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- [00:04]
John Podhoretz
Hope for the best, Expect the worst.
- [00:11]
Abe Greenwald
Some preach and pain Some die of thirst the way of knowing which way.
- [00:18]
John Podhoretz
It'S going Hope for the best Expect.
- [00:21]
Seth Mandel
The worst Hope for the best.
- [00:25]
John Podhoretz
Welcome to the Commentary Magazine daily podcast. Today is Wednesday, July 2, 2025. I'm John Pod Horowitz, the editor of Commentary magazine. I'm happy to report that the continued inflow of Commentary listeners who have gone to YouTube to subscribe to our YouTube channel at the original import tuning of Matt Continetti continues apace. We went over 15,000 over the weekend. We're going to go over 16,000 today. I'm really grateful to you guys for, for your support. And so, you know, if you want to go to Apple Podcasts and give us a five star review, that would be nice also. But I don't want to, I don't want to overstay my welcome, but really, it's very heartening and, and particularly in the middle of this long, hot summer. So wet, wet summer. It's our country, of course, drenched in rain. And that includes my panelists here, executive editor Abe Greenwald, who had trouble with his dog last night in the rain. Hi, Abe.
- [01:30]
Seth Mandel
Hi, John.
- [01:31]
John Podhoretz
Senior editor Seth Mandel, who I don't know if you had trouble with your dog in the rain last night, but.
- [01:36]
Matt Continetti
My dog will go out whenever he wants. That's more of a problem than convincing him to go out.
- [01:41]
John Podhoretz
Fair enough. Matt, our Washington Commentary columnist and new dog owner. Relatively new dog owner. Dog doing okay in the rain, Matt?
- [01:53]
Adam White
We're fine, John. I'd like to add maybe we can increase our goal since we surpassed the 15,000 which I had said. Let's mark 15,000 by the end of the summer. We did it so rapidly. Maybe we should increase our goal to 20,000 by Labor Day. And you and I have been talking backstage for many days about how we might reward some of our loyal listeners for going and subscribing to the YouTube page. So those plans are in the works?
- [02:24]
John Podhoretz
They are. We just have to figure out how to. How to establish the metric of who.
- [02:28]
Adam White
It may be a more what I'm thinking just kind of troubleshooting here. Back of the envelope. It may be more informal. Maybe we'll do a mailbag at the end of the summer.
- [02:40]
John Podhoretz
Callback. Yeah.
- [02:41]
Adam White
And the selections that, that we of letters, they would receive some great commentary swag. So that's what I'm setting out today.
- [02:50]
John Podhoretz
So 20,000 by Labor Day. Okay. Yes.
- [02:53]
Adam White
Let's do it.
- [02:53]
John Podhoretz
All right, let's do it. Let's do it. And you know who's gonna help us do it? Our guest today, frequent appear. I was gonna say appearer, which is not English. A frequent guest here on the, I was about to say the Remnant podcast. So something my brain like shooting off. Well, you were on the REM podcast yesterday.
- [03:16]
Matt Continetti
So if you are listening at home, you, you, you can't absolutely cannot wait to hear who this is right now, by the way, because it just hasn't.
- [03:23]
Seth Mandel
Been to find out there.
- [03:25]
John Podhoretz
Okay so it is our, our friend, our, our contributor, chairman of the Boyden Gray Boyden Ism of Boyden Hood, colleague of Matt Continentes at the American Enterprise Institute, Adam White. Adam from the Northwoods of Wisconsin. Welcome to the podcast.
- [03:46]
Seth Mandel
It's great to be here, John. And by here I mean the north woods where it is 64 and dry.
- [03:51]
John Podhoretz
My dogs. That is beautiful. Although I know because as you know, you are just miles from my to two of my kids who are at camp and counseloring at a camp in the northwoods of Wisconsin that there has been much rain, much rain, many storms. They had to go into a storm shelter, all kinds of stuff like that. So I'm glad that it's dry today for you and for them and I'm glad to have you here because we want to talk about this very dramatic conclusion to the Supreme Court term and you are the guy that we turn to to talk about the Supreme Court. But we have a couple of other things we have to take care of first. Number one, Donald Trump announced yesterday that Israel has agreed to a Witkoff proposal negotiated with gutter in some fashion for a 60 day ceasefire in Gaza that would hopefully then end with the conclusion of the Gaza war. The terms are that I believe 10 live hostages would come out and 8 dead hostages. The bodies of 8 hostages would be returned and then at the, I suppose the conclusion of the 60 days, the remaining living hostages and bodies would come out again. Israel has four terms it considers non negotiable for the ceasefire to take place. One that they hold the Philadelphia corridor, which is the corridor that bisects the Strip east to west and prevents any smuggling.
- [05:31]
Adam White
Yeah, Philadelphia, right, The Egyptian border.
- [05:34]
John Podhoretz
Yeah, the Egyptian border. So it would prevent any smuggling from Egypt and any construction of new tunnels as they do. That's one. And the, of course the, the main one is that that Hamas, Hamas's leadership in Gaza comes to an end. Not clear what will replace it. And there are two other terms and I can't remember what they are, but they're not as important as those two. And Hamas has already. Has already rejected the deal. This was Trump announced yesterday afternoon or early evening, and Hamas has already rejected the deal. We are not apparently acting as though that rejection is final. We are looking to the gutteries, essentially, to start putting pressure on Hamas, which it can very easily do by basically kicking out the Hamas leaders who are living in Qatar. And there are two. That means two things, by the way. One thing is they kick him out. Number two is it's open season on them. There's no, no circumstance in which, if they're. If they're out of Qatar's umbrella and they are the political leadership of Hamas, that they are somehow immune from an Israeli strike. So their lives are on the line here. If Gunner lives up to whatever deal or obligations it's agreed to with Witkoff in terms of getting them to do what he wants them to do. Whether those people in Qatar have the sway over the Hamas people in Gaza who have no cards left to play except the lives of the hostages. They did fire a couple of rockets yesterday. I don't know where they got them from, but they did fire a couple rockets that were easily intercepted. So they're not entirely out of ammunition. But, I mean, their capacity to make war, to fight the Israelis is totally over now.
- [07:40]
Matt Continetti
That's why the deal looks the way it does, because the deal is essentially they've stopped really talking to Hamas in Gaza. They've stopped treating Hamas in Gaza as, you know, a significant part of this. This. This deal that they're talking about is to the Hamas leadership abroad. And it really had. It doesn't really involve Hamas in Gaza because there's no one to involve. In fact, the expulsion of the Hamas leaders. I don't think Israel really cares what that looks like in the end. That's like a detail that they want to be able to say symbolically. Hamas was, you know, the 17th top man who's now, I guess, in charge of Hamas, has agreed to leave the Strip or whatever. But I think what they want is for that to be interpreted as essentially Hamas surrendering. Finally, they want to be able to say that there's some sort of symbolic surrender, something that was agreed to by Hamas.
- [08:38]
John Podhoretz
Right.
- [08:39]
Matt Continetti
And the rest of it is really just about what happens after they're talking to. To Qatar. So this is. In a lot of ways, this is significant because this is Bibi saying, I am ready to approach the end of this war.
- [08:52]
John Podhoretz
Well, he has to, because just quickly, the Israeli public is turning against the continuation of the war pretty decisively, in part because of the defeat of Iran. So the idea is, well, it's lost its sponsor, it's lost its, it's lost its guy in the lead. We've pummeled Hamas and now we have, we have our, our men in there, our boys, our girl, our daughters. And every day a couple of Israeli soldiers die. And for what? Like, they want to stop it, they don't want any more deaths, Israeli deaths in Gaza. Forget the other things as, as Israel continues to get accused of the desperate crime of feeding millions of Gazans every day with these ludicrous propagandistic reports about how while they're feeding them, they're also using them as a shooting gallery. So it's like, let's wash our hands of this. They're done for. They don't have it, they don't have a patron, they don't have a sponsor. Our, our, our people are in there getting killed and obviously we need to get the hostages out. What other means can we get the hostages out by. Because obviously pressing this military conflict on in the strip itself isn't moving Hamas off of its hostage keeping.
