The Ricochet Podcast - School of Sowell

Episode Date: June 26, 2020

About once a year, we get a visit from the master himself, the great Thomas Sowell. This year’s session is on the occasion of the publication of his new book, Charter Schools And Their Enemies and more importantly, his 90th(!) birthday on June 30th. We talk about the success of charter schools despite the teacher’s union and America’s worst mayor doing everything they can to undermine them. Source

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Terms apply. Bet responsibly. 18plusgamblingcare.ie Now what the hell are we doing? I have a dream. This nation will rise up. Live out the true meaning of its creed. We hold these truths to be self-evident.

That all men are created equal. Yes, I think there is a better chance that Donald Trump does not run for re-election than he's re-elected. There's no chance he's going to be re-elected. I'm the president and you're fake news. Mr. Gorbachev, tear down this wall. It's the Ricochet Podcast with Peter Robinson and Rob Long. I'm James Lylex, and I need say no more than this. Today, Tom Sowell.

I can hear you! Welcome, everybody. I'm James Lilacs here in Minneapolis. Peter and Rob are scattered about the country wherever they happen to be. And why would we want to flap our gums when we've got a great guest? We're going to go right to him. Tom Sowell, the Rosen-Milton Friedman Senior Fellow of Public Policy at the Hoover Institution at Stanford University. He's got a new book.

It's Charter Schools and Their Enemies. It'll be released on June 30th. And it happens to be the same day Dr. Sowell will turn 90 years old. Welcome, sir. Good to be back. Tom, it's Peter Robinson here. First of all, a slightly early happy birthday. And I want to get to the book in a moment.

But by my count, you have published nine or ten books since turning 80. Question number one, and you haven't had anything to prove to anybody in roughly half a century. Why do you keep working so hard? Oh, I think it's just pure habit. All right. The book is Charter Schools and Their Enemies. The pub date, the official pub date, is next Tuesday, but you can order it on Amazon right now from a column that you published in the Wall Street Journal last week. Tom, I'm quoting you.

For decades, there's been widespread anxiety over how and when the educational test score gap between white and non-white youngsters could be closed. But that gap has already been closed by the Success Academy Charter School Network in New York City. What is the Success Academy Charter School Network? How did you discover it? Who founded it? How long has it been in operation? The Success Academy Network in New York is a series of charter schools, the first of which was established in Harlem in 2006, and has grown since then until now there are, at last count, 46 of these schools in New York City alone, and it happens to be concentrated in New York City alone. And how have...I'm sorry, go ahead, Tom.

Well, it is really in a class by itself. On the mathematics test especially, most of the kids in most of the traditional public schools do not reach the level defined by the New York State Education Department as proficient. That's level three. Level four is the level above proficient, over above what you're really expected to do. In the Success Academy schools and all the 13 schools that I had in my sample, a majority of the students in every single class in every single one of those 13 schools scored at level four above proficient. These kids are outperforming the public school kids who are going to school, as you explain in the column, often they're going to school in the very same buildings. That, in my sample, consists solely of those kinds of students.

So there's over 100 schools in there. And in every single case, the public school, the traditional public school and the charter school are in the same building. And so that's my sample. And that's what I just quoted from, those 13 buildings. In those same 13 buildings, I believe there were three out of 36 classes that managed to reach level three. This is just, it's almost literally incredible. If it were coming from anybody other than you, I'd have trouble believing it. What is the difference between the chart?

I wouldn't have believed it until I saw the data. Right. And we're talking about 80 and 90, and in at least one case, 100% of the students in the class were in level four. And so Success Academy schools in this context, you know, on a scale from one to ten, they're an eleven. They're an eleven. And how do they differ from the traditional schools? What is the distinction between a charter school and an ordinary or traditional public school, especially if they're taking place, if they're holding classes in the very same building? The charter schools, well, one huge difference is that kids are assigned to go to public schools under the compulsory attendance laws. Right.

No one is assigned to go to a charter school under that or any other law. And so the charter school students are students who apply and they have a lottery because, as you can imagine, there are far more applicants than there are places. But it's still publicly funded? Absolutely. In other words, in order to get the charter, which leads to the funding, all charter schools have to meet whatever specifications are required. And if they don't, they can be cut off from the money a lot faster than the traditional public schools. Okay. Some people make the argument that the charter schools are skimming the cream, even if that were true and it's not.

Where in the world do they find all these thousands of black kids who are acing the math exams? And all these generations before them, I'm assuming that the current generation of blacks are descendants of the previous generation of blacks. And moreover, we're not talking about what Du Bois used to call the talented tenth of the race, you know, the children of more affluent and upscale people. Success Academy schools,

like the charter schools in general, are located in places like Harlem, the South Bronx, Bedford-Stuyvesant, places you wouldn't want to go through, in many cases, in broad daylight. Tom, the charter schools and their enemies, who are their enemies? Who could possibly oppose? this conversation is we've got the Black Lives Matter movement, and we have been told almost nothing for the last three and four weeks, except that African Americans, American history has placed African Americans in a uniquely vulnerable and wounded position. And here we have schools

in Harlem doing a spectacularly good job demonstrating that African Americans can succeed. And who could possibly oppose this? Virtually everybody in the existing education establishment. And for one simple reason. There are, at last count, more than 50,000 students in New York City on waiting lists to get into charter schools. Were they able to do so, make that transfer? In New York, where the average per pupil expenditure is more than $20,000, you do the math, that comes out to more than $1 billion per year that would transfer with those students into the charter school system. Those who run the traditional system, as you can imagine, might miss that $1 billion.

The teachers' unions would notice that there were far fewer jobs for unionized teachers because most of the teachers in the charter schools are not unionized. So we're talking about huge amounts of teachers union dues. The schools of education would also lose because in the traditional public schools, a lot depends upon, for advancement, depends upon degrees from teachers' colleges. In the charter schools, those degrees from teachers' colleges carry a little less weight in the teacher's career, and how the students learn is what really matters. In the traditional public schools, how the students learn is really academic. Right. Whether they learn or not, they get promoted.

