Advisory Opinions - Did Hunter Biden Get A Sweetheart Deal...?

Episode Date: June 20, 2023

Did Hunter Biden receive a sweetheart deal from the DOJ? How are other people treated under similar circumstances? And what’s with DOJ’s timing? In this live recording among the young scholars at American Enterprise Institue, Sarah Isgur and David French ponder these questions and: -Donald Trump’s “with hunt” versus Biden investigations  -Indictments as instruments of intimidation  -David and Sarah’s favorite dessert -Mr. Smith Loses -David’s no opinion of Keetan -Interesting bankruptcy case -Fights over ice cream -Is Justice Gorsuch the greatest champion of Native American sovereignty among the Supreme Court? -Will Harvard lose? -Questions from Young Scholars Show Notes: -Advisory Opinion's live recording to be published on YouTube Wednesday (Subscribe today) -Hunter Biden reaches deal to plead guilty in tax, gun case -Madison Cawthorn Again Brought a Loaded Gun to the Airport, Officials Say -'Jersey Shore' star Mike 'The Situation' Sorrentino sentenced 8 months on tax evasion charges -Smith v United States  -Polansky v Executive Health Resources -Indian Child Welfare Act Case Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to another Advisory Opinions. I'm Sarah Isger, that's David French, and we're at the American Enterprise Institute with their Honors Program. We are surrounded by the best and brightest and slightly uncomfortably clad in suits

students from around the country. And we're going to do a little Supreme Court, a little breaking news on Hunter Biden, a little process, the who, what, why, but not the where so much of when cases happen, because where we decided was not an interesting question of how cases are decided. And then we'll take some questions. Sarah, do we want to start with Hunter? of how cases are decided. And then we'll take some questions. Sarah, do we want to start with Hunter? Because that's... Well, we need to start with one thing first.

Okay, let's start. Which is my tattoo. Oh, yes. Yes. And this actually has AEI grounding because this was a gift from Jonah Goldberg. I had said after the Twitter and Google cases that I wanted a tattoo of Justice Jackson's

opening line or the closing line of the opening paragraph, blah, blah, blah, for opinion, which states that I can now read off my arm. Other cases presenting different allegations and different records may lead to different conclusions. It's so true. And I just love it. And now I've posted it on Twitter for those to see. I'll try to throw it in the AO comments section. I don't know if that takes pictures. It might not. But yeah, I have it as a, y'all probably know the actual name. This isn't like a sleeve tap, but it's like the inside of my forearm. It's in a wonderful font. So thank you, Jonah and Jonah's team guys here

who actually probably did the labor on this one. It's bringing me so much joy. You know, and as tattoos go, as tattoos go, it's classy. Totally. It's a cool font. The font is classy. There's no misspellings at all. No regerts. It's a cool font. The font is classy. There's no misspellings at all.

No regerts. It's not in Chinese characters that may or may not mean what you're told that they mean. But look, I said this before, but the key is I need Justice Jackson. I have another one. Justice Jackson and I could do this together.

I'm sure she's lining up for that. Yeah. So for the clerks listening out there, someone pass this along to her that it looks great and that she too could get this tattooed. Yeah. Yeah, that's happening.

But it's a great segue to Hunter Biden. Yes. It is. Yes, right? Other cases presenting different allegations and different records may lead to different conclusions. Yeah, it actually is.

Good point. So we had a conclusion to the Hunter Biden long-running investigation. I think some people are misunderstanding what this is a conclusion to. This is a conclusion to his investigation on tax charges, a conclusion to his investigation around illegal firearm purchase.

Man, he's lived an exemplary life. And it is not a conclusion to any investigations surrounding potential corruption with Burisma and everything like House Oversight is talking about. Yeah, different branch of government. But I will say the problem for the House is that the people who actually bring criminal charges is not that branch of government. So they have that little issue. So three charges today unveiled, two misdemeanor tax evasion charges, one felony gun charge as purchasing a weapon by someone who is addicted to controlled substances. On the two tax evasion charges,

he's pleading guilty and getting probation. And on the felony gun possession charge, he actually is agreeing to a pre-detention. It will actually act like probation in terms of what he will be expected to do. But if you fulfill all the requirements of it, the case is dismissed. So unlike in the tax evasion charges, which will stay on his record, technically speaking,

for those who live under a rock, in theory, it won't be on his record that there was a felony gun charge. And now the question, the question everybody's asking is, is this a sweetheart deal? Is this a gift to Hunter Biden? And it's a really good question for which I don't fully know the answer to because the question isn't in the abstract, is it a sweetheart deal to not give someone criminal time, only put someone on probation for those charges, but concretely how are similarly situated people treated? So if you're a first offense, nonviolent tax felon who's paid back the tax debt, do you normally go to prison? That is something I do not have the stats on that immediately available. Or if you have lied on your purchase form for purchasing a gun, and again, all of these

are first time fences rolled into one claim or rolled into one case. Does jail time normally pertain then? And those are the questions I think that are worth asking that I don't see as many people asking, say on Twitter, not that I'm on it very much, just to be clear, but it is not the question I'm seeing a lot of people asking. But that is really the key question if you're wanting to talk about sweetheart deals. How do other people tend to be treated under similar charges? Well, there's another side to the sweetheart deal problem. Oh, yeah.