- [10:16]
Adam White
So just to take a step back, Hamas doesn't accept cease fire agreements. It's accepted two since the beginning of the war. One in November of 23 which released some hostages and then 80 hostages came out. And then another earlier this year on the eve of Trump, Trump's inauguration, where some more hostages were released. It has rejected at least six over the course of the war, and by some counts the number is like twice that. Because it's insisting that whatever cease fire it agrees to would mean the end of the war, which Israel rightly is not willing to say. If the ceasefire went through, 10 living hostages, that's about half the remaining hostages. So there would still be hostages remaining during this 60 day period and quite likely at the end of it as well. There's a danger, I think, in getting trapped in a Zeno's paradox where you have these each, you get half and half and half and half and half.
- [11:26]
John Podhoretz
And you know, you're always halfway away from right?
- [11:30]
Adam White
And you know, by the end of this year, two years after the October 7th attack, there still might be four remaining hostages. Moreover, there's, I think this speaks to what Seth is saying. It's who are you negotiating with if you're not negotiating with Hamas on the ground in Gaza because it's battered, Its main concern now, it seems, is terrorizing the Palestinian population there into not receiving aid from the Gaza humanitarian foundation, into not kind of collapsing into the tribal and clan loyalties which are much deeper than Hamas and which possibly would kind of control the strip in the absence of Hamas. If you're not negotiating with them, then you're probably negotiating with the political leadership in Qatar. But there's no pressure on the political leadership in Qatar.
- [12:27]
John Podhoretz
Well, that's what I, that, that's the problem.
- [12:29]
Adam White
That's the, that's the problem with some of the, the Witkoff approach to diplomacy. Right. It's the same with Russia, Ukraine. There's been no pressure on Russia, very little pressure from Russia, if any, during this administration. So why would Putin do anything? He hasn't done anything.
- [12:50]
John Podhoretz
Well, that's why.
- [12:51]
Adam White
And there's been no pressure on the cut on the Qataris. On the Qataris. So why would they kind of move say okay fine, but Hamas probably will, as you said. I hadn't seen that. If they've already rejected it, the danger, the real danger here is a displacement of the pressure. Like we kind of see with Russia, Ukraine, where Trump's not putting any pressure on Putin so he decides, well put pressure on Zelensky and try to get something there. Still doesn't work. It's unlikely he would do that in Israel's case and with Netanyahu's case. But if you get to a situation where the IDF just simply withdraws from the ground that it controls now in the Gaza Strip and kind of, you know, maintains the safe zone and maintains Philadelphia, that's good, that would kind of prevent resupply, but it still leaves Hamas in control and that's not a good situation for anyone.
- [13:48]
Seth Mandel
Ok, can I just add just for.
- [13:50]
Unnamed Speaker
One second that, you know, I very much want to think of what's left of Hamas in Gaza as a sort of handful or something. But the fact that they have fired any rockets, the fact that they're making all this trouble for Gazans, that they're able to show up and fire on people getting aid, some of them are disguised as women and like there's still there is a significant is the wrong word. There's a portion left that needs rooting out no matter what. And that is, that's my concern here.
- [14:31]
John Podhoretz
Your concern is well founded. The Israeli public has lost the heart to do what you're talking about here. That doesn't mean that absent any concession from Hamas that things will not continue. Because what the Israeli public wants is to get out of Gaza and get the hostages home. And if Hamas is saying we're not going to agree to terms in which Israel holds the Philadelphia corridor and we're not even going to agree to terms that gets half the hostages home. The Hostage families forum and the people in Israel who are pushing this may continue to irrationally blame Netanyahu for the fact that the war is continuing. But that will make no, it will make literally no logical sense after this.
- [15:17]
Adam White
Weak.
- [15:17]
John Podhoretz
And I think that there may be a change. Maybe I'm being excessively hopeful here, but I said, as we were talking about the question of the pressure on Gutter. All, all Trump needs to ask Gutter to do here is to kick him out. Like, he doesn't have to say, you know, gutters, they're sitting there in the Four Seasons in Doha. Just say, expel them. Just don't let them live there anymore. And, and, and stop providing them cover. Like, that's our, that's our chess piece to get this over with. And, and they know what that means because that means it's Munich. It's after Munich in 72. And what did the Israelis do after Munich in 72, which Steven Spielberg and Tony Kushner wet bitter tears of moral, moral corruption on in their disgusting movie Munich. Right. Which is that the Israelis hunted down everybody who kidnapped and killed the hostages at the Munich Olympics and killed them as a message that this would not be permitted. And those Hamas leaders who are in that hotel will be dead. They will be killed by Israel. Maybe not tomorrow, maybe not Thursday, maybe next year. None of them is going to survive. They'll survive if they can bring this war to an end or bring the ceasefire about and bring those hostages home. Otherwise, you know, why Israel could go into Qatar and kill themselves. They went into Tehran and killed them. They forced, they have forsworn doing that so far.
- [16:50]
Adam White
So it's noteworthy that Netanyahu is coming to America next week and planning a meeting, I think, with Trump on Monday.
- [16:59]
John Podhoretz
And Trump said he wants that meeting to be a celebration. That literally yesterday he said, I intend for that meeting to be a celebration.
- [17:07]
Adam White
Right. And so the question is, if Hamas doesn't get to yes. By then, what' swhat's the plan? And, you know, there is a plan. It's the Trump plan, It's the Maragaza plan that was announced earlier this year. And Trump, in saying that Israel has agreed to the Wyckoff terms, which, you know, are really have always been out there, Hamas better do something or else it's just going to get worse for them. We need the worst part. We need that. And I think you're right to say it does. It's not necessarily for Hamas and Gaza, because it's it's already really bad for Hamas and Gaza. The worst part needs to come on Hamas and Qatar. That's, I mean, that's the only, that's the only lever we have.
- [17:53]
Matt Continetti
The only thing that we haven't tried, by the way, that is very simple. Not the only thing we haven't tried, but one, the simplest thing that we haven't tried is just publicly pressuring Qatar. Yeah, this is, this is, this has been the frustrating part of this, because saying Hamas, forget saying Hamas, doesn't agree to the ceasefire terms. The ball is in Hamas's court. The ceasefire itself, the structure of the proposal, takes for granted the fact that Hamas is sort of broken and in shards. Just replace the word Hamas with Qatar in every public statement. Qatar has not. Qatar is not accepting the deal. Qatar is not making this happen. We're waiting on Qatar. The balls in Qatar's court. That is what they should be saying every single day.
- [18:41]
John Podhoretz
Well, that's the problem, what public pressure does. Right. But this is, I think, the point that Matt made. And the, and, and the, and the most. One of the more discomfiting facts of the, of the, of the second Trump administration, which is this incestuous relationship with Qatar where Witkoff has business deals with Qatar while he is negotiating and Trump and the Trump kids have deals with Gutter. And we're getting the plane, or maybe we're not going to get the plane.
- [19:06]
Seth Mandel
Who knows?
- [19:06]
Adam White
We haven't talked about the plane in a few weeks and all of that.
- [19:09]
John Podhoretz
So, so, But I think it's pretty low cost now for America to go to Gutter and say, look, Iran's gone. Like, Iran's, Iran's out of the picture. It's not going to be supporting Hamas. Just take your thumb and put it on the heads of whoever it is who is living in that hotel and say, first we're cutting off, you know, your room service and then we're cutting off your laundry service. And then we're literally going to take your bags and we're going to put them on the sidewalk and say, get out of the hotel and close the door behind you.
