The Dispatch Podcast - Shuffling Deck Chairs on the Lusitania

Episode Date: June 17, 2020

Sarah, Steve, Jonah, and David discuss the president's executive order on policing, proposed reforms on Capitol Hill, the growing tension between China and India, and the Supreme Court's landmark Title VII decision. Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Dispatch podcast. I'm your host, Sarah Isgir, joined by Steve Hayes, Jonah Goldberg, and David French. This podcast is brought to you by The Dispatch. Visit The Dispatch.com to see our full slate of newsletters and podcasts, and make sure to subscribe to this podcast, so you never miss an episode. Today we'll talk about the latest proposals on police reform, a deadly border skirmish between two nuclear powers, and the Supreme Court's decision on sexual orientation and gender identity, what it means for the conservative legal movement moving forward. And we'll end with some pet peeves on writing and grammar, which you at home can use to make your own bingo card when reading the guy's newsletters in the future. Oh, and yes, the brisket is out of the oven. Nate slept through this

podcast, but he tells me that he may make an appearance for our next dispatch live. So go to our website to find out how to become a member. Let's dive right in. This week we've seen both Democrats, Republicans, and President Trump propose their own police reforms. I want to walk through some of those very similar in some respects, but very different messaging on the other hand. So today we have the Justice Act, just and unifying solutions to invigorate communities,

Act of 2020, proposed by Senator Tim Scott and the Senate Republicans. This involves an enhanced use of force database, restrictions on chokeholds, new commissions to study law enforcement and race, according to the draft that the Associated Press has. On the House side, Democrats proposed some similar parts, also banning chokeholds, no-knock warrants, but there's also included abolishing qualified immunity, a doctrine that David and I have talked about quite a bit that we've also put in the morning newsletter frequently. And then yesterday we had President Trump announce his executive order. A lot focused on best practices and these discretionary federal grants that the administration can use to incentivize good behavior,

information sharing to track officers who have repeated complaints against them and incentives for police departments, these financial grant incentives, to deploy non-police experts on mental health, homelessness, addiction, things like that. At the same time, we have some polling that says that, I mean, just an incredibly high number of people,

59%, say police departments across the country either need a complete overhaul or major reforms. Only 27% say police need minor overhaul, so still changes, and 5% think they don't need reforms at all, which was surprising. At the same time, of course, the defund the police slogan, movement, etc., wildly unpopular. So 2 to 1 margin, more voters oppose the movement than support it, and 43% strongly oppose among those. numbers. Jonah, coming to you first on police reforms. Where does this leave us the likelihood of

what police reforms will look like, let's say, a month from now? And where public opinion may go from here? Yeah, I think when we look back on this moment, we're going to realize how crazy pants it got. I think that one of the reasons why, I think it was sort of a perfect storm. The pandemic lockdown built up an enormous amount of frustration, you then had a perfectly legitimate thing to get very angry about, which was the brutal killing of George Floyd, which made a lot of, which was legitimately horrifying on the merits. But then you also had this third factor, which I don't think a lot of people have focused on. I keep hearing these phrases on NPR, on TV. where they people are trying to describe the times they're in and they're say at a time when

America is deeply divided on race and um and on policing right and but really on race and it's actually not a time where we're deeply divided on race no one was really coming to the defense of the police in the George Floyd case and so I think one of the things that has happened is you've got an enormous number of people who want to have an argument with somebody so they start staking out a position that you have to, that you basically are begging someone to argue with you about, like abolishing the police, which is mind-boggingly dumb. And so I think that there's a, there's a weird moral panic, elite moral panic that's been going on in all of this where people are terrified to just make reasonable points about things. I have now seen

several leading Democratic politicians say, without qualification, that we know that the police began as fugitive slave patrols in the United States. That is flatly not true. It is true of some southern states, right, which were rural and didn't have modern police forces or the need for big police forces. But the idea, the oldest major police department in America is the Boston Police Department, which started in like 1820. I don't think they started it for slave.

patrols. The English have had versions of police of one kind or another since the 1300s. I don't think it's about slave patrols. And so there's this weird desire to turn what is an absolutely legitimate issue into almost a hysterical issue. And I think the added part of the problem is there's just not much for the federal government to do here. So I thought Donald Trump's executive order was absolutely reasonable and fine, more or less, but he got beat up by a bunch of people because there wasn't enough expiation of American sin on race and all of this kind of thing. And I think at the end of the day, when this is all said and done, we'll get some good reforms, not nearly anything close to abolishing the police.

And people are going to look back on this and say, we kind of lost our minds for a while. That's how I see it. Steve, Joe Biden, in his initial policy rollout, had something pretty similar to, you know, Trump's executive order, the GOP plan and the DEM plan, which I'll actually have quite a bit in common. He had $300 million to increase community policing. Are they, they're going to need to make this a wedge issue in my mind heading into the fall and summer. How do you do that on the Democratic side?

I mean, I think everything is going to be a wedge issue. Or everything, they will attempt to make everything a wedge issue on both sides going into the fall and summer. Yeah, look, I think there's a fair. amount of overlap on some of the basic reforms, which doesn't mean that these are easy necessarily or that they will have the kind of impact that people believe that they will have. If there were easy reforms to have been made and there were large consensus positions about what those reforms looked like, I think we would have seen some of them earlier. Joe Biden has had his I mean, he's had similar positions over his long career on police and increasing funding for police.

He rolled out his campaign plans something like a year ago. So some of this isn't necessarily new for Joe Biden. I think the reforms generally get at two of the things that when I talk to law enforcement officers, they emphasize as solutions to the problem. One is increased and better and standardized, more standardized training. Their argument is you get into a situation that's a difficult situation and you need to be able to react in the way that you've practiced to react dozens or hundreds of times before. It has to just be sort of a natural reaction to the extent that that's possible in the kinds of heated situations that are prominent in our discussion today.

And the other is identifying and removing bad officers. You have in this database, I think, a way to expedite the identification of bad officers. The second step on that, I think, will be making it easier to get rid of them. You know, some of the police officers I've spoken to have said, we all know who the bad cops are. We get it. And when there's an incident like this, the least surprised people are the cops who have worked alongside him. So being able to get rid of the bad officers, the officers who have had 17 previous run-ins or significant complaints, that's a big step too. So I think we'll see sort of incremental reform, but whatever agreement, whatever consensus has emerged in the short term, I think, is likely to disappear as we head toward November.

