The Dispatch Podcast - Let's Go Coup-ing

Episode Date: June 30, 2023

Will the Supreme Court's affirmative action decision in Harvard lead to a public backlash? What does the Coup That Wasn't tell us about Russia (and about Americans' changing perceptions of the war)? And will David French's recent New York Times piece about transgenderism in women's sports finally get him cancelled? Sarah, Jonah, and yet-uncancelled David French discuss. Like what we're doing? Please consider becoming a member of TheDispatch.com. You'll be getting a suite of newsletters (including Kevin Williamson's Wanderland, our news-breaking Dispatch Politics, and our flagship daily newsletter The Morning Dispatch), access to additional podcast episodes and exclusive shows, and be invited to members-only live Dispatch events. But most importantly: you'll be helping us keep the lights on. So if you believe in our mission, we hope you'll consider joining us. Out of context: "I think I heard Henry Kissinger making the same point." Show Notes: -Want the full legal analysis of SCOTUS' affirmative action decision? Check out our latest Advisory Opinions. -David's NYT piece on the erosion of women's sports -Jonah's G-File about isms, cultural cliches, and treat-yourself-culture  -Millennial and Gen Z economic malaise is creating a ‘treat culture’ as they turn to tiny purchases for a dose of daily escapism Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to the Dispatch podcast. I'm Sarah Isgher. That's Jonah Goldberg and the once in future David French back again. We will talk about the political ramifications of the Supreme Court's affirmative action decision this week. The coup that wasn't. And what's next for Vladimir Putin? And finally, our own David French or not our own David French. What are you now? You're just that David French. wrote a great piece in the New York Times about women's sports and the culture war. So we'll talk about that as well. And of course, we'll end with some not worth your time. Let's dive right in. Jonah, you need to make sure that David and I don't veer. into law talk. We don't want to do law talk on affirmative action or on the Supreme Court, but the president, after the opinion came out, said, this is not a normal court. I found that to be really somewhere between annoying and offensive because, of course, last week there were two decisions that the Biden administration loved from this court. And then it was like, oh, what a great

correct decision on the law. And today, you know, the court shouldn't exist anymore. Yeah. And look, and we've all talked in our various spheres and amongst ourselves away from microphones about the endless series of ProPublica pieces that seem very selective in what they're going to be outraged about based upon the voting record of the specific justice. And I'm not saying that everything they found is illegitimate or not worrisome and there are debates to be had about appearances and yada, yada, yeah, that's all fine. But there does seem to be, I don't think everybody who participates in it has venal or villainous motives, but because some of it is just bandwagon effect, right? You hear all the people that you respect attacking the legitimacy of the court, so you join in too. But there does seem to be a very serious, very worrisome, I would argue, very offensive effort to de-legitimize the court just when it happens to have. a controlling majority of conservatives. And, you know, Chris Hayes from MSNBC said today that it's really become clear that the Supreme Court are just a bunch of,

they're really just a bunch of bloggers with the law library, I think was his phrase. And you listen, I heard someone on MSNBC talking about how, wondering, you know, are we even ever going to have black lawyers and doctors again? prediction. I'm going to go out here. We will have, we will continue to have black lawyers and doctors. But if there does, you know, even Sonia Sonia Sotomayor's descent, where she just harps on this thing about how the six justices who didn't vote her way are unelected, without sort of like noting that the three justices who voted her way are not elected either. There just just seemed to be this desire.

to create a permission structure to ignore the court or to pack the court or to do some other thing. And I think it's dangerous and it's incredibly hypocritical coming from the people who I think rightly have worried about the erosion of institutional norms and the weakening of institutions in the Trump era. It turns out that a lot of it is really kind of pretextual partisan nonsense rather than a sincere concern.

So I find it definitely offensive. David, we've seen in the polling that some of this has been pretty effective. You know, some of it's the Supreme Court. I don't want to say wounding themselves because, again, they're not trying to think of public opinion too much, but the Supreme Court's approval rating definitely ticks down after the Dobbs decision last year overturning Roe v. Wade. Six months later, and about January, it was starting to tick back up. It hadn't totally recovered to pre-Dobbs levels, but that's where it was headed.

And then you start seeing these ethics stories. like Jonah talks about another big dip, especially among Democrats and some dip among independence. And then you have, again, like Joe Biden saying, this is not a normal court when he doesn't like a decision. You know, I hear this from folks on the right quite a bit. Where were you during the Warren court

and saying this is not a normal court when the decisions, you know, were maybe otherwise untethered the Constitution or statutes, they just came out the way you liked. I don't know that I like that defense in some ways because it's like, no, no, it's just a power thing. There is no law. There is no process. It's just our guys won. And so sit down. I don't think that's right either. But I take their point, which is you were fine if Roe v. Wade was lawless as long as it was lawless with your outcome. Now, you're not even really arguing that this is lawless. You just don't like the outcome. And this just gets to my process versus outcome stuff, David. I'm a process

girl in an outcome world, and it's very sad for me. I get you. I get you. I totally. I'm with you. And can I refer to one of your least favorite shows briefly? Succession. Yes. So do you remember there was a scene in the last season, which you disliked, which was... Doesn't narrow it down. Logan Roy is talking to his kids. And he said, he says, I love you guys, but you're not serious people. Okay. This is how I feel about a ton of Supreme Court commentary. Love you, man, but in this respect, you're not serious people.