- [19:45]
Matt Continetti
And that, you know, that HBO Max subscription that you've been free riding on? Gone.
- [19:50]
John Podhoretz
That's gone. And you know what? Once you're out in public on the streets of Doha or wherever the hell you will be, you know, someone's gonna start saying Mourner's Cottage for you people unless you do what we want. So you can stay there. I mean, that is, there's, I think there's a little. There's something about what's going on that feels a little like that. And the other thing, and then we'll move on, involves Israeli domestic politics, which is that what I say is like, basically the Israeli people want to wrap this up, right? And so Bibi, who is a much more complicated politician, as I constantly say, than people give him credit for, he would probably like to wrap it up. He would love to be able to say I won. He's willing probably to take an 80% victory in some fashion or other, remember, if he can. And for a while, that was not possible because his coalition was going to collapse if he pulled out of Gaza too precipitously. And now that's not the case. First of all, he is stronger than he was. Second of all, because of Iran and everything else. And second of all, he has opposition members. He has Gironsar, his former deputy, who has got, you know, one of the larger small parties on the outside has said, I will vote with you if you, if people pull out of your, if people vote against this in your coalition, I will vote with you and join, at least temporarily join the government effect, in effect, so that this deal can go through. So he now has political cover. He has polling cover. He has covered to do something that Smotic and Ben GVIR do not want him to do, which is bring the war to possibly a slightly hasty end. Anyway, let's move on to American, American Jewish subject matter very quickly. This week has been a kind of stunning week of revelations. Yet again, out of nowhere, the our friends at the news institution that Matt founded, the Free Beacon, have had a bombshell story yesterday out of subpoenaed House documents that Claire Shipman, the interim president of Columbia University, when she was not president but was merely a trustee, sought the removal of a Jewish trustee from the board of Columbia, Colombia, on the grounds that that person was too pro Israel and sought the replacement of that person with what she called an Arab really fast. We need to get an Arab really fast onto our board as fast as possible. So that is revelation number one. This person who came in and said she was so sad, she wants to negotiate this and that and the other thing, this comes on the heels of, of a report that the auditor, that is to say, not the auditor, the accreditor, excuse me, the accreditation committee that deals with universities getting accredited in the Mid Atlantic or North Atlantic or whatever the hell our district is here in New York has sent Columbia a letter saying that there are concerns about Columbia's continued accreditation because of the seriousness of the Accusations involving its violation of. Of the Title 6 Civil Rights of Jewish Students. And that's, that's a one, two punch at Columbia. Then we go to MIT where the Brandeis center has filed a lawsuit against the school and against the President because of a Jewish Israeli postdoc who was harassed from October 7 onward by a specific professor who threatened him. We've seen the emails in which he has been threatened. He was doxxed, his address was published. He was. The professor sent out emails to people saying he should be thrown off campus and he should be dealt with. Those emails were cc'd to the president of MIT and Kornbuth, who is the person who said that antisemitism depends on. Upon the context. This student has now fled. As has the head of AS has left mit. As has the head, the person who. The kid who was the president of the Hill El Grad at mit. That is a very serious lawsuit. It looks to me like dead to rights. A case of harassment known to the president that the president refused to deal with of a student. And then third, this other story about a prep school in Virginia which I'd never heard of, which seems to be relatively new and named for its principal. Is it nice smith, where an 11 year old kid in a class was called a baby killer, was subjected to participating in a class project in which they were supposed to make murals of a strong leader. And the strong leader that seemed to have been chosen was Hitler. And you can see the poster of Hitler. The parent complained and Naismith, the president of the Naismith school expelled that kid and the two other kids on the grounds that the family was no longer in concert with the views and feelings and emotions of the school.
- [25:37]
Adam White
A Jewish family.
- [25:39]
John Podhoretz
A Jewish family. Jewish family whose 11 year old daughter was accused of being a baby killer by her classmates. And this guy did. Mr. Naismith did nothing.
- [25:49]
Adam White
So my goal now just before you get to your goal which is important, there is now an investigation led by the Virginia Attorney General's office, Jason Meares, into civil. The blatant civil rights violation of this awful man and his stupid school.
- [26:06]
John Podhoretz
Hey everybody, it's John here to talk to you about Shopify. You know, Commentary is an old line American product produced physically, mailed as mostly the way we do business with some newsstand sales, subscriptions, checks, cash, all of that. Only in the last 15 years have we had to become a digital product. And I got to tell you, if I were starting out today as a digital entrepreneur, what I would want on my side is Shopify the commerce platform behind millions of businesses around the world and 10% of all e commerce in the US from household names to brands Just Getting Started it will help you just take off into the stratosphere. You get started with your own design studio providing you hundreds of ready to use templates. Shopify will help you build a beautiful online store to match your brand style. You it will help accelerate your content creation. Packed with helpful AI tools that write product descriptions, page headlines and even enhance your product's photography. It will help you get your word out like you have a marketing team behind you. You can easily create email and social media campaigns whenever you're and wherever your customers are scrolling or strolling. And best yet, Shopify is your commerce expert with world class expertise in everything from managing inventory to international shipping to processing returns and beyond. If you're ready to sell, you're ready for Shopify. Turn your business idea into cash, into an income, into a life with Shopify on your side. Sign up for your $1 per month trial and start selling today at shopify.com commentary go to shopify.com commentary shopify.com/comMENTARY hey everybody, it is summer. It is thrilling to be summer and it is time for me to talk to you about quints. I am the last person to chase trends. Conservative Jewish magazine editor. Not a trendsetter, not a trend follower. But I am all about stuff that fits right, feels good and actually lasts. And I keep coming back to quints. Their lightweight layers and high quality staples have become my everyday essentials. You know this. I've talked about the sweaters. I just bought a whole bunch of lightweight shirts for summer. The kind of stuff you I'll wear on repeat like breathable flow knit polos. Those are the ones I bought. Crisp cotton shirts, comfortable lightweight pants that somehow work for both weekend hangs and dressed up dinners. And the best part? Everything with quints and is half the cost of similar brands. By working with top artisans cutting out the middlemen, Quint gives you luxury pieces without the markups. And Quint only works with factories that use safe, ethical and responsible manufacturing practices and premium fabrics and finishes. So stick to the staples that last with elevated essentials from Quint Go to quint.comcomply for free shipping on your order and and 365 day returns. That's Q Y N C.com commentary to get free shipping and 365 day returns quint.com commentary so my goal is for him to lose his school. I don't know how that happens exactly, but he should Lose his school. And the necessary thing for people in the ambit of my voice and our friend, friends in the Jewish community who are generous givers and donors is to buy this place and turn it into a yeshiva by 2027. That is what should happen. You go at Jews, you do this. You, you, you harass and torment a kid and you kick the family out on the grounds, the entirely reasonable grounds that it complained, that it's that which children were being harassed. You get your school taken away from you and you get a yeshiva put in its place. And that is a little girl felt.
- [30:11]
Adam White
Uncomfortable when her peers made a mural.
- [30:15]
John Podhoretz
Of Hitler and called her a baby killer. I mean, she was called a baby killer.
- [30:21]
Adam White
It's amazing. It's amazing.
- [30:23]
John Podhoretz
And no one did anything. So. All right, so those are the three.
- [30:26]
Adam White
So can we just dwell on this just for a second? Because the level of cultural antisemitism now is approaching dangerous levels. I mean, when you think about these, this story, then there was the other school out in the Bay Area that we heard about the past week, very similar circumstances in light of what happened at the Glastonbury festival in England over the weekend. You look at these images of Glastonbury, not even for the anti Semitic performers, but just in general. They're waving Palestinian flags. Then you hear apologies for this in the New York Times by my least favorite New York Times columnist, who I know you didn't like I mentioned the other day when her colleague was on, but I'm going to mention her again, Michelle Goldberg, who said mention her every day. Who said, I know, I know. But I had to bring it up then and I'm bringing it up now because her follow up column to the ridiculous assertion that, you know, the real Jews are for Mom, Mom, Donnie is. Was that. You know, it's. So what happened in Glastonbury is so great, John, because the left has rediscovered its power to shock. You know, because Trump, Trump and Maga, they've been punk rock for about 10 years. But now when this awful person, that Rubio rightly pulled the visa from Bob Violin, whatever that rap duo is called, starts chanting and leaving because it's a play.