Quick follow-up, Steve, in your view, because you and I have talked about this, Val Deming's, woman of color, former police chief herself, is her stock rising or falling in your mind for Biden-beak stakes? Yeah, I think it's rising. I mean, I guess before the kind of protests that we've seen and the focus on this set of issues, I thought that she was, you know, largely, a second or third tier candidate, she was mentioned often in discussions of Biden's potential running mate. But I think this has elevated her pretty significantly. In conversations that I've had with the members of Congress, including Republicans, they speak highly of her. She's well-regarded, I think on both sides of the aisle. I may have mentioned this before, but she's on Twitter, at least taking a somewhat more resistancy set of views than her Republican colleagues, at least had been accustomed to seeing from her.

But they think she's a smart person would be a serious candidate if Joe Biden picked her. David, looking at that polling again, where you have a very high number of people who think that police need major, major reforms. And at the same time, of also incredibly significant number of people who oppose the defund the police moment. Who's the, you know, median voter right now on these issues? What do they look like? That's a great question. I would say the median voter is somebody who has a general background regard for the police, but is really worried about continuing to see these incidents happening time and time and time again. And it's just sort of saying fix it. They're not saying end of the police. They're not saying defund the police. They're saying

fix the police. And it's a really interesting question when you're talking about at the federal level, how can this be a wedge issue at the federal level when the fact of the matter is that the federal government doesn't run any one of the police forces that have been in the crosshairs of late. It has actually pretty limited ability to influence a lot of these police forces. They are governed not just by local law and state law. They're governed by collective bargaining agreements. And one thing that I wholeheartedly agree with Steve about is that one thing the federal government can do because it is resourced so much better than any given state or local

government is they can train. They can provide access to superior training. And this is something I've written about in my. newsletter is that when I see a lot of these police incidents, I see, often I see a lack of discipline just jumping all over the screen. It's just a complete lack of discipline. And lack of discipline is a matter, not just of authority. In other words, how much, how, you know, what kind of actual leadership and control exists over individual police. But it's also a matter of training. Like Steve said, that when, when bad things happen, what

kicks into your mind automatically. And this combination of training and discipline can go a long way towards ending, not just these shootings or killings, which gain all of the headlines, but, you know, we have seen a relentless drumbeat of videos of police officers engaging in impulsive violent acts, breaking ranks from other officers to grab a protester who's just shouting at them and arrest them or the random, you know, the attack on the Australian news crew was a police officer if you watch the video, he's got this shield and he walks past the cameraman and then he just impulsively hits the cameraman with the shield for no reason at all. And so I do think there's

some federal role in training that can help with these discipline issues. But a lot of the rest of it, and aside from qualified immunity, which for now is a non-starter, both at the Supreme Court and in Congress, because the Republicans have said no, a lot of these other things are going to be local initiatives. Civil asset forfeiture. Civil asset forfeiture is not primarily federal. There is federal civil asset forfeiture, but it's there, and the policing for profit, those things are much more state-level problems. When you're talking about reforming cash bail, much more of a state-level problem. If you're talking about no-knock raids, there is a role there for the federal government. But again, you can ban no-knock raids

without the federal government. So a lot of these things, we have this national turmoil around issues that are ultimately legally local. And I think that sort of creates a, it creates a interesting political issue because people don't really realize that. They're going to be looking at in the presidential election and say, can you fix this? And, you know, candidates will, Biden and Trump will make grand pronouncements. But the bottom line is that this is going to be something that's done department by department by department. And by the way, on the defund the police thing, I've just started to make a decision. I've just got to start ignoring some of this stuff that seems to get most of its traction on Twitter and in, you know, and in the middle of sit-ins and

nowhere else. I'm with you on that, but, like, so yesterday, on MSNBC, Eddie Glowd, Jr., you know, this guy from Princeton, smart guy, nice guy, I've met him, was on Meet the Press with him, anchor said, you know, what about increased training, basically what you're talking about, And Glowd reigned extreme contempt on the very idea that training would have, that training could work at all. That training has any benefit to it. One of the people I saw talking about slave patrol stuff was the number three Democrat in the House, was Jim Clyburn. The, you know, and then, so last night on special report, they ran a package of some,

of the things that Joe Biden said in, you know, five years ago about policing, about how community policing is good, that policing reduces crime. We know this. He's absolutely right. All of the empirical literature says that the more police you have in visible places reduces crime just so happens that reducing crime benefits African American communities as much as any community in this country. And I honestly think that there is a real opening.

Trump can't do it for all sorts of reasons, even though I think his basic position is closer to right. But Biden could just come out and say, come on, let's be serious here and give, it's not a sister soldier thing, because he doesn't want to attack anybody on the left, particularly not a lot of these prominent people. But my hunches is he could thread the needle

and make a case for policing that my hunch, most older African-American voters would completely support. And those are the ones who got him his nomination. Those are the ones who vote for Democrats reliably, unlike younger African-Americans. And I think he would, he's in real danger

if he lets himself get pulled crazily to the left where the Twitter world and the MSNBC see world take it as a given that the the moderate position now is to take a wrecking ball to every police station in the country. Oh, I agree. I agree if he allows himself to be pulled that way that it would be a huge mess for him. I'm skeptical that it will allow himself to be pulled that way because it's been sort of contrary to the ethos of much of its campaign, which is to sort of campaign as if Twitter

never was invented. Yeah. And he has very clearly. Yeah, exactly. He has very clearly said he is not in favor of defunding the police and that he has an alternative platform that, as we've said, overlaps a great deal with elements of the Republican reform platform. But, yeah, I agree with you, Jonah. If he allows himself to be sort of swayed by Twitter and some of these MSNBC voices like

his Democratic competitors were during much of the primary, he's going to have, he's going to create real problems for himself. Steve, on the other side, on the conservative movement side, you know, 10 years ago, gosh, it really has been 10 years, the rise of the Tea Party movement, the 10th Amendment crowd, it was all about federalism. And in 2020, we see coronavirus being largely highlighting governors, local government, making decisions that people see the decision making process a lot more than I think we've seen in years past. and now police reform, to David's point, which will largely happen at the local level. Are we 10 years too late for a 10th Amendment moment within the conservative movement? Yeah, I mean, I don't see it quite as clearly and consistently as you do, I guess. I think to the extent that you're hearing 10th Amendment arguments today from current Republicans in power,