And when they come out of school at the end, high school, that's when the students may learn, belatedly, just how little education they actually have. And of course, by that time, it's too late. Tom, I've got Rob Long and James Lilacs on the line with me, and they both want to ask a couple of questions, but I have one last question. You and I have talked in the past about your own upbringing in Harlem, which, well, we've already said you're about to celebrate your 90th birthday, but which took place three quarters of a century ago, roughly. And you have told me that in those days,

schools in Harlem were good. The public schools were good. Now, three quarters of a century later, you see schools in Harlem that are doing what they did before. They're providing a way up. And should kids choose to use it that way? A way out if they want to get out. And you see a raid against this. Whereas in the old days, the whole society was behind the effort to educate kids in Harlem. And now you see a raid against this, the mayor of New York, the teachers unions, the entire educational establishment.

I don't, I guess my question is this, you sound pretty calm. Is it that you've just seen so much at the age of 90? Or does this make you boil with anger? Oh, boiling with anger. I mean, heavens, I didn't write this book because I just wanted to turn out another book. And it has really taken more

out of me than any other book. Since Knowledge and Decisions, which is the book I wrote that got me appointed to the Hoover Institution 40 years ago. Because I'm so glad, we were desperate to get this book out

before the political conventions were held, because we figured after that, there wouldn't be any place, anything else in the news, except the political stuff. Right. Thank heaven we did that, although it was hard on me and my assistants.

But we did it. No, it is an absolute crime what they are doing, because they talk all this pious talk about what they're doing is for the sake of the children and so on. But when it comes to actions, the things that they do, they are determined to keep those kids from transferring to charter schools by whatever means are necessary. And that includes, in some cities across the country, demolishing empty school buildings to make sure the charter schools can't use them. Unbelievable.

Rob Long. Hey, Tom Sowell, Rob Long in New York City. Thank you for joining us. I just got to get personal for a minute. When I walk around New York City and I hear somebody speak with a New York accent from a specific time and place like yours, and I've talked about other friends of mine who are newcomers to the city, we feel like we're okay, that the city's going to be okay. Most people believe that things have gotten worse, but they don't remember that things were actually okay. And if you hear people talking about Success Academy, because I know you're talking about that specifically, and also the book's title is Charter Schools and Their Enemies. The enemies are sort of interesting to me. One of the things

people love against Success Academy in general is they're really strict. How strict are they? Are they stricter than when you were in school, or are they kind of just basically about the same? Well, I haven't set foot in a Success Academy school, but I read it right up on their policies and things like that. They do not tolerate bedlam, if that's what you mean. And I don't think that the traditional public schools can continue to tolerate bedlam and expect to have any serious improvement in the education. Unfortunately, things are even worse in California in the sense that there are laws passed which will go into effect on July 1st, which virtually forbid charter schools as well as the traditional public schools from suspending a student just because that student disrupts the class.

Right. Now, I call it tenure for troublemakers. Right. Well, I mean, there are stories of a child being turned away, now careful, I don't want you to get upset, turned away from Success Academy because he was wearing

the wrong color socks. They have a uniform, he was wearing the wrong color socks, and there are two ways to look at that. It's a pretty good Rorschach test, right? There's some people look at that and say, well, you got a dress code. Part of wearing the right color socks is having discipline and that teaches you all sorts of things. And there's other people who look at that and say, oh, come on. Can't you express your individuality?

Have those other people ever run a successful school? Right, right. Okay, that's a good, that's a very good question. At LiveScoreBet, we love Cheltenham just as much as we love football. The excitement, the roar, and the chance to reward you. That's why every day of the festival, we're giving new members money back as a free sports bet up to 10 euro if your horse loses on a selected race.

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18plusgamblingcare.ie I happen to know about that particular episode. And I think it was absolutely the right thing to do. This was a kindergarten child, and they believe, as I think anyone who's stopped and thinks about it would believe, you cannot have a school where kids can follow or not follow rules as they see fit, because you're risking their entire future. Those kids have no way of knowing how important that is. But it's the adults who need to keep that in mind.

And the point is, when the kid got up to the door, they were going into the door, and this particular kid got up to the door, and when they saw that, they simply took the child aside and said, you can't go in unless you have that. And so it means from day one, the kid learns that when you don't obey the rules, then you don't get to participate in what the school is doing. Now, if you're going to have this freewheeling stuff, then you're going to be spending a lot of your class time telling people to sit down, shut up, do this, do that. And you're not going to be able to teach them the way that you do that.

You've done. There are frequent pitches. Right. So let me ask one more question associated with that, because I was just, because this is just interesting. Any news seven days ago, I think it was seven days ago, New York city was an article, uh, a roundup of parents, uh, in schools. And one parent at a success Academy school in Brooklyn said, you know, all these, you know, I'm now I'm I'm revealing my feelings by using a terrible tone of voice for her.

But she kept saying, you know, all the rules that you have and the rule following and the obedience they require at the success academy. You know, that just doesn't fit right now with what we're trying to teach our kids, which is to resist and disrupt and protest. So I'm not going to send my kid back to Success Academy. That's a non-problem. Wait, that's a non-problem. Nobody forces that woman to send her child to Success Academy. I would not advocate that she be forced to send it there. My God, if you don't go into a bar to drink lemonade, or you don't go to a gas station if you don't have a car, and if you don't like what they do in the Success Academy charter school, nobody is going to force you to send them there. So it's a non-problem. All right, so I want to go back to the enemies, then I know that James wants to come in.

What do you say to people? How do we – it's easy to dismiss all of the work and all of the proof that you've assembled by saying, well, you know, that's just for a special few, or that doesn't solve the underlying problem, or you're just putting more burdens on parents, all those things, right? All those things, by the way, that were considered normal not too long ago in New York City public schools. How do you approach that? Not putting any burden on parents. Not putting any burden. Those parents who don't want to do it, nobody is forcing them to do it. But how do you get, how do you get, I'm asking about how you make that argument. How do you make the argument in the current, in the current culture to get Success Academy and a million Success Academies to bloom across the country?

What are the... To change people's minds. There's no problem. You can change things that are non-problems. There are several times as many people applying to get into Success Academy as there are places they have available. If you don't want to go there, let them not go. But how do you get more open? What do you mean more open?