- [31:55]
John Podhoretz
Dylan. Because it's Bob Dylan.
- [31:57]
Adam White
Oh, villain.
- [31:57]
John Podhoretz
Okay, Zimmerman.
- [31:58]
Adam White
Well, he is a villain. He is a villain.
- [32:02]
Matt Continetti
Yeah.
- [32:02]
Adam White
And he led them. He led the crowd in Death to the IDF chant at Glastonbury. Michelle Goldberg celebrates. This is. Look at the left has got its riz back. Because we're.
- [32:13]
John Podhoretz
No, you're.
- [32:13]
Adam White
We're making the bougies kind of quake in their boots. No, you're not. You're embracing an anti Semitic genocidal ideology for.
- [32:22]
John Podhoretz
For like.
- [32:25]
Adam White
Willingly so celebrating it. In fact.
- [32:27]
Unnamed Speaker
Now I just want to add something here to the. I agree with Matt's point that we're at a new place with this. And I think part of what's happened is that when the two young Jews were shot and killed in D.C. and then there was the firebombing in Colorado which resulted in a woman died just yesterday.
- [32:49]
Adam White
Yep.
- [32:50]
Unnamed Speaker
Yeah. Instead of that making the pro Hamas mobs step back, I think what happened was it gave them a lot of room. Now, so. Because there's a lot of room or there's some room between what they had been doing and then killing and trying to kill people. So now you can fill up that space with calls to kill the idf, all this, all this other institutional blatant anti Semitism.
- [33:23]
John Podhoretz
Yeah, well, it's the moving. What people call the shifting of the Overton window or something like that. In other words, things are not thinkable and then they become thinkable. And then, as you say, the space between, no, we're just protesting and using our freedom of speech and active violence, that space opens up and. And then, of course, the barrier falls and calls for violence, then lead to violence. And who's stopping them from calling for violence?
- [33:53]
Adam White
So just to follow up on this, in my reading the other day was the Washington Post story. The Washington Post reporter was, you know, pleasantly highlighting the fact that there's a generational divide within the Republican Party on the question of support for Israel. And the younger Republicans that this reporter talked to, and it's reflected in some polling data as well, are much more anti Israel or certainly skeptical. Maybe skeptical, I think was the way to put it. And want the war to end.
- [34:22]
Seth Mandel
Right.
- [34:22]
Adam White
Want the ceasefire to happen in Gaza. Don't really care about the details. They want the war to end. But every one of the sources the reporter talked to said that their view of the Gaza war was based on their social media accounts, which is, as we know, young people get most of their news from social media and they get their kind of more substantive content from Influencer podcast. Right. We talk a lot about the podcast on this podcast about Jewish education and how Jewish philanthropists and their allies need to support educational institutions to. To form committed Jews in the long run in this country, in the diaspora. But here's another goal for them. They need to fund, identify, fund, educate influencers on social media. Qatar, the Muslim Brotherhood, all the anti Semites in the world are playing the algorithm game. They exploit TikTok, they exploit Twitter, they exploit Instagram. In order to feed young people in this country this disgusting diet of anti zionism, anti Israel and leading to anti Semitism and it's equivalent in anti Semitism. There has to be some type of countervailing force that we, that we can construct and exert or else it only get worse.
- [35:47]
John Podhoretz
Okay, there are two ways to do that. First of all, it's too big, right? It's too big a thing to create. People have been trying, I mean there's a whole bunch of people who have been looking at this social media problem since October 7th. I met Israeli entrepreneurs in December of 2023 who had, you know, seen this study that said that 50 to 500 times. Anti Israel content versus pro Israel content on TikTok and we had to do something about it. There are two ways to do it, one of which the Trump administration is blocking, which is of course the sale of TikTok or the closure of TikTok so that it is taken out of the hands of the Chinese Communist Party and owned by an American who might then be able to do something about how the algorithm function. That's number one. And number two, I forgot what number two was.
- [36:35]
Adam White
So number two is finding, Finding influencers who are pro Israel. Yeah, and funding their data. Funding the algorithm. The algorithm can be manipulated. We know this and we know that the enemy is manipulating it in order to put poison our minds.
- [36:52]
John Podhoretz
Part of the problem is that, that's why I say it really gets.
- [36:55]
Adam White
Well, they own TikTok, but like X for example, there are ways that you can market, you know, so it just takes a lot of money to like force this stuff up in, up into people's feet.
- [37:06]
John Podhoretz
Well, so far the efforts that people have been making have been, and there have been a lot of them. And I could, I mean, I'm not going to name the people who are funding this, but no, they're doing tens of millions of dollars and it's been very ineffective. So they tried and have not yet found a secret sauce to make that work. And obviously the thing about viral things is that top down solutions to virality are often self defeating because virality is virality. It's not something that you can sort of like puppeteer when it really works. But you're right and this is very important. And now we need to turn to our friend Adam White who has been sitting very patiently in the northwoods of Wisconsin waiting for us to have him enlighten us on the end of the supreme court's really dramatic. 2024, 2025 term.
- [37:58]
Seth Mandel
I gotta say yes. After everything we, after everything that you covered, what we're about to discuss feels like small potatoes.
- [38:04]
John Podhoretz
I don't think it's small potatoes at all. Because we have, at least in one case, we have a religious liberty case that is actually more important than people realize. Even though it's the subject or the sort. The thing on which it turns is freedom of parents to opt out of right of things that offend their religious sensibilities that could be increasingly important in this world of increasing and growing antisemitism. Whether or not, you know, Jewish parents and others can say, if you're going to be imposing a curriculum on my kids that tells some potted history of the Middle east in which Jewish people are the colonizers and the oppressors, I don't, I do not want my kid to study that. Moreover, I'm going to go to the school board and try to get that defunded, that kind of thing. So it's not, not unrelated, but that's just one case. The other case, of course, is the nationwide injunction case. And you tell me, given your, you know, it's a, it's, it's a guest choice, what case do you want to talk about? With this proviso, the, the nationwide injunctions case, which is fascinating, which is the birth was supposed to be the birthright citizenship case, but became the nationwide. The question of whether or not an individual judge in Rhode island could declare that the policies of the federal government could be halted with a single flick of his finger or her finger. We need to talk about this both accurately, but not too wonkily, because I listened to a very praiseworthy podcast that deals with Supreme Court opinions that did this case.
- [39:50]
Seth Mandel
Yeah.
- [39:50]
John Podhoretz
And I didn't understand. I spent an hour and I didn't understand a single word that our friends on that podcast spoke. So we need to make it a little more general, that's all.