it's largely on an issue-by-issue basis and whatever allows them to dunk on liberals. Oh, no, I agree. I think the Tenth Amendment moment passed. I don't think there are a lot of Tenth Amendment conservative movement folks. But I guess what's strange to me is that 10 years ago, that was a premier rallying cry. And here's the moment that it would be so effective. And yet I'm not hearing. I don't think I've heard the Tenth Amendment said in three months. Yeah, okay. I'm sorry, I misunderstood. No, look, I mean, I think you can file that along with a lot of other principal small government arguments that we're not hearing these days very often. No, I mean, I think as with everything, this is largely these arguments and the way to make these arguments are largely done on an ad hoc basis, depending on whatever benefits the president or whatever people perceive benefits the president at any given moment. So you'll hear Tenth Amendment arguments, I think, selectively, you know, you heard them in the context of the debate over what to do with the national PPE stockpile. It's a national, I mean, it was a federal PPE stockpile, and you still had arguments about federalism then. You had the president saying, you know, we believe in the states, we want to empower the governors.

The governors should go out and do this on their own. And then Larry Hogan went out and did it on his own. And the president reigned to wholly hell down on Larry Hogan for going out and doing it. on his own. There's not a principled, consistent federalist position that's being made very often these days. I suspect, and in this, you have, I think, a White House that's doing, to a certain extent, a little bit of both with a federal registry of bad cops and, you know, pushing other things back toward the states. I think we'll continue to see this kind of ad hoc, hodgepodge approach to these issues based largely on their political appeal and much less on what a

principled position, small government position would look like. Sorry for being so cynical. I'll just have you know that under the 10th Amendment, the Capitol Hill Autonomous Zone of Seattle is allowed to police itself any way it sees fit, including use of the guillotine. There is something very French Revolution about what was going on there. I kind of didn't see any more updates over the weekend. I'll admit I had a busy weekend, I suppose. But is that still a thing? It's still a thing. They've improved the wall, the border wall, which I love. They're constantly updating it with better technology, which is important when you're building a border wall for good reasons. Is it a wall or a fence? I mean, come on, that matters.

It's journey. It's getting kind of, it's getting wall-ish with plans. And who's paying for it? Mexico, which is amazing and over the weekend it looked like or on Monday, it looked like they were heading into their Judean people's front

versus the people's front of Judea phase with different factions lining up against each other. I did like this video of it on the interwebs of a reparations moment where a white guy told, I shouldn't say a white guy,

didn't look like he was black, he could have been some other thing in between or something, but he told all of the white people in Chaz that they needed to give $10 to a black person in Chaz. And I don't know how that played out, but it was, it's going great there. It's going really great. They really have a leg up on the founders.

Steve, can we assign John? Jonah as like a reporter on the ground? I was just going to say that. I was for it. I'm for it. You know, Jonah, Jonah did one of the better, more memorable reported pieces of the past couple decades when he went up to Anwar and did like on the ground reporting there.

I am 100% for sending him to jazz and dressing him up in kind of, you know, Skinny jeans? Can we put him in black skinny jeans? Yes. That'd be perfect. Well, he needs to tattoo sleeve. He's got the hair for it already. He definitely has the hair for. I know, but I'd shave my, I trim my beard. That's the problem. And the beard, it worked. But we'll talk about it. You know, I mean, maybe in it's Thermidor phase, I'll go out there. Well, unless you get a tattoo sleeve, you're going to be immediately identified and marched out of there as some other interlopers have been identified. So be thinking about the design.

I do look like a narc. I mean, I just do. So. All right, moving topics. Here's a sentence you just don't hear every day, Steve. I mean, we have two nuclear powers who are believed to have fatalities on both sides after a border skirmish. It was, according to reporting that I'm seeing today, hand-to-hand combat because they do not carry guns in this zone using stones and wooden clubs. Troops on each side were killed.

but, for instance, in this, you know, brutal way, only three Indian soldiers, I understand, were killed on the battlefield. The rest died of exposure because the temperatures there are so extreme. And this comes down to the de facto border, the line of actual control, the LAC, that runs along the western sector of this valley between India and China. Can you give us an update? What do we know? Where is this headed?

Should I be concerned that, you know, you know, while we're dealing with our American news cycle, which is always very American focused, that we have two nuclear powers who just had fatalities? Yes. We should always be concerned when you have these kinds of tensions among two nuclear powers. I think we should be additionally concerned because this comes at a moment of rising nationalism, both in India and in China. We should also be concerned because China has made clear that it seeks to expand its territorial ambitions and hasn't been very subtle about it.

And I think we should be concerned because the United States, which often can play a moderating role in these kinds of conflicts in the past, is really not in a position to play one here. Clearly, our allies, India, President Trump has been very friendly with Modi in India and obviously has, I would say he's been on again off again with Xi in China, where he had, on the one hand, it looks like we're confronting China in a pretty frontal way in some areas of trade and other areas. But then, of course, you have the president saying many, many nice things about Xi in his comments to the American media, early defenses of the Chinese on coronavirus and what have you. But this is an old dispute. This is not new. It has escalated in recent weeks for some reasons that I think are clear and local and other reasons that have much more to do with positioning sort of geopolitical, geostrategic, positioning both in the region, but also globally. China is making its presence known on the global stage that are, you know, from the aggressive moves that China's made in Western Europe and in Africa to expanding its reach and

intensifying its efforts in the region, in Asia. We know what China is seeking to do, and this appears to be. be part and parcel of those efforts. I think that the question will be what the United States does to a certain extent. I mean, the real question is, what are the two parties do themselves? And you've already seen at least early indications that there's an attempt to de-escalate the rhetoric after lots of bellicose rhetoric from both sides. The Chinese are now a foreign ministry spokesman saying, look, you know, this shouldn't go anywhere. We're committed to peace. We want to have these conversations. We'll see if the United States can play a constructive role, but there are

lots of reasons to be skeptical about that. David, you have a bullying theory. Yeah, I have a bullying theory. So, I mean, look, we know and that China and India have fought over this ground before. China rather handily defeated India decades ago when they fought. India has, always been a weaker power compared to China. It has never, India has never really been in the American orbit, so to speak. It has consistently sought its arms from other sources. It has been consistently weaker as a military power than China. Well, now you have a rising India, and you have a rising India that is moving closer to the United States. And India is in the middle of a major military modernization. It's considering a huge purchase of military technology

