The Ricochet Podcast - Lawless Education

Episode Date: April 24, 2026

The pitiful state of university sociology departments is an unfortunate thing, but to see tantrums at elite law schools over "controversial" speakers portends danger — or so says Ilya Shapiro, author of Lawless: The Miseducation of America’s Elites. He and the fellas discuss the illiberal takeover of higher education, most troublingly in the institutions that train the gatekeepers of our legal system. Plus, James, Charles, and Steve speculate on the midterms; see the potential for backfire from Virginia's redistricting referendum; smell controversy over the latest victory for the refer movement; and begrudgingly admit the Americanness of gambling with top secrets.

Ask not what your country can do for you. Ask what you can do for your country. Either you are with us or you are with the terrorists. Was he betting that they would get him or they wouldn't get him? It sounds like he was betting on his removal from office. That's how he was involved in the operation. That's like Peter Rose betting on his own team. It's a little like Pete Rose.

I'll look into it. It's the Rickochet podcast with Stephen Hayward and Charles. cook. I'm James Lilex. We're going to talk to Elyle of Shepiro about all things legal. Oh, trust me, it's fun. Let's have ourselves a podcast. Welcome, everybody. It's the Rickasha podcast number 786. I'm James Lillick's in Minneapolis on a beautiful spring day. The

flowered trees are blooming. And Stephen Hayward, I assume, is in California. Charles C.W. Cook in Florida, we span the continents. Gentlemen, how are you today? I'm okay. I'm okay. How are you doing? I'm good. It's a very British answer. sir.

Okay, right, right. Compared to what? Could be a rabid hedgehog about. Let's get right to it. Gerrymandering, one of those things that people seem to, whenever somebody talks about it and say, we can't gerrymatter, the Republicans are trying to gerrymander. Somebody always posts a picture of Illinois,

which has these districts that resemble no natural shape on earth and seem almost consciously carved out block by block to achieve the desired effect. But Virginia is the latest they have a sort of controversy about it, so who wants to explain to everybody what to think about that? Well, I'll go first

because I've been living with the gerrymandering wars out here in California since the 1980s, if not sooner than that. And I always love it the double standard showing up once again with the left. They ruthlessly gerrymandered California in the 1980s, and Republicans tried twice to run ballot measures to overturn it and failed badly both times.

and it then became a scandal to democracy when Republicans got good at it. Well, guess what? Suddenly, Democrats are good at it again, and we're not hearing that anymore. So not just Illinois, but you may know that the Northeast, New England states, Republicans get about 40% of the net house vote in the New England states and have zero house seats. So how's that for representation? And then in Virginia, they're going to go, what, it's going to go from 5, 4 to 9,000. one or what, eight one, something like that. And one of the districts, and never mind the salamanders of Illinois, James, one of the districts in Virginia is being called the lobster district because

it stretches out from Fairfax County, which is now very democratic because it's government employees and consultants and Beltway bandits. And it stretches out into some of the rural counties to dilute the Republican vote. So the lobster clause are kind of an appropriate metaphor for what they've done there. And we'll just have to see if the court challenges get anywhere. I have no idea whether they will or not. But I'm just sitting back and saying, and finally, last lesson, which Charles will make if I don't, Republicans started this. You know, Donald Trump thought it would be a good idea to have Texas use its redistricting power. And the Democrats said, oh, yeah, well, we can do that too. And it looks like they're going to come out ahead in this year's

skirmish. Charles, I bet you're one of those people who doesn't believe, or it doesn't understand that these measures are essential to preserving our democracy. Because once our democracy is restored and the court is packed and there's permanent majorities and the rest of it, we can make sure that the fascist nightmare that we've been living through for the last two years or so, it can never be repeated. I mean, isn't this like just making sure that the governance of post-war Germany never provides for the opportunity for Hitler to rise again? I suppose you're going to make some sort of argument that our democracy is actually not

served by all this. Yes, our democracy means the Democratic Party. I basically agree with everything Steve said. I'm pretty sanguine about gerrymandering. I think it is a political exercise. I don't think you can abolish politics. The notion that we could hand over control to independent commissions, I think would go about as well for Republicans as other supposedly independent organizations usually do.

I had Sean trendy on my podcast this week, and I asked him about this. And he essentially said both independent commissions and computers, the other proposed solution, are garbage in, garbage out. that is to say, all of the political decisions that you have to make in the process of gerrymandering, you have to make if you hand over the process to an independent commission or a computer. So you can't abolish the politics of it. The only thing I would add is, I think Steve's right. The Republicans did lose this.

I think it's a short-term loss. If you look at that Virginia gerrymander, I am of the view that it's probably a dummy mander, as the Texas one maybe as well. the trend in total, not this year where I think Republicans will have a disastrous midterm, but over the next five years, it's probably going to yield a Republican win. Because you've got the Virginia gerrymander, which will backfire. And if it doesn't return to the status quo ante in 2030, you've got the census of 2030, which is not only going to finally count the population properly,

but incorporate all of the changes that should have been made in 2020, but weren't. That census was a catastrophe. Every single controversial question went against the Republicans. Amazing. And you've also got the Texas gerrymander, which started this, but will still be there. And so I just think that in four or five years, the crowing that you're hearing from the left

may seem a little premature. Now, that's not to say the Republicans aren't playing hardball here too. They are. But gerrymandering is hardball. And so I just have very little time for those who are trying to turn it into something else. It's been there right from the beginning of the Republic. There's no way of avoiding it. And we should just grow up.