How do you argue to a sclerotic bureaucracy, a sclerotic public school monopoly, that they need to be more open when there's the current mayor came into to office promising to shut all the charter schools down what kind of arguments can we open more open more of the schools is what you're saying right probably more of them yeah yeah yeah have more of them across the country they they they have enough money now thanks to a a multi-million dollar grant from the government the success academy Academy, to open more schools. They cannot open them for the simple reason that the mayor won't let them open anymore. So, again, it's another non-problem. There are plenty of people who want to get in.

There are more people who want to. Nationwide, I think it's at least a million people, kids, on waiting lists to get into charter schools. So it's not a question of how do you attract more kids into charter schools. The question is how do you stop these bureaucrats and politicians from preventing charter schools from having classrooms in which to teach the kids? How do you do that? That's my question. What is your advice for people on the front line? You vote against people who are sacrificing these children's future

in order to win support of the teachers' unions. Tom, Peter here, just coming back in on this very point. I talked yesterday with Ayaan Hirsi Ali, and Ayaan said what the politicians need to recognize is that the majority of African Americans want policing in their neighborhoods, not woke community organizers running their neighborhoods. So this seems to me a similar point that the good these schools are doing is visible to the parents. We know that because there are 50,000 kids on a waiting list. Have you been able to track the politics of Harlem as regards charter schools? Are there church leaders? Are there local officials? Is anybody standing up against the mayor and against the teachers unions and for these schools? I have not followed them, but in Sunday's New York Post, there'll be an article by me

on that very subject, and I'm hoping very much that there will be people. Also, I'm sending out copies of the book to people who have been active in trying to get some more support. For example, the NAACP, as you may or may not know, has lined up with the teachers' union against charter schools. Oh, it's unbelievable. And there are local NAACP chapters and members who have opposed that.

And I have the names of some of them, and I'm making sure that they get copies of this book so that they will have the ammunition. Because it's amazing how much of this story has been suppressed, and most people just hear rhetoric, much of it wholly unsubstantiated, and do not have the facts at hand. The book is being set up, by the way, in such a way that the 100-plus schools in this book,

all you do is turn to the index and you can find out for each of those schools, which was named, the scores, the ethnic backgrounds and other such facts about the students who go there. Tom, I know James Lilacs wants to ask a question or two as well, but I just have to say this. Four days short of your 90th birthday, you are still causing trouble. If there were a Nobel Prize for freedom fighters and troublemakers, you would surely deserve it. James Lange. Oh, boy. Dr. Soule, for the last month, we've had an extraordinary amount of civil unrest, and we've seen this ravenous, nihilistic desire to knock down and tear down.

Let's look back to 1968. Do you see any parallels? Do you see any ideological parallels? Is there a sort of Marxist desire to return to year zero and start anew in the heart of both 68 and 2020. Do today's students or do today's activists seem motivated by this utopianism, or are we just seeing people who are bored and ignorant and willing to destroy for the sake of destruction? How do you see the current scene?

I'm sure there's examples of both, and I haven't checked the proportions. I think the crucial turning point was in 1964, where we had what the late Ed Banfield used to call major riots. He distinctionally makes it between a riot that erupts in one particular community for whatever reason and a riot which just spreads across the country from city to city. The first of those kinds of riots, and then a major riot would also go on for more than one day. Those kinds of riots are really post-1960s or began in the 1960s.

And they seem to be very much the same in terms of what the kinds of things that are said and alleged and the kinds of demands and so forth. What is different is that we, as time has gone on, the resistance to this has collapsed. We have mayors who will tell the police that they are not to do anything when the rioters are destroying or even committing violence in front of their eyes. And they wonder why people in the police force are thinking of resigning

and why it's going to be harder in the future to get police in both the numbers and qualities that you need as long as this goes on. And one of the things that's really surprising is that as regards to the episode that set this off, the cop with his body on his foot or knee, I forget which it was, on the man's neck. I don't, there is no issue that I can think of that has more unanimity than the condemnation across the political spectrum of what that cop did. So in the absence of a genuine controversy over what happened, to be able to mount this

kind of thing and then just transpose what that cop did to the country as a whole, a country of more than 300 million people, is incredible. As to go from a protest on brutality to widespread iconoclasm, is this the result of the long march through the institutions that all of our leaders in the cities are intellectually incapable of criticizing because they somehow sympathize in a distant, empathetic way? I think it is sheer opportunism. It's an election year, and the mayors want to be reelected. And they know that the loudmouths carry political weight. It hasn't redounded to the benefit of our mayor here in Minneapolis, where I live.

He's being castigated from every side for being ineffectual, so he's in trouble. But people in Minnesota, as in these other cities, will simply elect the same party that has brought them to this perilous state, which there doesn't seem to be, does there seem to be an alternative on the horizon to you that people, to which people will turn? That's the question of the year, perhaps so of the generation. In our school system, and I'm talking here from kindergarten to postgraduate education, too many educational institutions, almost all,

have turned themselves into propaganda centers, and they're propagandizing for certain ideas rather than teaching the students how to be able to weigh one idea against the other, which is what at one time was the ideal. And this pattern of preemptive surrender, which began in the colleges and universities in the 1960s, has spread wider into society.