If you're sitting there and you're looking at this term of the court with all of the interesting alignments, multiple unexpected outcomes, and you go, oh, you know, my final analysis is the fix is in. It's the six and the three. and it's just whatever Republicans want, no, no, a thousand times no. This has been a really interesting term with really interesting different outcomes and sometimes very big and important cases. So this is not, this is absolutely not. If you're looking at the outcomes of the court, this is not in any way, shape, or form

some sort of fixes in court. Can I just add to that really quickly something interesting? Because I haven't updated these numbers since we've gotten, I think we're about maybe eight or ten opinions more in. But 10 opinions ago, the justice who was most in the majority, this term, was Sonia Sotomayor. And interestingly, just I'm now looking at the last 10 or so opinions, I think there's a chance that even with the affirmative action case, that she still might be. Justice Kavanaugh was in second, I expect him to be the number one in the majority. again, he has been for the last two terms.

But it's actually going to be kind of a race this time because now, you can say some cases are more important than others. These unanimous cases aren't that important or they're not that interesting and they shouldn't count. Fair enough, but you have to at least acknowledge that the Supreme Court's only deciding 58 cases. They're all pretty important. Yeah. So the cases, if you actually look at the jurisprudence,

this is not a fixes-in for Republicans' jurisprudence at all. But the other thing is, on the other thing is, On the other side of the aisle, what I would say to a lot of the very zealous defenders of the justices and after these private jet revelations and everything is, okay, guys, I totally get it when you're talking about that the rules of ethics did not require these disclosures implicating until recently, implying that the justices had violated rules of ethics, by not disclosing, I'm with you. I'm with you on that technical legalistic explanation.

I am not with you on the idea that people aren't allowed to then draw some negative, have some negative feelings about all of this private jetting stuff. And I think that the justices should keep that in mind themselves. That's the key community here. The justices need to keep in mind. that when you're talking about their institution, there's multiple ways to maintain its credibility. One, you're doing well, which is exercising judicial independence. That's the most important thing. You're doing that really well.

Another one you've improved on. You've actually expanded the scope of your ethics disclosure's rules. That's really good. On the last one, all of that, I don't know what the future is going to hold for all the private jet use, but that was just unwise. It shouldn't have happened. And you can't blame people for looking that at that and saying, that just doesn't sit right with me.

So in the effort of somewhat remedially and somewhat prophylactively stopping this from descending too much more into law talk, the point I should have made when you first went to me and the point I thought you were going to make when you said that some of this stuff has been effective is that the real consequences I think a big chunk of the attacks on the court's legitimacy some of it has to do with

sort of Ian Milheiser, whatever that guy's name is, kind of nonsense arguments about what courts are supposed to do and be and, you know, and all that kind of stuff. But a lot of it, you know, particularly from Biden, Biden was smart to come out today swinging at the court because it's an argument

for his re-election, right? It's, this is a like, whatever you think about this decision, my hundred there are a lot of I was really fascinating listening to some of the cable news coverage about this a lot of people think that this is going to be unpopular the way they think Dobbs is unpopular

the polling is pretty solidly against racial stuff I mean California tried to get rid of the racial the ban the prohibition on racial admission stuff and it failed right in California

so like the idea that somehow this isn't going to be more ambiguous as a matter of larger public opinion, I think is ridiculous, but... Can I go off on issue polling real quick, just as a footnote on that? So if most of the polling you will see as, do you favor the use, the explicit use of race in college and university admissions? And roughly you will find 63%. It's actually been really static for decades. You know, 60, 63% say no. But CVS, last month, last week, they asked the question, should the Supreme Court ban the use of explicit race in college admissions? 60% said, no, they shouldn't.

And then CBS ran with this headline. It was like, majority of Americans favor affirmative action. I was like, well, wait, that's not actually what you asked them. And what you did was prove how pointless so much of this issue polling is if you can get the exact opposite answer on a very similar, but slightly. different question. So issue polling is stupid unless you understand what you are asking people and the limits that people might have in answering that question. I think California's ballot initiative is a much better example.

If there's any issue in American life that is going to be prone to social desirability biases and among respondents, it is what do you think policy should be about race stuff, right? People are going to be like a little nervous about whatever their position is. Versus, would you like your sweet pumpkin to get into this school? What if we gave that spot to an extremely underprivileged, deserving kid who scored 10 points lower on their SAT? I bet most Americans want pumpkin to get in. Yeah.

But the thing is, so even though I think the median American voter is more on the court side than on Biden's side on this stuff, the elements of Biden's coalition that he needs to turn out. is going to be way on his side of this, right? Like, he needs college educated, young people, college students. I mean, the loan forgiveness thing is another one, right? He needs to activate those people to feel invested in Biden and taking back the court and all that kind of stuff. So I think in a weird way, Republicans are going to benefit from this. And so are Democrats in terms of, like, mobilizing their core coalitions. and I think that's sort of

that's sort of the big political takeaway from this and also people get to gnash their teeth and rend their cloths about stuff they don't understand for a while which they like to. David, do you think there's a chance that this flips this with Dobbs, with the ethics stories, put it all in one little caboodle?

Will this start to flip the script on which side has, quote-unquote, Supreme Court voters. You know, that issue is always favored the right. And there's been this like, well, maybe it'll start favoring the left. Maybe that would happen after Gorsuch and getting rid of the filibuster. Maybe it would happen after Kavanaugh. It didn't. Maybe it would happen after Dobbs.