Well, there's something interesting you said in there that's sort of tangential to this. not related at all, that you believe it's going to be a blood bath. Is that because people are, I mean, midterms are midterms, but the Democratic platform is not a popular one, at least as they're talking about it now. And we have better border security, lower drug prices. The economy is not cratering. Do you think it's gas prices? I mean, I think entirely that people could fail to make the distinction between gas being

high because of regulatory prohibitions on drilling. And gas being high because we're engaged in a high stakes geopolitical contest in order to control a certain region of the world. Maybe people make that distinction. Maybe they don't. Is it just gas? Is it Bler, gas is 3.79? I'm not voting for trial. Why? What's the reason for your prediction? How long have you got, Dames? It's such a long answer. But I'll try and give you the back of the envelope answer. First, I think people are tired of Trump. he's been the main character on our politics for 11 years. Second, I think Trump's made some mistakes, tariffs. I think going into Iran without telling anyone was a mistake.

Here's the main reason. There are, of course, great presidents in history who make a difference. And sometimes that difference is economic. The roaring 20s, I think, were the result of policy in many ways. the shift in the 1980s was the result of policy. I'm not being an Aihilist and saying nothing matters. But a lot of the time, it's really much easier to screw things up than make them good. And yet we have presidents who seem willing to tie themselves to the vicissitudes of the economy.

and I think people are somewhat wrong on this economy. I think it's much better than people think, but they don't like it. The best case I've heard in favor of the economy is, well, it's not that much different than it was at the end of the Biden years. People didn't like that. And so I think that Trump,

because he's such a personality, basically promised that he would fix everything. That was his pitch. He said, again, I alone can fix. People believed they were going to go back to 2019 when the economy was fantastic. And we haven't got there. And I don't think that's necessarily Trump's fault. There are a few things that are.

But I think he suggested otherwise. And therefore he's been bitten by the same bug that Joe Biden, where Biden promised that he would fix things. Biden then proceeded to make things horrible by signing off on a massive $2 trillion spending program that caused inflation. But we're not in a gold and, age, despite Trump saying so. And I think the Republicans are going to get bitten because Trump has now been around a long time and people aren't happy with how things are going. And I think it's as simple as

that. It's interesting. I don't think he takes up as much oxygen as he used to. At least not to me or maybe I've just been so preoccupied and busy that I haven't noticed. Stephen, do you agree with Charles, back of the envelope? And it was a legal pad. Legal. That's fine. That's what we want here. We don't want to be scant and quick. We want to be detailed and meaningful and all the rest. Yes, although I'll give this caveat. I mean, all those reasons are correct. I'll add a couple. Presidents in their second term usually have the worst midterm outcomes historically, although that's been scrambled a lot the last 20 years. Sometimes the first term goes worse. So it's a little unclear. But second, this could be a rerun of 2022 when, as Charles points out, things were really bad.

Inflation was soaring. All the polls show Republicans were going to roll. And they underperformed, let us remember. And Henry Olson thinks, and Henry's my guru and all these things, that could repeat itself this time for the Democrats. Now, having said that, my last point is, this will shock people, maybe even Charles, for a moment until he thinks about it. I kind of hope that it is a disaster for Republicans. For this reason, I don't root for a disaster for Republicans on the merits, but it will make Democrats overconfident. They will come out of it thinking, oh, we don't have any problems we need to fix when their party is more underwater than it's ever been with the public. on general approval ratings, and they will nominate someone crazy in 2028 and get clobbered. So that's the upside of a Republican shalacking in November.

So in a certain long run point of view, and here I'm with Charles, we should think for the long run always. I think this is some ways a no-lose outcome, even though the sting will be very sharp in the short run if it's a debacle. Interesting. Yes, I would rather get the presidency back and have power and go to agenda and the rest of it and spend the next four years then undoing what might be done in the next two years after the midterms. I mean, nobody wants exactly what, as you're saying, they're underwater.

Nobody wants what they're selling. Nobody will New York may, Park Slope may feel awfully darn proud of itself for giving them mandami, but I don't feel that surge amongst the national moderate Republicans, or Democrats, just don't. But they're going to get democratic socialism whether they like it or not. interesting story this week there was a member of the Delta I think it was Delta

Special Forces guy who was canned unceremoniously because he had bet in a market on the likelihood of Maduro being snatched from from power and he made a lot of money on it he made $400,000 on it

did you see this story and do you think oh well you know these guys are good at their job and they're a precious few we really really shouldn't lose him I'm a appallingly stupid thing to have done, but it certainly did catch my attention. And twin that with something else. There is in Britain a move amongst their special forces to quit because they don't believe that anybody's going to have their back.

They believe that they're going to be held up by human rights lawyers. We're going to go back and look at their action after action reports and say, this was wrong. You shouldn't have done this and bring them up in the hag. It seems two different approaches. The robust American approach is to go to the casino and bet on the fact that you're going to go in with guns and secret weapons to get a guy. And the British version is to quietly retire because you are fearful of a government that doesn't have your back. I'm not sure there's anything to say about that except to ask you if there's anything to say about that. Well, I'm sorry, I really take no pleasure in saying this, James.

but isn't that just emblematic of Britain right now? Special forces have a real new plan. Oh, what's that? To quit. Yeah. I mean, that's just where things are on the island. It's just, it's depressing. I kind of love this guy who definitely should have been canned, by the way,

the Special Forces guy in the U.S. But I do think that's a fundamentally American story. It absolutely is. It absolutely is. I hope he had a big shrewd, screwed in the corner of his mouth when he was doing it, too. You know, I remember someone asked Franklin Roosevelt why he appointed Joseph Kennedy to be the first chairman of the Securities and Exchange Commission, which was created in the mid-30s.

