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A
Hope for the best, expect the worst. Some drinks and pain Some die at first no way of knowing which way it's going. Hope for the best, expect the worst,
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hope for the best.
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A
Welcome to the Commentary magazine daily podcast. Today is Tuesday, June 30, 2026. I'm John Pothorz, the editor of Commentary magazine. With me, as always, editor Abe Greenwald. Hi, Abe.
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C
Hi, John.
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A
Senior editor Seth Mandel. Hi, Seth.
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D
Hi, John.
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A
Washington Free Beacon editor Eliana Johnson. Hi, Eliana.
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E
Hi, John.
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A
And joining us today, as ever, whenever we have momentous Supreme Court decisions and at other on other occasions, AEI's Adam White. Hi, Adam. From the north woods of Wisconsin. Therefore, if you're watching on video, you will see Adam is on an iPhone which he is holding somewhere near his face, uncomfortably. But he needs to be here to help us. Hi, Adam.
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B
John, I was gonna say this is my undisclosed location, but you just disclosed it.
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A
Well, northwestern Wisconsin is a very, very, very I'm gonna be there next week, so I'm now revealing my undisclosed location.
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B
Good to be here, John.
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A
Yeah. Okay. Adam. Momentous day at the Supreme Court. Three major decisions or maybe four. Okay, so just to go with the headline, headline is that the administration's effort to enact an executive order overturning the principle or the policy of birthright citizenship has been rejected by the court in a very interesting ideological pattern, you might call it. The center left court has ruled that birthright citizenship should stand and and that the three so that means that of the conservatives, Barrett has agreed with the decision that I don't think we've been able to read yet. And Kavanaugh has agreed with the finding, but seems to have problems with the logic of the decision and for different reasons. Thomas Alito and who am I? Gorsuch dissent.
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B
That's right, John, and I'm just beginning to make my way through the opinion, like everybody is. But I think your first point is an important one. What we've seen both today and yesterday is not just the usual six, three ideological splits. We've seen some very interesting coalitions of justices around yesterday's executive power cases on the Fed and the ftc. An interesting decision this morning, alignment of justices on transgender in sports. And now this birthright citizenship decision. I think, and this is one of the main themes of this year, I think it really puts the lie to this assertion that the Roberts court is a strictly ideological court or that the Roberts court is just waving through or maybe say saluting whatever President Trump sends up the flagpole. The this the last Two days really put an end to that sketch of the court.
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A
I mean, so much so that we had all of this insta opinion on the right really relating to the decision on keeping the Fed apart from the giving the Fed essentially kind of special status that Amy Coney Barrett is a communist poking her nose in the tent, and Mitch McConnell told Trump he had to pick Barrett, and now we have Barrett, and Barrett's just been sitting, lying in wait to keep the deep state installed in its place, never to be shaken loose from the tree. So there has been this kind of impassioned, dare I say, psychotic reaction to. To a Jewish prudential decision that maybe is, Adam, you are more favorably disposed to it than a lot of people on the right are. The Fed decision. But nonetheless, it's within the realm of the discussable, since, of course, the Supreme Court has, in fact done it. And yet we have friends and people who are less friendly to us on the right going absolutely bananas.
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B
Absolutely. John, do you want me to just jump in right with the FTC and Fed case before we move on to birthright citizenship?
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A
Sure, why not? Let's do two minutes and then we'll move on.
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B
All right. So yesterday, the Supreme Court declared that the Federal Trade Commission's independence is unconstitutional. Congress gave the FTC commissioners a little bit of independence about a century ago, saying that they could be removed only for cause before their term expires. The Supreme Court upheld that independence unanimously in a famous or infamous case called Humphrey's executor about 90 years ago. For the last 17 years, the Supreme Court has slowly been chipping away at that doctrine, raising significant doubts about it, and then finally yesterday, overturning Humphrey's Executor. If this were a movie scene, John, it would be the scene in Austin Powers where the steamroller is coming at the baddie, and he's coming from about.
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A
At one mile an hour.
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B
Yeah, one mile an hour from 50 yards away. And the baddie keeps shrieking and shrieking. And then finally, the steamroller rolls it over. The baddie was Humphrey's executor, and the steamroller was Chief Justice John Roberts. And the Supreme Court, this has been telegraphed for years. Nobody could be plausibly surprised by it. And for what it's worth, nobody can be surprised by the outcome of the decision. Also yesterday regarding the Federal Reserve, where Chief Justice Roberts, writing for a different coalition of justices, declares that the Federal Reserve stands on different constitutional footing, that it can have a measure of independence, and that President Trump does have to try to comply with the statutes limiting his power to remove Fed. Governor Lisa Cook. The outcome isn't a surprise. The court's reasoning, which we can get into later if you want to, is not a surprise either. The court has been telegraphing it, and I will say it is a reasoning that I personally have agreed with for a very long time. But I'd say it's raised no shortages of doubts and criticism on both the right and the left, proving that John Roberts is still a master of bringing people together, even when they're bringing people together to criticize him.