that may include American technology to construct in India, American-designed fighter jets, which could really begin to change the balance of power here. And so I think that there could be well some bullying designed to alter Indian policy while China believes it still has a very decisive military upper hand. And so I do think that, you know, you have to look at this. If you're if you're seeking to be at the very least, you know, establish regional dominance and at the very most position yourself as a superpower, a rising superpower potentially to eclipse the United States of America, one of the things you have to, one of the Chinese views may well be that it has to handle its business in its backyard with another rising rival. And this

is a way to do that. It is a way to exercise a bit of brigsmanship to extract concessions from India or to alter Indian behavior as a condition for backing down. It remains to be seen. But, you know, one of the things that we often forget when we look at great power struggles is we often look at them entirely through the sort of the prism of economics and politics. We also need to keep in the back of our minds and maybe sometimes front of mind, military balance of power, quite frankly, who has the stronger military? What is the concern about an emerging and strengthening military on your border? And how much does that play a role in the actions China is engaging in now? So that's something that it's just, as soon as I saw this

against the background of India's potential new arms purchases and it's a military modernization, I began to think hard about whether this was bullying design for concessions. Now, it could reach the exact opposite result. It could spur India to much greater efforts to modernize so that it can't be bullied. But it remains to be seen. I'm going to do exactly what David just said not to do, Jonah. Bringing this back to politics, you know, Joe Biden always touts his foreign policy credentials. Yet it seems like there's no room in the political news cycle here in the United States to focus on this. Is this a space whether today or during the course of this campaign that foreign policy will be a major

factor in your mind? I don't, at some point foreign policy always comes back as an important thing. I don't think this will be it precisely because we don't have much skin in this particular game that's going on. Of course, few things get people's attention more than even a limited exchange of nuclear weapons between two nuclear superpowers. So that could distract us a little bit. But I think that, you know, it seems to me entirely possible that China could actually get our attention not by what.

what it does with India, but what it does with, say, Taiwan or even Hong Kong. And, you know, I just had on my podcast Oriana Mastro on, and she's a Defense Department, China security analyst and a professor at Georgetown, and she is, as they say in Boston, Wicked Smat. And I got so many people saying, oh, my gosh, so we're going to war with China. after the podcast and um and she responded i don't understand why everyone thinks this is such a dreary argument i was taking the optimistic position um and so i i i do think there's a real chance that china in in in part because it might have a theory about who it wants to be president i don't i'm not making a russia meddling kind of argument but like um you could see them

going for some serious mischief during the presidential campaign as a way of sort of testing, stress testing, both sides to see what they get out of them. But it is amazing that we're... Who do you think the argument? Assuming for a second, let's assume

that China does make a move, Taiwan or Hong Kong, because I agree, I think either one of those would capture quite a bit of attention over here in a way that, for whatever reason, India and China doesn't because it doesn't feed this pre-existing narrative, I think, that exists over here already. Who does it help? Meaning, does Joe Biden

have the better foreign policy argument with the American people, or does Donald Trump with China specifically, a Chinese aggression specifically? I tend to, I'm really open to correction on this one. In my gut, though, I actually think it helps Biden, even though I think Biden has been wrong on most major foreign policy questions for the last 30 years. But the general talk about working with allies, about supporting allies, about working with international institutions, all that kind of stuff as part of a broader return to normalcy pitch, I think helps Biden. And I think part of the problem that Trump has is he very much, like, likes to talk tough on China, but not on Xi, as if that there's a major distinction between

the two. And I think he gets himself into more trouble than his benefits when he tries to play those games, particularly if we're in a moment where, you know, if China actually does try to take Taiwan, which I think is a matter of when, not if. Yeah, let me, let me jump in. Let me jump in real quick. Yeah, I think we are right to be concerned about the role that some foreign policy, national security, externality could play in the election. I would say China, obviously, is an obvious candidate for mischief, but there are many others. You know, you're seeing credible reports about the rise again of ISIS in Iraq and Syria. You're seeing more mischief making by al-Qaeda and ISIS in Afghanistan, further deterioration of an already dicey situation on the ground in Afghanistan as the U.S. withdraws.

You're seeing more mischief making from North Korea, both things that are very obviously designed to look provocative and to generate a response from South Korea and the West, but also steps, and these are just things we're talking about that we know of steps that very clearly increase the threat against the United States and our allies in the region. And then, of course, you have Iran. And, well, I don't want to go too far down the road of speculating what President Trump might or might not do. I think it's not terribly responsible to do that. I will just say, we know from his own comments in the past that he believes he looks strongest when he's in that kind of one-on-one back and forth with our enemies and adversaries. And he's accused. President Obama of using foreign policy in the past for the purposes of winning elections. So I think there are reasons to count on some kind of additional external conflagration and reasons to be concerned about the way that that might, you know, affect our day-to-day lives and also affect the election itself. I don't think. David, you have a furrowed brow.

Yeah, I don't think chaos oversee any degree of additional chaos helps Trump at all. you know, maybe, you know, if Trump is the challenger and there's chaos and he says, I'm going to come in and I'm strong and I'm, and people aren't going to want to challenge me and I'm going to set things right. But I feel a very similar feeling about chaos overseas as I feel about chaos at home. It's tough to run as the law and order guy when the chaos broke out well into your watch. We're talking about, you know, well into the fourth year of your presidency. And I feel like the same with, there's a awful lot of sense that Trump was kind of trying to have it both ways. Well, not kind of. He was having it both ways and saying, I'm strong and nobody's going to cross me. And also, I'm going to get us out of everywhere. I'm going to, you know, I'm going to get us out of all of the military entanglements and diminish our military presence overseas. I'm going to bring the troops home.

But I'm also strong and nobody will want to tangle with me. And those are just fundamentally sort of incompatible assertions. And they have inherent within them in tension. And we're seeing some of that with rise of al-Qaeda and Afghanistan. I mean, al-Qaeda meddling in Taliban, I'm sorry, ISIS presence in Afghanistan, ISIS rising again in Iraq and Syria. And these, that chaos, I cannot imagine actually helping him. is in the same way it's hard for me to imagine chaos in the streets helping him.