And Roosevelt's answer was, it takes a thief to catch a thief. And I just do these thought experiments about how Joe Kennedy would have played the futures market or the prediction markets if he was around today. Look, I mean, one of the other old story, Ronald Reagan's, you know, the nine most scary words, or I'm for the federal government and I'm here to help. I think in Europe and also in America, especially Europe, the three most fearsome words are human rights lawyer. And of course, who does Britain have as a prime minister now,

a human rights lawyer? And so it's not surprising that you're seeing this insanity go on. And then, of course, yeah, the prediction market sky, his mistake there was being greedy, right? You can make a little bit of money if you're subtle and quiet about it and don't get greedy. But my hunch is, and we'll learn more. I guess is that's maybe the only bet he ever placed. And so it really sticks out like a sore thumb when suddenly you make a killing on the first bet you've ever made.

And oh, by the way, you were on the helicopter or wherever he was. It depends on what he bet. I mean, if he bet on the likelihood of Maduro going, that's one thing. But if his bet consisted of the strike package will approach at 3 a.m. And a neutralizing force will then use the suppression. I mean, if he actually laid out what they were going to do, I can see, yeah, that would be a bit of a problem. But it's not a problem to have our next guest. and we're happy to have him.

We welcome, Alia Shapiro. Now, he's a senior fellow and director of constitutional studies at the Manhattan Institute, contributing editor of City Journal, of our favorites. He runs Shapiro's gavel substack,

and he's the author of 2020 Supreme Disorder, judicial nominations of the politics of America's highest court, and last year's, lawless, the miseducation of American elites. Welcome.

Good to be with you. It's a great group. I think this is my first time with the full compliment, not just me and Steve drinking his wine. Well, I've never got the opportunity to drink Steve's wine, but perhaps that is will avail itself sometime. Elites, we love those elites, especially when they're misbehaving and being miseducated and the rest of it.

We saw a perfect example of it this week where it was UCLA law school, right? I think some high-spirited youth disrupted a federal society event. And in old days, you'd like to think they would have been bodily carried out, but no, no, they prove their willingness to debate ideas by insisting that the ideas they don't like should be shut down. Not season. Like what I don't get is, okay, fine, you should be civil and act, you know, not use, use actual arguments and whatnot. But why even attend? Like, if there was someone who at my law school whose views I just didn't like, I just wouldn't go.

Like, I just don't understand the impetus to sit there and to come and just holding up signs that make you. look idiotic. Yeah, well, first of all, you're probably illy feeling like you have some company today. So listeners should know, or they might remember, that you were shouted down at Hastings Law School, what, six, seven years ago? By the way, it's not called Hastings anymore. You're dead naming them, Steve. It's UC Law SF. Right. I know. I couldn't remember. Mr. Hastings, it turned out, did some things that are now considered politically incorrect. Yeah, right, just like Bolt at Bold Hall at Berkeley. But, you know, I can't understand what's wrong with UCLA and Stanford when, believe it or not, Berkeley.

Right. John, you and I had you to speak at Berkeley shortly after you been shouted down Hastings and it went off fine

even though you gave me. There was a plain closed cop who blended in and I even said a statement against the recent

anti-Semitic resolution that they, I mean, it was, and John you was there, I mean, it was, but nothing.

And I tell you, that wasn't my only time. I've spoken at Berkeley probably half a dozen times in my life and nothing. It's always these

random other places that have these running. Well, one difference, as I think you may know, is that, you know, our dean at Berkeley law, Erwin Chemerinsky, who's very far out to the left on constitutional questions. But on this question, he put out a message to students after your appearance at Hastings saying, essentially, you do that here, there will be consequences. And he said that again after Stanford, he likes the thumb his nose of those other schools. And so he really does mean it. And so, you know, we had you, we had Heather McDonald, who had a lot of upset students, but they did not interrupt or disrupt it. we did have a problem with Simka Rothman from Israel

where I think they the point is is that it's not hard to stop this all you have to do is say there will be consequences Well he was being visibly Jewish see I was just speaking word But he was being visibly Jewish right You stand accused of being visibly Jewish Right well you say you in your sort of Who cares what happens to society away

I say well I just wouldn't go They are going because these ideas must be shut down And kept from being disseminated These are the ideas that will lead to the end of our democracy and the rise of the boot that trod's eternally on our face, right? I mean, they have a moral duty to do these sorts of things. That seems to be the... As I paraphrased to circle back to Bill Crystal,

as I paraphrased one of his recent tweets, we have to burn down the village in order to save it. It's... And look, it's particularly disturbing. This is why I wrote my book, my last book, Lawless, that this is happening at law schools, right? If an English or a sociology, let alone a blank studies department goes off

the rails. I mean, that's sad for the accumulation of human knowledge and pedagogy and whatnot. But law schools graduate the gatekeepers of our legal and political institutions. So if certain points of view are anathema, certain topics simply can't be discussed because they're unsafe or triggering, we got a huge problem with the foundations of our society. I've tossed it to Charles in just a second, but I wanted to say this. How much of this is due to critical theory because it's infected journalism as well where you have young stats my profession or was you have students coming out who are saying that the old standard of objectivity was just a way by which the old forms and systems asserted their power in perpetuity that to be objective is to lend

credence to ideas that ought not to be circulated and should not be considered to be on the same level or plane as the good ideas and a lot of that comes from the same sort of deconstruction that is that is infected nearly everything that passes through the academic strain he said making a point, not necessarily a question. You went to Chicago, which I don't think was ever infected with critical legal theory, which Harvard was in the 90s, right? Well, I went there at a particular time. I was there 2000 to 2003.