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A
Okay, so that was a wonderful summary. So let's get to the meat. And maybe before we started, I made an impassioned defense of birthright citizenship, saying I believe that it is a core principle of what America and Americanism is. And Abe said he just didn't feel that passionately about it. Either way, my feelings about this are not only, I think, within the realm of the discussion of the Constitution or precedent or 160 years of precedent, but they are emotionally driven. As a, you know, as a, as a somebody who believes that I owe my life to the fact that America let in people from out of America and allowed my grandparents to become citizens and my parents, you know, my parents to be citizens, and that I'm here today and that I have a special, therefore, obligation in some ways not to pull the ladder up from behind me when it comes to people who are from other places other than Eastern Europe and want to make a place in the United States.
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C
I agree with everything you just said. I am a, a staunch defender and champion of legal immigration. It's just birthright citizenship never struck me as any sort of foundational aspect of that in my thinking. But I especially agree with you in that you didn't say this exactly, but this is how I feel. I don't think we should go mucking about with the Constitution and foundational documents in response to problems that we now have that we have to solve with other policies. And so that is especially why I definitely fall on the side of yes, it's a good.
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A
So I think this is an interesting point. Then, Adam, maybe you can talk about the constitutionality issue. But obviously, for example, if a policy is enacted by Congress and agreed to by the President, signed into law by the President, that says there shall be no more immigration into the United States for a period of 10 years, or sort of like the act in 1924 that severely restricted immigration, that would, of course, fall within the bounds of proper Republican democratic process where Congress passes laws the executive affirms the law, and we have a policy in place that would therefore have the net effect of ending the existence of people coming in from outside the country and having babies. And those babies, being American citizens, you just don't let anybody in and then they won't have babies here. And that solves the problem, if you think it's a problem, which I don't. But that is how you do it according to our system. And then there's, of course, the issue of precedent, which is that the precedent of this has existed for 160 years. Now, maybe precedents need to be overturned. Obviously, Plessy versus Ferguson needed to be overturned. Precedents aren't magic. And they're not, you know, they don't they're not holy writ. They're sort of the opposite of holy writ. They're sort of more like encrustings or barnacles or something like that. But so Adam, let's get to the so I don't. You certainly have not had time to get into the ins and outs of this. But generally speaking, constitutionally, where do you, where do you come down on this and on where this has come down?
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B
Well, I come down on it personally, where the Supreme Court came down on it this morning. Now, I've now spent three minutes giving the opinion, and that makes me an expert. And so let me tell you all about it. As I understand it, the Court's decision basically accords with, with my own, you know, amateur sense of the situation, which is that the 14th Amendment citizenship clause, which says that all persons, all persons born in the United States are naturalized and subject to the nation's jurisdiction are citizens. I always understood that to be simply a repudiation of Dred Scott, the pre Civil War case in which, of course, the Supreme Court said that not all blacks can be citizens. I always took the 14th Amendment's first section to be a pretty straightforward renunciation and announcement of birthright citizenship, except in rare cases where, say, it's a diplomat, a child of a diplomat who in the US or child of an occupying force and so on. I've just always sort of assumed, and I think I've been convinced over time that that is the right way to view things. Now, I will note that Justices Thomas Gorsuch and Alito dissented in this case. I don't know the grounds yet. I'll need another three minutes of skimming to get to that. But I will say they are smart judges who I respect enormously. So I'm very interested in reading their take on it. But just skimming the Supreme Court decision, the Court basically held that the 14th Amendment was a direct response in this respect to Dred Scott, and that its broad announcement of birthright citizenship means what it says with that limited exception of people who are here but are not literally subject to the jurisdiction of the US and then to your latter point, John, the Supreme Court said that the Wong Kim Ark case From now, what 140 years ago is, is it reflects and embodies that principle and shouldn't be disturbed. John, can I just say one more thing about this? I just want to add very much in the commentary spirit of it's worse than that. I thought that the arguments against birthright citizenship were even worse than you made it sound in the sense that I understand the policy argument that birthright citizenship attracts all kinds of birth tourism and other kinds of incentives for people to come to the US with no intention of being real citizens in a meaningful sense. They just want their kids to have the benefit and also for them thereby to have the benefit of the child. Being an American citizen, I totally understand that, and that's an enormous problem. What really grinds my gears about that is to sort of make that argument against constitutional birthright citizenship is very literally to punish a child for the acts or omissions of the parents. And that always struck me as fundamentally unrepublican in the small R sense. I think it's that aspect that the recent arguments against birthright citizenship were aimed not really at the children who are citizens, but rather at their parents to punish them for the things that they did wrong. I find really, really a deep strike against the Republican spirit of the 14th Amendment. So I'm glad the Supreme Court ruled the way it did. I'm curious to read the dissents.