- [40:02]
Seth Mandel
Well, I do like the way you teed it up, John, because sometimes when we do this end of term episode, there's the big blockbuster case. Right, Dobbs. Or the Harvard affirmative action case, and everybody knows that this is a blockbuster case. You'd be forgiven. Especially since the citizen the birthright citizenship case became not the birthright citizenship case. You'd be forgiven for thinking that this is sort of a sleepier term. And it was, in some ways. But these two cases that you're focusing on, I think they are incredibly important, and I like the way you teed them up. Maybe the way to think about it is one case is about how are we all going to live together in this day and age? That's the religious liberty, parents opt out case, Mahmoud versus Taylor. And then the other case is how are we going to govern ourselves in this day and age? Right. How are we going to have a rule of law in an era when the law is made and unmade lightning quick by presidents and by their agencies and sometimes by governors and district judges, move just as quickly to try to change everything themselves. And the Supreme Court now, for years, has tried to wrap its arms around both parts of that system, around the administrative state side of this and about the district judges side of this. So again, one case about how we're going to live together and one case about how we're going to govern ourselves. Why not start with how are we going to live together? The Mahmoud versus Taylor case. This is the case where Montgomery County, Maryland Institute, the school board instituted a new curriculum policy. They wanted to introduce more LGBTQ friendly reading materials. I say friendly more than that. Sort of affirmational, indoctrinational books about things ranging from same sex marriage to more controversial topics involving gender identity and so on. They wanted to put these books on the shelves in the schools, but also encourage teachers to recommend the books, to even use the books in the classroom with read alouds and so on. Originally, the school board, I mean, clearly recognizing the magnitude of what they were trying to do, instituted an opt out policy so that parents who found that these materials did go against the religious beliefs and convictions of the family, they could have their students quietly opt out. That was very quickly, though, taken back by Montgomery County. They kept the book policy in place, but Montgomery county opted out of the opt out policy and decided we're not going to do that.
- [42:42]
John Podhoretz
Did that, I believe, because too many people opted out.
- [42:46]
Seth Mandel
Yeah, exactly.
- [42:47]
John Podhoretz
They thought only a few people would opt out. So, fine. But then you had this like, very significant number of parents who said, you know, include us out. And that was deeply offensive to their inclusionary efforts.
- [43:02]
Seth Mandel
Yeah, you would think that the wave of opt outs would cause the school board to take a step back and say, maybe we need a, take another run at the underlying policy. But the, but the, but they took the other option, we'll say. And in the, in the court's decision, they quote some news reports with some pretty terrible comments from at least one of the school board members. But anyway, the point is, can the. Do the parents have a constitutional right to opt out their children out of these classroom Exercises. And the court says, yes, this is a right going back, as it happens, 100 years. 100 years. The roots of this right, a case from 1925 called Peers versus Society of Sisters, where the. The Supreme Court held that states and government cannot, cannot force families to put their kids in public schools as opposed to private schools or religious schools. Later on, cases that maybe we'll circle back to, like Wisconsin versus Yoder, where they said Amish families have a right to take their kids out of school after a certain age. Maybe it was 13 or 14. I can't remember. The famous flag salute case of the World War II era where the Supreme Court said, you can't force Jehovah's Witnesses to salute the flag when that goes against their religious beliefs. On and on. These cases that were for decades, I mean, the better part of a century, held up as exemplars of American liberalism in the best sense, the court says those cases still apply. And so in this case, because these parents have sincere religious beliefs, and it's clear that these. This policy puts the families and the children in the position of basically being indoctrinated against, you know, intentionally indoctrinated against their religious beliefs, the parents must be given a right to opt their children out of those classes.
- [44:56]
John Podhoretz
Let me ask you.
- [44:57]
Matt Continetti
Can I ask a question about that? Because Randy Weingarten tweeted, that's the president of the teachers union tweeted that essentially she criticized the district here in Montgomery county, and everybody has basically for fighting this fight all the way to the Supreme Court.
- [45:19]
John Podhoretz
Right.
- [45:19]
Matt Continetti
Like the idea that they should make this the hill to die on. Got that. That criticism got support from Randy Weingarten, which I'm wondering if there is any sort of shift. I know that this case, as you say, follows precedent. And so maybe it's just the case was decided as the case should be decided. That's it. But is there maybe even post Covid post, all the backlash, Randy Weingarten saying in a tweet about LGBTQ materials in the classroom? Parents should have a say in their children's education. They are our partners in this. That's what she said. So she. In other words, it's really criticizing. Coming close to criticizing the policy itself and not just the pursuit of it. Is there any sort of shift in that sense, among the educational establishment, the union figures, all that.
- [46:12]
Adam White
Just before you answer, what do you think Randy Weingarten would have said had the case gone the other way?
- [46:16]
John Podhoretz
Yeah. Right. Okay.
- [46:18]
Adam White
I mean, whether she's not the most Objective party in this, in this debate.
- [46:23]
John Podhoretz
Yeah.
- [46:24]
Seth Mandel
But it is interesting, Seth, I hadn't seen that tweet because I don't see any tweets. But it is interesting that.
- [46:30]
Matt Continetti
Smart man.
- [46:31]
John Podhoretz
Mr. Smart man.
- [46:33]
Seth Mandel
But that's, that, that, that, that tweet reminds me a lot of some of the commentary that was heard after another sort of big Supreme Court case. Yeah.
- [46:43]
Adam White
Well, can I, can I make a connection before Adam talks about the legal details here?
- [46:47]
Seth Mandel
Because I'm not going to get into the legal details, so go ahead.
- [46:49]
Adam White
Oh, that's Kermetti. Well, I think it's a huge case, one of many this term. But when you look at the Mahmoud and parental rights and the ability of parents to say, stop it with this indoctrination, just stop it. And then you connect it to Scrametti, right, Where you're saying, yes, the state government has the power to restrict gender transition surgeries for minors. Then you look at what just broke overnight with the University of Pennsylvania making a deal with the Trump administration saying that it's going to revoke the trans woman athlete Lia Thomas's victory in the swim meets and restore the biological women title to its rightful owner. You see, the cutting edge of resistance to the gender hysteria, which, which has been going on actually started off a little bit prior to Trump's arrival, but kind of coincides a lot with his political trajectory. And I've spoken before about how I think trans more than, more than most issues. I mean, it's up there with open borders, broke the left coalition. But you can see it's entirely appropriate for someone like Randy Weingarten, who's a seasoned political operative and just wants to further whatever her agenda is at a given moment is kind of sensing the winds and now saying, oh, the court, the county took it too far. Right. There is, I think there's been great victories for parental rights and for sanity when it comes to the gender question and the court and the Trump administration are doing the right thing.
- [48:38]
Unnamed Speaker
So that was the, I think the sort of the lowest hanging fruit of the woke agenda, if you know, to go after, because it was, it was the one that was already weakest. You know, it was the way in the, in the public's mind, it was the one that people were already backing away.
- [48:57]
Adam White
One other data point in support of my thesis. Yes, Journalists who I don't normally praise. Andrew Sullivan had a 3,500 word essay in this weekend's New York Times talking about how the trans movement really destroyed the gay rights agenda. And he noted that the Comments in the New York Times website to his article were almost all positive. So there has been, I think, a shift in mentality here.
- [49:26]
John Podhoretz
So Adam, the Scrametti case, which is about the Tennessee. Right. The legislature in Tennessee and the governor obviously signing the bill restricting, as Matt said, the use of gender reassigning or gender, whatever gender changes. Gender changes to minors as a state policy.
- [49:45]
Seth Mandel
Yeah.
- [49:46]
John Podhoretz
Not just between parents and their doctors. That this was a state policy in local parentis. You could, you couldn't do. This court decided 6 to 3. I think it was 6 to 3, as was the CA. That's the scrameti case.
- [49:59]
Adam White
I think it banned. Banned the practice in Tennessee.
- [50:02]
John Podhoretz
Yeah.
- [50:02]
Adam White
You can't have them for minors.
- [50:04]
John Podhoretz
Right, well, that's what I meant. In other words, you can't say, well, parents can make that decision.
- [50:08]
Adam White
Parents, I guess, can go to another state.
- [50:10]
John Podhoretz
Well, they can, but they can't do it in Tennessee. Right. So that was a 63 decision.
- [50:15]
Seth Mandel
Yes.