We had certainly heard of not just critical race theory, but critical legal studies, all of that stuff. It had been something from the 80s and early 90s that had been, you know, a curiosity and then was relegated to some niche corner of the sociology department, maybe one professor or something like that. But then, you know, sometimes it feels, you know, it's been almost 25 years since I graduated law school, and sometimes that feels like just yesterday. Sometimes it feels like a long time ago on a planet far, far away. Because we have had the crits come back, and that is the ideological bit.

But that's what everyone likes to talk about. That's the red meat. But it's not just the ideology. It's also the bureaucracy and the leadership. And it's those failures and those changes. that have really made it an inflection point and led to the illiberal takeover of higher ed, not just the latest iteration of the decades-old conservative complaint about the hippies taking over the faculty lounge, right? Those hippies, the Berkeley Free Speech Movement in the 60s, would now be considered retrograde white supremacists by today's radicals.

And, you know, that's not just faculty bias, although there is a generational shift of, you know, the millennial activist replacing the boomer just standard old school ACLU liberals, but it's also that the cultures of these institutions are set by bureaucracies, the admissions office, the student services office, not just the DEI office where all the growth has been in the last decade. And the deans and the presidents and the provosts, who themselves are not generally woke radicals or social justice warriors, they cowtow to this crowd because they're spineless cowards.

And so you have this vicious circle. So there's a paradox. We have probably the best Supreme Court we've had in 80 years, really high standard, really good writing, analysis, and inquiry. And then we have what you're describing on college campuses. Do you think, and perhaps this is a both answer, But do you think that this is because the right has just got really good at cutting through that? Or do you think it's because the nonsense that you describe in the book,

and I've heard you talk about many times, has led to an atrophying of the quality of left-wing legal thought? They've got nothing left, and so we're just running circles around them. Well, the legal left never ended up coming up with something to beat originalism, right? Scalia always said, originalism is not perfect, and we can keep developing it, and things that I'd say are sometimes wrong. But you've got to have a theory. You can't beat a theory with nothing. And the left is showing more and more that it's mainly about power politics, and it's mainly about instantiating these postmodern theories about baked in power dynamics and therefore institutions have to be restructured accordingly. And the, you know,

the Supreme Court is the realization of a decades-long systemic attempt to take back that particular institution, the judiciary. And that finally happened. But that's only one institution among many. and the problems that we see in higher ed generally and legal education specifically are somewhat related to the concertive legal movement attempt to take over the judiciary, but it's also part and parcel of larger social and cultural trends that are far beyond the scope of a constitutional exegesis. So will it collapse if we don't fix this? Because you can't run the country from the Supreme Court. Well, my friend Sarah Isgher has a new bestselling book, Last Branch Standing. It's the only

functioning branch, it seems like. You can't. You can't. And the Supreme Court has its own issues, of course, although it's overstated by the left, these so-called legitimacy issues that the left keeps trying to make a thing. It's not going to be a thing. But what we do have at a time of historically low social trust in institutions, we do have, we do have historically big gap in confidence in the courts and in the Supreme Court, especially as between the left and the right Republicans and Democrats. And that's a problem. If half the country doesn't believe in the institution, if nobody believes in the integrity of elections, if no, you know, then that's, you know, that's what leads to the ultimate collapse. As far

as law schools go or as far as universities go, it's kind of a case-by-case situation. some of them are definitely falling and will fall. Some who have skilled and savvy leaders will reorient themselves and figure out how to capitalize on this. Elena Kagan, now, of course, on the Supreme Court, when she was dean of Harvard Law School, did a lot of great things to help an institution that had been in decline. Some of it ideological in terms of faculty bias, balance. Some of it in terms of making it more palatable for students to live there, to get away from. from kind of the paper chase, old stodgy, 1940s and 50 style pedagogy to something that was more conducive

to the then modern era of the 90s. So, you know, we're seeing, I think, a churn in terms of prestige, in terms of student applicants voting with their feet, donors, alumni, all of that. So the constellation of higher education is going to look different in 20 years than it does now. As it looks different now, than it did, you know, 25 years ago when I was, when we were students.

And my last question is, you were pretty critical of Katarndi Brand Jackson's nomination. Now that she's proven herself to be such an intellectual heavyweight, do you regret speaking out as you did? Well, I could say, you could say that, Charles. I couldn't possibly comment. And to be clear, I wasn't criticizing her in particular. I know. I made by controversial tweet before there was a nominee.