Which is, first of all, DOJ, I love y'all, but come on with the timing here. You had three years, four years, four years, five, almost five years to do something with this. And like June, really one week, two weeks later you had to, okay, fine. Um, so look, it's being compared to the Donald Trump stuff. There's one big difference. Hunter Biden was willing to talk about a plea negotiation and Donald Trump wasn't. I wish and I think it would be very politically savvy of the Department of Justice to come out and say what plea deal in theory they would be willing to talk about with Donald Trump. They're not going to do that. That would be so outside of what the Department

of Justice ever talks about publicly. But for instance, if the Department of Justice said, look, if he wanted to come to the table, we'd drop all the willful retention charges. He would plead guilty to the obstruction, false statements, lying charges, 32 through 37, and we'd offer probation on all of those. Honestly, that would be a really smart thing to do right now, in my view.

Now, you may disagree on whether they should drop the willful retention on, you know, what's what. But fine. Like, forget the details for a second. But Donald Trump would reject that. He's not pleading guilty to anything. And so in that sense, you can't really compare them. But you have folks on the right saying, and I think understandably so, here's this guy pleading to these crimes that are real crimes, tax evasion, gun possession, and getting nothing. And Donald Trump has document crimes. And I've used air quotes for those not in the room because I think that that kind of misses the point. Like lots of things are document crimes and they're pretty bad.

If I write down, go kill that person, it's a document crime. And the other dynamic is the plea deal looks like a compromise, like a concession. The indictment of Trump looks like Thor's hammer. And if you think that's an unusual thing in the American justice system, welcome to the American justice system. Because what often ends up happening is the indictments are Thor's hammer and they're designed to frighten people into plea deals.

They're designed to sort of show here is the worst case parade of horribles that can happen to you if you don't come to us and cut a deal and the deal is going to look a lot better than what you could potentially get from a jury. Now, to say that that is normal in the American criminal justice system is not to say that I don't have problems with that. We do have problems with overcharging. We do have problems with the use of indictments as instruments of intimidation

rather than the quest for justice. But it is- We got a lot of email responses when I referred to it as a trial penalty instead of a plea enhancement. Right. Yeah, and it really is the case that these things are used

and they're often used against defendants who are marginalized, who don't have resources, and they're quite scared of what can happen and will plead out to things that maybe at one end of the spectrum they didn't do or accept plea deals that truth be told were worse than they could have gotten out of this kind of fear and terror of the ultimate punishment. But that's a broader sort of macro look at the

justice system. But this dichotomy between a plea deal, which looks pretty good, and an indictment, which looks really scary, is normal in American criminal justice. We can talk about the health or not of that normality, but it is normal. There's one other thing that I wanted to mention because, well, first, it was worth noting that when I was at the Department of Justice, we charged the situation with tax evasion. Y'all may remember the situation from Jersey Shore,

the dude with the abs who was like, this is the situation. They're too young to remember that iteration of reality TV. So he got eight months in prison for tax evasion, but a lot more charges, yada, yada. Interesting nonetheless. Madison Cawthorn takes a loaded gun through TSA security, federal charge. She ends up with a $250 fine. Yeah. So we can point to lots of cases, different results. Lots of cases. Wait, are you saying different cases with different- Other cases presenting different allegations and different records may lead to different conclusions, citing Justice Jackson.

So one thing that I think gets tossed around a lot, though, is this idea that we have an independent Department of Justice. And it really bothers me because we don't. Even if you're not a huge fan of the unitary executive theory, this idea that the president is the embodiment of the executive branch and anything else in the executive branch reports derives its power only through that singular office and therefore person. You still have to acknowledge that the Department of Justice is not independent. And a good example of this that I always like to use are gun cases because you have limited resources and you're deciding where to put them. And that at the end of the day is a political decision. And so you may not think of that as being a partisan question, like an individual prosecution, but, and I'm going to make this like sort of a guns and butter analogy here, but think of it as white collar crime and gun prosecutions as our two axes like guns and butter. You can only pick one. Again, that's not technically true, but for our purposes.

And so broadly speaking, during a Republican administration, you're going to see white collar crime prosecutions go down slightly and you're going to see gun prosecutions go up slightly. During a Democratic administration, you're going to see the reverse. The gun prosecutions go down slightly and you're going to see gun prosecutions go up slightly. During a Democratic administration, you're going to see the reverse. The gun prosecutions go down and the white collar prosecutions go up. I think it is totally fine wherever you fall on which one of those should get more resources. But when you're talking about whether Hunter Biden was treated the same as Donald Trump, it's a little beside the point because I think he's getting treated the same as other gun felon possession cases during this administration. And I can have a beef with that because I think there should be more charging of gun crimes, more enforcement of the gun laws that we have, and frankly, throw the book at people who have illegal guns because they're the problem more than the people that have legally owned guns. And I'd like to see more of that.

So my beef isn't, I don't give up anything about Hunter Biden. Sorry, I just don't. But- Other than your general regard for him as a human being. Yeah. Yeah, okay. But this gun thing actually does deeply bother me.

You can't keep saying that you want more gun laws on the books and then giving pre-trial diversion to a guy who was illegally possessing a gun. And again, forget Hunter Biden. How about all the other people? Right. Yeah, and that's actually an interesting irony that they're often that gun crime prosecutions

will go down during democratic administrations that are more concerned about gun control, which is a larger political point that I think is interesting to explore. But we've got some stuff to cover before the questions. We do. Okay. So we had Supreme Court decisions

two hand down days last week and boy, were they not much to talk about. So we'll do a little speed reading here. I thought that we were going to get so many cases that they had just decided to split them into two days. You know, you don't want to release 10 opinions on a Thursday. You'll do like five and five. That's not what happened at all. I don't know why we had two opinion hand down days last week. They come out when they're ready, but they had announced those a week in advance. Like really?