We have people out there who don't think that you should be debating with people you disagree with. You should be silencing them. And once that fatal step is completed, we will go the way of the totalitarian dictatorships. And because we're pressed for time, we're segue-free this week. Because I've got to tell you about Gabby Insurance. We're all looking for ways to save money these days, especially now. When was the gotta tell you about gabby insurance we're all looking for ways to save money these days especially now and when was the last time you looked at how much you're spending every month for insurance or homeowners insurance for that matter car insurance

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Gabby.com slash Ricochet. And our thanks to Gabby for sponsoring this the ricochet podcast uh hey dr solz rob long again so i have all these woke lefty friends as listeners to this podcast will not be surprised to hear and uh sometimes they're talking about um the current um crisis in law enforcement and they make very very compelling arguments about part of the problem being these damn police unions, and you can't fire bad cops, and they have all sorts of work rules. And when they're finished, I say something like, well, couldn't you just say the same thing about teachers unions and the public? At LiveScoreBet, we love Cheltenham just as much

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Bet responsibly. 18plusgamblingcare.ie. Schools, and then they fall silent. Do you see any parallel between those two things, or am I just making a cheap point? No, no. I was thinking about that before you even said it. No, firing a teacher,

the average cost of firing a teacher in New York State is $313,000. That's firing them for incompetence. And it takes 830 days, which is more than two years. And that doesn't guarantee that they'll be fired. In fact, in the book, I go into some of these egregious cases. And for the police, if we went a whole year without a single policeman shooting a single black person, that would not reduce the number of black people shot by as much as 1%. Well, I feel like I should just, we should at least end my portion here with a little bit of good, a little nice sort of sunny anecdote. neighborhood to a Chinese restaurant. And I pass a young woman, an African-American woman sitting at an outside table, drinking a glass of tea and reading a book that in my subconscious,

I kind of recognize the cover. And I did that thing where you walk past and you stop. It was a conflict of visions by a writer. You may have heard of him, Thomas Sowell. And I actually did that thing, you know, where you walk backwards, like just to double check it. And I walked backwards and I looked at her and I looked at the book and she looked at me like, you know, what do you, what's the, what's all this about, old man? And I said, I pointed to the book and said, what do you think? And she kind of like did a kind of a shrug, an appreciative shrug. I said, not bad. So that's a pretty good on-the-street critic for you. And if we had more young people reading Conflict of Visions and the collected works of Thomas Sowell,

and just even if they're shrugging and saying not bad, I count that as a 100% win. Not bad. Take that as a birthday greetings, Tom. Peter here with the last question for you. Peter Robinson. You and I will have fun next week when we record an episode of Uncommon Knowledge on charter schools and their enemies. I want to repeat the title of the book because

everybody should buy this book. It's a brilliant book and a work of, we now know, admitted, self-confessed political activism. Do you find this, we've all felt, well, maybe I won't speak for you, a lot have figured out how to fix problems. a kind of test case, if the pieces of civilization can be put back together in Harlem for the most underprivileged kids in the country, then surely there's hope that it can be done. Point one. Point two, Jason Reilly, African-American, is hitting his professional stride. He's never been writing better and never had a wider audience. Roland Fryer, whom we had on this podcast a couple of weeks ago, again, receiving well-deserved attention. So do you, there are voices, African-American voices, that perhaps are being hurt. I guess what I'm saying is, you know what I'm saying, Tom? I'll be perfectly honest. What I'm saying is cheer us up.

Tell us this is a hopeful moment after all. Unfortunately, Peter, not only do I tend toward pessimism, I must say that even my pessimistic estimate was shocked by what is going on around this country, and especially by the people in so-called responsible positions who are falling all over themselves to facilitate the destruction of the country. Lenin once said that the capitalist will sell you the rope with which to hang him. Today, in these more politically correct times, the socially responsible capitalist will donate the rope with which to hang him. Well, that didn't cheer me up. Yes. Well, if you're in the rope-making business, though, Rob, look on the silver lining. That's right. Dr. Sowell, thank you so much for joining us today. It's been great. Charter Schools and Their Enemies is the book. It's released on June 30th.

You're going to want to read it. You're going to want to memorize it and repeat back to your friends when the argument comes up, because it will. We're not done with this. We're going to keep talking about it until things get better. And when they do, we'll have Dr. Sowell to thank. Again, thank you for joining us on the show today. Tom, thanks so much. You and I are going to record the day after your birthday, so promise me you won't stay up too late celebrating. I probably won't celebrate at all. Well, I will in that case. Thanks, Tom. That accent, I have to say, that accent, that's a New York accent from a 1930s, 1940s movie. It's like the minute you hear it, you think, oh, man, that guy. It's like every cop and every store owner and their lawyer.

I mean, everyone sounded like that back in the day. And I don't know. It seemed like it was a better movie when it was a black and white movie about New York than a color movie that's on now. Well, New York abounded in accents, didn't it? I mean, you listen to West Side Story. There's the classic Jewish shopkeeper. I think Milton Glaser played him. What's with you kids?

Always with this fight? I mean, you don't have that as much as you used to. I mean, that used to be in old radio, one of the prime ethnic identifiers. Was that questioning? That Yiddish? I mean, it's great. You don't hear that. You don't hear the Irish cop anymore.

A lot of these things have gone. And, you know, Rob, Peter, probably like me, you have a vision of American culture from those periods that does not exactly match the template that we are presented with today. No. So what are you going to do? How are you going to teach your kids? Well, that's a bad segue. Rob would have seen that coming a mile away. I was going to say, I'm like, I don't know what to do now. It's been a long week. No, actually, I didn't intend to get into the accents at all, but because Dr. Sewell was talking about education and the rest of it. Schooling, yeah. Everybody is getting over this experiment in home education. I don't know how it went for you around here. Not so good. I mean, I'm watching my daughter attempt to get an expensive college

education through a Zoom screen, and I'm watching our exchange student from Barcelona who's also trying to learn physics through these things with indifferent teachers and, and jittery technology. And it's because everybody had to make it up as they were going along. Nobody knew what they were doing. Well, here's the thing. This experiment in learning, um, would have been great if you'd been you dealing with people who knew what they're doing from the start, who have been in on this online learning thing from the ground floor, the experts in online learning, and that would be Laurel Springs. Laurel Springs has the tools and the curriculum your child needs to maintain their learning unhindered by whatever the future may bring. Their flexible learning programs are

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He's on the show again. We'll have to figure out how to get the negatives. You know, John, senior podcast, Ricochet, senior Supreme Court analyst guy who we talked to when it's SCOTUS stuff and other things. And in his spare time, he gets into a tuxedo and gardens in the middle of the night as per a photograph that he showed us which is very interesting because it demonstrated either his proficiency with photoshop or his ability to find the rustiest useless tool in his shed and pretend that he actually knew what he was doing um but when it comes to the law he knows knows what he's doing. John, welcome. Hey, this DACA decision thing. So apparently EOs now stand forever. And what goes into them mentally is what determines

whether or not they can be allowed to exist in perpetuity. So that means the president can, what the heck, pen and a phone. Sky's the limit, right? Like President Trump, I am here to defend myself against these aspersions cast on my character by the likes of Rob and Peter, who claim that I don't know how to garden and that I have an army of gardeners working at my direction. Oh, if it were only so. I hope you guys use that photo. I had to interrupt my nighttime gardening to take it. Yeah.