I was just saying that whoever came out of that kind of failed process that was based on race and sex would be less qualified or lesser, as I inartfully put it. But yes, she's certainly not covered herself in Garlands, to say the least. I think it's, you know, the left, especially the progressive activists might go all, yes, queen on her performance, but it's not exactly moving the ball in their direction. So I guess, I guess for a, yeah, it's, it's yes, queen. I have to get our vowel correctly if you're going to steal. I have a mid-Atlantic accent on that. Just don't culturally appropriate from the drag queen community. So here's the question, though.

If our democracy is saved and restored and the Democrats get back in power and they decide to pack the courts that they wish to do. And they put in a whole bunch of people who decide that issues of constitutionality shall be decided from the, from the posture. of learned, lived experience instead of a dusty old document that nobody should really care about anymore? Isn't it over? You mean they're going to resurrect Woodrow Wilson, you know, with AI? I just had a piece along that line, lauding Justice Thomas's speech in Austin last week. Well, this is one place where I can sympathetically invoke Bernie Sanders. This is possibly the only thing I've ever agreed with him on when he was running for the 2020 Democratic presidential

nomination. He and Joe Biden were the only ones to be against court packing. And he said, I'm not going to do the accent, but he said, look, if we add four people, then the next time they get in power, they're going to add four people. In 50 years, we're going to have 87 justices. It's no good. And that's exactly right. As I remember that famous, infamous tweet, you pointed out that, look, the best qualified person or somebody supremely qualified was a Sronovacian from, what, the D.C. Circuit. What a thought experiment to think about how these recent arguments would go if he was on the court. I mean, I think Jackson is a monumental blunder by Biden because he settled the court with someone who even alienates the other two liberals on the court. That's quite an achievement.

But that's what happens when you limit your pool of potential applicants to only, what, three percent of the American population, right? Even looking among black women, I think Leandro Kruger of the California Supreme Court would have been a better choice. Yeah, right. More, you know, intellectual heavyweight. Yeah. Let me ask you about Thomas's great speech or the declaration that you just referenced. And specifically the reaction to it in this sense, you know, there is a, I think, a weakness of Thomas's argument,

which none of the critics have bored in on, except not a critic. But, you know, John, you, of course, disagrees with the justice, that the Declaration of Independence has any operative relevance to constitutional adjudication, right? He and I argue about this endlessly, because I'm on Justice Thomas's side. Is that an East Coast, West Coast, Strowsian thing? Partly, but I'm not going to do that. Strosse of beef. Yeah, I'm not going to inflict that on our listeners, I'll just not. But you could have brought that up in your critique of Thomas's speech. Instead, you got Paul Waldman at MS. Now, and then completely insane former Judge Michael Ludig saying the same thing. we always thought he was something of a conservative still, but maybe not.

They both said, gosh, why is Thomas picking on Woodrow Wilson? The real architect of progressivism was Teddy Roosevelt. And first of all, wrong, but that's a long story. But second of all, why this impulse to suddenly defend even with just deflection, Woodrow Wilson. And I think it's because what the speech represented was a frontal constitutional attack on the administrative state. And that is the project dearest to the left. Finally, what a switcheroo. It was only a decade ago that liberals woke up and said, oh, Woodrow Wilson was a racist.

We have to take his name off the Princeton University School of Public Affairs that Wilson found. Yeah, my diploma's over there. Luckily, it's not written in, you know, some sort of electronic device. Otherwise, they would have reconded. Right. Right. What do you make of this crazy reaction to the speech? Unhinged and unhelpful to their cause, I think. Yeah.

I mean, it would serve them well to say, you know, Wilson was racist and here's what he got wrong. And the constitutional accountability center, I think, has the correct approach, if I were a progressive, to say, look, the don't seed the Constitution and the declaration to the conservatives. This is the proper way of doing originalism. And, you know, all these good things that we like are actually in there, in this way. It's not that it's antiquated and dusty and what have you. It's just that conservatives got it wrong and hijacked it. It's a more subtle and, I think, certainly more recent. in today's judiciary sort of argument. But it's not just the administrative state. I don't think

the progressives, either the capital P from 100 years ago or the current progressives, really think about it as such. It's not, you know, we need to have the bureaucracy. We need to, you know, get the decision-making away from Congress or any elected representatives. It's more that this whole idea of the, right, coming from Wilson's, one of Wilson's speeches, the Newtonian checks and balances have been obviated by a kind of Darwinian evolution. And now that the science of government has evolved in a very late 19th century German sense, you know, we can have more expertise in government and don't need to defer to yokels of any kind. It's not, you know, rule by bureaucracy per se, but it's ruled by wise experts who would share the modern

values that we hold. Your point, though, that the left aggressors should find their own form of originalism. I'm always keen to understand exactly how the other side thinks, and you have an agile mind and know them probably. So what exactly, if they wish to extend the tentacular manifestations of the administrative and bureaucratic state and in every aspect of American life, as so to improve it and nudge it towards utopia. Where is that? Where is it in the Constitution?

Is everything going to be under the Commerce Clause or, you know, what am I missing? How do they get that total sort of regulatory power? For civil rights issues, section five of the 14th Amendment that gives Congress power to implement, you know, vast equal protection protections that would be from a progressive perspective interpreted broadly to allow everything from affirmative action to, you name it, disparate impact on stilts. Disper impact. Yeah.