It's hard to say, maybe. But that's different in the immediate aftermath and actually creating solid Supreme Court voters where if you say, elect me president, because I'll, you know, be picking one or two Supreme court justices that it actually moves people to vote? Let me put it this way. The right has a generation's long head start on creating the Supreme Court voter. So this goes back to like the Warren court and school prayer and things like. So we're talking 50s, 60s, 7. So it's been decades to cultivate on the right, the Supreme Court voter. And on the left, even though when was the last time it was a majority of Supreme Court justices

had been nominated by Democrats. Do we go back to the 60s for that, Sarah? 1969, when Abe Fortis left the court was the last time there was a majority of Democratic appointed justices. But you do have to remember that several of those Republican appointed justices meandered around ideologically.

Yes. Well, that's what I was going to say is that until recently, until the abolition of the filibuster, It wasn't always completely up to who was president as far as like what the Supreme Court justice would actually turn out to be because you were dealing with the best guess you could make with a filibuster where you knew that if you had somebody who, you know, on the right and by the way, the Senate was often in Democratic hands, it was in Democratic hands more frequently than it wasn't over that. period of time. So you were frequently having to nominate someone with a filibuster to get through a Democratic held Senate. So, you know, if you're a Democrat, there were a lot of ways in which you could ameliorate the effects of a Supreme Court justice. And then now post-filibuster, if you hold the

presidency and you hold the Senate, you're getting who you want. You're just getting who you want. And I think you're going to see over time that Republican advantage be altered. But I don't think it's going to happen overnight. It took decades to build the sort of Supreme Court voting GOP public. Not long ago, I saw someone go through a sudden loss. And it was a stark reminder of how quickly life can change and why protecting the people you love is so important. Knowing you can take steps to help protect your loved ones and give them that extra layer of security brings real peace of mind. The truth is the consequences of not.

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Jonah, David and I have been pretty steeped in SCOTUS land for the past, you know, couple weeks. Well, really, all year long, you know, 10 a.m. comes and we're just sitting there hitting refresh over and over again and texting each other. Oh, M.G. And wow. In the meantime, it did look like there was about to be a coup in Russia. And there's a... I have questions. because the coup doesn't make a lot of sense on its face. It still doesn't.

I feel like in general, the rules of cooing are pretty clear, you know, especially against a dictator and one that seems to murder quite a few people, which is you coup to win or you die. And negotiating after the coup seems an odd choice, and we're sort of seeing the fallout from that. that. But where I actually want to start is that this really highlighted the divide on the right. And within the Republican Party, we had seen this minority of Republicans against Ukraine, maybe an anti-Putin minority. And in the weekend, as this coup was ongoing, you saw an argument

that actually struck me as pretty compelling, which is, if the coup is successful, these guys will be worse. The Wagner group is not better than Putin. It's not like the coup that's going to take down Putin is going to be some pro-democracy, Nelson Mandela, let's hold hands, awesome government coming in. It's going to be a more violent, more brutal regime, potentially. So be careful what you wish for.

Okay, so I've spent a lot of time. Actually, I've actually talked to people, You know how much I hate talking to people on this stuff. First of all, I think, and you're starting to see it in a lot of the coverage and a lot of the commentary, we should stop calling it a coup. I think at this point, it's pretty clear it wasn't a coup. It was a mutiny. Subtle distinction in an authoritarian regime, I'll grant you.

Make the distinction for me because, you know, I'm thinking mutiny on the bounty. Like, I'm going through some mutinies in my head. So at no point, did. Yvgeny Progoshin say, I want to overthrow Vladimir Putin. He said, I want to open a can of whoop ass on Shogu and the other guy, the military guys, right? And there was some reporting today that he actually wanted to take them hostage. Sounds like a great plan. And the moment that Putin came out and said, this is a stab in the back, this is outrageous.

invoked in 1917 um i guess i should be more specific as a lot of things happen in 1917 invoked the cornelov coup progosan was like oh crap they're they're misinterpreting me right i didn't mean coup i meant like if only the czar knew that these um hack generals were screwing up the you know czar putin's righteous war um everything would be better because I agree with you. It makes no sense as a coup to abort it the second Vladimir Putin goes on TV and says mean things. Any plan for a coup should take into account that it was going to make Vladimir Putin surly and that he might actually say things on TV that are unkind and threatening, right? I mean, like that should have been like pretty high up on the what happens after we go cooing, right? And, list. And so I think he made a terrible miscalculation on this. He thought he could do this power game of basically being given the Ukraine portfolio. I mean, I could be wrong about this because it's still, there's still a lot of things that don't make sense to me, even though I think

I'm right about this part about it, in part because the Wagner Group is just a huge revenue stream for Putin and the Russian regime. And the stuff they do, you know, raping and pillaging and torturing in Africa for diamond mines and copper mines and all these kinds of things. They don't want to close that off. They don't want to get rid of that franchise. So it's all very weird. And now seems, though, that, like, that Lukashenko in Belarus is kind of psyched because he's now got like an actually formidable fighting force that he gets to fold into

his regime. On your actual question, I'll just be very brief. the people who say that progosian would be worse if he were in power are right he would be worse where I think they steal a base is assuming that he would be in power

like the coups generally don't lead to positive things just historically they lead to implosions and civil war and all that kind of stuff and while the presence of nuclear weapons make the prospect of civil war in Russia worrisome this was a good thing when that happened

from my perspective. This shows that, first of all, the pressure Ukraine is putting on Russia is having the war, the war is putting more pressure on Russia than it's putting on Ukraine and the West in terms of the destabilizing force of all of this. The government of Ukraine does not look wobbly. The government of Russia did because of this. And that's a good thing. And I think it should teach the West to accelerate this process of helping Ukraine before Ukraine loses the ability to actually get real results from the counteroffensive. David, is Putin weaker or stronger than he was a week ago? Oh, I think he's weaker, but I don't know how much weaker.