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A
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E
Well, I read this executive order actually as part and parcel of the Trump administration's efforts to curtail illegal immigration, not legal immigration, because, in fact, children born to legal immigrants would have birthright citizenship. If you are born to an American citizen who's a legal immigrant, you would have birthright citizenship. There's some gradations in that. But. But the real curtailment would be to the large numbers of people who are illegally immigrating the birth tourism class to have their babies in this country. And I think the Trump administration has demonstrated that there are other incredibly effective ways to curtail Illeg immigration and in fact, to totally close the border. So I think actually the EO was not popular. I don't think if you had polled this, it would have been hugely popular. But the Trump administration's immigration policies and the closing of the border were popular. It was the overreach on that, where you had violence breaking out from ICE officers in some urban areas, that made it become unpopular. And it is the Democrats immigration policies that are hugely unpopular with the American citizens. So I still think the Republican Party has the better part of the immigration problem, because what Americans see is a problem of assimilation all over the country. That remains an enormous problem. And it's something that. And by the way, all of the one thing we haven't talked about about these DSA candidates is they're part and parcel of that problem. Many of them are the children of immigrants. They are actively against any kind of cultural assimilation. They themselves are not culturally assimilated in a different sort of way. So I still think the Republican Party has the better of the immigration argument. This Supreme Court lost for the president notwithstanding.
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A
I think that's a very important. I think that's a very good and very reasonable way to look at this. I think that extending the argument to where Adam went, which is, what do the babies have to do with this? Now we can say, okay, well, it's chain migration. They're trying to create a condition under which they're allowed to come here and be here and they don't have any right to be here. But once the baby is legally here, what are you going to do? Make them go away and the baby stay here? So we clean it up by making sure that the baby doesn't get citizenship. So it's an understandable thing that Republicans Emotionally will still be able to say to their voters and to general American voters, you know, people are playing games with what it means to be an American citizen. And being an American citizen is a glorious heritage that we have. And it is a privilege, not a right. Except, and that's, I think where Adam gets is a privilege, not a right, except for the newborn, because the newborn not having had any role or place or factor in where the newborn was in fact delivered onto soil. We accept the contention, as the 14th Amendment says, that if that person was born on American soil, that person is an American. That was the way to deal with slave to former, formerly enslaved people or enslaved people that they had, that they, having been born in this country, were as equal as citizens as everybody else. I think in 2026. Go ahead, Emily.
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E
I'm sorry, I was just gonna say another way to deal with this problem would be for Congress to act. I know that's a ridiculous thing to say, right? Because what we see is illegal immigrants having children here. So that when those children gain citizenship, when they're adult, they can then gain citizenship for their illegal immigrant parents.
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A
Okay, got a pause. Gotta, gotta break in with breaking news. Breaking news. Samuel Alito has announced his retirement. Whoa. Samuel Alito has announced his retirement. Producer no on Bloom tells me. So we could have a big highfalutin conversation here about the, about the trans case and all of that and maybe we will in about 15 minutes, but holy crap.
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F
Whoa.
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B
Well, it's a fast breaking situation because NPR announced his retirement and I had heard rumors in the last couple of days that this was a possibility. But then according to our friends at SCOTUS blog, Nina totenbergpress said that this was posted in error and the press office says, but that's just as of a couple minutes ago. So I do not know what the situation is right now with Justice Alito and I like everybody else.
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A
Okay, so maybe now we'll go back to being high falutin and we'll wait to see who was right maybe 10 or 15 minutes from now. But the birthright citizenship case, I do think restricts the ambitions of the wing of the party that was hoping that it could extend the idea that America is a blood and soil country. And interesting here on the verge of our 250th anniversary of the signing of the declaration that it is a blood and soil country like every other country, that most other countries on earth where you are an American by dint of the fact that your ancestors were born here and that you're rooted in the soil, which is a completely different understanding of American citizenship from the one that I was raised to believe in and that I actually do think is. I think it is wrong. It is a wrong understanding. America is a country born out of an idea, not out of a geography the way other countries were born out of a geography, and therefore has a different root to what its citizenry is and should be.