The kind of things I have to do. I can imagine you walking down the streets of your neighborhood. Oh, no, there's that awful John Yoo again. You could hear the neighbors say, shut the curtains. And do you guys have one of those things, you know, the clippy things that look like giant scissors? I need one of those. That's what I imagine the scene was like. Just for that photograph to prove that you know how to cut a hedge. But wait a minute. Now you've evaded the question. The question was really clear.

You are good at politics. You should be attorney general. Does this mean, look, we all snickered up our sleeves when Obama said, you know, executive order, executive order, executive order, because we know the new president can just erase them, erase them, erase them. And the same thing for Trump, you know, the new next president, not Trump, can just simply rescind all executive orders. That's what we've been living by, this kind of kabuki theater. But it turns out it's not. It turns out executive orders are law. You have two things. One is it does create this huge incentive for presidents to cement in their policies, even if they know they're illegal,

right? Even if you know they're illegal, you can do it for as long as you're president. And then it looks like for another year or two under your successor, because that's what President Obama did, he passed this DACA, DAPA program where he said, I will not enforce the immigration laws as to six, seven million people. He had said, as you said, just a few years before that, he had said, I don't have the constitutional power to do this. Then he went ahead and did it in 2012 and 2013. And President Trump comes to office. A circuit court, a lower court had already held the program unconstitutional. The Supreme Court refused to overturn that decision. So President Trump comes into office and he says, I'm dropping the program. I'm not going to keep doing something

unconstitutional. The Supreme Court said, this is incredible. The Supreme Court came in and said, no, you have to keep, you, President Trump, have to keep doing this thing, which you know to be illegal for at least another year or two unless you use this onerous process called the Administrative Procedure Act to undo it. So I wrote this op-ed. I was like, well, why doesn't President Trump now say, I'm going to cut everybody's taxes in the country 50 percent? Everybody just pay what you feel like.

I'm telling the IRS, don't enforce the tax laws. I'm going to call it the Donald Trump tax cut program by executive order, as you said, Rob. And then the Supreme Court, if it believes what it said in this DACA case, it would have to say, President Biden, you have to go through this year-long or two-year-long process to undo what Trump did. John Peter here, it was the chief justice who wrote this decision, is that correct? And it was a 5-4, the chief justice voting with the four liberals and taking it on himself to write the decision. The chief assigns people who write the decision, so he took this one himself, correct? I feel like I'm being cross-examined but yeah well i'm just trying to i'm just trying to move

this along i'm just trying to there's a wind up here for some socket too yeah good but if we i it's trying to keep you from going back to gardening or off on different kinds of kimchi all the things you've wasted time on before on this show it's hard to hold shears in one hand and adjust your tie in the other hand simultaneously. You know, it takes skill. To quote Jack Benny now, cut that out. All right. So what if you were to sum up in a sentence or two and you were arguing in favor of the chief justice's decision, what would you say? What could he possibly condense his argument for us? The legal argument or what we think is really going on?

Both, but first the legal argument. Which is different. Right. So his legal argument is you have to undo things in the exact same way you did it. So he would say, well, when you want to undo a statute, you have to pass a new statute. And so what President Obama should have done when he created this program, even though it's illegal, he should have gone through this one or two-year process of issuing a formal agency regulation rather than doing what rob said just

issue an executive order just on the spur of the moment that's actually what obama did robert says no no you should have done it this other way and so he says to undo it we're going to pretend you did it that way it makes no sense but that was what he said legally. Politically, I think what's going on. Yes, what's really going on. Right. Politically, and there's this famous old quote from the time of the Spanish-American War, the Supreme Court reads the newspapers. And here Roberts worries about the court getting embroiled in partisanship and wants to keep the court somehow separate or at least popular, then you're going to do popular things. And the political polls show that DACA and DAPA are overwhelmingly supported by a majority of the country. And nobody in Congress is going to overturn this because

there have been several proposals to pass DACA and DAPA right hey hey that's not me i do i do not use any motorized assistance in my garden no no it's all it's all just silent silent wage slaves for you i confess it's two doors up the so so if you're the court and this also goes with the i think the gay rights decision too on title seven we could talk about the court did something in both cases exactly popular in the middle of the country there's no chance congress is going to overrule them it actually makes the court popular amongst american people and it reduces your chance under a biden presidency that the

court is going to be attacked for being conservative. Very clever. One or two more words on Bostock, because if anything, the Bostock decision has more implication, as far as I can read it. I'm quoting a piece that you wrote. Oh, you write so many places and so much. Who knows where you wrote it? But I this online john this outcome so so so justice gorsuch writes the decision it's a six three decision with gorsuch writing the decision and gorsuch and the chief voting with the four liberals on the court and gorsuch's decision says that Title VII, which was passed in 1964, uses the word sex to include transgender and gay. And John Yoo writes, this outcome would have come as a great shock to the members of Congress in 1964 who passed Title VII. Title VII's plain text does not include sexual orientation

or gender identity, close quote. Okay, so again, briefly, what the heck was he arguing? This is just craziness on the face of it. I agree. I think, again, politically, I think what's going on is the court is doing the popular thing. It has been on this long march to expand gay rights. You may remember it upheld gay marriage a few years ago. This decision, I think, similarly, is to be seen as popular, not legal. But I can tell you what the court said illegally, I just don't think it makes a lot of sense. What the court said is, and this is Justice Gorsuch, who wrapped himself in the mantle of Justice Scalia. We may remember this picture that he released at the time of his nomination showing him and Justice Scalia