- [50:16]
John Podhoretz
And yeah. So Andrew Sullivan says Skretti was a disaster. It's the second piece he's written on it because he wrote one on his website, Randy War, saying Mahmoud versus Taylor is a disaster. Obviously some of this is based on real world political understandings that you have a conservative court at 6:3. You can do the math. You can figure out, you can say, oh, maybe any Coney Barrett's gonna like grow in office and become a liberal. But that's probably, that's not a bet you want to take. Don't die on these hills. These are not the right hills to die on. You are, you are throwing, you're basically as Abe would say, it's low hanging fruit. You're like throwing a, a fastball straight down the middle to Aaron Judge and he's going to hit it over the fence. Don't throw the fastball. Choose if you're going to do this, choose better cases to make your, your test cases. But I'm this. What strikes me in these six, three decisions is that the conservatives on the court and the decisions that they are making sound very reasonable and very sort of dry. They're not, you know, passionate. Anthony Kennedy explaining why gay marriage should now be, you know, should now be the law of the land.
- [51:41]
Seth Mandel
Yes.
- [51:42]
John Podhoretz
And it is the liberal dissents that sound completely bonkers and are self defeating and creating conditions again, under which Ketanji Brown Jackson's dissent in the nationwide injunctions case provided Amy Coney Barrett with a rhetorical opportunity to hit a grand slam and, you know, cause her to be pulled for a relief Pitcher because of the incredibly embarrassing nature of some of the points that she had made in her dissent. And this, I think, is a very. Is an important. These are not dismissible decisions, even by liberals. The Scrametti case itself, which is what Andrew said was brought. The chief lawyer in the case in the Scrometti case, Chase Strangio, is the person who took the New York Civil Liberties Union in 2017 and tried to make it into a book banning institution. The American Civil Liberties Union branch in New York sought to ban books like Abigail Shrier's Irreversible Damage. The organization that came into being to defend free speech, including unpopular free speech, was flipped on its head. And then this guy who was a trans activist, not a free speech activist, then with I think a lot of people in the background saying, don't bring this case to the court, don't bring this case to the court, did it anyway, made a horrible oral argument and found himself crushed like a bug.
- [53:24]
Seth Mandel
Well, and to Matt's point, actually, about how the New York Times is saying this New York Times had a very, very long piece about the Scarletti case and. Exactly. I don't think it came out until after the case was decided, like five seconds after the case was decided, which was. I might be misremembering, but I just want to say a couple of things quickly. One, the scrametti in US vs. Scrametti is Jonathan Scrametti, one of my best friends all the way back to law school.
- [53:50]
Adam White
And I didn't know that. He's great. I've met him. He's a great guy.
- [53:54]
John Podhoretz
Let's hear it from Adam's friends.
- [53:56]
Seth Mandel
And if I ever get a time machine, I'm going back to 2001, our first day of law school, and I'm gonna explain to him that someday he'll be a state AP with his name on the case. And I'll try to explain. Explain to him what this case was about.
- [54:06]
John Podhoretz
Yeah, exactly.
- [54:07]
Seth Mandel
Yeah. But John, maybe I'm not normally in the business of sitting here and defending Jackson or Sotomayor dissents. And I, I'm not. But what I will say is this. A lot of. I've gotten a lot of notes about sort of a hyperventilating, over the top nature of Jackson's dissent. How in the, in the, the. In the nationwide injunctions case and how ridiculous it is. And it is ridiculous. But then I think back to when I was in law school and I think back to the Scalia dissents and the Thomas dissents, and I'm not saying they're like the Jackson dissents, but they were memorable because sometimes they would get a little bit over the top. Right. Justice Scalia writing about the culture comp. Scalia, I think writing about the court day by day, creating a constitution for a nation he no longer recognized, recognizes is much more eloquent than what we're seeing in dissents today. But I would, I would not just shrug off these dissents. They could have a much bigger impact than we expect 15, 20 years down the line, depending on what they stir up among young law students. So I just want to put a note there.
- [55:16]
Abe Greenwald
Hi everyone, I'm Matt Ebert, CEO and founder of Crash Champions. Welcome to Pod Crash. On Pod Crash, we'll dive deep with industry leaders and game changers because we want to uncover their secrets to success. We're going to explore everything from building trust, building a rock solid team to champion blue collar work. And we also want to talk about creating explosive growth in your business. You'll hear actionable advice, real leadership and business lessons along with what's worked for these incredible people throughout their career. We're even going to go in depth into what I call a Champions mindset. This is the very philosophy that I use to champion people and take Crash champions from a single shop to over 650 locations today. And now I want to share that information with you. Watch or listen to pod crash on YouTube, Apple Podcasts, Spotify or wherever you get your podcasts.
- [56:10]
Donny Deutsch
Hey, this is Donny Deutsch. I host the podcast on Brand that comes twice a week. We give you two for the price of one. One day a week, we do our big interviews with our big personalities, some of the biggest names in politics, entertainment, culture and business. And on the second wave, we do what we call our brands of the week. These are the brands that are shaping the zeitgeist. Who's up, who's down, and you can really enjoy both of them. So tune in twice a week to on Brand. You can get them anywhere. You get podcasts, Spotify, Apple, anyplace else. We look forward to seeing you and hearing from you.
- [56:43]
Adam White
Look, the court is 6, 3.
- [56:45]
Seth Mandel
Yes.
- [56:46]
Adam White
The studies of the decisions this past term show that the justice who is, I think second highest in the majority was Justice Kagan. Yes, right there. There are two Supreme Court justices who are over the age of 70. Right. They happen to be my two favorites, Alito and Thomas. This, this court, as we've learned, just the difference between the court in 2020 and the court in 2022, when it reversed Roe v. Wade can change on a knife's edge. And so, yes, if Justice Jackson, who, you know, kind of stole the crown from Sotomayor for the clowning crown in this case, in the Casa case, she could easily be setting precedent for a future liberal dominated court.
- [57:41]
John Podhoretz
Okay, I have to, I think Adam's point is well taken. Hopefully I'll be dead by the time it happens that they provide the precedence for a future majority. And my children and their children will have to suffer the consequences of being living in a world in which the opinions of Jackson and Sotomayor are seen as the cutting edge of the future, because that's not going to be a future I want to live in. Nonetheless, I must defend the descents of Scalia and Thomas against your claim that we need to view these in the same way. Because, you know, just as, just as Jane Austen writes novels.
- [58:29]
Seth Mandel
Yes.
- [58:31]
John Podhoretz
And 50 shades of gray is a novel.
- [58:34]
Seth Mandel
Yes.
- [58:36]
John Podhoretz
Scalia and Thomas wrote dissent and Jackson and Sotomayor wrote dissents this term. And both Pride and prejudice and 50 shades of gray are novels the way they are both dissents. But in no other way could one except structurally say that they are comparable as intellectual or creative achievements.
- [59:01]
Seth Mandel
And of course, I'm not saying that I am, but I am worried that we live today in much more of a 50 shades of gray culture than a Jane Austen culture. So. But John, maybe back to the original point of the case, I didn't mean to derail things, but I think it's interesting to take a step back and look at this Maryland case, the Montgomery county case. Right. Because like I said for a century, the liberal position, the American liberal position was we need to, to, we need, especially in small communities which can be very close minded and very single minded, we need to preserve the abilities of families and students. I mean, the famous case of Tinker vs. Des Moines from Iowa, the Vietnam protesters in the classrooms, that we need to remember that constitutional rights don't end at the schoolhouse gate and that families have a strong interest in shaping their children's lives and communities. And we're now well past that moment today. Today, the single mindedness comes out of, say, the Montgomery County School board. There's absolutely no patience for families to again, opt out of these things. And I don't want to give short shrift to the fact that, you know, opt outs on a large scale could be very disruptive to schools. But the schools ought to learn what that lesson means, like I said, for constructing the policy. And I think, I think it's important to keep in Mind that one of the reasons why we found ourselves in these positions is because school board politics and school board policy has become nationalized. Right. That a lot of these school board members, they feel that they have a lot more in common with other school board members in other places than with about 49% of their own real world community. And that's going to continue to exacerbate the problem. Of course, the cultural fights on the other side are nationalized too. We've turned the school boards into a national political fight. I live in Loudoun County, Virginia, so I've seen this up close. And we're going to continue to see these problems go on and on. And so to that point, I think the Supreme Court's decision was pretty measured. They didn't break a whole new or they didn't break a lot of new ground. Justice Sotomayor thinks and says in her dissent that actually the court is overreading these old precedents. I don't think that's right. And I think what the Court has done here is say those old rules still apply notwithstanding these significantly shifted political coalitions.