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F
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- [26:07]
G
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A
Okay, should we talk about the trans case or do we want to talk
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E
to go nakedly, John, I actually thought the trans case and we can drop it after I after I say this, but I actually thought the interesting political implications might come out of the trans case where there were three partial concurrences from the liberal justices. And I wonder what impact that will have on Democratic politics more than the immigration case will have on Republican politics. Because when you have Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor. Sonia Sotomayor moving, you know, arguing that you can say girls, sports are for biological girls, women, that's a big deal. And I do wonder what kind of message that's gonna send to Democrats and the DSA and the Seth Moultons of the world who the day after the 2024 election were saying, hey, we've gone too far, but now are singing a totally different tune. And of course, the day after the November elections, we will the 2028 election will get underway.
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B
Well, that's a very look, I mean
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D
the truth is that they're both. Those are. That's what the rulings have in common, which is they're both rulings that it's better for the party, the parties to have these. It's an opportunity for the parties to have these rulings and move on. Right. It's a. It is an opportunity for Republicans to stop fighting over birthright citizenship and move on. And the, The. And the trans decision is an opportunity for Democrats to stop fighting about this particular issue and move on. Especially because they've not. It's. They. They don't hold the popular hand in this in terms of. Of, you know, what's. What's gotten approval from the public.
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E
But PR has retracted its story.
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B
Okay.
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A
That's the Alito story. So fun. You know, Nina Totenberg, one of the worst ideologically driven reporters in, you know, literally since I got. I first was in Washington in 1984. She was standing there like a colossus covering the Supreme Court in the most biased, rotten way possible for, like 40 some odd years. And here she is, like, with the scoop of a lifetime that isn't a scoop. And I'm glad to see her humiliated. Anyway.
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D
Yeah, No, I just think that in
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E
the spirit of charity, I'm so.
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A
I have no charity in my heart for Nina Totenberg anyway. Please, Seth, I'm just gonna say that
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D
the other side of the coin, though, is that the parties tend not to take really beautifully engraved invitations to stop cannibalizing themselves and move on and unite themselves.
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A
Can I ask Abe this, because. So Abe wrote a masterpiece of a newsletter yesterday about the Scott Wiener video, the one where we saw the candidate for Congress, the gay leftist candidate for Congress, walking through, running to see Nancy Pelosi, Nancy Pelosi's seat, walking through the trans march in San Francisco and getting screamed at and abased and sort of told that he wasn't queer because he was insufficiently angry about Gaza and that he hadn't condemned the Israeli genocide in Gaza enough, even though, in fact, six months ago he condemned the Israeli genocide in Gaza. Which means that this. Seth, you're saying this is a real opportunity for Democrats to get themselves the hell away from this toxic issue that rational people know. It's not fair for a 64 male to be swimming in a pool next to a 56 girl because they can't compete on equal literal genetic body footing. And this is something that comes strikes 90% of people as total common sense. But those people, that guy, Dimitri, whatever his name is, who made that tape, and the people at the trans march and everybody in the LGBTQ world that thinks that this is necessary, they're just getting more radical, not less.
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C
Yeah, and I think we're gonna see them explode in some sort of demonstration and Then the question is, who comes to their side? Who continues to mainstream their case among the Democrats? And look, Supreme Court or no Supreme Court, everything we've seen indicates that the establishment Democrats are scared to death of these activist contingents.
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A
I mean, I think it cuts two ways, one of which is you're like a politician who wants to occupy some version of the center in a district that is not radical. And you know that people, if they're pushed, will think this is crazy. You know, like having boys who are, you know, boys biolog, born males participating on equal footing with born females in a pool. But you know what, there's a whole lot of money and we can now get to campaign finance. There's a whole lot of money being thrown by a whole lot of organizations, multi billion dollar grant givers from Mackenzie Scott to the Soros family to Chinese billionaire Neville Roy Singman to I don't know who else, all of whom I think reward people for taking these radical positions. So it cuts both ways. The public doesn't like it. But if you need a lot of money fast, you might in fact benefit from being pretty aggressive on trans, because Mackenzie Scott might, you know, somehow figure out how to give you a lot of dough.
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D
There's one other point that militates against any sort of moderation here, which is that in the, the reason that Supreme Court decisions once upon a time were opportunities to, for parties to move past things is because they could throw up their hands and party leaders could say there's no more I can do. The Supreme Court has ruled and we just move on. But the left is animated these days about not taking, not allowing that to be the end of the conversation and instead turning it into a conversation about reforming the court. So fine, the court said this, then let's pack the court, then let's, you know, the, let's, let's pass legislation that does this, that and the other thing to the court and change the court and, and all that stuff. And so that's the other thing that militates against modern is that the Democratic leaders want to be able to say what do you want me to do? The Supreme Court ruled there's nothing I can do as a legislator right now. And the base is saying, well, we have a few ideas actually. And so there is a never ending quality to it.
