Josh Hammer - Here’s Who the Supreme Court Leaker (Probably) is

Josh Hammer is the Opinion editor for Newsweek and a podcast host.

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Episode Transcript

Speaker 1 (00:11):
You're listening to The Buck Sexton Show podcast, make sure
you subscribe to the podcast on the iHeartRadio app or
wherever you get your podcasts.

Speaker 2 (00:20):
Welcome to the Buck Sexton Show. Got our friend Josh
Hammer with us for this episode. He is a Newsweek
editor at large, he's a lawyer, and he's got a podcast,
the Josh Hammer Show, which you should catch whenever you
get a chance. And it is not called hammer Time,
despite my requests and my reverence for the great nineteen

(00:44):
eighties era music of mister Ramsey Hammer. But Josh it's
still an excellent podcast.

Speaker 1 (00:50):
Buck. You know, you were one of our first ever guests.
You were literally like guest number three, four five, something
like that. So I appreciate the plug.

Speaker 2 (00:57):
Brother.

Speaker 1 (00:57):
It's good to see you as always.

Speaker 2 (00:59):
Yeah, man, you too, And obviously if you start out
so strong on a podcast like that, was such an
amazing guest, it's going to be the best going forward.
So I got a bunch of things ask you about
because you like to. You like to geek out about
the Constitution and about statutes about law. Right, that's fair
to say. I think I don't think i'm you're You're

(01:20):
a man, a man who likes to throw down on
this stuff. Let's start with the Supreme Court for a second.
I think that the Democrat media has been running I've
been seeing it like popping up on CNN, and they're
really going after Justice Thomas. And my sensus people on
the right have been pretty like not really paying that

(01:41):
much attention to this. It just hasn't hasn't crossed because
we don't see anything that's Justice Thomas is bad and
think it's all exciting. Let's start, because you've been running
about and pointing out that there's more. There's a more
full spectrum assault on the court happening right now the
Supreme Court. But tell us what's going on with Justice
Thomas first. What they've been trying to do there?

Speaker 1 (02:00):
All right, So it's starting like over a month ago,
so it was early April. The website pro Public, which
has won Politzer Prizes for investigative journalism whatever where Pulitzer
prize and journalism is worth or not worth these days.
So they start a series of hit pieces. I mean,
I'm not sure hell to say that these are very
clearly hit pieces. They are clearly written, quote unquote investigated

(02:22):
with the intention of delegitimizing Justice Clarence Thomas, which, by
the way, is not a particularly new tactic for the left.
I mean, going back to the early nineteen nineties, of course,
when Clarence Thomas was first nominated to the Supreme Court
by then President George H. W. Bush, we had the
whole Anita Hill workplace harassment delegations that got so bad
that Clarence Thomas, who was then in his early forties,

(02:42):
sitting before then Senator Joe Biden sent Judiciary Committee hearing,
accused sen guiary Senate Judiciary Committee Democrats of trying to
engage in a quote, high tech lynching. So this is
nothing new for the left. They've literally been coming after
Clarence Thomas for over three decades. Now, you know, he
is the man right now that he was then, He
doesn't particularly care about these sort of attacks, but pro

(03:03):
public their first allegation was effectively that Justice Thomas is
two close friends with Harland Crowe. That literally is the
nature of the first allegation. So Harland Crowe was a Dallas,
Texas based billionaire, kind of real estate tycoon. He's a
well known generous donor and giver to various conservative and
Republican Party causes, which, by the way, that itself is

(03:26):
another thing the left has been trying to hit Clarence
Thomas over for decades. His wife, Ginny Thomas, is a
well known conservative activist, so they've said for a long
time he's too cozy with these sort of interests. So
this first Pro public apiece was that he's traveled with
Harlan crow what he's gone on cruises or the private
jets whatever, and the alleged that he should have disclosed it.
You know, James Taranto at the Wall Street Journal has

(03:47):
done a very good job of showing that no action
according to the on the Book's judicial ethics regulatory rules,
because we actually have laws about this, he was actually
not required to disclose would they say he should have disclosed?
And then just a couple of weeks ago, Pro Publica
had a follow up piece basically saying that Clarence Thomas's
adopted great nephew was going to get a free ride

(04:10):
again to Harland Crowe's generosity, because the Harland Crowe indirectly,
not roughtly, but indirectly paid for his adopted great nephew's
first year of tuition at a nice private School. So
that's the basic nature of the allegation against Clarence Thomas
is that he allegedly, again allegedly has not properly disclosed
the financial ties between him and a very well known

(04:33):
conservative donor, Harland Grew.

Speaker 2 (04:35):
Now, why do they hate Justice Thomas so much? It
really does seem like he he gets more ferocious anger
from the left wing activists out there than any other
member of the court now that Scalia has passed away.

Speaker 1 (04:52):
Yeah, I think that's exactly right. I mean it's for
multiple reasons. Right. One is I mean, from a strictly
kind of legal, jurispidential perspective, there is no more doctrinaire
originalist than Clarence Thomas. I mean, you know, when it
comes to kind of the original public meaning of the Constitution,
I think it's fair to say Clarence Thomas is the
most about hardcore originalists on the core even when Scalia

(05:13):
was there. I mean, I would argue that Clarence Thomas was,
you know, more originalist for lack of a better term,
than Scalia. So he's very very very consistent, and he's
very very consistent in delivering outcomes that the left invariably hates.
I mean, whatever the case may be, whether it's same
sex marriage, whether it's abortion, affirmative action, kind of guns.
I mean, basically all of kind of the hot button

(05:35):
cultural issues. He has been on the opposite side of
the left, the mainstream media, the corporate interests, all that
stuff for literally over thirty years.