This is not what Make America Great Again was supposed to look like. And I think that foreign powers who are tired of dealing with Trump might try to play a little bit of dangerous game here. And it remains to be seeing what they'll do or how Trump will respond. But I think that the bottom line is as a political matter, I don't see chaos helping him at all. So I agree with that with a couple of important caveats. I think as a general matter, that's correct. I think the way in which you could imagine chaos helping the president as if the United States or voters felt that we were under attack somehow and that, you know, President Trump was standing up to an attack and, you know, taking on people who want to do us harm. You can imagine that that might help, even though I think that itself is a question.

And the second point I would make is, obviously, it matters what happens, you know, what these events actually are that we're talking about. But it also matters what President Trump thinks. So you may be entirely right that it wouldn't help Donald Trump if there's, you know, some big foreign policy national security. security crisis. But it matters a lot if Donald Trump thinks it will help Donald Trump if there's such a crisis or if there's an opportunity to look strong or to be strong in a way that would allow him to campaign. And look, we saw Barack Obama campaign in 2012 extensively on killing Osama bin Laden. And the argument basically was we took out Osama bin Laden in May of 2011 and al-Qaeda is soon to die afterwards, and that's the way we're running for

re-election. We're making you safe. Donald Trump saw a, you know, there was a lot of concern, I think, and there was speculation that events could spiral out of control after the killing of Qasem Soleimani, and it didn't happen. And I think you talked to Trump supporters, talked to Trump administration officials, and they would point to the killing of Qasem Soleimani as a high highlight for the president. I think it was a good moment for the president. So you can see where a president who takes that approach and who has that view of what makes him strong and what makes him powerful would be inclined to find those areas where he can exercise that kind of power. And now let's take a quick break and talk about our sponsor this week, ExpressVPN.

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Jonah, big day at the Supreme Court. I've already talked to David about it. Plenty on advisory opinions. Plug, plug, plug. The Supreme Court held that Title VII, which prohibits sex discrimination in a lot of private sector areas, applies to sexual orientation and gender identity. This was met with feelings, let's say,

in the conservative movement. Republican Senator Josh Hawley in Missouri, a former Chief Justice Roberts Clerk himself said that the decision, quote, represents the end of the conservative legal movement. The decision was 6-3 with Roberts and Neil Gorsuch, the Trump appointee to the Supreme Court, writing, sorry, joining with the four liberals, Gorsuch was writing the opinion. Alito wrote a dissent. Cavanaugh wrote a dissent. So you basically have this intra-conservative legal movement fight. Is it the end of the conservative legal movement, Jonah? No. But it's not good, Bob. It's, I am, you know, my, I've, and I have not, I'm not the lawyer person that you guys are, which means I can. But that's why I'm asking you,

actually. I think it's, I think this is an important, like, non-lawyer people vote on judges. This was the but-judges argument for a lot of folks in 2016. Yeah. So my, I mean, the politics part of it aside for two seconds. My own view is Gorsuch came to this position honestly, but incorrectly. I think that he is a sincere textualist, and he was sincerely applying it as he sees it to come to this conclusion. I think it's a wrong or bad or incorrect conclusion. And I think my general problem with it is that the, you know, I don't believe in a living constitution.

I also don't believe, I mean, it's weird. I do believe in a living language. What we associate, what we, the meaning that we imbue in words changes over time. I'm a big fan of like looking up the etymology of words and see how they've changed and all the rest. But that can't, literally, that can't be a back door to breathing new meaning into the words of the Constitution. And it feels to me that that's what Gorsuch does when he says that discrimination against transgender people is sex discrimination. You can make that argument that that's what it is today. It is not what it meant when they wrote the Civil Rights Act.

It is not what, it's not how left-wing activists interpreted the Civil Rights Act in the 1990s. You know, and as David has pointed out, when they were lobbying the, you know, Congress to amend the Civil Rights Act to include these people because they didn't think sex, they didn't think they were included at the time. So it feels like a backdoor way of doing a living constitution argument, and I think it's a shame. I don't put a lot of credence in when people like Hawley say it's the end of the conservative legal movement because there are a lot of people out there who want an end to the conservative legal movement who are very quick to shout, this is the end of the conservative legal movement. And if I didn't think that Holly was wanted results-oriented judges and jury, prudence, I would put a lot more credence in his death certificate for the conservative legal

movement. But to me, this is sort of like Aegean Vermeel saying, ah, this shows the end of the conservative legal movement. This is a guy who really, really, really wants to put a stake through the heart of the conservative legal movement. So, of course, you would say that. I do think it is a very bad thing for Trump, particularly because it was Gorsuch. and Butt Gorsuch had become such a meme and now it takes on now it really, he has breathed new life and new meaning into the text

of But Gorsuch in a way that is somewhat ironic it's a living meme and it just makes Trump running on judges even marginally more complicated and that was one of the few

really clean arguments that he had, and he doesn't need that to get complicated, too. So can I jump in here briefly? Sure. I was shocked you weren't just jumping up and down. Well, first, look, everyone who's followed the court for any length of time knew that the judge's argument was at some point not going to be clean. At some point, sooner rather than later, or this was actually somewhat later rather than

sooner, this was not going to be clean because it never is. It never is. Presidents appoint human being jurists. They do not appoint case outcomes. And these human being jurists, even when they're quite closely aligned in their philosophies overall, as Justice Alito and Justice Gorsuch, both are, will reach different conclusions in the face of similar facts or similar legal texts. It happens It's always happened. It's always going to happen. And if Josh Hawley or Adrian Vermeul thinks that they can get a better court by, I guess, asking people before asking people in the nomination process, will you please read the House editorial of first things before you rule on any religious liberty case to provide you with guidance? They're going to be nominating somebody with a legal philosophy.