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A
I brought up the, I brought up the campaign, I brought up a lot of money, a lot of Democratic money. There's also obviously a huge amount of Republican money. But 20, 30 years ago, all Democrats were panicked about how much more money Republicans had than Democrats and were very eager to pass all kinds of limits on campaign finance in order to make sure that Republicans didn't have an unfair advantage. We just had a ruling that says that effectively, maybe an epochal one, because it may revert the power of politics in the United States to the parties rather than to these outside forces, that in this campaign finance decision, the killer quote is limits on political parties, coordinated expenditures violate the First Amendment. That means that I believe, unless I'm misreading it, that yes, a political party can get together with outside fundraisers and people who want to give it money, and they can come up with a unified strategy on how to spend that money to get candidates elected. And that it is eminent common sense, given that we believe in free political speech, that this is that any effort to do what was done here violated the First Amendment. But we were in an atmosphere when all of these rules were passed and when a certain Supreme Court decision was, was, was heard in 2001 or was delivered in 2001, where this was like a hot button, hot potato issue. And if I'm not mistaken, the big dissent in that decision 25 years ago was by Clarence Thomas, who said, you can't say that a political party is not allowed in a negative way, by the way, often to say to tell an independent expenditure group, cut it out, you're ruining our strategy, or if you're going to spend money, spend it on this so we can spend it on that. That the Court upheld that or said that should be the principle, and Thomas dissented. And like the slow rolling Austin Powers steamroller, has been waiting. He's the only justice still on the Supreme Court from the time of that decision. And here he is 25 years later, and his view has now prevailed at the Court, which must be kind of sweet for a guy like him.
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B
You know, I know Justice Thomas had a few dissents in the last couple days, and by the way, the birthright citizenship dissents are well worth reading. But he must be feeling pretty good. He must be feeling pretty good that he is now the second longest standing justice in the history of the Supreme Court. My guess is he will stay there until he breaks the record as a big. A big Valentine's note to everybody, including Nina Totenberg, who tried to stop him from joining the Court in the first place. You know, John, on campaign finance and these questions about coordination, a lot of this goes back to the 1970s and that first campaign finance case, Buckley v. Vallejo. The Court tried to have it both ways. They tried to uphold campaign finance restrictions as simply restrictions on money, while recognizing that, at least in the case of candidates themselves. Right. It's pretty obviously a limit on free speech. And ever since then, little by little, the court has come to grips with the fact that, yes, this actually is about free speech. And little by little, they've taken down more and more of the campaign finance restrictions on free speech grounds. Right. How much can a truly independent PAC spend? How much can a corporation spend? Over and over again, the court has peeled these things back. And each, every time you peel away a layer, the next layer to come seems increasingly fragile on free speech grounds. I think that this is a very important case, but I do think it is just the next step on much broader constitutional condemnation of restrictions on campaign spending for speech.
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A
I mean, I haven't read the opinion
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B
yet, but it sounds interesting.
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A
All of this started because of Watergate. All of this started because of Watergate and the idea that the Committee to Reelect the president, Nixon's 1972 sort of fundraising arm had been found guilty of various nefarious practices, number none of which I can properly remember. And it was at that point that we started getting severe restrictions on campaign finance that were almost immediately overturned by the Supreme Court. But we have all these rules and principles that have sort of stuck in little bits and pieces in places, how much money an individual is allowed to give in what we call hard money to a political campaign. In other words, the weirdest thing is that because of the right of free speech, if I had $2 billion, I can spend my money any way I want to in politics because it's free speech. But if Adam is running for office and I want him to become
- [39:56]
E
a
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A
congressman, I can give him $5,200 and that's it. I can give him $5,200 for his primary. I can give him $5200. That number may have grown, whatever, but I can't give him a million dollars. I can't give him $2 million. I can't give him $5 million because then, you know, we're being. Then Elon Musk will control everything and rich people will have. Will have their way and their right. The net result. And I can't give parties unlimited amounts of money either. Those have to be outside. And none of this made any sense and has had this unbelievably destructive effect on American politics. Whereas we've been talking about why is it that the DSA is able to take over the Democratic Party? It's because there is no Democratic Party and there's no Democratic party because for 25 years we have been making it or things have happened that have inadvertently strengthened centripetal forces that have spun politics out of the control of politicians and into the hands of rich people, whereas this was all supposed to be the opposite. So it's a very big. I don't know where this goes or how it's gonna, but believe me, we're gonna be in a very different world in November 2026 than we thought we were going to be after this decision. How what happens now with spending on this election, let alone 2028. I mean, we are now going to see massive alterations in how this is all done in ways that may hopefully bring sanity back to politics and allow ordinant political professionals to practice politics and not simply sort of like be the handmaidens of whatever rich person they can get. Give them a hand. Does that conform with.