You couldn't have gotten any of that done on the same day. Okay, well, here we are. So first up, and this is, we're going to do this as dessert at the end. So we're going to eat some vegetables first. Yeah, eat some vegetables, but then we do have definitely some dessert because the Indian Child Welfare Act case is interesting.

It's a delicious, What's your favorite dessert? I'm really boring. Just plain old mint chocolate chip ice cream. Oh, what? It's good. Like if it's not broke. I mean, I liked it when I was three and I like it when I'm 54. I can't believe this, David.

How has it been this long until it's come out that you not only like mint chocolate chip, but like prefer it above all else? Yeah. If it's on the menu, I'm getting it. Yeah. That's outrageous. No, no, that's. This is shocking.

It's consistency. It's consistency. Oh my God. I have so many. So I won't eat mint chocolate chip ice cream. That's just like, I won't eat it, but I won't even order. Like I love a good chocolate lava cake, but if they're like, and we put a mint drizzle on it or something, I'm like, nope, you've ruined love a good chocolate lava cake, but if they're like, and we put a mint drizzle on it or something,

I'm like, nope, you've ruined it. It's done for me now. Andy's mints are my one exception. It's like you're not even speaking English. It's so weird. Strawberry shortcake is number one, but it needs to be biscuit. None of that, like, fluffy angel food cake nonsense. I want a thick, salty biscuit with the sweet strawberry whipped cream on top.

That's probably number one when executed to perfection. If I do not trust you, that's where we get into the lava cakes and the cheesecakes. You cannot mess that up enough that I won't love it. Chocolate chip cookies. Again, that's pretty execution heavy. I'm not looking for crispy. I don't want milk chocolate in my chocolate chips. That's stupid. Oh, that's an atrocity. The only thing worse than that is when you have just casually glanced at a cookie. It appears to be chocolate. And it's raisins. Yes. It's the roaches of the dessert family. I don't even know why people do that except as torture. I don't understand. I have no... I take eating so seriously.

I have no qualms that if someone serves me an oatmeal chocolate chip cookie, you will find that all of the cookie is gone and what is left are all the raisins on... If it needs to be, frankly,

on the tablecloth, I will do that. Like, I just have no politeness when it comes to what you have served me, if you have served me raisins. So start with the raisins and move to the mint chocolate chip. Okay. They're not raisins. They're just, you know, they're tasty vegetables, like broccoli with some cheese sauce. Okay. First up, we have the Smith of the United States.

In this one, Mr. Smith loses. It's a unanimous decision from Justice Alito. This case was about when the government gets the venue wrong. And that's constitutional, right? You have to be charged in the place that the crime was committed. When the government gets the venue wrong, is it double jeopardy attached? Do they get to retry you in the proper venue? Unanimous Supreme Court said, yeah, they do. This is different than when an appellate court finds that the government didn't have sufficient evidence, for instance.

Then they can't retry you. That's the equivalent of an acquittal. But venue, no. You're going back to trial if they want to try you. Any thoughts on that one, David? I don't have a single thought about that one. I don't have thoughts. I'm saving up everything.

All your thoughts. Yes. All right. Well, this one was actually kind of interesting. This is the Polanski case. Polanski also loses, but this was a key Tam case.

And he Tam is where you, an individual, a whistleblower get to Key Tam is where you, an individual, a whistleblower, get to bring litigation on behalf of the federal government. You step into the shoes of the federal government to say that the federal government has been defrauded and I'm going to take a cut of whatever you owe to the federal government in exchange for bringing this case and taking on the litigation. exchange for bringing this case and taking on the litigation. But these cases have exploded. Why? Because the lawyers doing these cases have exploded in number, not literally, not like a whale on the beach. And so the government, this puts a lot of burden actually on the government as well,

because the defense in these cases is going to be like, great, then we want discovery and we want all the documents from the government. And the government's like, uh, I'm exhausted. This case isn't very good anyway. And the question in the case was when can the government step in, intervene in the case and dismiss the case itself? Even if you, the, the plaintiff who did all this work wants to keep going. And Justice Kagan, joined by the chief, Alito, Sotomayor, Gorsuch, Kavanaugh, Barrett, and Jackson, with, well, we'll get to their concurrence in a second. But basically eight, eight justices were like, yeah, yeah, the government does have to raise their hand to intervene. But once they've intervened, barring exceptional circumstances, and Kagan's like, and I mean exceptional,

super exceptional, dear lower courts, let me emphasize the word exceptional here several times over several paragraphs, the government can dismiss the case. You do have this little Thomas dissent. Thomas has all sorts of thoughts and dissent. On the first, Thomas is like, no, they can't. The government can't just step in and dismiss this whenever they want. These litigants have put in a lot of their own time and resources. That's not what the

statute says. But he says, also the statute's unconstitutional and there shouldn't be any such thing as key tam litigation. so he giveth with one hand and then take away and slice you several times with a machete with the other hand and here's where the kavanaugh and barrett concurrence becomes really interesting they're like we agree that the government can dismiss this with kagan however we think we agree with justice thomas that key tam litigation might be unconstitutional and other cases presenting different allegations and different records may lead to different conclusions. litigators, all sorts of stuff. The possibility that you now have three votes to basically strike down all Ketam statutes and end all Ketam lawsuits. You only need one more vote to take the case. Who will it be? And I'm looking at you, Justice Gorsuch. I'm looking at you.