And that legal philosophy will sometimes depart from what they want as an outcome. And I'm not quite sure why religious conservatives believe that their particular philosophy should be privileged over others. Religious conservatives are just as prone as any other group of Americans to make excessive demands of the law. So I'm not quite sure why their view should be privileged. And then the other thing is, look, stay tuned, y'all. I have in my – I have in my newsletter today a series of cases that are going to be to

decided in the next, you know, a couple of weeks where we'll get the opinions, where you watch, if the outcome goes, as I expect it will go, all of the weeping and anguish you saw on Twitter will exactly reverse, exactly reverse. You might have a broad expansion of the ministerial exception, which will lead all of a sudden to an interesting situation where religious institutions will have greater freedom from non-discrimination employment law than they've ever formally enjoyed before. And so there are new legal developments that may well come that will cause some of this to flip. And then I think, I think when the June Medical Services abortion case comes out, you might see it flip again, because I don't think there's any indication

from the Supreme Court that it's willing to substantially rewrite abortion law, which will be a big disappointment. And so again, you're... But David, do you agree with courts as just ruin? I will... I'm more persuaded by Alito. but it is a lot closer than I thought it would be. Because, see, what a lot of people are missing as you look at the Gorsuch ruling is nobody disputes, nobody disputes that this is not what the people who drafted the Civil Rights Act intended. Nobody disputes that. But that is, according to textualists and original public meaning, that's not relevant

what they intended to do with the Civil Rights Act in 1964. What's relevant is what the words mean. And what's interesting is I think people have missed in the critique of Justice Gorsuch is they say he's redefined sex. He hasn't at all. In fact, both Alito and Gorsuch apply the definition of sex as a biological, fixed term, a fixed biological state of being. And in that way, they depart from transgender ideology. And what Gorsuch is saying is you cannot, as a matter of fact, discriminate on the basis of sexual orientation. and gender identity without also discriminating on the basis of sex.

And so that's his assertion. And Alito says no. And Alito comes back at Gorsuch and says, wait a minute, if I have a policy that's written that says, I will not hire a gay employee. I don't know the sex of the employee as I'm writing that policy. That would apply to men and women equally. And so therefore, that's not discrimination on the basis of sex at all. It's discrimination on the basis of sexual orientation.

to which Gorsuch says, though, however, when applied to an actual human being, you would be treating a man different from a woman in your actual employment decision. And that's where it comes down to. They're not disagreeing on whether or not the definition of sex is about a biological, fixed biological state of being. What they're disagreeing on is whether or not you can discriminate on the basis of sexual orientation and gender identity. without also discriminating on the basis of sex.

That's the dispute. And that's a lot finer point than the way it's being cast in the public argument like Gorsuch rewrote the law. No, he's making a conceptual argument that says, wait a minute, I cannot see a circumstance in which sex discrimination is not part of sexual orientation and gender identity discrimination. Alito is saying, oh, yes, I can. And here are the examples. Steve, do you think overall, the Republican voters were more likely to vote on judges or to rank judges as a higher factor in their vote than Democrats by a significant, you know, double-digit margin in quite a few polls? Will this lower the temperature on both have no effect? Will conservatives continue to outpace Democrats on judicial voters, let's call them?

Yeah, I mean, I think the caveat that David offers is a good one. We'll see. We'll see what else we learn. It's entirely possible that when we look back on this entire, the bulk of cases that the court is deciding, we'll look back and things will look different in a couple months than they look right now. But having said that, I think Jonah, is sort of tentative conclusion that this doesn't help the the Trump case on judges is the right one. You know, that was an argument. And look, there's a big argument. Mitch McConnell will make it. And so other Republican senators that the broader effects of the Trump judiciary versus what would have been a Hillary Clinton judiciary are, you know, significant in and outweigh, you know, one decision that some social conservatives don't like. So I think there'll still be able to make this argument and we'll see what the rest of the cases bring. I do think, you know, this moment and watching the reaction to this is very interesting just

in terms of where the conservative movement is today. You know, this is a fight that a lot of us have been covering, a lot of us have been engaged in, David has been sort of leading. But the extent to which there's, you know, there is an outcome-based conservatism versus a process-based conservatism is really becoming clear as these arguments continue to unfold. You know, the post-liberal crowd making arguments that it doesn't really matter, process doesn't really matter on a lot of the stuff. And I mean, that's an oversimplification of their case, but on a lot of, in many respects, that's almost exactly what they're arguing. It's all about outcomes. We need to find people who will give us the outcomes we want, and that's the way that this works, period. It's

what the left is done. It's what the right needs to do. And politics and, you know, are the politics of the judiciary have to be outcomes based, and that's how we're going to proceed. It's a clarifying moment for those of us who believe in process, because I think process matters. And as David said, process isn't always going to give you a good process is going to guarantee that certain things happen and they happen evenly and according to certain predetermined rules. But they're not always going to give you the outcomes that you want. And that's part of believing in the process. The abandonment of those processes at this point, I think, has to give pause or cause concern for many of the conservatives, at least, that I thought, agreed with us on the basic importance of process.

Yeah, but can I, I know I'm Ahab or that, that reporter who was convinced that the Hulk was real on this stuff. But Steve makes a good point about process. The reason why this is the hot, steaming mess that it is, is that the fundamental breakdown on the process is that Congress isn't doing its freaking job. Yeah, that's so true. If Congress, if I'm totally opens the idea of including transgender people and the Civil Rights Act, and, you know, maybe there'd be specific carve-outs for religious stuff

and all sorts of things that we could do, that would be better for all sides. I don't know. I'm totally open to the idea, though, of extending those protections. I, it is insane that it is falling to the Supreme Court to be doing this. Time and again. Time and time and again, yes. Yeah. So this is the problem when the, in the assembly line that created, laws in this country, when the workers in Congress and in state legislatures and all the

rest, when they don't do their jobs, putting their pieces together, the Sellinglein Line sends all the parts down to the Supreme Court, and they get to put it together any way they want. And then people feel how outrageous it is that these unelected, robed priests, masters, whatever, are rewriting our life and tampering with our society. and all those stuff. And no one seems to point out, well, if frickin Congress had been, you know, said, oh, you know, this is an interesting issue. Maybe we need to, you know, revisit the 1964 Civil Rights Act. Otherwise, Congress is going to get the puck, and they're going to do something different with it, and that's going to cause problems for us. Congress has been abdicating its role for an increasing amount for nearly a century now. And it is Congress where politics is supposed to happen. That is where different groups of Americans bring their grievances, their desires, their agendas to a central place where then everyone has big arguments about it.

And because Congress has basically closed itself off to the natural functioning of politics in this country, politics has been spilling out into the courts, it's been spilling out into the editorial pages and the newsrooms, it's been spilling out into Hollywood. if Congress just simply needs to freaking do its job and stop worrying about getting good hits on Morning Joe or Fox and Friends. And, David, there's three cases this term that fit exactly what Joan is describing. This is one of them. Congress had taken up potential legislation around this, and it just didn't go anywhere. DACA is another example where Congress had considered legislation. It didn't go anywhere.

