there was some identity politics there, actually, because being the first Italian American, just justice was a big thing. Yeah, he got a lot of Democratic support because, I mean, he ended up being confirmed unanimously, Right? That's right. Anthony Scalia confirmed unanimously to the Supreme Court, if you can imagine.
- [46:40]
C
But William Rehnquist is where they were going after. Unsuccessful.
- [46:43]
B
That's right. Because at the same time, this was when Berger retired. And so Rehnquist, who had been a justice, was nominated. She elevated. He got 23 votes, I think, against him. And he was attacked for very various things. But. And then Scalia sailed through the next year. Democrats had taken over the Senate.
- [47:00]
A
Right.
- [47:02]
B
And Joe Biden played a role in, you know, all the thing, as he did with Thomas five years later.
- [47:08]
A
Right. Which is another big.
- [47:09]
B
Right.
- [47:10]
A
Blockbuster moment. Right.
- [47:11]
B
I mean, Bork became, you know, his name became a verb to Bork.
- [47:15]
A
Right.
- [47:15]
B
To block a judge through all sorts of scurrilous attacks.
- [47:18]
A
Right. And they tried the same thing, as you, as you noted, with Justice Clarence Thomas in 1991. And then when he was at. And then Justice Kavanaugh and the Kavanaugh.
- [47:29]
B
Hearings came before we go to that, one other interesting thing, because you talked about the drug war. So after Bork, the next nominee sort of was Douglas Ginsburg, a D.C. circuit judge, also a friend of MI. Great antitrust scholar. He was young, too. He was in his early 40s. But it came out that he had smoked marijuana with law students at Harvard.
- [47:49]
A
And he inhaled, unlike.
- [47:52]
B
He was withdrawn. And I call him the last public casualty of the drug war. You know, about what other public official has suffered for revelations of drug use.
- [48:00]
A
Exactly right.
- [48:01]
B
And then. And then we got Anthony Kennedy.
- [48:02]
A
Right. And so, you know, all of that comes. And then 2016, you have a massive series of wins. I mean, I don't think there's any other way to put it. The court just completely shifts. And I think part of that was what a lot of people called unprecedented, but it was the decision to stand strong on a vacancy in the wake of Justice Scalia's death. Now, he died with Barack Obama still in office, but with an election coming.
- [48:30]
B
Up and with Republicans controlling the Senate.
- [48:32]
A
With Republicans controlling the Senate, which meant that they could choose not to vote on whoever Barack Obama decided to nominate, which is a choice that they made.
- [48:42]
B
It's Actually, a rare occurrence to have a Supreme Court vacancy arise during a presidential election year at a time when the White House and Senate are controlled by opposite parties. And the last time there was a confirmation in that scenario was 1888.
- [48:58]
A
Right.
- [48:58]
B
It's happened about 10 times, so it's not. Doesn't happen a lot, but the Last confirmation was 1888. So, you know, both sides were arguing hardball politics. And Mitch McConnell, I think, will never get enough credit generally on judges. But that one. Moment, moment. An hour after Scalia's death made the news, he gave the statement, obviously didn't have time to consult his caucus, say there will be no hearings, no votes. It's not about whoever President Obama might nominate. It's the principle that we're gonna let the voters decide. You know, they reelected him, then they gave us the set. This will be the tiebreaker.
- [49:34]
A
Right. And it became a massive election issue to the point where it got out that the Federalist Society had given Trump's team a list of potential.
- [49:45]
B
Leonard Leo did, who was the vice.
- [49:46]
A
President of FedSock, had given the Trump team a list of potential nominees that he put out publicly and committed to sticking to. And what was interesting about that was that if you look at the exit polling, more than 55% of the people for whom the Supreme Court was the most important issue broke for President Trump.
- [50:07]
B
Well, more importantly, there were such small margins in several of the key states. States, literally thousands of votes. That is one of many. But four factors. Hillary not going to Wisconsin. Lots of different things affected that weird close 2016 result. But certainly the Republicans keeping that vacancy open was one of them.
- [50:28]
A
And so the vacancy is filled by Neil Gorsuch, and then we have another vacancy and then another one, and we get Justice Kavanaugh and Amy Coney Barrett on the court, and.