standing in some, you know, misbegotten river in Colorado, probably with Scalia holding up a gigantic fish. I think they caught it with hook and line and they didn't spear at him. Or, you know, knowing Scalia, he just put his head into the water and came out with it like a polar bear or something. And we now know that photo was as phony as the picture of you gardening in your backyard. So Gorsuch, what Gorsuch's whole opinion was about, it boils down to one hypothetical. The interesting thing is that it was Kagan, Justice Elena Kagan's hypothetical, that she floated at oral argument. But Gorsuch was so taken by it, or I would say confused by it, that it really is the center of his opinion. He repeats this hypothetical

over and over again, and it goes like this. Title VII, by its text, just says you cannot discriminate in employment on the basis of sex. So he says, suppose you, and this is one of the facts of the case, you run a funeral home. Suppose you have a woman employee. She likes men. You have a woman employee who likes women. The woman employee who likes men can't be discriminated against. She can have her job. The woman who likes women is fired. All right, John, on that hypothetical, correct me if I'm wrong, because all the justices on the Supreme Court are far smarter than I am. But the distinction in that hypothetical is based on behavior, not gender. You could argue that the discrimination is inimical, or from another point of view,

that the discrimination is perfectly justified, but it is clearly based not on the person's gender or sex, but on the person's behavior, and that is obvious to all the world. So, why am I wrong? It's not that, you know, discriminating between women is not what the statute prohibits. It's discrimination between women and men. So, if you're the funeral home and you were to say men who like women you're okay but men who like men you don't get a job you've actually applied the same rule about behavior to both sexes and so gorsuch is wrong, it seems to me. And why did it take, it took us three minutes, well, it took you three minutes to prove it. It's just, Rob has a question. John, the real thing is that if you read the dissents, they are just even more taken with the thing that Gorsuch did was actually a betrayal of Scalia textualism, because no one thinks

you just take the words of the law andism, because no one thinks you just take the words of the law and say, what does it mean to us today? What you want to know is, what did the words of the law mean to the people who passed the law in 1964? And as Justice Alito, Justice Thomas point out in their dissents, nobody in 1964 would have thought being gay was a sexual identity or was a classification of sex and the category of transgender which addresses also says is including the statute wasn't even known yeah didn't even exist and you know i think you know there were if you look at psychiatric diagnostic manuals from 1964 they thought being gay was a disorder. They didn't have the views we have today.

And so the last way is if someone has to update the law, should it be the court or should it be Congress? And, of course, there have been several bills in Congress that have yet to pass, did not pass, expanding Title VII to include gays. And that, I think, is the bigger picture in both cases. Wait a minute. Did I get you right? You're actually expecting Congress to do something as opposed to just sitting back and waiting for the court to wave its magic wand about? You're asking Congress to specifically commit to bills and pass them? Good Lord, what sort of Herculean energy do you think these people have? Hey, John, I got a question. So just more

of a theater question here. You're Gorsuch. You were nominated by Donald Trump. You were confirmed by a Republican Senate. You read, you reread things. You said they read the paper. Gorsuch reads the paper. He knows that people have been saying, making arguments about in support of Donald Trump. Yeah, but what about Gorsuch? What about Kavanaugh? This is good, right? So he's sitting there writing his opinion. How often do you think he says, oh boy, it's going to blow their minds? You know, so this is actually a famous dynamic because Gorsuch isn't the first victim.

He's just the latest victim. But think about all these Republican presidents, some of them advised by people like Peter. Think of all these Republican justices they picked. Justice Kennedy, Justice O'Connor. It goes back. Justice Souter, Justice Powell. It goes far back. All of them, right, they do things like this, which would have blown the minds of their supporters, which the presidents who

nominated them never would have expected or wanted. The big question is why? And so the judge, I clear for Judge Silberman, he famously gave a speech, he called this the greenhouse effect, because the reporter for the New York Times was once named Linda Greenhouse. And so if you write an opinion like the Gorsuch opinion now on gay rights or the Justice Kennedy opinion on gay marriage, you are going to get so much applause from the chattering classes, from the digerati that you're now a popular traditional statesman you know you're an enlightened progressive justice right right right but do you think at that moment i mean i don't really know how it works they're sitting around all the justices are sitting around

the table or you have any tuna sandwiches or whatever it is they eat there and uh you know and the chief justice roberts is there, who's going to write this opinion here? And then if you look around, of course, I'll do it. Do you think they all look at him like, oh, my God, I read that. That's going to be fun. I mean, is there a sense even in the weeks or even I don't know how what the how what these things take. But in the weeks leading up to the publishing of the decision, is there a sense in the court that, oh, man, get ready? Or do they kind of Or do they have to pretend to be too cool for school and not to notice it? No, actually, it's very interesting. Of the

major institutions in Washington, I think the Supreme Court is the last one that truly doesn't leak because the results of this case were known inside the court the week after oral argument, which was months and months ago. If you want to see how it works as a matter of theater, the only power the chief justice has is to assign that opinion. So after the Friday, usually after oral argument, they all sit down by themselves, no aides, no staff. There's a little room. You have a little table. They all sit there together, and they go down in order of seniority and vote.

And then they decide and they explain why very order of seniority and vote and then they decide and they explain why very briefly they don't even argue with each other it's like uh i don't it's like a jury it's not even like 12 angry men it's sort of i guess we can't say that anymore 12 angry men women or other i suppose 12 angry subjects to title seven excellent that's a great title and so they go in order and then the only power the chief justice actually really has is to assign the opinion when he's in the majority. And so you usually give it to the one you think is the shakiest, the one who's the squirreliest in your majority, to lock them in. And so he assigned it because Chief Roberts was in this majority opinion too. Right, right, right. He assigned it to gorsuch there's no you there was no mischief here i mean that's what i'm really trying to ask you wasn't isn't there some mischief here like you know who's gonna write this one gorsuch like whoa like they all look at each other

like okay that's gonna be fun like there's no there isn't any sense of like uh like all these people they're all in a room together and they kind of know they're they're they're constructing a stink bomb for the rest of the world. Well, then they have that vote, and then it goes through weeks and weeks of – this is interesting. Then they submit drafts. The justices all look at it. They comment. They say, I'm not joining your opinion unless you add something about this or you take that out.