In terms of expansive federal power, yeah, it's the Commerce Clause. It's national power to solve national problems. And this day and age, everything is national. We saw that in the debate over Obamacare. And related issues. Now, you know, they make common cause with. originalists on certain things. For example, rights need to be in privileges or immunities rather than substantive due process. There's other subtle shifts. I think, you know,

the major questions doctrine would work a different way if it worked at all. But there, you know, there's this progressive originalism, Jack Balkan at Yale as well, where it doesn't mean that they're a strong textualist necessarily. So there you might have a bigger difference as between originalism and textualism than you do among conservatives. I still feel as if they're trying to hammer a round peg into a square hole. They don't believe actually in the document itself. They just want to find clever ways to get what they want. Well, they believe in the idea of an ever more perfect union, which I think is actually a European perversion of Lincoln. But anyway. So I hesitate to mention Jack Balkan's famous book to James,

for fear of what he might do with it. But Balkan's most prominent book on the subject is called Living Originalism, which sounds one of the great oxymorons of all. I knew you'd crack up at that. I have a last question for you, Ilya, and it's another sort of breaking story this week. That reminds me, and sorry to interrupt, that reminds me of Chief Judge Bill Pryor of the 11th Circuit, his critique of common good constitutionalism,

this kind of living constitutionalism of the right, if you will, more result-oriented and whatnot. But he wrote a trenchant essay called Living Common Goodism to say that what they're doing is just matching the left's game with a different results at the end of the goal. And it reminds me of the late Walter Williams who would say, if somebody sat down across from the table and said, we're going to play living poker, where the rules will change depending on the situation. Anyway, Stephen, Stephen, go on.

Yeah, well, some other time, you'll have to talk about Andrew and your mule and that whole business because it's a mess. He was my administrative law professor. Oh, really? That's before he had, that's before he converted, converted a number of friends. Yeah, right. Last question. New York Times this week thought they had a breathless, scandalous scoop about the, what is they called, the rocket docket at the Supreme Court, and it involved, right? The shadow docket. The shadow docket. That's it. It involved, of course, a case I know a lot about, which goes back to the Clean Air Act, which I'm strangely obsessed with. but they act like this was some kind of scandal when, A, it was an entirely sensible decision for reasons you can explain if you want. And B, it's something that the left did for years when they were, had the majority on the court back in the Warren court era and so forth.

So, I mean, how out of touch are these people to think they've discovered something scandalous that makes perfect sense? Now, the big scandal from that leak was that there was a leak. Yeah, right. It's harmful to court deliberations. I mean, the idea that justices exchange strongly worded memos among each other, that's supposed to be news. Or, you know, we criticize or the left criticizes the so-called shadow docket, sometimes called the emergency docket, but they're not always emergencies. So it's interim relief docket. Anyway, there's this whole meta-battle about what to call all of this. That's not the kind of the regular train of having oral argument and full briefing and months of before the decision and all that. but the criticism that they don't explain themselves fully. It's like, oh, well, finally we get memos. It turns out they were thinking through all of this stuff. And now we don't like it because I'm not exactly sure.

I mean, the process, this leak showed that the process worked, and they weren't just basing their decision on antipathy to Obama. Well, earlier, you've been the perfect guest, knowledgeable, articulate with an intonation that indicates that you've concluded your point. And you use a word like retcon, which tell me. that there's just a whole bunch of stuff that we could probably talk about in addition to the law. And so we intend fully to have you back as often as possible. Don't forget handsome.

Hansen and Burley, for those who are not in the video feed. Extraordinarily handsome. That's right. Burley with a manful swath that makes the ladies go weak at the knees. So there you have it. And write another book so we can have you on. Or just don't. Write an article.

Do something on the substack and say, hey, guys, you want to talk about it? I guarantee you we will. You'll you silver, the substack. Tell them what the substack is again. It's Shapiro's Gabel. And it's there that I sort of play around with some more fun stuff than I can often do in the pages of City Journal or Wall Street Journal or what have you. And that's where an idea for a satirical piece that I published in the winter's issue of City Journal came out, my two decades in the swamp written kind of in PGR orc style.

He was my client, actually. And one time I told him that he was an unpaid fellow, honorary fellow at Cato, and I said that he was worth every penny. and he said that as his lawyer, I too, was worth every penny. I work pro bono. We miss him dearly. We do. But we won't miss you because we'll have you back. Thanks for joining us today and have a great weekend.

Thank you. Well, big issue today, going green, you might say, and not in a way that a lot of people like. Administration has decided the acting attorney general Todd Blanche signed an order on Thursday to reclassify both FDA-approved marijuana drug products and state licensed medicinal marijuana from Schedule 1 to Schedule Trois. This loosens federal restrictions on its use.

Previously, as a Schedule I drug, the devil's cabbage had been considered to have, quote, no currently accepted medical use and a high potential for abuse. Yeah. Now, medical marijuana will be classified as having, quote, moderate to low potential for physical and psychological dependence,

placing in the same category as ketamine. Yes, Elon Musk, we see you, waving your hand. Anabolic and testosterone. I'm not sure how much this will change the quality, the character of our daily lives and streets and hallways and the rest of it. But I have become weary of weed in the role that it plays in contemporary society. I think everybody, when they signed on and said, oh, yes, let's decriminalize it.