And Little Sisters of the Poor, the question over contraceptive mandates, is a little bit more interesting because Congress basically did something far more to Jonah's point where they quite clearly kicked the question to the courts when they said, here's a law, now administrative state, figure out what the law actually is going to require. And now the, you know, HHS, a part of HHS, did figure, you know, decide what the individual mandate would require around contraception, sorry, not the individual mandate, the contraception mandate. And, and that's now being litigated because Congress didn't actually set the rules for what the contraception mandate would be. And at the same time, politicians, Congress, senators don't seem to be punished for this.

They're rewarded because their rhetoric gets to be on whatever side of the issue they want to be on without taking the vote. Is there any hope of this changing or does the court keep getting dragged in? Oh, there's no hope for now. I mean, let's just end. Let's end all speculation. There is no hope for now. There is not a single, I think, truly material, cultural or political factor that is pushing back against the negative polarization and the enhanced executive authority that has put us into this place. There are voices pushing back, like Jonah's voice is pushing back. Our voices are pushing back. But there is a tidal force. And just to amplify what you said about Little Sisters of the Poor, do you remember that really famous statement that Nancy Pelosi said, something like we have. to pass this law to see what's in it.

That was even worse than you thought, because it wasn't taken literally, when you look at the legal, actual legal background, everyone sort of initially interpreted, and I think she probably meant it this way, is like, hey, we need to just go ahead and pass it, and we'll argue about the details later. But the way the law- Right, I mean, people made fun of it as a silly thing to say, but in fact, what she said was factually accurate. Yes, it was factually accurate. The law had left so much.

much for the executive branch to fill in that you didn't even know what Obamacare was fully until the law was passed by Congress and then the executive agencies filled in all the blanks. And that's the source of the contraception mandate that has been an absolute culture war flashpoint for almost a decade now or more than around a decade now. And it's and so that's, you know, when you go to this, what Jonah is saying, Congress has to do its job. Congress has to do its job. Y'all, this is putting a stress on our system that is intensifying the culture war at every turn and then rather than step in as adults and govern what these members of Congress do is then intensify the culture war at every turn through the Fox hit

and through the MSNBC hit. I mean, this is why you see like Ted Cruz challenging Ron Perlman to wrestle Jim Jordan. Now, I'd be more impressed if Ted Cruz was actually challenging someone himself to wrestle, but no, he's bringing another person in to challenge. It's so weird, stupid, ridiculous, performative Twitter nonsense. And yet that's now part of the job description that many members of the world's greatest deliberative bodies see as essential to who they are in this system. And it is destroying the fabric of our government. It is, it is, it is, it is, it is, it is, is harming our culture. And Sarah, there is no short-term prospect of it changing.

And on that note, Steve, did you want the last word? I mean, you know, I thought we might be able to get through the entire week without any dispatch mentions of the Ted Cruz, Ron Perelman, Jim Jordan, Matt Gates thing. And how wrong you were. Whatever it was. But I will say, if we were going to raise it, the way that they are, if it just raised it is the perfect way to raise it. I really don't have much to add. They're both right. You know, I would argue that this is also the reason that we've seen the accrual of so

much power and the executive. You know, Congress isn't doing his job. It's Congress is a place to go to perform and to give speeches and to get on Twitter and to get on Fox and friends. And to become president. And yeah, I mean, and to become president or try to become president. Yeah. Yeah. It's pretty dysfunctional at this point. And I don't think we take many major steps towards solving our broader problems until we take big steps toward fixing Congress. All right, guys. Last topic. So I had a baby over the weekend. It was super fun. He's neat. But in the lead up to that, one of the things that I was like most going to miss was reading, like just quiet moments alone, reading on my deck, hearing the birds chirp, etc. So I went on kind of

this binge. Shout out to Jonah, by the way, because he had Matt Ridley on his podcast a couple times this year, but recently. And Matt Ridley has a new book out that was really different from some of his other books. And I really enjoyed it. It's on how innovation works. And good times on that. I read Carl Zimmer's book on genetics and heredity. She has her mother's laugh is the name of that one. And guys, I have the best baby in the whole world because you will not believe what I did yesterday. Mind you for only a few minutes. But I started a new book. I was really pleased. So what this made me think of was how much I love good writing and that Steve wakes up every morning at like 5 a.m. to edit the morning dispatch newsletter to make sure that we are

putting out good writing hopefully every day. And so I wanted to start with Steve on what is his biggest writing pet peeve or what he looks for maybe to define bad writing. Or I will also open this up to a pet peeve that others have that actually you think is just fine. you know, split infinitive sort of being the famous one where, you know, some people think it's bad writing and others are like, no, look, I get that it's wrong, but it's great. We're not speaking Latin anymore. I still prefer not to split infinitives whenever possible. And I try to do that in our editing process, too. There are so many of these little hangups. Here's one of the worst things you can ever do is go back and read William Sapphire's books that were the

collections of his on language column yes I love those it is I mean they're they're fantastic I'm being sarcastic it's great to go back and read them but then all of the little things that he picks at live in your head when you read and Lord knows I violate his rules all the time and I have many, many weaknesses as a writer. I would say, so the short of answer to your question is, I have so many of these things, and they change on a day-to-day or week-to-week basis. I would say the thing that is bothering me most these days

is the use of impact as a verb. Impact, such and such as impacting this, impacting that, just drives me nuts. I know it's a quirky one, but I hear it, and it is the proverbial nails on a chalkboard. I also hate cliches. So I try to write it out of everything that we do. That's the tell. If you see something published in our pages that includes impact as a verb, there's a very strong likelihood that I had nothing

to do with it, that I didn't even get a chance to copy edit it. Andrew, Declan, I hear a challenge. David, when it comes to legal writing, you've done, you know, plenty of briefs to the court, et cetera. I think some of the worst writing is in legal writing often. So this is, so I thought the subject was going to be confined to grammar, at which point I was going to, at which point. It is grammar.

It's all of this. Well, I was going to tell a true story. And this tells you how poorly. Now, look, I had a rural Kentucky public school education that was very good in some ways and in other ways not so great. And I'll give you an example. So I taught legal writing at Cornell Law School. And we're meeting as a faculty before, and this is one of the more embarrassing moments

of my professional life. We're meeting as a faculty before the students came in. And our chair of our department talks about, you know, things. here's sort of like six or seven like just a quick rule she teaches students and one of them was don't use passive voice at which point I blurt it out and bear in mind I'm an adult lawyer at this point what is passive voice perfect yes so that was really establishing my credibility as an academic at that point no I I will tell you I did I did two things to become a better legal writer. One is I made it a practice of reading every single legal document that I wrote out loud.