I think it's entirely possible. I think it's entirely possible. But there's still a ways from getting rid of it entirely. Let me put it this way. I'm not laying awake at night wondering who's going to be the fourth vote on key Tam. So, but maybe you should be, there are people who are laying awake. I promise you that. And I'm casting zero aspersions on them. It's they're a huge, you know, they're a part of the American justice system, just not my part. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better,

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to dessert, but this is not dessert, but it's adjacent. So this is an interesting bankruptcy case, said no one ever. So the question is, the Indian tribe in this case says, look, bankruptcy laws don't apply to us. It's actually this one part of the bankruptcy law and automatic stay. And it says in the statute that it applies to foreign and domestic governments as well. And the Native American tribes like that ain't us. We're something totally different. The result of this case, Justice Jackson writing in which the Chief Justice Alito, Sotomayor, Kagan, Kavanaugh, and Barrett join. Thomas concurs. So again, 8-1 decision. And they're like, yeah, yeah, you are. We don't know which one you are,

foreign or domestic, but you're one of the two. Think of it like rain or shine, near or far, she writes. It's actually kind of a fun opinion because she tries to come up with all of the things that are meant to be like extend the waterfront of anything. Uh, and then I bet that anyone who has ever paid any attention to the Supreme court in the last five years or listens to our podcast can guess who the dissent is, or if you just listen to me list justices and notice who I didn't name, I suppose that's another way to do it.

Lone dissent, Justice Gorsuch. And he's like, no, you know what? It's more like Neapolitan ice cream. If you say neither chocolate nor vanilla, you could still have Neapolitan ice cream, which was a favorite when I was a kid, but I think I've grown out of it. I never liked it. I like banana splits though.

The vanilla part of Neapolitan was always the disappointment. Huh? Yeah. Okay. But a good strawberry ice cream though is like chef's kiss. No, that's great. But then just have strawberry. Yeah. So this is a fight over ice cream between Justice Jackson and Justice Gorsuch. But maybe more importantly than that, only maybe, Justice Gorsuch writing passionately

about the rights of Native American tribes built into our system and the duties owed by the federal government. And he says, this is the first time without a clear statement

that we've ever waived sovereign immunity for a Native American tribe. Now, Justice Jackson is like, this is a clear statement. It says foreign and domestic. That means everything in between. And he's like, eh, they could have said foreign, domestic, and any Native governments.

And they didn't. So anyway, that's the fight. It was 8-1, so Gorsuch loses. But I mean, you just aren't going to forget where Gorsuch stands on this topic in particular. It's a done deal. I mean, at this point, and we're now heading to dessert. That's right. At this point, the question is, is Justice Gorsuch the greatest champion of Native American sovereignty in the modern history of the Supreme Court, history of the Supreme Court period? Yeah, wait, why modern?

I don't mean, it's not like the history was real good before. I know, I'm just saying there might've been, there's gonna be some law professor who's an expert on this. He's gonna shove his glasses up his nose and he's like, well, actually, you know, in 1872, there was a guy who was always in dissent

and you've never heard of him. So I was just allowing for that possibility. There is the, is it Chisholm v. Georgia, the one where they do side with the Native American tribe and President Jackson says, if their opinion let them enforce it, and I've got that quote slightly wrong, and it's also possible he never said it.

But like that, at least they one time sided with the tribe. But yeah, no. No question that Justice Jackson. Gorsuch. Gorsuch. Justice Jackson was a cool dude too. President Jackson less so. Yeah, Justice Gorsuch

and his, the opinion, if you're going to read one, this dissent is fun because of the ice cream. Don't read it when you're hungry. But this next opinion is the one where you should read Justice Gorsuch's opinion in this

just for fun tonight. It is good writing. It's good history. And it will challenge what you believe on the issue. Even if you come out the same way as you did before. It's worth a read. This is the Indian Child Welfare Act case. the adoption process can only,

or sorry, first priority be given to tribal members, regardless of whether they're the same tribe, even as the child. And the stories, you know, we covered this for the oral argument. I found very difficult. They were incredibly sympathetic stories. And the first thing that you think about in any legal context when it comes to children,

I mean, if you take the bar exam, hot tip. The only thing you need to write on the child stuff is what is in the best interest of the child. Just write that over and over again and you will pass the bar. Or at least I did, barely. Highly recommend that strategy. Barely passing, I mean.

And that this was then, the parents lost. Right. So the Indian Child Welfare Act won, and it was Barrett for the court, Chief Justice Sotomayor, Kagan, Gorsuch, Kavanaugh, and Jackson. Gorsuch then has his separate concurrence, which again, I highly recommend reading. Sotomayor and Jackson joined part of that. And then Thomas and Alito filed separate dissenting opinions. I've got an album side on this. Go, go, go. Okay. So here's, so this is a really, really, really interesting case because number one, on the one hand, the top line, you would say, it is quite obvious that the parents should win, that what you have here is a racial classification. You have a rule that says that one racial group is going to have, acting through Native American

tribes, is going to have a preference on adoption. Now, if a state tried to enact this, so in, you know, full disclosure, my family is a multiracial adoptive family. Our youngest daughter is adopted from Ethiopia. If the state of Tennessee tried to come in and say, no multiracial adoption, Tennessee is going to lose. It's just going to lose. Flat out, equal protection analysis, it's going to lose. Then it wouldn't even be really a close call. So the question is, well, wait, if Tennessee cannot say that white kids should be placed with white parents and black kids should be placed with black parents, how on earth can the federal government say that Native American children, that Native American tribes have a