And I certainly don't necessarily think you can translate that weakness into vulnerability of Russian troops on the battlefield. You know, this was not a situation as near as we can tell where 20,000 or so Wagner troops or Wagner troops were taken off the line of battle and then left an opening or a vulnerability of many of these troops had already been rotated out of the fighting. There's no real sign that Russian lines are cracking right now in the Ukrainian counteroffensive. Very difficult to know what's happening.

But the idea that you can take an armored column and drive hundreds of miles up the road to Russia shooting down Russian helicopters along the way and that at the end of that process Vladimir Putin is stronger strikes me and the guy who architects it

is alive today right now I'm not sure the argument Putin you're going to take it's going to take a lot to convince me that Putin is stronger coming out of that and let me ask a second question then

before you turn to that which is is Ukraine government stronger or weaker than it was a week ago? I think it's unchanged. I think the Ukrainian government right now is very, very, very stable. I don't know if the situation on the front is any better than it was a week ago. If there is instability in Russia, history shows that doesn't always translate into instability on the front, although often eventually does.

You know, for example, in 1917 to 1918, eventually Russian resistance to the Germans began to collapse, but not right away. There wasn't a one-to-one that instability behind the front led to instability at the front. So there's a lot we don't know about what's going to happen in the short-term, medium-term. And then there's another thing that I'm with you 100%. If Pergosen somehow came to power, he's every bit as bad as Putin, if not worse, although I do think that chaos in the short term, true chaos in the short term, would have been beneficial to Ukraine. The fact that this was contained within 48 hours, I think, minimized the impact on the battlefield.

But we don't know sort of how Russia would develop. in the medium term after a coup, would Pergozen, who's horrible, be able to consolidate control of all the instruments of Russian government and have the same degree of control over the oligarchs? And there was word that gas prom,

you know, the Russian energy company was creating its own private army. How much would you see Russia devolve into warlordism? I mean, there's just a lot here that we don't know. And the other thing that I would say about this is it could be, you know, it could be as simple as it's just harder to arrest somebody when they have a private army and they're willing to use it. And that it just gets down to basic brass tax that Pergoza knew that Putin was coming for him and he pulled out a hail Mary using the forces at his disposal to try to stay alive and stay ahead of the executioner just a little while longer. But by the way, one last thing that we haven't raised,

it's stunning that an armored column was able to advance that far, that fast on the way to Moscow without being utterly obliterated. And that right there shows you not just the internal weakness of the regime, but some of the weakness of the Russian military itself. And one of the reasons why they have been struggling so mightily against, Ukraine is they just don't have not illustrated the same ability to strike and destroy moving targets in an evolving battlefield situation in the way the U.S. government or the U.S. military has shown that it can do in multiple occasions. It demonstrates why this was yet another

example of why they have been struggling so mightily on the battlefield. I'll just make one quick point on this. The fact that Vladimir Putin will not say prognosian's name tells you a lot. like he does not want to turn Progrosion to some sort of hero, martyr, alternative power base. He's terrified of doing that. He's trying to get Prokosiansmen to join him. I just think it's, maybe it's

because I'm reading this Orlando Feige's book about the history of Russia. The way to think about Russia, it is not a modern state. It is still basically operates on feudal understandings. And if you're a warlord that's got an army, that by definition gives you legitimacy

in that kind of regime. And Putin's trying to deal with that fact because it annoys him. And the assumptions about where power come from and how to use power are not modern assumptions. They've never had an enlightenment that stuck the way the rest of Europe did. All right. So then let's talk about how this affects domestic politics. Do you think this affects support for the war in Ukraine at all?

Do you think this mattered in any way? I mean, it was a weird weekend. you like are watching this unfold. So weird. And then it's over. I don't know how to describe how strange this was. And that it maybe felt like it doesn't matter at all. And it was just this weird, you know,

like how the West Wing did a separate September 11th episode that didn't fit into the overall plot. Just like that, right? I think I heard Kissinger make that exact point. This is the sort of foreign policy chops I bring to this podcast. It's just you think. about it and there's an armored column on the way to Moscow and just as a symbol of the sophistication of modern journalism and technology, we were able to through geolocation to literally track it as it went. So, you know, there was a graphic on the New York Times homepage where they were following the progression of the Wagner column on its way to Moscow. And then all of a sudden, we're turning around. What? And he's going to Belarus. What? Is he an exile? Or was he being basically given Belarus? Like what's going on here? It was so opaque and just a humbling reminder of how difficult it is from the outside to peer inside these authoritarian regimes. It's just incredibly difficult, especially when as Jonah said very well, it's a Russia isn't just an authoritarian regime on the other side of the world. It's a very different culture.