So it goes through, and that's the amazing thing. It doesn't leak. The justices and the clerks all know the outcome for months before we found out about it in this last week. And you're right, Rob. I think there is a kind of drama to it because they all know. The rest of the country doesn't know. And they do know what a huge impact it's going to be and what a big deal it is. And they read Gorsuch's opinion and they see like, they must see inside, I can't believe that he's doing this. But nobody else knows. It's actually really remarkable. I mean, I clerked on the court. I had that experience too. You sort of, you know, knowing these things

that you realize when they are released to the public, I know it would be a huge bomb in the political system. But that's the thing. This would have been a very hard place for John Bolton to have worked. Cut. So maybe the way to get around the greenhouse effect is to move the Supreme Court to a strip mall in Kansas City somewhere. That would be a start. And require all of them to dine in their robes at the local Golden Corral about, you know, whenever the day that these things are released

so they can get in touch with the people. Or go gardening in people's yards in Berkeley and do some real work for once. Yeah, right. Yeah, well, if I wake up, you know, I wake up and I see Ruth Bader Ginsburg outside of my house with a hoe, you know, I'm calling somebody.

Peter, you had a question before we – Yeah, here's the question. You just described the effect that we've all observed over the years. And, okay, so here's – this takes about 90 seconds worth of background. Sorry, but – Before you say that, can I just say one last thing about what Rob asked? This is with regard to policy. I actually would have voted as a congressman to amend Title VII to include gays. But this is just the wrong way to do it.

Yeah, yeah, yeah, John. We all know you want to be in the middle yourself. Okay. So the background is I was in the Reagan White House when Judge Bork got borked, when they opened an entire national political campaign against him. And I remember how stunned the administration was because that was the first time it had happened. All right. That was more than three decades ago. And there have been many efforts, in particular, the Federalist Society. There's been an awareness on the conservative side or the originalist side that you have to watch these guys, these men and women, that you

have to watch the opinions. You have to keep careful track precisely to avoid putting someone on the high court who would flip the way Antony Kennedy, another Reagan appointee, flipped, or the way Justice O'Connor, another Reagan appointee, flipped. We've learned since then. We've learned how to identify people who won't flip, except that we haven't. There goes the chief justice on the other side, and Neil Gorsuch has now flipped. Okay, and notice, none of the liberals ever flips. It's always in the other direction. So if you're Leonard Leo, our friend and a marvelous human being, a brilliant man and a hardworking man who runs a federalist society, if you're one of the people who's worked so hard over the years to track decisions and keep track of talent as it rises through the ranks, what do you do now? Well, first, I think

it's all the Reagan administration's fault, because I think this really started with, in this recent time, with roberts i think he was the wrong guy to put up at the top of the court i think he actually would have been very different if he you might remember how strange he was yeah he was originally named to fill justice o'connor's seat and then chief justice ronquist died and he was you know immediately elevated and made it easier. By George W. Bush, not Ronald Reagan. Yeah, but I think it was these early people he was a lawyer with working in the White House that really corrupted him and caused him to be such a political monster. Because they put his office next to, I think, the speechwriting shop, which was a big, disaster to do everything but the but the but the main point is i think uh that was one pivotal thing that happened was you know if you look at roberts he was kind of like

the pre-bork nominee he was a kind of nominee where you would pick someone not pre-bork i'm sorry post-bork nominee he was like a suitor at kennedy he was we thought he was conservative, but his track record was spotless. He spent a lifetime not saying or doing anything controversial. The Trump judges, he's been putting people on the courts below. And Kavanaugh, I think, is more like this, who actually are well-known for being really aggressive conservatives or libertarians, but being very committed to their methodology. Roberts was not that. I mean, I was a big supporter of Roberts, too, because I thought, wink, wink, nod, nod, he was like a Scalia or Thomas and not like a wink, wink, nod, nod suitor, but that he

turned out to be much more like a David Souter. I think this is not going to happen again in the future. But Gorsuch, there I just used the phrase, but Gorsuch is a Trump nominee. Yeah, I think Gorsuch was a little bit more like Roberts. Maybe I'm playing defense versus wishful thinking. I think this might be a one-off for Gorsuch. I can't think of actually another case where, any other important case where he has voted with the liberal justices and maybe i think he just it was almost like he was sort of perversely trying to show how smart

he was in this opinion by playing word games but i think in the end he will be a reliable member of the conservative group of justice on the court it's always roberts who's going to be the weather vane now i'm just going to roll the roll around the phrase post-Bork suitor in my head for the rest of the day. I have you to thank for that, John. All right, back to work, back to the garden, back to whatever it is that you do. And we'll talk to you the next time the Supreme Court does something and changes our life just a little bit. Appreciate it as ever. John, you. I'll be back on Monday. That's right. That's right. Wait, wait, wait. So tell us what's coming down on Monday. Oh, so I actually thought you wanted to talk about this. So there's four big cases coming up.

We only have a four hour show here. OK, really fast. OK, there's a case called Russo, which is about abortion clinics. This is a case about can a state require doctors who perform abortions to have admitting privileges at hospitals? The court struck down such a law three years ago. It's exactly the same. It'll really show whether Peter's right. Didn't Kavanaugh and Gorsuch make a difference? There's a Trump taxes case, right?

Does Deutsche Bank, et cetera, do they have to turn over Trump's financial records from before he was president? There's a big school choice case. Can Montana refuse to allow religious schools to participate in voucher programs? That could strike down these things called Blaine Amendments, which are in the state constitutions, I think, of almost 40 states. And then the last sleeper case, but I think the most important case still left, is whether the Consumer Finance Protection Board is unconstitutional. That's the Warren thing, right? But let's not forget the big case that's coming down is whether or not it is possible to legally kill somebody who has been told that his time on the show is over, but persists on talking. I'm the man. I'm the one who's got the shears around. You're always

welcome. You're always welcome. I've got the garden shears. Rusty though they may be. Thank you, John. Talk to you later. Thank you, John. And we stop. You know, one day, I'll tell you, one day, John, you is going to be like an attorney general or on the Supreme Court, and all of these podcasts will destroy his career. Oh, yeah. Yeah, that's the problem with us, right, guys? We have 500 pieces of evidence here. So when cancel culture sort of runs out of the important people, they can get around to us and figure out what they want to do. Purely a matter of time. Exactly.