preference, have a claim over Native American children. Isn't that a flat out equal protection violation? And that's the sort of the guts of the Aledo-Gorsuch dissent, which comes in pretty hot. It's like equal protection, equal protection. But, okay, here comes the seven justice majority to say a couple of things. Number one, it's more complicated than when it comes to Native American tribes, because Native American tribes, not only does Congress have what's called plenary authority to regulate in the area of Native American affairs, also Native American tribes are often subject to treaty law. In other words, for decades upon, for centuries,

the United States government has entered into a series of treaties, often broken, but still has entered into a series of treaties with Native American tribes. So Native American tribes are an interesting, and we always in our podcast, if you don't listen, but you're definitely going to forever now. If you, in our podcast, we talk about a malpractice alert. In other words, when we're getting into

a really complicated area of law that we have not practiced, we go, okay, this is our best summary of it, and experts in our comment section will help fill it in. And malpractice alert, in Native American law law is really complicated. This kind of quasi-sovereign but still subject to American sovereignty arrangement that exists between Native American tribes and the United States is very, very, very complicated. So you're actually looking at something quite a bit different from somebody like Tennessee or a state like Tennessee passing this. Then let's throw the additional complexifier.

Is that a word? It is now. Okay, into the mix. And this is what Justice Gorsuch's concurrence does. He throws in the history. So the history is that, I mean, even as recently, and this is what blows my mind, as the 50s, the 60s, and the 70s, Native American kids were being systematically taken out of Native American homes. homes at scale as part of intentional efforts to almost eradicate, to wipe out the existence of

these Native American tribes in total. And so what Justice Gorsuch does is he walks through this history and says, there is a reason why Congress did this. And it was to end, to redress, to stop a prior, previously existing inv invidiously discriminatory practice, okay? So you had three basic big reasons why the Indian tribes, one here, one was plenary authority for Congress. Number two was the unique sovereign status of Native American tribes. And number three is the incredible history. Okay, now, okay,

so I wanna put this together with some stuff because we had three big, this was one of three big, what you might call race cases, this term. Case number one was Alabama redistricting in a move that surprised a lot of people. We talked about it last time. In Alabama redistricting case 5-4, Justice Thomas and, I mean, gosh,

Roberts and Kavanaugh joined with the Democratic-nominated three to strike down a new Alabama redistricting map on racial gerrymandering grounds under Section 2 of the Voting Rights Act. That surprised a lot of people. Then here you have Indian Child Welfare Act, where the court upholds again a race-conscious legislative maneuver, okay? What's hanging out there?

Harvard. Yep, affirmative action. Harvard. Two of the three turned out the other way so far. So this prediction that I'm about to give So this prediction that I'm about to give and this distinction I'm about to give might be worth nothing. But I still think Harvard loses.

And here's why. Okay, tattoo. Other cases presenting different allegations and different records may lead to different conclusions. So what are the different allegations and the different records at Harvard? So the key part of Alabama and the key part of Indian child welfare case was the history. And so what Gorsuch did and what Roberts did, Gorsuch did in his concurrence and what Roberts did in his majority opinion was painstakingly

detailed the history here. And the most important sentence in the Alabama case was something along the lines of the 115 years between the end of Reconstruction and the early 1990s, Alabama did not send a single black member of Congress to Congress. That Alabama redistricting had been so race conscious that it had essentially stripped almost 30% of the population despite being geographically compact in racially polarized and voting of representation in Congress. History mattered. Gorsuch, history mattered. Both of those things, the element that mattered

was the evidence of invidious discrimination. Oh, the history I think is going to matter in Harvard too. It's just the history goes the other way. Boom. They started using holistic, quote unquote, applications for the purpose of excluding Jewish students.

Then it turned into Asian students. So what would be the three? Always a minority, by the way. Right. It's never been used to discriminate against white students. Right. In fact, legacy admissions discriminate in the way. Right. It's never been used to discriminate against white students. Right. In fact, legacy admissions discriminate in favor of white students.

That's right. So who is the invidious discriminator here? So in Alabama, it was Alabama. Historically. Historically. Historically. In the Indian Child Welfare Act cases, historically, the invidious discriminator

was the United States government and all the state governments and every layer of American government. They were all the invidious. Who's discriminating now? Who's the invidious discriminator? Again, historically, in these cases, it's the schools themselves.

Schools themselves. Who are now trying to use the exact same policy, but to say they're doing good discrimination, but it's still discrimination. Exactly. And also the other interesting difference between, say, the Alabama case, which Alabama, the Voting Rights Act was upheld in 1966, saying that exceptional circumstances require exceptional measures. And the exceptional circumstance was that history of discrimination that required an exceptional measure. was that history of discrimination that required an exceptional measure.