from ours in so many ways. And so we're peering into something that's really opaque to us. And we're just left doing a lot of guessing. And then at the end of the day, you know, we're not even sure if this is something that will be significant in all in the history of this war. We literally don't know. Jenna, there was another part that was sort of odd, which is the twitterness of it. right you're sort of dealing with an international evolving conflict emergency but without

former twitter's ability to verify who people are who are purporting to know things on the ground yeah so you also saw which was really remarkable and hasn't gotten nearly enough attention how many overnight experts on submersible engineering technology emerged to also be experts on Russian social, cultural, and military strategy. I mean, there's like instantaneously. I did feel bad for some of the journalists who clearly had like been shipped off to Canada and New England to be on full time submersible duty. And then all of a sudden, they're like, wait, I don't, I'm not on.

Wait, what? There's a coup. What? You know, um, but to actually answer your earlier question about like, is this, does it affect things? I think it affects things insofar as unless you're one of these truly deranged people. who is immune to reason about Russia, and there are lots of them who, you know, like Robert F. Kennedy Jr. thinks Russia is the real victim here, right? These people are not going to be

persuaded by earth logic. But at the margins, there are a lot of people who are of fanboys of Vladimir Putin and his infallibility. And they just look like you're just at the margins. It's going to be a little less likely to put your neck out and say, oh, Yeah, Putin's just crushing it when, you know, he allowed this convoy to march on Moscow. Like, that's just not a good look and shoot down his helicopters. And so I do think it's good for the Ukrainians in the sense that it gives Zelensky and them the ability to go to other NATO allies and say, hey, look, they're cracking under the pressure. And we've now just taken the Wagner group off the board in Ukraine.

That's significant by itself, right? And I have to say, you know, like more NATO people need to be saying in Western countries that have dealings with Belarus have got to be calling that guy and saying, hey, Victor, like talking about how you love Wagner groups work and you're going to love using these people. These are horrible murderous, terrible people who like literally, there's like when the head of the EU criticized the Wagner group for human rights violations, they sent him, I think it was bloody. regardless, they sent them a sledgehammer because as like a joke like taunt because the Wagner group uses sledgehammers to torture and execute people.

That's their preferred method. And it's, you know, like they're bad people. They're like straight up bad people. And I think that that comes across too because now you've got a lot of like Russian sympathizers talking to how a vagrant group is bad people. Like it's just dissent in the ranks. It's sort of like to use a really bad, flawed,

tortured analogy, which we're not going to get into. here, right? But Breitbart had this story about this pro DeSantis social media influencer and how he was privately an anti-Semite and a bigot. He was also publicly an anti-Semite and we knew this already. But anyway, it was like a total popcorn moment because you have the worst jackasses of Maga Twitter going after the worst jackasses of DeSantis Twitter and they're eating each other alive. And... There's like, I was over, I was verclimt with Kisangerian, Iran-Iraq war.

It's a pity. Only one of them can lose feelings. And I think there's some of that going on with the Wagner Russia stuff. You know, and one other thing about this, why would Putin cut a deal when only a few thousand troops are heading to Moscow? A friend put it like this. Well, okay, it's only a few thousand troops. But when you consider these are the Wagner veterans of Bakhmut, it's basically like a few thousand Viking berserkers heading towards a city defended by weekend warriors because the core of the Russian military is forward deployed. And those circumstances, it's no wonder to me that Putin cut a deal.

Once it was established that the Russian Air Force either couldn't or maybe wouldn't stop that column and bomb it into oblivion. it doesn't surprise me that a deal was struck. And I just have absolutely no idea what the second and third order effects of that are going to be a week from now, two weeks from now, a year from now. But the one thing that I have trouble believing is that Putin's in a better place now than he was before.

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And see for yourself how Volvo's legendary safety brings peace of mind to every crisp morning commute. This September, lease a 26 XE90 plug-in hybrid from $599 bi-weekly at 3.99% during the Volvo Fall Experience event. Conditions supply, visit your local Volvo retailer or go to explorevolvo.com. All right, David, I want to move to your recent column. There have been a series of headlines about states grappling with how to deal with hormone therapy and medical treatment for minors who want to transition and gender dysphoria and treating that for minors. And related to that have been topics about how we deal with student athletics for minors

with men and women and trans kids, all of whom just want to play sports and how you're supposed to do that, how you're supposed to make it fair for everyone, participatory for everyone, and also comply with the law. Do you mind just running through what your column kind of came down to? Yeah.

So I wrote a column about the legal aspects of the transgender participation in women's sports. And this is key to focus around women's sports. And I began by contrasting two statutes. There's Title VI of the Civil Rights Act of 1964, which prohibits race discrimination in federally funded higher education. Then there's Title IX of the federal education amendments of 1972, which prohibit sex discrimination in very similar language, very similar, almost identical language. but they have worked out in very different ways. And here's how, and especially in athletics.

So in athletics, you cannot have a separate white league and a black league or Hispanic league. You can't have separate leagues on the basis of race because racial discrimination is deemed to be inherently invidious. In other words, racial discrimination is inherently irrational and or malicious. But we have a women's, we have women's leagues all over the United States. States. And in fact, Title IX has been credited with increasing, being indispensable, increasing women's participation, for example, in high school sports from roughly 300,000 or so girls playing high school sports in 1972 when the act was passed to more than three million today. It's been incredibly successful at increasing participation in high school athletics.