- [50:38]
B
And Barrett confirmed right before the 2020 election.
- [50:43]
A
Right, right.
- [50:45]
C
How monumental this was. I mean, I. I was, you know, at Manhattan Institute, obviously, at the time, and we had just gotten into Jamaica. It was my kids, spring break, and we were taking them to Jamaica.
- [50:57]
B
Jamaica and the Caribbean, Queens.
- [51:01]
C
And also. So I said to my wife, oh, well, I'm gonna have to join the family on vacation tomorrow. I've gotta write something for City Journal tonight on Nino Scalia. You know, he's a giant conservative movement. But, you know, the polling data for Donald Trump that fall was not looking very good, and especially after the Access Hollywood video and all these things happening. And so I was strategizing with then MI President Larry Mahon that felt like so what are we gonna do now that we basically are going to lose the Supreme Court for generations? You know, Scalia's seat is going to go to whoever Hillary Clinton puts in.
- [51:37]
B
There who would have been arguably worse.
- [51:39]
C
Than Merrick Garland probably could if she didn't renominate. Merrick Garland could have come up with someone even worse. And you know, we're not going to win any cases at the court. You know, I've been arguing for years with Larry. We need to have an amicus program to do briefs to the court. You know, the problem I've got is Ilya Supro at Cato does such a good job.
- [51:59]
B
Just as in our politics, there is kind of a movement towards populism and nationalism in the conservative legal movement. There's a thought that, well, originalism is as fine as far as it goes, but we need a theory of whether you call it natural law, whether you call it things that will help American citizenry, the family, the anthropology of the law, more people oriented legal view. And how you differentiate that from, from people on the left who had been saying similar things in different language through all these decades, I don't know. But that's, that's where the turn is now.
- [52:35]
C
Yeah, I mean, I think, you know, to sort of square the circle back around. I mean, I think by shrinking to some degree, there's no, there's no guarantee that there won't be some reversal back. There's no guarantee there won't be court packing. I mean, we, we don't know. I was just talking about going into the, the fall of 2016. We were like, oh, things are to look terrible. Very different. They look quite different than we thought they would. But I do think that, you know, there's a large place in the law that requires, you know, convincing the elected officials to do things too. And so that's why, you know, these constitutional law rules, they're really sort of the guardrails and the guardrails got sort of stretched out of proportion, bent out of shape from, from the guardrails that the actual Constitution is supposed to have. And so a lot of where the conservative legal movement's wins on this, on neutral principles, go along this path to keep those guardrails right. But then in the middle with the policy making, that's where the energy is, that's where your theories need to be. You don't want these unelected nine judges in robes being your grand theorists of where your society goes. You want your elected officials going in the right direction, which is what public policy think tanks are all about.
- [53:50]
B
I would love to make the Supreme Court ignore again, let's relevant to our policy discourse, work myself out of a.
- [53:56]
C
Job effectively and then convince the White House, convince the administrative agencies, and most importantly, hopefully convince the Congress to do their jobs and go in these right policy directions. And then we can disagree, we can disagree of the conceptions of the common good. Is that utilitarianism or not? Is it free markets or not? Is it where does traditional social morality lie in versus individual rights rights or all of that space we can debate getting the judges kind of out of the way. So I think there's this sort of yin and yang of legal policy and constitutional studies, which is where MI is today. And I think we're going to continue to have to fight on both directions because the one thing you learn in this business is there are no permanent victories when it comes to political questions. These arguments we've been having, they've gone on since the first days with the anti federalists and the Federalists. To some degree, it's exactly right.
- [54:49]
A
I just had a great conversation for another podcast episode with Heather McDonald and we were talking about debates about criminal justice reform that have been going on for as long as I can remember, much, much longer than I've been alive. And so I think you're exactly right. I know that I am extremely grateful for the Manhattan Institute and the work that it has done and will continue to do. I hope that you all who are watching are as grateful as I am. He's gonna reveal the cool fed sock shirt. There we go. I love it. Thank you so much for watching another episode of the City Journal podcast. Please do not forget to like, comment, subscribe, ring the bell, do all the things for the algorithm. If you like this episode, drop us a comment, let us know, shoot us an email, ask us a question. We might get back to you. Until next time. See you soon.