The interesting thing about the university, the university affirmative action cases is they are not rooted in historical discrimination as a justification for affirmative action. They're rooted in diversity. Which legally I think is going to be incredibly important to these opinions. They're not claiming that they're undoing previous harms. They're claiming that it's important for this class

or the last class or the next class to have a diverse environment in which to educate and that it's up to the school to decide what that environment is. Exactly. And that's why they need to discriminate against people on the basis of race. And that's why they're engaging in what looks an awful lot like invidious discrimination. So the word invidious is, I keep saying that like, I'm just assuming that everyone knows what it means. It's a word that is... Ipsidixit. It's a word that is not quite, it's not a synonym for malicious, but what it essentially means is irrational discrimination. It means discrimination that malicious is a subset of it. So in other words, if I'm intentionally harming you,

I'm trying to intentionally harm you on the basis of race, that would be invidious. But it's also invidious if I'm engaging in just a purely irrational kind of discrimination on the basis of race. So it encompasses rationality, it encompasses intent and malice. And what's some of the evidence in the Harvard case? In the Harvard case, some of

the evidence indicates that they downgraded systematically the personal rating of Asian American applicants. So if they took all of the objective measures, like a test score, like a GPA, and all of that was pointing towards admission. Well, then lo and behold, suddenly it seems like as if the Asian students just don't have as good of personalities as everybody else. And what's interesting about that and the evidence that shows how invidious it was is those personal ratings were out of step with the personal ratings given to the same students by other kinds of evaluators in other contexts. And so I think Harvard loses. I was on Morning Joe yesterday and Reverend Al asked me what this means for Harvard. And I almost pulled out that quote.

I was talking about the Alabama case. And I said, if Harvard loses it, the entire responsibility for Harvard losing rests with the entity in the mirror. When it looks in the mirror, they, they did this to themselves. And I think it's, I think you're going to see a different outcome. This may age poorly, but I think you're going to see a different outcome because of the invidious discrimination coming from the school itself. So that's my album side. All right, let's take some questions and we'll try to repeat the questions after you ask them. Yeah, blue shirt. Right. So the question is, if Harvard comes out the way you think, David, will it sweep away affirmative action completely? No. Correct. It will not. So what it will do

is it will end if it comes out the way I anticipate. So what it will do is it will end if it comes out the way I anticipate. So the narrowest possible ruling would be something along the lines of, okay, you can continue to use race as a factor, but just don't be Harvard. That would be the narrowest possible rule. Harvard uses check boxes.

You actually have to check what race you are to apply. But basically under the previous ruling, under Grutter and Gratz, you can use holistic admissions that does take into account race. What they'd be saying is, Harvard isn't doing the thing that we said they could do by having the checkbox in the first place.

That is the narrowest ruling. That's the narrowest ruling. I think the more likely, slightly bigger ruling is, race-based discrimination for the purpose of fostering diversity is out. Yeah. Now that then leaves, what about race-based considerations

for purposes not related to diversity sort of as an abstract goal, but what if, and this came up, as I recall in the oral argument, what if you're looking at affirmative action for descendants of enslaved persons? Or affirmative action for people who have overcome hardship. You know, one of your essays could be, name a time that you overcame adversity.

You write that essay about how you grew up in a segregated neighborhood and faced racial discrimination. You don't light that essay on fire. It is race-based in that sense, or rather... Adversity-based, but the adversity comes from race. And that will be fine. I think that is, yeah. Class-based, I think will be fine.

So one of the things that the plaintiffs in the case did, those who are challenging the Harvard rule, did that was very, very shrewd, is they put into the evidence an enormous number of several different kinds of scenarios about how you could change the way Harvard does admissions to eliminate race as a factor and still achieve a diverse student body. So what were some of them? We'll take students who are poor students and give them the same break you give your average lacrosse player. So one of the things that a lot of people don't know in IVs is a lot of the IV athletes have a pretty substantial admissions break. So what if you took poor students and you

gave them the same advantage that athletes get? You'd have a more diverse class. Famous people's children. Legacy and famous people's children. The Dean's List kids. They don't get a break. Dean's List does not mean what you think it means. No. What if you get rid of legacy? You get a more diverse class. I mean, there's all kinds of ways. And the school had good pushback to that. A, legacy is how they create a community and build financial resources. Sure, Harvard may be fine, but what about all these other schools? And on the socioeconomic thing, I was actually pretty deeply persuaded that what you don't want is to have a school where in order to have that kind of diversity, you use only socioeconomic criteria. And so now all the poor

kids are black and brown and all the rich kids are white. So that at your experience for four years is going to almost subconsciously inculcate that thought as you walk out into the world. That's not a great experience either. Right. I don't think there is any perfect way to achieve the kind of class composition. But worth noting that California, Michigan, Texas, tons of, well, those three states are the biggest. States have already banned affirmative action and the sky hasn't fallen. California schools have gotten more diverse since they banned affirmative action. So while there's no perfect way to do it, I would argue there are tested and better ways to do it. Texas topped 10%, California,

Michigan, they've all done great. Exactly. And none of those other ways involve invidious racial discrimination, involve systematically down-ranking an entire class of people on the basis of allegedly poor personality, like that kind of thing. So yeah, I think the Harvard case is going to be substantially different. And then I think one of the legacies of all of these cases that you'll see is that if you're going to be doing

a race-based classification going forward, you better be tracing it to harm. Like you, you better be drawing straight lines to specific harms. And if you're not drawing straight lines to specific harms, then good luck with that is going to, is, is going to be my kind of view on where the case law is going to go from here. Because if they were going, if the court was going to be my kind of view on where the case law is going to go from here. Because if the court was going to be eliminating racial classifications and race-conscious classifications, Alabama would have come out differently.