Well, why is it that Title IX has allowed for the creation of separate women's sports? and Title VI doesn't allow for the creation of separate sports by race. And the answer to that is that Title IX is designed from the ground up for a concept of equal opportunity, equal participation. And the facts on the ground say that if you had co-ed participation in sports, you could not have equal participation or equal access to benefits of education for women. You just couldn't do it. And it's because of the performance differences. There's this great 2020 article in the Duke Journal of Gender Law and Policy. And the authors observed that depending on

the sport and event, the gap between the best male and female performances remain somewhere between 7 and 25%. And even the best female is consistently surpassed by many elite and non-elite males, including both boys and men. And I used an example. of Vashti Cunningham, who one the best female high jumpers in the world. Her best jump placed her among the top 10 females, but in 201911 alone, 760 American high school boys jumped higher than she did when she was in high school. She wouldn't have made a state meet in any state if she had competed against boys. And so the point that I made is for Title IX to continue to mean equal participation, equal access to benefits on the basis of sex, it has to continue to take

sex distinctions into account when determining athletic participation. And notice I said sex distinctions, not gender distinctions or gender identity distinctions. And so that's the argument that I made in the times. And, you know, the key point, I would say that the The key paragraph is this, and it's when we survey the performance gap between male and female athletes, is that gap best explained by the differences in gender identity between competitors or the differences that are inherent in biological sex? And if those differences are best explained by biological sex rather than gender identity, then any rule that wipes out biological sex is the determining factor in eligibility

will undermine both the practical and legal basis for women's sports. So that was the piece. Jonah, my feminist ally. I mean, I've always thought that... Wait, I thought I was. What happened? It was always strange that I found myself on the right, I mean, politically on the right,

you know, in terms of my career as an operative, because like feminism was rejected and I literally mean like the term feminism was rejected and that was strange because there were plenty of women who were working in Republican politics

who were like yeah but I'm not a feminist I am I just am I think women are equal in every way that doesn't mean they're the same in every way but the left was the champion of feminism everything David just said seems really just obvious and factual. How is this a current debate we're having?

And how is it that feminism is now neither party? Like what? Did we just have like 10 years of feminism and that was it? And we're done now? Yeah. So I think the whole thing is sort of fascinating. And I want to just be real clear about some of my priorities. I was disappointed in David's piece for two reasons.

One, my wife who wrote a book on Title IX 20 years ago and has been deeply and used to run the Title IX project for Independent Women's War. has been making a similar argument to David's and got rejected from basically every publication for trying to offer it. And then she came in and she said, yeah, David French just wrote my piece and he did it better than I could. And she was pissed. So there's that.

And then second, I had very high hopes that this was going to be the beginning of the end of David's tenure at the New York Times for daring to write about this. And it has not led to the backlash that I would thought. In some ways, it's analogous to the difference between. mutiny and coup and and I find I am just deeply disappointed that he is he's not coming crawling back to the dispatch because of this pump that's that okay so I agree with you entirely it is very weird the basically the right wing position today on title nine and women's sports is the democratic liberal position from 20 years ago

that line's great women's sports is great blah blah blah blah blah blah blah And the sort of democratic liberal position is now what the far left's position sort of was. There was a book 25 years ago called The Frailty Myth that basically said all differences between male and female performance in athletics is the result of institutional sexism. And that if we just encourage women to do sports earlier the way we encourage boys, there would be no difference in weightlifting. there would be no difference in running, and it's all a myth. This is basically the position of the people who are in favor of letting biological males compete in women's sports. And I think that one of the great weird tragedies of this, and it's weird how I get disagreeing with the sort of Frenchian position on this or the conservative position on this, because people value inclusion. there's something about America in general, but also the left in particular, that always

wants to sort of make the priority some marginalized group. And I get it. And it's not necessarily an evil, you know, impulse or immoral impulse. You know, it's, in some ways, it's, it's a very noble impulse. But this country spent the last quarter century just working tirelessly to convince dads, essentially, to really care about their daughter's athletics and sports as much as they care about their sons. And it was a massive feminist victory. Just a huge feminist victory. And now you're going to tell all of these dads,

but yeah, now guys are going to be able to beat your daughter in soccer, and they're going to take your daughter's trophy that she's worked at for so long to get because that's fairness. And just it enrages dudes in ways that are really politically power. I think and I don't know how my own sort of view just on the substance of this is look if if to the extent this isn't social contagion and and and and a fad and I think some of it is and I'm just going to stand by that I don't think all of this you do not have explosions in transgenderism like this in a single generation because of some hardwired thing, right? This is a, there's a, there's a, there's a St. Vitus's dance kind of component to this. And, um, um, um, but for some people, it's very real. For intersex people, obviously it's real, there are real, you know, issues here. It just seems to me, it is not outrageous as a

matter of a social contract or social policy to say, hey, look, we're going to be supportive and nurturing of your decision to, to transition to a different sex. And we're going to treat you with respect. But, you know, one of the things that comes with this is you like playing boys basketball. If you become a woman, you can't play women's basketball. I don't think that's cruel. I don't think that's evil. I don't think that that's bigoted. I think that's just like one of those facts of life. And I'm not saying that being transgender is the same thing as being handicapped. But like, if you lost a leg, you wouldn't be able to play in certain, you know, regular sports, you'd have to go into certain kinds of leagues.