- [61:19]
Adam White
Well, I just issue, Can I just issue a self correction? Because I just looked something up. There are four justices over seven who are, who are in their 70s. In addition to Alito and Thomas. Justice Sotomayor is 71. And this makes me feel old. Chief justice Roberts turned 70 this year.
- [61:36]
John Podhoretz
Wow.
- [61:37]
Adam White
Yeah.
- [61:38]
John Podhoretz
Okay. So let me ask you a different question because it doesn't go to this case, but it goes to the. A larger case that Seth is a homeschooler. I sent my kids to private school. Matt sends his kids to a Jewish day school. I send one of my kids to a Jewish day school. The others have graduated from private schools. So the opt out is on religious grounds in Mahmoud vs. Taylor. But I don't think this is going to end here. And this may not be something that the court can decide, but somebody goes to a school board or goes and says, I don't want you teaching this global warming curriculum to my kids. I don't believe, I do not believe in the ideological framework that you were creating here. Not religious, but it's like you do not have the right to propagandize my children through a curriculum. Teach them reading, teach them literature, teach them history, teach them science, you know, teach them math. Keep your politics out of it. What right is there any way in which the rights that have been adduced in this history of precedent that you're laying out would empower parents to try that? Because I guess it's not really ever been a thing. It is going to be a thing now. The way you're supposed to do that is through school board elections, right? You, in theory, the way you deal with the political effect of curricula and how schools are run is you vote for a school board member, you vote for a school board that will govern or, you know, oversee the curriculum so that it doesn't do what you don't want it to do. But this is my question, is there a legal framework that is being established for people to say stop teaching my kids that America is evil or don't teach the 1619 project or something like that? Or is that not indicated here?
- [63:45]
Seth Mandel
It's not in the case today. And if anything, the most recent decision takes that first case in the chain, the 1925 case, Pierce versus Society Sisters, which was not explicitly a religious liberty case. It was a Lochner era case from the days before the court was applying the religious the First Amendment directly to the states. And the court reads it as a religious liberty case. So this most recent case, Mahmoud vs. Taylor, is a religious liberty case. The challenge, though, the problem, the danger, I think, is that we've seen time and time again a risk that these other sort of liberty interests that we have that aren't spelled out explicitly in the Constitution are not precisely in the Constitution. There's always an impetus to try to reframe those kind of liberty arguments as religious liberty arguments to try to jam more and more policy disputes into religious liberty lawsuits, which I think is a, is, is a, you know, I'm all in favor of liberty, but it's a, it's a danger to religious liberty. And it's, I think you're right that inevitably we'll see people try to reframe other fights as religious liberty fights. Justice Sotomayor in her dissent, I think she says at one point schools won't be able to teach robotics or other things because parents might opt out. I don't actually know what that means, where she's getting that from. But, but other things like climate change or something, sure, some parent somewhere is going to try to make a religious liberty fight out of it. I don't know how that would work. I think the court's opinion is narrow and even keeled enough to not open the door to that. But somebody I think will eventually try to push the door open. And I'll be very interested to see how a lot of the religious liberty litigation groups approach that kind of demand.
- [65:32]
John Podhoretz
Also on the, and also they, I.
- [65:33]
Matt Continetti
Mean, the Schools sort of tied their own hands in a way here too in this particular case because some of the schools had been offering the opt. Opt outs and stopped offering the opt outs when everybody wanted the.
- [65:45]
John Podhoretz
Yeah, right.
- [65:45]
Matt Continetti
Which was like Adam, that was your point about, you know, the schools learning a lesson. If everybody wants to opt out of this, then maybe they should rethink the lesson. But they had offered the opt outs in the spirit of being very clear that they didn't consider this stuff to be integral to their, the children's education. They were like, this isn't really a big deal deal and therefore we're going to let people opt out and you don't. They don't need to read Randy the Rainbow Unicorn or whatever it is. The school itself was arguing against the importance of these things, of these books and stuff. And so I do wonder what's going to happen in cases where schools really have not themselves beforehand by basically, you know, it's very hard to say we can't offer an opt out if you've already offered an opt out on that thing. I wonder what will happen on things that you cannot and have not yet been able to opt out of. And parents seek a new opt out of.
- [66:44]
Adam White
We've had plenty of cases involving the teaching of evolution. I mean there is another very famous trial in 1925, the Scopes trial.
- [66:51]
Seth Mandel
Yeah.
- [66:51]
Adam White
And of course the anti evolutionary thinkers have tried to reframe a lot of their critiques through the categories of intelligent design in order to include it into science curricula. I think the courts have established, I don't know this. It's a question for further study. There's a, there is a difference, I think between science education or history education and sex ed, human life education. There's clearly things involving sex ed has.
- [67:25]
Matt Continetti
Always been subject to opt outs and stuff.
- [67:27]
John Podhoretz
Correct.
- [67:27]
Adam White
That's my point. That's my point. The human life, its creation, procreation, the family, the court I think has all long understood that that is a, that is an important case. You have to like you. That's different than what you teach in your robotics class.
- [67:45]
John Podhoretz
Right. Can I, can I offer a perverse idea about how the Sotomayor dissent could be the leading edge of the future, but not in a liberal direction. There is a very peculiar passage in her dissent in which she kind of says, look, if you really don't like.
- [68:03]
Seth Mandel
It.
- [68:05]
John Podhoretz
Go homeschool or you send your kids to a private school. Which is an astounding thing for a Supreme Court justice of the United States to say. If there is going to be mandated universal free education in the United or, you know, relatively free education in the United States that is mandated by law, federal and local law, that you're then going to say, well, you know what? If you don't like it, send your, you know, send your kids to a private school. If that argument were to hold their school vouchers and school choice right there, I'm sorry, there's school vouchers, there's. That is the Supreme Court says you don't like schooling, go to a private school and you're paying tax dollars for school. It stands to reason that that equal protection under the laws guaranteed by the 14th amendment should then provide you with an equivalent education at another institution of your choosing. And there we have the total destruction of the public school system in the United States. So what about that, Adam? What about that in 2045?
- [69:10]
Matt Continetti
Yeah, Adam.
- [69:11]
John Podhoretz
Yeah.
- [69:14]
Seth Mandel
He'S pretty bad.
- [69:16]
John Podhoretz
I rendered him mute.
- [69:18]
Adam White
It is funny that our, you know, our Bronx born, wise, Latina Supreme Court justice takes the Marie Antoinette position toward people who don't believe that their kindergartners should be reading about gender identity and same sex marriage. Yeah, it's really, you know, it's really amazing.
- [69:36]
Seth Mandel
Yeah, I really just wanted to talk about nationwide injunctions.
- [69:39]
John Podhoretz
Okay, well, now can we get to nationwide? It's been very long, but let's go to the nationwide.