Well, so before we go, and it's been a long and good podcast, you know, just want to find out where you guys are exactly. By the way, we're off next week for the holiday. So it's the fourth and it's different than any other fourth that I can possibly remember. Who would have thought that when we were going through the worst of the pandemic that we'd actually sort of forget about it because something more troubling came along. Cases are up right now. I don't know about hospitalizations and deaths, but, you know, they're testing more. It's more widespread. We're not over it. But everybody says, no, I'm over it. We're not going to shut down the economy again. We're not going to go back there. We have something more important to face, and that is a really big debate about

whether or not the direction that the country is going to go into. The terms have been changed quite quickly. I was just reading today about the World Economic Forum has decided we're going to have a big reset. We need a big reset, which by which they mean socialism. We have to have government putting its fingers into every possible monorph as it can. And this for them is a grand opportunity. And it's remarkable to see the disorder and the toppling of monuments and the rest of it and look around and say, who was supposed to keep this from happening? And why didn't they? And what do we do about it? I don't have any answers for any of that. I know that I feel completely, what's the word I'm looking for? Not defenseless, but there's a tent that just popped up in my

neighborhood in the park because now the city park board has said you can sleep in the park, folks. And I can't do anything about it. There's garbage piling up around it. I don't know who's living in there. I have no idea if he's defecating in the woods or the rest of it. And people just tiptoe around and nobody says anything because if we call our guy and say, hey, I know it's illegal to sleep in the parks and that I can't do it but there's a tent there it's absolutely irrelevant to them they could not care less deal with it and of course one ten becomes two and two becomes ten and ten becomes fifty and the next thing you know the character your neighborhood has changed and there's nothing you can do about what is happening to your

city i so i look at the fourth and I say, well, it'd be great if we can get back to these founding ideas about individual liberty and personal responsibility, et cetera, et cetera. But I see us all being swamped by a tidal wave of Marxist drivel, half-baked Marxist drivel, collectivism, and this sort of quiet acquiescence on the behalf of just about everybody because they don't want to say the wrong word and be the wrong person, even though they themselves will stand up proudly and say, hey, I'm racist, I know it, I know it. That absolution will not be coming from saying that.

That's just the beginning of your re-education. And I could go on in this incoherent fashion for some time, but guys, what are you looking forward to the 4th? Cheer me up. Beer, brats, burgers, what? Whatever. Son number three is home, and he is turning into a chef. I don't know where

it came from, but he finds food fascinating, takes it seriously, like Uncle Rob. And so we're going to have whatever he decides to cook. Grill. Grill. It'll be outdoors. That's all I know, and I'm looking forward to that. And Rob, are you going to be making, you know, what is that, what is some fancy southern Creole fourth thing that you're probably running into?

No, no, I'll be at the beach. I'll be at the beach. I'll be having a whatever. I don't know what I'll have. I'll have whatever, whatever the easiest, simplest thing to do and go for a nighttime swim, and that'll be that. I mean, it's just summer. I mean, it's still summer. They can't take summer away from us. That's true. At the beach, though, at this point, I can also imagine you staring with a steely gaze at the endless horizon with a drink in your hand, contemplating what's going to come next. That's literally every day, so that's nothing new. But you're in New York, so you're looking at a picture. Is that it? No, I'll be down south.

I'll be in the North Carolina coast. Well, it's still a big, broad, beautiful, wonderful country. And we need to, what's the word I'm looking for? Save it. Four-letter word and a two-letter word. Simpler, but perhaps harder than it looks. Well, I don't mean to be a absolute dougie downer here in this thing but i've just i've been just even the conversation with seoul is it's like this is

great we need more of these but we're going to get an administration that is going to declare them all illegal and and wrap everybody up into the gathering arms of the public school system because that's fair and fairness and egalitarianism seem to be the dominant intellectual modes of the public school system, because that's fair. And fairness and egalitarianism seem to be the dominant intellectual modes of the day. And if you complain about them, well, aren't you just the guy standing in front of the statues coming down? So that's about it, isn't it? We should wish a happy 4th to everybody.

And thank you for listening to this, the Ricochet Podcast. Go to Apple, iTunes, music, whatever you call it, on your computer now and give us five stars. That'd be great. That'd be great. It'd be fantastic. Enjoying too.

Like I said before. So there you go. Thank you for listening to this. The Ricochet podcast, number 502. I'm James Lileks in Minneapolis with Robin Peter scattered about the country. And we'll see you all in the comments at Ricochet 4.0. Happy fourth.

Happy fourth boys. Do you like good music? boys. Thank you. Oh, yeah. Oh, yeah. Spotlight on Sammy Dave, y'all. Oh, don't you feel the great, y'all. Singing home on our parm, baby. Oh, yeah. Oh, yeah. Spotlight on Rupert Pickett, now. That's Rick and Pickett, baby. Singing Bustin' Sally.

Oh, yeah. Oh, yeah. Spotlight on all this ready, now. Ricochet. Join the conversation. Hi. Oh, no. Is he gardening? You better put that picture up You got to use that. You better put that picture up. You better use it.

I went to a lot of trouble to interrupt my gardening to take that picture. You went to a lot of trouble to find a gardening tool. Yeah. I haven't identified it for you as such. Yeah. All right. Oh, sorry. Well, it's probably big Berkeley brother listening in. Right.

China. How much memory you got in that thing, John? I even installed it myself. It's got 64 gig. I bought one with 8 gig, and I put it in the rack. I put it in. It was only $100 online. It was awesome. It takes five minutes. 64 gig. I bought one with 8 gig, and I put it in the red. I put it in the new. It was only $100 online. It was awesome.

It takes five minutes. you you you you you Thank you. I'll believe that when I see a photograph of it, by the way. Wait, so should I just start off with giving the guys the hypothetical? Yes. But mention that it was the Kagan hypothetical. That's interesting. Yeah.