What's the harm? It's just a herb. I think they were remembering sort of the mild, the mild intoxicant that they had in the dorms way back in the day where you'd stare at your hand for 30 minutes or the gatefold album cover on a yes album. And now you have something that has apparently been chemical. engineered to smell like a silverback gorilla in heat. And when you walk around and this dead skunk smells,

putrefying skunk smell hits you in the nostrils in American streets. And it doesn't blow, I mean, it takes about a 40 mile an hour wind to dissipate it. The stuff just sort of sits there like a wraith that you have to walk through. Colorado is considering a law that would make it illegal to smoke in your backyard if it gets over in your neighbor's area. And,

oh, the editorials were saying how criminalizing us. smell. That's just a dirtinism with this. But I think they have a point. It's everywhere now. People hate it, except for the people who do it, who don't know or care because they like the smell or they're stoned. What do you guys think? Do you think I'm just being an old cotton matter kill joy by saying we should not have to smell the stuff when we walk around the street all the time? Well, I don't know, James. I'm inclined to agree with you, although I do wonder a couple things. I went to college in the 70s in Oregon where weed smoking was ubiquitous on campus. And I don't remember it being as odorific as it is now.

On the other hand, people still smoke cigarettes back then. And, you know, several people in my dorm floors smoked cigarettes. And we were used to that, right? I mean, you know, we're of the age where people still smoked on airplanes and restaurants and even movie theaters. And we were used to it, I think, right? And nowadays, most Americans can spot a whiff of cigarettes. smoke from 50 yards outdoors. You now have these signs saying you have to be at least 50 feet away from a door.

It's a great, great essay, what, 30 years ago now by Peter Berger and commentary on the plight of the furtive smoker, all these people outdoors in the winter in New York shivering to have their smoke break. And now you've got to go to Central Park and even there it's probably banned, is my guess. I'm sure that it is because if people smell it, they die. Right. On the spot, they die. But I do wonder if we haven't just become more sensitized to secondhand smoke.

that's a possibility. I'm with you. I think it could be both, by the way. I do think stuff is definitely stronger today. We know that from, you know, basic chemical analysis, but I think it's also true that we're now much more alert to it. And there's more of it. I mean, it used to be just in the college campuses and now it is every street in New York as, and everywhere else, as Charles has mentioned. I am just so tired of it as well. And I've changed my mind to some extent on the underlying question. insofar as it just never occurred to me given the way that smoking was being villainized that if we legalized marijuana which I was in favor of and I'm certainly in favor of federally because I don't think the federal government has the power to superintend it,

then you would smell it everywhere. I mean it's a very, very weird development. I think we probably talked about this before, but it's just so odd that we got rid of smoking. I can remember being in college when smoking was banned. and that smile went away and that habit went away. And then marijuana was legalized and either it's explicitly allowed to be smoked on the street where cigarettes aren't. Or the authorities just turn a blind eye to it.

Whichever one has been picked by most of America's major cities, the consequence has been that you just can't go anywhere without smelling weed. And I think you can't hate it. Absolutely turn a blind eye to it for social reasons. it's the old factory version of shoplifting. What are you going to do? What are you going to do? We can't.

Yeah, but if you lit up a cigarette, they would be on you in 10 seconds, but for some reason it's okay. It's sweet, and I think people hate this. Absolutely do. And it's because there's some peculiar penumra of virtue or coolness or outsiderness or whatever

that it tends to the people who smoke it. You're right. I mean, Stephen's right. I grew up in the same era. I smoked cigarettes and my gosh, everything smelled like cigarettes. I worked in a bar. No, actually a restaurant. which had a small non-smoking section that consisted of two little tables.

That's where Prince sat when he came into the restaurant. And the idea that somehow you were insulated from the smell of cigarettes in this place with these two little tables is if there was a guard all shield that just, no, of course not. Everything smelled like a plane smelled, like it, lobby smelled, like an elevator smelled like it. Probably why people, you know, doused themselves in Calvin Kleiner, drak our new war when they got into the elevator was to combat the smell of the cigarettes. I still have this day, I wrote a piece about this, I think, for National Review Online.

Remember that there were ashtrays outside of elevators because the social compact was, do you mind not smoking in the elevator? Is that okay? It's like 12 floors. We understand. But if you could stub it out here, you can smoke as soon as you get out of the elevator, you know, light right back up. But if you just stub it out here for that 12 floor right, we'd appreciate it.

So ingrained. And then gone, thanks to Minnesota, which had the first law, I think, in 1973. So, yes, we've made that. But we've also gone so far is that if somebody gets a whiff of an aromatic principle, Albert pipe in the park or something. They believe actually that the carcinogens will envelop their body and turn them into a walking tumor within 48 hours. It's ridiculous.

It's preposterous. The only thing we can afford to, we are supposed to smell right now in public is weed. Okay. Well, anything else before we head out the door? Any Iraq war predictions? I think we're firmly in Quagmire position. No, I mean, it's 55 days and it takes a while and it's work and the rest of it. I thought, frankly, the moles would have cracked by now.

They haven't. But turn off the money, see what happens. I-R-C-G guys are still doing what they want to do. And I don't think it's going well for them, but I wish it was more demonstrably going well for us. But then again, what do we really know? Well, James, you just called it the Iraq War, which I think gives us an insight.

Did I? Well, that's telling. Oh, that's telling. Sorry, my mind's been elsewhere. Yes. I'm stuck in the 90s and stuck in the odds. The Iran war or the, yes, the coalition, not the coalition of the willing, but the, I think I saw a tweet the other day about some Indian tanker.