And we don't consider that evil. We don't require participation, you know, like there's the reason there's a Paralympics. And again, I'm not trying to say the transgenderism is a, is a handicap or a disability, but the logic still applies. And I think the left has gotten itself into a really bad place on this stuff, trying to convince people not to believe

their lying eyes and I think it's bad for transgender people because it creates an animosity towards the entire phenomenon when we're really talking about very small numbers

of people about sports and to put all your eggs in that basket I think as a matter of political strategy really ill-advised but what's the policy solution David I mean is like Jonah said

if you transition, you just don't get to play sports anymore? Well, you know, there's a kind of a way of looking at American sports that is like this. There is, let me pull it to professional sports. I don't know if you remember seeing that, well, this would have been years and years ago, Sarah, you would have been really young. But there was a women's basketball player who was invited to try out for the Indiana Pacers. I believe it was Nancy Lieberman, I think. listeners will fact-check this.

But there was a woman's basketball player invited into an NBA training camp. There was a kicker, a women's soccer player who kicked for Vanderbilt, I believe, a year or so ago. One of the interesting ways of looking at American sports is you have a co-ed league and you have a women's league, but no women can make

the co-ed league. And so to say, look, the men's league or the men's team or whatever is open to the fact that it's just open. If you, regardless of your sexual orientation, I mean, your sex, your gender identity, et cetera. If you can run a 100 meter dash in less than 10 seconds, you're, you know, you're on this team. And then there's a women's team is, I think, one way to look at this, that there's one that's open and then there's another that's the women's team. think that that there's no way to do this in a way where everyone's going to be satisfied because what we're talking about here is not so much the language of desires but the language of rights what do you have a right to do versus what do you have a desire to do and desires

and rights are not the same thing and so when you don't when you're talking about a situation where you don't have a right and i don't think that a natal male a trans female has a right under the law to compete with women, what are the ways that we can accommodate the desire to engage in athletic competition? And, you know, competing with your birth sex strikes me as imminently fair. But David, can't I flip around your idea on itself and say, what if we had a league for sort of the best? That's going to be predominantly male, obviously. And what if we had a league for something else that is currently what we use for women, but is now going to be people who don't meet that testosterone level or, you know, some other metric that isn't just

your, um, your born sex. And we say, yeah, sometimes women aren't going to just always win that. Like it's no longer going to be male and female. It's going to be sort of the JV league. And that, you know, everyone gets to compete in that one. Um, and for the same reason that I don't get to win the track meet because nobody is slower at running than me. Like honestly, even if you had a knife and chasing me, it would, Jonah is raising his hand. And I'm like, no, Jonah. Like, we should have a foot race. I think you'd win. Like, I'm so. Well, you're pregnant. Well, I mean. They're like, we're all born with different abilities, different competitive

advantages. And so just because you're a woman doesn't mean that you're going to be great at women's sports either. Um, and so, why not just have a league that's open to people who aren't the very best? I mean, a high T league and a low T league, you know, T being testosterone. And then the unathletic people go be president of their orchestra and play viola. Yeah, nailed it. In some ways, that's what one of the accommodations has been to have these testosterone limits. There's a couple of obvious issues there.

One is it's actually difficult for somebody who's born biologic. male to have a testosterone level so low that it is actually equivalent to sort of what a female testosterone level is. Again, listeners can can and will fact check some of this. But the other thing is that doesn't do much for juveniles because we don't want to have a position where we say, look, if you're 14 or 15, we need to be really suppressing your testosterone so that you can compete in women's sports. Like, that's a life-altering major change

and a child for the sake of lowering a level to be consistent with that which is fair in women's sports. That's opening up a whole other. I mean, you're talking about creating actual incentives for people to engage in major medical intervention so that they can compete in women's sports. And I think for juveniles, it's just for kids,

It's just not a solution. I mean, it's weird, and we don't, we, we've all been raised for good and understandable reasons to have an instinctive, aversion to the phrase separate but equal. But it turns out that sex and race play, have just different valences in our culture and our law, and they should for various obvious reasons and sometimes not so obvious reasons. and having women's sports and men's sports on net is better for women and better for men because it creates more opportunities

for people to compete in a positive way, right? And one of the things I think is sort of fascinating and also super fraught and maybe if this sentence gets away from me or this paragraph gets away from me, we will have a dom cut it out of this podcast. But the, you know, the, this point that a lot of dumb people,

but also some smart people, have made of comparing you know sort of drag shows to blackface gets it something real right and there are very online types who

really butcher it but there's something real there insofar as we would judge very harshly women who behave as the caricatures that drag queens play of women right the super sexualized flouncy bouncy silliness and all that kind of stuff is not what we expect

from most women but it's sort of part of the sort of the vaudevillianness of drag queen stuff and um and what i think about is like rachel dolazol she was the head of a chapter of the nbacp who faked being black um straight up lied about it darkened her skin and appropriated various things of black culture to make herself seem black. She identified as black. It was amazing to me the way a lot of the left and black left and white left said this is outrageous and unacceptable. This is just beyond the pale. It's verboten. We do not, we're not going to condone this. You cannot steal our life experience. That is a left wing argument when it comes to black people. You make almost an anatomically

the exact same law you make the exact same kind of argument about transgender stuff that is a crazy right wing argument i'm not saying one argument is more right than the other i'm just saying that these fault lines psychological political and ideological have different cultural power and different influences and i think it's one of the things that makes it very difficult to talk about okay that was really funny we're not in the same place we're all doing this by zoom but jona sneezed and then david sneezed i know he made me sneeze jonah Social contagion. I rest my case.