- [42:05]
D
Yeah. We should also note that reporting that the RNC has over 100 million cash on hand and the DNC will need $3 million to make it to zero. Cash on hand when you take out debt and all the other things. So one talking point you may hear in the wake of this is all a Republican appointed Supreme Court just, you know, opened the door and gave the green light to the party with $100 million advantage over the other party or something like that in terms of cash on hand. But I'm not saying that that's a legitimate objection. I'm just saying we may just hear that.
- [42:48]
A
Yeah, but you literally, again, unless I'm totally misunderstanding what the decision will lead to, this gives the Democratic Party the ability very quickly to fill its coffers up to $100 billion if its coffers are empty. The coffers are empty in part because there doesn't seem to be any reason to give the DNC money because it doesn't know how to spend it and it's got a crappy, you know, no one even knows who the DNC chairman is and why would we give them money when we can.
- [43:22]
D
And he prefers it that way, by the way.
- [43:24]
E
I'm not sure that's right, John. I mean, the DNC is not raising money because they have a crummy brand and a crummy chairman who's bad at fundraising. That's why they're trailing the rnc. So I'm not sure Ken Martin now, because of the Supreme Court decision, can go out and just quickly raise $100 million because.
- [43:45]
A
No, but. No but Ken Martin. No, but ken Martin can be 86 and some major American political professional will want that job, get that job and know how to do that job. It became a crapola job because it's the out of power party that can't do anything with that money if it's now in a position where that money could really be spent in a way to favor certain types of things and disfavor others and help certain candidates and not help others and all of that.
- [44:17]
E
Absolutely true. And we've seen essentially the outsourcing of political professionals to super PACs where people can give money in unlimited sum. And then this surreptitious because the rules, the federal rules dictate that candidates and campaigns cannot talk to their super PACs. So we've seen this surreptitious, tacit communication between campaigns and super PACs where candidates will post on their campaign websites, you know, on about the candidate pages, directions for what they want their super PACs to say. We saw James Tallarico just did this. You should broadcast in the Austin and Houston media markets, people should know that James Talarico is a moderate, this, that and the other. And they give the exact messages that they want the super pacs to broadcast because they don't have the money to put the ads on. I will say the rules that continue to favor candidates, and this is getting really in the weeds of campaigns, are that the television companies, the broadcast companies are required to offer because the rnc, the dnc, the campaigns have less money, what is known as the lowest unit rate advertising rate to candidates, and Super PACs are disfavored under that. And so it will be interesting to see at some point if that changes, because that's a similar setup to, you know, what the court just ruled against here.
- [46:04]
A
So that's a fascinating twist because this is what local television remaining in the United States lives on every two years. It lives on independent expenditure money. That is not. That's the ads that don't say, I'm James Talarico and I approve this message. It's the ad that says, tell your congressman not to blah, blah, blah, blah, blah. And they charge, television stations charge double.
- [46:35]
E
So the campaigns pay far less, they're required to by law than the super pacs, which can raise unlimited sums and that don't have to disclose their donors.
- [46:45]
A
Right. You know, anyway, it just has been
- [46:48]
C
wondering something slightly broader, which is that it seems over the past, I don't know, five, 10 years, the effect that money has had on elections, even as the sums grow, the effect has been sort of surprisingly Attenuated. You know, we hear about these big sums, and then we expect to see some result on Election Day. And we don't. But the effects that spending has had on causes has been amplified. You know, people, donors giving to activist networks and whatnot. And I wonder if in some way this will affect that balance.
- [47:32]
A
Now, look, one of the various stories, right? Trump, the Trump campaign spent in 2016, I believe, spent half of what the Clinton campaign spent. Trump spent less getting the nomination than Jeb and Marco and Ted Cruz. I believe it cost him less. So we therefore have an absolute case where money does not translate into victory. And that in fact, as long as you have a really powerful message, and all of this is done for free, because you get it, that money can't replace passion, enthusiasm, whatever. And then we, of course, also have these amazing cases like Tom Steyer right now in California, who spent $300 million or something insane like that and got 8% of the vote.
- [48:34]
E
Money also can't replace, okay, you'd rather have it than not have it. Okay, if you were gonna decide. But it also can't replace earned media. And that was what Trump was genius at, which was circumventing the national press, relying on them to get his message out. So he'd go give remarks at a rally, have some blockbuster rally that all the press would cover, say outrageous things. All the press covers it, you know, drive his own message. But he was, and remains genius at getting all the press to cover what he's doing, remaining at the center of the news cycle and doing things that ads can't do at the same time. In 2024, we saw that he had the most genius ads. You know, I'm for you and she's for they. Them.