I think the captain had paid off the Iranians in crypto or something and gotten a safe word passage and they were shelling him anyway and he was peeved about that. I mean, I think, I think the blockade is, if Trump's willing to stay the course and my guess is he is. I think it's probably going to put maximum pressure on Iran to finally cut some kind of, and I think Trump will allow them a face-saving deal, but I think it's the end game move by Trump. I think it's pretty clever. It depends who's left in power. I mean, the whole point of this was to get the mullahs out, was to get the mullahs out to have, and I don't know who he's talking to, if he's talking to some civil authorities, if he's talking to, you know, somebody that

the Shah's son gave him in his rolodex, I, you know, I don't know. Well, well, well, here's a larger takeaway I have, which is, for years we've been saying, gee, has Iraq War one or two finally put the Vietnam syndrome behind us? And my argument or perception right now is if we see this through, we will have put the Vietnam syndrome behind us in this sense. The problem with Vietnam was always, we had sort of calculated escalations, which allowed the North Vietnamese and the Viet Cong to set the pace of the war. And really for the last 40 years with Iran, we've let them set the pace of their low-intensity warfare against us and everybody else. And so the sweep of this initial attack, which was not slow escalation, it went big from

the first 30 seconds, I said an end to all that. We're not playing that stupid game anymore, which, by the way, was a game invented in the 50s and 60s by the liberal technocrats. So, you know, it's important that it be seen through. But, you know, we didn't finally get serious about blockading North Vietnam and bombing them in a serious way. until 1972 when it was too late, right? And then that war, you may remember, James, ended pretty quickly because that made, you know, Nixon was the crazy man.

Now, Trump is much crazier than Nixon, I think we'd say. So, I mean, a lot could still go wrong. But right now I kind of like the scene. Well, there's the Afghan-Iraq syndrome, too, you could say. Yes. Which is the people who get very, very tired of things that last a long time. Where we're supposed to be proud of ourselves, because we put a KFC in Kabul, and they can vote. And now they're part of the family of nations.

No, it's kind of apparent that they're actually born societies that'll never reform themselves and we're wasting a lot of money on this. Charles, what's your opinion? What's your take on the current situation? I'm not sure it's going well if well involves either achieving regime change or opening the street of four moves. I do think that this line I'm starting to hear on the left and from critics on the right, that Trump's just going to end up with the Obama deal is wrong in that even if he were to agree to the old Obama deal line for line, it would still be the case that their nuclear program

has been destroyed. So the situation is better than it was before we went in in some regards, but I don't think it's a smashing victory. And I think that's because we're not prepared to do what we could do and go in really hard because the public's not on board. And they know it. And they know, therefore, that by closing the strait, they can cause domestic problems for the president. I think we had smashing successes, but victory is still out there. And as I said, I think anything is short of regime change.

The removal of the mullahs and the theocratic government is a failure. Sorry, Jay. I know you want to wrap. I think it's worth mentioning the Southern poverty. I want to sit down here and wrap with the kids and see exactly. I want to be real of that. I want to find out what's going on, man. What's happening? Well, maybe for next week. I do think the story this week of the Southern Poverty Law Center is significant and potentially huge. So put a pin in that one because I think that's been waiting for something like this for a very long time because I've known for a long time. A lot of people have that they're totally corrupt. It is a thing of beauty.

I mean, every time that organization's name come up, I get this sort of dark cloud in front of me. And I just wonder what they said around. All right, we're a center. What kind of a center are we? Well, we're a law center. Okay, what kind of a law do we practice? Well, we practice poverty law.

I'm not sure what poverty law is. There's something else that we could use to define it. We, how about Southern poverty? Ooh, Southern poverty. That's a special flavor of poverty right there. That'll get people to open their wallets. everything between tobacco road and the downtrodden and the rural southern poverty. Oh, southern poverty law.

Yeah, I've been asking for years why there's no northern poverty law center. It seems Ilhan Omar has missed a trick here. Yes. Or just Midwestern poverty would just not sound the same because you just see a bunch of guys in ski caps who are huddling around, you know, the food bank and the rest of it. And there wasn't much law you could do for them. But no, their hate map, their hate charts, their temperatures, their fundraising. all the rest of it, it is beautiful to see it unmantled. And the idea, as someone frequently said,

that the supply of racism in this country is so small that it actually has to be subsidized, subsidized and produced, that they're paying guys to go to these things and to gin up some transportation. Can you give a ride to that really bad guy there to the Charlottesville rally so he can, it's lovely.

And the tentacles are going to be found to be going elsewhere. That's why I fear the loss of the midterms, because you need some sort of initiative to go from, to keep the doge, spirit alive and root and branch. I mean, was it the Times or the news or the Washington Post that had a story about some USAID people used to pull down a quarter mill and now they're, they can't get a job at Pezny's spice selling. Did you see that article? I did see that article. And I think almost everyone

who read it took the opposite message from the one that was intended, which was so this person has no marketable skills. Well, there you go. Goes right back to Blazing Saddles, as does everything else. We've got to predict our phony baloney jobs. One of which is talking in from a microphone on a podcast, but we've done it for 786. We hope to be here for 787. You can help us by going to rickshay.com signing up. Why wouldn't you? Why wouldn't you?

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And, well, what else can I say, Charles? and Stephen, but been great as ever, and we'll see everyone in the comments at Ruricee soon to be 5.0. Bye-bye.