All right. We're going to wrap up with a quick, not worth your time, question mark. So there was a piece about Gen Z's and treat yourself culture being a part of their overwhelming existential dread of, you know, post-capitalism, et cetera. They can't buy houses. All these old people are staying in their jobs forever. So they can't move up the corporate ladder. they're putting off marrying and having kids.

So go buy a $9 ice cream cone. Treat yourself. And no matter how many expensive coffees you buy, it's not going to be enough to buy, you know, to put that down payment on your house anyway. So my question to each of you is, do you believe in treat yourself culture? What is your go-to treat?

And do you think that the Gen Zs are doing it right? Or that they should stop buying their treats. You have two Gen Zers, David. You've raised. I know. Three. They're out of the house. I mean, the two are out of the house.

They're adults. Right. So number one, I thought treat yourself was like the default human disposition. So I don't know what's different about it. Like self-denial is the aberration. Treat yourself as the default. So I don't know how different Gen Z is from like, millennial treat your, I mean, our, are, my Gen X, your millennial treat yourselfism.

And so, yeah, I'm, I'm in on it. And my, I, we just talked about one of the aspects of it right before this podcast. I buy Dove mini bars in bulk. And I literally open all the boxes and dump them into a freezer drawer where I just grab them throughout the day and then decide however many dove bars I ate, that's how much longer I've got to run. I was going to ask the way, do you have to do the treat ahead of time? Like as in you have to do something first and then you've earned the treat? No. It's much less disciplined than that, Sarah. It is called, I want the treat and then I eat the treat. And then the discipline is, okay, now do I have to work out more? So, in some age, that's not going to work anymore. That you can't out

run your appetite at some point. I don't know. You're pretty old. Maybe it will. Well, that's my answer. And Jonah's going to be more interesting. Jonah, David's just eating dove many bars. I don't know that this counts as part of treat yourself culture that we're talking about. Yeah. So the piece, which Adam foisted on me last week as a G-file possible topic, which I ended up picking up, just to be more clear, the premise of the piece is that quote unquote, late stage capital, or late capitalism, which is a popular phrase among the kids today. And I should note, it's like a century old phrase because people have been constantly predicting that this is the last stage of capitalism and they've been wrong.

But that the oppressiveness, the dreariness, the hopelessness, the look not into the abyss of late stage capitalism, for it will look into you. is causing these these young waifs to grab at whatever consumer lifeboat of momentary joy they can take to just remind themselves that their souls are not completely deadened by the evils of capitalism. I want to be really clear. It is a profoundly stupid piece. It is it is really dumb and it's a really dumb argument and rationalization. and the uh because again it's like david's right you know who likes ice cream

everybody right i mean like let's go get it let's treat ourselves to some ice cream is a sentence that first started to emerge days after the invention of ice cream um and like the idea that somehow it's only because of these novel circumstances of young people being disproportionately poor, like that's new in human history, young people not being able to buy a house yet, that that's new in human history? It's all such nonsense, right? But the funny thing about it to me is someone who likes the intellectual history about the concept of late stage capitalism is that like the Frankfurt School Marxists and all those guys, you know, going back to like even Marx himself, but really like the mid-century Marxists,

they had this whole thing about how capitalism takes luxuries and tries to them into necessities to distract people from achieving class consciousness that Marx's, that the capitalist ruling structure forms our, our desires as a way to distract us from focusing on the eventually need for revolutionary commitment to overthrow capitalism. It is this opiate, right? And now their argument is that buying capitalism's tastiest snacks is actually a rebellion against capitalism. And you have to wonder what like Jizek and all these like Marxist guys, they must be rolling in their, you know, must be like slapping their foreheads because this is the ultimate triumph of capitalism. Like if you can get capitalists to convince young people to buy more stuff as a rebellion against capitalism, then they're going to.

capitalists of truly, truly won. You know, it used to be that these guys would say, oh, you know, opt out of consumer culture, no labels, like, um, or what was it? What was the, the, no labels. It was like, um, no logo, right? It was this whole like, reject consumer culture. Now it's like, lean totally into consumer culture. Stick it to the man by increasing big ice cream's profits.

And I just, I think the whole thing is frigging hilarious. Okay, but what's your treat? Oh. I know, I mean, I've always been more of a savory guy than a, I mean, a salty guy than a sweet guy, but, you know, ice cream. I like ice cream. You know, I also, you know what I really like? I like jerky. Um, jerky's good. Um, but I guess my real treat is Irish whiskey. dark chocolate ice cream with a full carton of raspberries. And then I wait until the raspberries get just a little frozen and crunchy. And then I mash it all up so that every bite has like some crunchy raspberry in it and some melty dark chocolate ice cream. That is my ultimate go-to. And with that, we hope you are treating yourselves while you're listening

to this podcast, finishing up whatever you're doing. You can hop in the comment section to provide a comment or rate us wherever you're listening to this or just enjoy the rest of that treat. We'll talk to you next week. You know,