- [49:30]
D
Yeah, and also they. The top line fundraising number doesn't tell you the number of donors. And so that's why campaigns pay so much attention to small dollar donors. Because if your money comes from one person, that's one voter for sure. We don't know who's bundled in that. But they. But when they have small donors, they know that, you know, a small donor, first of all, is a voter. But also, you know, they're on you. You know, you have them on mailing lists and all sorts of stuff like that. And so the number of donors matters a lot in these. In these grassroots cases as well. And the top line number doesn't necessarily tell you that.
- [50:11]
A
I mean, that is it, you know, so you do have a situation in which this decision follows through logically. Disempowers the populist. It's a way to interrupt the populist takeover of American politics, which I think we can kind of pinpoint the Howard Dean campaign in 2003 as the moment at which the harnessing of social media, before we even called to social media, the Internet, direct fundraising, where you could get someone to click on a link and then basically enter their credit card and give you money without mail, without this, without any intermediaries, and then you could raise this money really, really fast. And then moving on to where we are now. All of that seems very impressive, right? Like 50,000 low dollar donors and all of that. But, you know, if you have, and that does seem to favor people who have more extreme opinions. They have a more passionate audience, an audience that thinks that if their way isn't, they don't win, that America is gonna end or they're gonna be destroyed or something like that. Very passionate purple ideas. And that part of the reason to aggregate money into parties and to have parties make these decisions is to temper sort of what the Federalists said, you know, is to temper this quality of sort of mob mass action. Parties. They didn't like parties, but parties are another intermediating institution that can help make sure that kind of dictators don't rise up in some fashion or other. Adam all in all, overall, looking at these three decisions today, the two decisions yesterday, it just strikes me, and we've been talking about this, I guess, for the last couple of years. This is an uncommonly interesting intellectual court. I mean, people don't understand how crappy the Supreme Court was for the first 150 years of American life, how often extraordinarily unimpressive it was intellectually, how little guidance it was able to provide constitutionally and all of that. Things got better in the 20th century. But this stuff is very, very, very interesting. And these are, you know, these are often, even though they seem to be in camps and all of that, these are uncommonly interesting people looking at things in an extraordinarily serious way while we live in a political atmosphere in which it's unbelievably embarrassing how our elected officials seem to act.
- [53:16]
B
Well, I agree, John. I mean, it's remarkable reading these opinions the last few days and really throughout the last two years and watching the justices, even justices I disagree with, working really hard to make very thoughtful and historically grounded arguments for their constitutional decisions. Sometimes I think they're totally off the mark. But I agree with you. This is a, this is a very impressive court. I just, I would make three last points. The first one is, like I said at the beginning, I think the last few days really do demolish or ought to demolish this narrative of the Roberts court as simply waving through anything Trump wants to do and it constantly expanding presidential power. That's just flatly wrong. It should have been obvious to anybody really reading, actually reading what the court was doing in the shadow docket decisions last year and this year and in the final merits decisions. It was clear that the court's willingness to allow the Trump administration to carry out some policies while litigation was proceeding was not a broad approval of the merits of those policies. And I think a lot of people, especially journalists and academics on the left, who have really bent over, who really tried their hardest to demolish the Court's legitimacy, I think they really ought to take stock of what's actually in these decisions. The second point is for this current court, the real challenge is speed. It is speed. They are constantly trying to sort out how to keep up with government. Government moves faster than ever. But that's not the Court's virtue. And the Court really runs the risk if they move too quickly on things to cut the limb out from underneath themselves. Even in the Federal Reserve case, the dissents are very interesting. Not just Thomas's dissent on the constitutional question about the Fed, but really Justices Alito and Barrett and the others raising real questions about how the Court should act in the case at a very preliminary stage in the case. And so the Court continues to grapple with speed, especially Justices Alito and Kavanaugh and Chief Justice Roberts. And then the third point I'd make, I try to be high minded around here. Your comment about the 70s a little while ago got me thinking, John, as you may have heard, we have the 250th anniversary coming up in just a few days. I'll also say at AEI we've been hard at work on that. America250.aei.org Shout out for Yuval but I think 50 years after the bicentennial, it's really easy to not notice how much has changed since 1976. That really was sort of in the middle of a low ebb of serious thought about constitutional history and structure and even rights, right? The first amendments at low ebb in that era, in the 70s when they're passing all these campaign finance laws, meanwhile the Court is just conjuring up other constitutional rights that have nothing to do with the text of the Constitution. I cannot believe that it's a coincidence that the rise of originalism and an appreciation of The Founders and appreciation of the Constitution's actual words and the Declaration's actual words. It can't be a coincidence that that all came into bloom right around the time of 1976. On the new York Review of Books homepage right now, there's an old article from Gordon Wood where he declares that that bicentennial era, from 76 to 88 as the Straussian Bicentennial, because of everything that Walter Burns and Martin diamond and Herb Storing and others did to really raise the Founders ideas and public consciousness. Now Wood criticizes them for other reasons, but I think we really should appreciate with this semi quincentennial how much has changed since 1976 in our appreciation, the public's appreciation of what the Constitution actually says. And that goes to your point about the Court being better than ever. It was not better than ever in 1976. It's very different now.