- [69:44]
Seth Mandel
I'll be quick. I'll be quick. So in this case, the Supreme Court holds that these district judges can't. No single district judge, a federal trial judge, can issue an injunction binding the administration nationwide. That, that's a job for the Supreme Court, but not for an individual district judge, the courts. The court's decision is rooted in Congress. The court points out that Congress creates the lower courts, it empowers the lower courts and the courts powers that ostensibly were used to give these kind of nationwide injunctions, you know, that are issued five seconds after every executive order of any consequence these days or five seconds after any new regulation, that if that power comes from anywhere, it would come from the Judiciary act of 1789. And the court says, you know, reading that statute against the backdrop of the kind of powers that judges had in that day, there's no basis for a single trial judge to be able to prevent the executive branch from enforcing a policy not just against the people that sued or against a class action that sues, but against the nation as a whole. Before I shut up, I'll just say it's a big decision. It's one or two degrees less big than you might think because the, the court points out that there are other statutes that might be used to give, to empower a trial judge to grant a nationwide remedy. And most importantly, the Administrative Procedure act, the, the big statute governing most, we'll say, consequential agency decisions. That has a phrase at the end in the, in the remedy part where it says, says a court can set aside an unlawful agency action. And so the Supreme Court in this decision says that, you know, we're here just talking about the Judiciary act of 1789. Class actions might be an option and APA lawsuits might be an option. You can't use that. You can't use the APA to sue a president. You can only use it to sue agencies. But there could still be a lot of nationwide relief. I have to admit, John, I actually thought that I didn't think the court would necessarily go this far even. I thought the case felt like a bit of a jump ball to me. I thought maybe Chief Justice Roberts would write a majority opinion, kind of mend it, don't end it, say, yeah, you can have nationwide injunctions, but only in much more limited circumstances. The court definitely went further than that. And so now we will see instead of the last 10 years of every group wanting to have their case be, you know, so and so versus Trump or so and so versus Biden, now all the case names will get very boring. They will be so and so versus the Department of Commerce or something like that. And they will sue the agencies trying to block the President. We'll see how that plays out. The most interesting to me opinion in the, in the stack was Justice Kavanaugh's concurrence for just this reason. Justice Kavanaugh, who of course worked in the executive branch and is an administrative law nerd, he's clearly given a lot of thought over the years to this relationship between the Supreme Court and the agencies, the administrative state and the trial courts. And Kavanaugh in this short opinion says, look, it's the job of the Supreme Court to give uniformity nationwide to, to, to, to regulations and to statutes. This can't just be a bunch of trial judges who are strategically chosen by litigants. This has to go to this, these have to be settled by the Supreme Court. And I'm very curious to see how Kavanaugh in the years ahead is going to grapple with, and the court as a whole will grapple with this ever faster lawmaking, this ever faster litigation. The Supreme Court was not built to be a fast acting operation, but I think Kavanaugh and the others recognize that this is just the world we live in now. And the court is going to have to find a way to manage that situation.
- [73:31]
John Podhoretz
So there are two reasons for that. Right. One is the complete is Congress's growing either incompetence or refusal to do its mandated job to create nationwide standards and interstate standards and things like that. The other question I have for you is there's been a lot of talk in the last five years, 10 years about the shadow docket, the cases that the court finds it necessary to take that they haven't said at the beginning of the year that they were going to hear because they are, you know, they're more of an emergency or something like that. It seems to me this creates enormous pressure on the court's shadow docket or because these matters aren't going to go away.
- [74:18]
Seth Mandel
Yes.
- [74:18]
John Podhoretz
Congress isn't going to be making laws anytime soon. And something like birthright citizenship, which they have punted, they're going to have to take up, they might have to take it up in July this month. Right. They gave a third, they did a 30 day pause in the administration of the, of this case, the CASA case, after which Trump's executive, as I understand it, Trump's executive order ending birthright citizenship will go into force. Are they going to let it just.
- [74:55]
Adam White
Go into force in states outside the district holding, outside the appeals circuit holding?
- [75:03]
Seth Mandel
You're exactly right, John. This is going to force, this is going to force a real long term structural change in how the court goes about its work. For better and for worse. The court has from time to time been able to fast track cases. I mean, the famous Truman era case about the war powers, the state steel seizure case, they basically heard and decided that case in a month. And the court can do that from time to time, but it's not built to do that.
- [75:25]
John Podhoretz
Well, Bush v. Gore obviously is the most. Right. That they decided in a week.
- [75:30]
Seth Mandel
So yeah, yeah. But the court isn't built to do that all the time. And little by little, really starting with the COVID cases, you had these problems flaring up before that. But really the COVID cases put this, really, that's where you saw in real time, over eight months, the justice is grappling with how to move up these cases, do them more quickly. And we're going to see more and more of that, a function, just a structural change in how the court goes about its work. But there's another big tectonic change that's going to happen here. And I don't think this One has been as widely noticed, really. It goes to the nature of law and executive orders that we're now accustomed to. Presidents just issuing flurries of executive orders that are the law, maybe, you know, definitely governing the administration itself and the personnel, but also, you know, purporting to change our rights to change, in this case, birthright citizenship. I actually, I'm still pondering this, but I think this decision might be the first in a chain of decisions that shifts the culture of executive orders. Right. If we're going to have a slower pace of litigation and we're going to have more litigation channeled into litigation against the agencies implementing the executive orders, I think there's going to be a bit more breathing room around executive orders. I think more and more you'll see people say, well, that's the executive order, but we don't actually know what the law is until the agencies implement it and the courts weigh in. Right. We have these pitched fights now over what the law is because the executive order was issued and the district judge issued his decision the next day. That's going to change now. And I think, I think, I'm sure the Trump administration thinks it has a big win, and it does have a big win in this case right now at a tactical level. But I think what we're seeing or what we will see is a shift around how we understand the significance of these executive orders. And I think that's going to play out over the next few years in a way that energetic presidents won't necessarily like. Then again, president the ones most responsible for cheapening executive orders anyway, with these sort of rhetorical press releases, release executive orders of the last two administrations so that the ground's already been sown for that a bit already.
- [77:40]
John Podhoretz
Yeah.
- [77:40]
Unnamed Speaker
I was just going to say couple that with the fact that we will never have a president of either party again who doesn't come in issuing a flurry of executive orders.
- [77:51]
John Podhoretz
Well, you could have one, you know, a successor administration that doesn't feel the need to do that much because they will be digesting the, you know, if the Vance administration follows the Trump administration, the need to write executive orders won't be many reversals. Right. There won't. You won't have to reverse the old executive orders with new executive orders and then write them on top. But it is the case. But you're right, I mean, you're right that Vance would want to write executive orders himself. You know, there'll be no inhibition. He will issue an executive order reintegrating Ukraine into the Russian empire. There you go.
- [78:29]
Seth Mandel
Well, and, and what we've seen the last few administrations with this sort of regime change flavor where each, each administration comes in with a tidal wave of executive orders may, I think it will just end up kind of reflecting Congress. Congress passes like, one major bill a year, this big omnibus thing that's, you know, it passes small bills, but basically one big bill. Each new administration will come in with its omnibus executive order that just says the previous administration has ceased to exist, and everything it's done is, you know, anything that, that it's left for us is now null and void. And that's, that's how this will be.
- [79:05]
Adam White
But I don't, I don't think we should overread this. I think we're in for three and a half years of Trump's by, you know, semi weekly executive order sessions because he loves them and it's good television and it's the visual of him being the strong leader that he wants to be.
- [79:23]
John Podhoretz
I do want to point out that the concluding paragraph of my first book, Hell of a Ride, which is about the first Bush administration and its failure and collapse, it concludes with Bill Clinton, with a stroke of his pen, eliminating and ending all Bush executive orders. So that was, that was 30. That was 33 years, 32 years ago. So it's not as though this is anything new, that you just wipe away the executive orders. But of course, Bush wrote hundreds fewer. There were hundreds fewer executive orders that came out of the Bush White House than are coming out of these White Houses now. Anyway, Adam White kept you too long because it's time for you to go frolic in the north woods with the deer and the bear and, and, and go, you know, go do all the wonderful things that northern Wisconsin has to offer. We will be back tomorrow. So for Matt, Seth and Abe, I'm John Pod Horrors. Keep the calendar.