Indian Child Welfare Act would have come out differently. But what's different about those? They're tracing to specific historical harms. And here, the source of the harm is Harvard itself. Can I just tell you something funny I'm looking forward to, which is, so race-based classifications are under strict scrutiny, meaning it's the hardest thing

for the government to overcome. Gender-based classifications are only under intermediate scrutiny right now. Well, for a gazillion years, all of the years, women have been banned from all these institutions. I mean, I don't remember when Dartmouth started accepting women, but I think it's within my lifetime. And certainly before they had 50-50 women, it's like, I don't even know if I was in high school by that point. So women basically don't get affirmative action that whole time

whatsoever. But now you have 60% of college applicants as women. We're going to have an affirmative action case here pretty soon on gender. There's already gender affirmative action. There is. And what's happening is at the upper schools, they're still maintaining something pretty close to parity, 55, 45 or so at a bunch of those schools

because they're sucking up the men from the lower applicant pools and it's leading those lower schools less gender diverse. And I just find it really funny that women are going to get the short end of both sides of the affirmative action. What are you saying about the qualifications of all the guys here in this AEI summer honors program?

They look pretty bright. We'll see. All right, next up. Yeah. I'm saying yeah, because it's not only a woman, which I feel empowered by, but also a woman in an awesome red suit. Yeah. Thank you. So I guess we could say that the playing field for diversity in education and careers has been like level somewhat.

So do you think America is ready to get rid of this affirmative actions to help push that diversity? So 22 years ago is when Justice O'Connor said that we should have a 25, in 25 years, this will no longer be necessary. So another very interesting part about the Harvard case will be how the justices talk about that. For instance, if Harvard were to win does that mean that in three more years we're going to get rid of it or will they say Harvard loses but it doesn't go into effect for three more years

is the 25 years some sort of talisman the other thing that will be interesting is that the chief justice in a previous case said the best way to stop discrimination on the basis of race is to stop discriminating on the basis of race where's he going to fall on this as someone who we've seen be on the other side of these issues? So those are just two interesting things I'm looking for in the opinion that go to your question. But societally, culturally, are we there yet? I think with the public opinion says we're there yet. So public opinion across racial categories

is really negative on race-based distinctions in admissions, specifically in admissions. It's, you know, the California banned affirmative action by referendum. Affirmative action was banned in Michigan by referendum. There's a lot of people across. It is not as racially polarized the views on affirmative action as you might think. When this gets to Justice Thomas's argument,

which has been now for a long time, stop trying to help us. You're stigmatizing people of color. You're making it clear that they couldn't get there on their own, but we can. Leave us alone. He has this great Frederick Douglass quote

that he uses quite often. So that's some of the argument. Yeah, and so I think from a public opinion standpoint, the country is pretty ready for this. I think elite public opinion is heavily in favor of Harvard. So you'll see sort of an elite level amount of outrage that is not matched by the larger American public. Now, that's a political

question. Now, the other question is, well, what about sort of from the larger standpoint of American equality? Are we ready for this? Which to me is the much more consequential question than something as ephemeral as public opinion. So from my standpoint, I do think that we are ready systemically for something like this, so long as we are creative with race-neutral alternatives that have race-disproportionate outcomes. if one of the legacies of 345 years of state-sanctioned bigotry defended by violence is an enormous amount of income inequality and wealth inequality which is an actual result of that well then if you're going to put in a socio-economic kind of affirmative action program it's going to disproportionately benefit those who've been disproportionately impacted by injustice. But it's still going to benefit

like the white kid in the double wide in Eastern Kentucky, where I grew up in Kentucky and poverty in Eastern Kentucky is almost all white and it's really deep and it's multi-generational. And so if you're talking about a kid who's applying to Harvard from Hazard, Kentucky, and you're talking to him about white privilege, he has not experienced that. You know, he's not, which privilege was I enjoying when my mom was on meth and I didn't know who my dad was like that. And, and, and so a race neutral class based program is one that has

the ability, the benefit of both sweeping in people of all races who faced massive adversity, but also addressing the fact that those people who do experience massive adversity are disproportionately people of color because of longstanding historical injustice. And so I think that that's your way forward much more than this explicit race-based categorization. I served in the admissions department or admissions committee at Cornell Law School when I taught there. And I can tell you that if you have a stereotype of affirmative action is like really reaching out and helping poor and underprivileged kids, get that out of your mind, because a lot of the you know,

the kids we were looking at would be like the son of a doctor living in Greenwich, Connecticut. Right. And it just didn't feel it didn't sit right with me at the time when we're saying that somebody who grew up in the double-wide and hazard, well, we're going to hold them to a much higher standard. And it just didn't sit right with me. All right. We got time for one more? No, blue shirt. You don't get another one. No, it's greedy. Green. And we'll do lightning rounds. We get yours too. I wanted to go back to the court case that you were talking about

with the Native American children and how they were, like all that was going on. I wasn't following that as closely, but I find it really interesting. So I know that we talked about how it's always what's in the best interest of the child. And so I was wondering if they're taking that

into consideration as they're choosing which family they go to, because if they're trying to base it, I mean, they're taking that into consideration as they're choosing which family they go to because if they're trying to face it I mean they're still I would I would I still want to protect those kids like I still want to be protecting those kids like you and Justice Alito yeah yes yeah even if they're in like a sovereign nation like they're still our neighbors and like their children who need a voice need to be protected so now you're literally reading from paraphrasing Justice Alito's dissent yes exactly yeah so I was just wondering like why why who need a voice need to be protected. So now you're literally reading from, paraphrasing Justice Alito's dissent.