- [57:15]
A
Look, I mean, people don't, don't understand. I mean, everybody understood the Court. Everybody understood then. I was in my teens and early twenties at the moment of these changes. And things were happening on the Supreme Court that were jaw dropping. Not just Roe v. Wade, which of course inaugurated half a century of American political conflict on the basis of no fixed principle. But the Supreme Court outlawed capital punishment for four years. They were just, they were spinning out of control with no sense of limit or restraint. And I'm proud to say that Commentary, which was then was not a conservative magazine in the 1970s, but that commentary published some of the first work on the runaway Supreme Court from Alexander Bickle and Bob Bork, actually on how. The Court was delegitimizing itself because it was not anchoring its decisions in anything that anybody could have purchase on, and that the commonsensical nature of law was being overthrown in favor of political conclusions that were being argued. Sort of what people accuse this Court of doing, which it's doing, the opposite of, which is, I don't like capital punishment. Let me start from there and then write an opinion, says William O. Douglas, that says that it sucks, and so therefore we shouldn't have it, even though it's mentioned as a form of discipline in the Constitution. Death penalty is in the Constitution, so how could it be unconstitutional? Even if you think it's unjust or bad or immoral, it can't be unconstitutional. So they just went nuts. And so some of this was just a kind of like institutional correction. And now it's really been almost half a century. That moment, that runaway moment from Brown through Buckley Vivaleo or something like that then starts reversing itself.
- [59:48]
B
Yeah, it's a story in three chapters. The first chapter, as you mentioned, is Bickle and others calling for some measure of judicial self restraint. And then come Scalia and Thomas and Boric and others who raise originalism and textualism as a meaningful methodological check on judicial overreach. And now we're in an era where the originalists have the majority. And I think they feel the weight of what that means in their judicial opinions having to bend over backwards to show this isn't just politics. I think it is why for better and for worse, we have these enormously long judicial opinions that take forever to be written and then read. But that all really starts in the early 70s, in the run up to 1976, and it really should be appreciated today.
- [60:38]
A
Okay, I want to conclude here by celebrating an event yesterday which was the hundredth birthday of Mel Brooks. Mel Brooks has a very deep connection to this podcast because that music that you hear at the beginning, Hope for the Best, Expect the Worst, is the song that he wrote that appears in the title sequence of his second movie. The 12 Chairs is probably his least known movie and his most unusual movie in his ouvre, but certainly a brilliant song that reflects, crystallizes what I would call the mid century American Jewish comic idea about how the world works, which is you should never think that anything is gonna go your way and when you do, you're gonna have the rug pulled out from under you. Mel Brooks, born in Brooklyn in 1926, amazing life story. Was a Tumler in the Catskills at the age of 14. Ends up defusing minds in the battle of the Bulge. Unbelievably dangerous job. Comes back after the war and becomes one of the youngest writers, comedy writers in America. And from there spends 18 years in the sort of trenches as a comedy writer and then creates the 2000 year old man, the most enduring comic character of the 20th century, or the most memorable single American comedy comic character of the 20th century. And then starts making his movies and you think about somebody. His parents were Yiddish speaking immigrants, his father died when he was two of tuberculosis. His mother raised him and his three brothers by herself, barely speaking English. And I know it's ridiculous to say one person stands in for the whole, but the contribution to American life that was made by the fact that Mel Brooks parents were allowed into the United States to have him on our shores and have him be this presence in our lives for, you know, basically in the world of creative endeavor from about 1948 till even the present because he's they're making a sequel to Spaceballs as we speak, in which he will play a role at the age of 100 in the role that he played in the movie 35 years. 30 years. 40. Almost 40 years ago. It's just a glorious American accomplice. America's turning 250. Mel Brooks turned 100. They're one's way more important than the other. But one is also a very creditable moment. So, Adam White, thanks for thanks for being with us. And for Abe, Eliana and Seth M. John Pot Hort's Keep the Counter.