If it didn't sound like a normal human being talking, it was poor writing. And so then the other thing that I would do is I would always ask a non-lawyer to read my brief or a non-lawyer to read my argument. Yes. So, you know, one of the legal secretaries or, you know, a paralegal, somebody who is reasonably kind of new lingo, but I would always ask someone in the firm who was not a lawyer to read my brief. And if they didn't understand my argument, I would rework it. And so my position and my position always was that these briefs are often read in a hurry by judges. They're often read in a hurry by clerks. You have a limited amount of time to grab their attention and you have a limited number of things that you will put in their head.

And so I always wanted anyone who read one of my briefs or legal arguments to understand my point straight away and to at least have one to two key points that they take away from it. And so that's, and to do so with sometimes spotty grammar I later learned. But yeah, I also think if you read something that you write out loud, bad grammar doesn't read well. And so you'll just sort of naturally fix it, even if you're not an expert in grammar as I am definitely not. Jonah, I saved you for last because it doesn't matter the topic if I'm asking for a pet peeve or complaint about something. I just, like, you're going to be my favorite. So I just like open up to us about what annoys you, Jonah. Well, I mean, he just pulled off his

glasses, folks, as if he's about to launch into his like, you know, acceptance speech. Well, no, but like, given the mood I am in, it's, it would be easier if you ask what doesn't annoy me. Right. It would be a shorter conversation, but. That's always your mood. Yeah, one place to start is about a moderator who says we're going to talk about grammar, and then it turns out she couldn't share what you were about grammar.

I, uh, grammar and usage. Do you think this is not about grammar? I mean, I think it's all sorts of stuff going on here. The way she framed the question was about, you know, bad writing and things that, you know, impact as a verb. It's not what I think about as a major grammar thing. But fewer versus less is one of the hills that I'm dying on these days.

It drives me crazy when people misuse fewer and less. And, and I, you know, it bothers me greatly. It vexes me. Another is. Would you say it impacts your day? It does impact my day. Oddly, I don't really care about split infinitives. I, you know, sometimes it's necessary to boldly go where no one's gone before.

But I do. the thing that is partly just because Steve's point about Sapphire my friend Nick Schultz put this in my head about 15 years ago and I now every single time I hear it it drives me crazy

and everyone is guilty. Everyone does it. When any sentence the construction is the reason is because that because is a redundancy because the reason is the reason.

So it's the reason is that. The reason is because it's like saying the reason is the reason. You don't need that there either. Fine, but not. The, in terms of writing, my own sort of rule is word repetition is very, very bad.

And if you've used an adjective or you know if you're describing something with one word in one sentence or one paragraph come up with a different word that means the same thing in the next and it is one of these things that

it's funny my understanding is that in Spanish and a lot of other languages you can say in paragraph after paragraph as we were walking down the road and then the road got longer and as the road extended in front of us and as we

look back on the road and no one minds hearing the same word over and over again but in english there is something it's a sign of a writer who has more confidence and can go further is if you swap out road path you know journey whatever it is um and i will often go back and read columns that i wrote and i'll completely not care about some grammar thing that i missed or whatever but if i see the same word being repeated, it drives me crazy. You have to avoid saying things over and over again, repeating yourself, general repetition, redundancy. It's awesome.

You should avoid cliches like that, like the play. Jonah, I thought you were going to lead based on your Twitter feed with raises the question versus begs the question. Yeah. That is so hard to explain to people, though. I mean, it is just. Yeah, it's one of mine, too, though. It's definitely, it drives me crazy.

there's also stuff that like John McWhorter says we should just write off like decimate or literally literally and figuratively no you never give in on literally and figuratively never you know David and I

David and I now have a judicial opinion that we can cite where literally legally now means figuratively yep we had a I mean a 20 minute discussion of it on advisory opinions literally can mean figuratively yep

so we need to new New humanity, maybe the Chinese and the Indians will get to work on that. Yeah. I don't think we can, I don't think we can even use, I mean, you shouldn't use avoid something like the plague because it's a cliche, but I don't think we can use it anymore anyway, because look around. We didn't avoid it. We're not really avoiding things like the plague. So that's sort of like my dad, who was an editor for 40 years, he always used to say, this is like, Chuck. shuffling the deck chairs on the Lusitania.

Because he was like, why does the Titanic get all of the credit for frivolous deck chair shuffling? Other ships have gone down in the last hundred years. And he would always swap out different famous. This is like shuffling the deck chairs on the Andrea Doria. Because, you know, some of these cliches you can mix around. So maybe we should say avoid it like the way the South Koreans avoided COVID-19. I know it's not as euphonious, but it kind of gets there. better well uh okay my big ones pronoun antecedent not matching oh my god it drives me crazy

with you very big deal and shout out to mrs healy my eighth grade grammar teacher who really made me fall in love with grammar if you live uh in the spring branch school district you may still find mrs healy out and about from time to time um whether or not that is incorrect it should be whether something happens or not. The or not comes at the end of the thing. It is not whether or not something happens. And it really, really bothers me because very smart people do that.

Why do you need the or not at all? Shouldn't it just be weather? I will accept that, of course. But I will not accept whether or not as a phrase. Good. I like it. How about getting rid of weather and saying not? But that, I guess that would confuse things. Thank you all for listening to our airing of grievances.

No, but seriously, thank you all to the dispatch members and all of your support to me personally. I've so enjoyed all of your thoughts and feelings on the baby arrival. I posted some pictures on Twitter, Instagram, et cetera. I just can't thank you guys all enough. And, of course, my wonderful coworkers here who have made this a very easy process and have really been there. helping me along the way with advice and thoughts and feelings behind the scenes that stuff you guys don't even see that has made them amazing, including them begging me not to be here today. So thank you guys. And for those members of the dispatch, for our next dispatch live,

we've gotten a few requests. And so yes, I do think that the brisket will have a short cameo appearance. So highly encourage you to become a member of the dispatch so you can join our dispatch live next time. And you know, you can meet the brisket. He's speaking in full sentences. He already knows all of these grammar rules. And I'm sure he'll have his own annoyances to share, like when the bottle is not there 10 seconds after he wakes up. It's really, he would like it within three seconds. Thank you guys. And we'll see you next week. You know what I'm going to be able to be.