Yes, exactly. Yeah, so I was just wondering, why do you think that they're not, why are they picking that over? Because it seems like in every other case, it's what's in the best interest of the child. And in this case, it's not. Yep.

So the answer to that question is that if Congress wanted to, that's not for the court to call. So that the majority's answer to this would be something along these lines, which is best interest of the child may be the best standard. That might be the best standard. It is not the one Congress chose and Congress had the power to choose it. So this was a question about, not so much about what is the perfect world best outcome, it's did they have the authority and power to choose the outcome they chose or choose the standard that they chose,

even if we as the justices might believe that best interest of the child should govern. And this is an interesting kind of lesson in the rule of law, which says it's not always determining like who should win each case from the standpoint of each litigant coming with a blank slate before the court and sort of saying, who would you really like to see win this versus what rule applies or which rule applies and is that rule valid? And then applying that rule, if the rule is valid under a constitutional system, then the rule is applied. And so the issue though,

what Alito and Thomas would say right back to that is, well, we have a super rule and the super rule is called the Equal Protection Clause of the 14th amendment. And this equal protection clause is going to cut out this kind of racial discrimination. And so that's sort of the back and forth. I don't, I don't, it really wasn't a contest between is the best interest, the child standard, the one that should apply in all circumstances in all times as a matter of constitutional law, but much more, did Congress have the authority

to choose the standard that it chose? But you just assigned yourself extra reading because now you have to read the Gorsuch one and the Alito one. Yeah, because they're both really well done. And really persuasive. And I obviously went into this case siding heavily with where Justice Alito came out.

It should be about the best interest of the child, not the best interest of this type of children. It's an individual versus a collective interest. But boy, did I find Gorsuch persuasive when I read it. So I'll be curious to see how you come out. All right. Now, real last one. Just quickly, I was wondering if you could touch on what you think the knock-on effects of the Alabama case will be. I have done some reading about Shaw Cromartie from North Carolina in the turn of the century. So just your quick thoughts there. You mean politically?

Like, where does this shake out? Redistricting. Do you think that this will be happening more? There's several pending cases. And remember, under the Voting Rights Act, there basically is an automatic appeal to the Supreme Court. So this isn't the end of it. They've already taken note of the jurisdiction

in the South Carolina case, which will get more to the constitutional questions. If they get to it, it's very possible that they'll GVR it, meaning grant, vacate, and remand, although they already granted kind of by taking jurisdictional note, but vac, and remand, although they already granted kind of by taking jurisdictional note, but vacate and remand in light of Alabama. You know, there are really smart

redistricting reporters out there who have said they think it's roughly a four-seat switch in light of this. You know, the court has struck down, other than this map, only one other in the last, I think I said, like 20 years or so. I don't think this is going to make a huge difference. A four-seat majority in a 435-person body would not qualify as a huge difference, but for the fact that we're under a

five-seat majority right now. Yeah. I will say this. I think it's going to be limited but meaningful. And because if you look at the criteria, the criteria basically say, look, if you have heavily racialized, racially polarized voting, like you did in Alabama with 80% of white voters voting Republican, 90% of black voters voting Democratic,

and there are distinct geographic, compact geographic units where Black voters are concentrated. So what does that tell you? Both of those are very historically rooted. So they're very historically rooted that, one, why is there such racial polarization, especially in the South? You don't see the same level of racial polarization in New York, for example. Democratic candidates win a majority of white voters and a majority of black voters. So you don't see the same level of racial polarization in other jurisdictions. Why do you see it in the South? There's a lot of historic reasons for it. And then a lot of reasons that are also not related to race, but a lot of reasons historically related to race. And then again, why do you have compact black districts in the South? Again, a lot of historical reasons related

to specific invidious discrimination. What are the two things that will remove sort of the race-conscious analysis of voting districts, increasing residential desegregation. So that would be a sign that we're moving past a lot of our historic, the legacy of historic racism is more people of more races live together in the same neighborhoods. Well, then you can't draw the compact districts, right? So decreased racial segregation in residential segregation. And the other one is decreased racial polarization in voting. If white and black voters vote the same,

then you don't have an issue, really. And so it's interesting. One of the interesting elements of the 2020 election was that Republicans did better with Hispanic and black voters than they did in 2016. And they did better with Hispanic and black voters in 2016 than they did in 2012. And so if that trend continues over time, you'll see much less racial polarization in voting. If the current trends continue over time on residential segregation, you won't have these big districts of where black voters are packed into one particular geographic region. You're going to have the diffusion of American races throughout the American community. And that will also eliminate one of the foundations of this.

So my view on it is what the supreme court did i thought it was an appropriate ruling because what it did is it reflected the historical reality and why the present reality exists because of that history but provided a roadmap going forward that as america moves past and through a highly racially polarized culture and society, the instruments and mechanisms of getting rid of racial gerrymanders entirely exist. That was slow lightning, but I thought it was worth it. All right. Thank you guys so much. And thank you listeners. I think we're, I think live events are just better. Oh, they're so much more fun. They're really fun. Thank you guys. And for those of you who are in David's class coming up after this,

apologies, don't know what else to say. Three hours. You have three hours. Yeah. Three hours. Oh man, we didn't want to stop yesterday. There's coffee in the hallway. Yeah, we went two and a half hours

and we wanted to keep going. Okay, I came in here though and you were talking to your class and they weren't even getting food when all of their peers were eating. Can you imagine how miserable I would have been just sitting there being like i'm telling you i see it we know how to party yeah all right thank you guys so much and thank you Bye.