Speaker 2 (05:43):
Now.

Speaker 1 (05:43):
The slightly darker thing that's going on with Clarence Thomas
bu because, as I think you know all too well,
is we have this situation here where you have a
very conservative man who also happens to be a very
black man. Now, Clarence Thomas grew up dirt poor, dirt
poor in the Jim Crow South. English was not even
his first language growing up. There was actually a fabulous
documentary that came out around the time that COVID started

(06:05):
in twenty twenty. It was called Created Equals from Michael
Pack and Mark Poletta. Fabulous documentary. They go into depth
on Clarence thomas Is upbringing there in rural Georgia, and
you know, he really made it as kind of a
dirt poor black man who grew up in the Jim
Crow South and he became a very, very very committed
conservative and you know, similar to Thomas sole, similar to

(06:26):
Ben Carson, similar to some of these other very prominent
black conservatives, Larry Elder kind of in the radio space.
But Clarence Thomas probably gets it the worst of all
of them. And you know, I mean, he really has
kind of had this perpetual kind of Uncle Tom pejoratives
throwing his way for decades, and it's it's disgusting. I mean,
it is literally disgusting, but it kind of feeds this

(06:46):
narrative to kind of paraphrase something that if I recall,
Ben Carson said back when he ran for president in
twenty fifteen, twenty sixteen, he had some line about, you know,
uppity white liberals not letting blacks leave the proverbial plantation, right,
and like that is a slightly darker explanation as to
what's going on. Here's what I think. It's a combination
of both of those facts.

Speaker 2 (07:03):
I want to get into more on what's going on
with the Court and what they're trying to do I
think too undermine it, politicize it, and we'll get to
that in a Second's Supreme Court Leaker. I want to
ask you about the Supreme Court leaker, and do you
think that they really don't know, or do they not.
I've been thinking for a while. The theory that I
have is I don't think they really want to know

(07:24):
because it just would create such a mess for them.
But we can get into that in just a second.
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buck uh for first off, Just on the leak of
the Supreme Court Dobbs opinion, Josh that for you. When
that came out, it seemed to me like we've entered
this era now where even the rules that we thought
both sides agreed on when it came to judiciary, or

(08:49):
at least that's that was our perception, those rules are
being wiped away too. Now we're just gonna leak Supreme
Court decisions before they happen to pressure justices.

Speaker 1 (08:58):
Yeah, I mean it kind of underscores one of the
greater recurring themes of the past six seven years or so,
which is it is the laft who has fried foul
time and time again about the rights reported undermining of
our norms and our decency obviously, former President Trump kind
of being at the epicenter of that alleged undermining of norms,

(09:18):
whereas in reality, in reality, you know, all the way
going back to the Women's March, you know, you know,
violent protests in twenty seventeen, through the Black Lives Matter Antifa,
you know, quasi anarchy in the summer of twenty twenty
very much, including this league. It is time and time
again the left that is the one undermining these norms,
without which we cannot long sustain a civilization, to be

(09:41):
quite frank, and when it comes to the judiciary in particular,
you know, Buck, when I first saw this, I mean
I remember exactly where I was. It was May third,
twenty twenty two. I could remember the exact date without
even looking it up, because I mean it was just
a shocking, shocking thing. I mean for someone like me
who went to law school, like clerks on a federal
Court of Appeals, the Fifth Circuit down in Dallas, Texas,

(10:01):
I mean, this is unheard of. I mean, there is
no precedent whatsoever for this, and there's no precedent whatsoever
for this because the Supreme Court literally cannot function like
they actually cannot do their job in an environment where
their private deliberations, their private emails, their drafts. I mean,
how do these idiots think that a Supreme Court opinion
gets written. I mean, the justices are constantly trying to

(10:24):
persuade one another to massage the language. They need secrecy.
I mean, the clerks need to know and the justices
need to know that those conversations are not going to
be leaked. They're not going to be subpoena or subject
to subpoena or anything like that. So, I mean, this
was a really, really, really big deal. And by the way,
I hate to say it, but my prediction about the
leaker being found, so I remember it was that night

(10:46):
or the day after I tweeted. I think it happened
like a Monday night. I tweeted, I bet we know
the leaker by Friday, and you know, geez, I mean,
you know, prediction that did not hold up well. But I,
for the life of me, just cannot believe that we
purportedly do not know the leaker to this day. And
I call BS. I just do not believe it. I truly,

(11:06):
earnestly do believe that at least one justice of one
justice knows, you have to assume all nine of them
know who the actual leaker was. So the Marshall of
the Supreme Court had that fairly brief I think it
was like two or three four page something conclusion back
in January. I think he was saying, we have not
identified the leaker. They had this report kind of a
fixed at the end by Michael Chertoff, the former Republican

(11:29):
DHS secretary, to try to give it kind of you know,
a basically just trying to do that to kind of,
you know, hamp down conservative dissent. But I just don't
believe it, and I doubly don't believe it because Justice
sam Alito had this very very colorful recent interview with
James Taranto of the Wall Street Journal where he actually
told James Taranto, as a sitting Justice the Supreme Court

(11:50):
told the Wall Street Journal op ed page editor, he
told him that he thought he knew who the leaker was,
he just didn't have the evidentiary threshold to go public
with it. And that is very massage language, even by
Justice Alito, because he wouldn't even say that. I think
if he was actually damn sure confidence and again then
if he's confident, then I think the court no. So

(12:11):
I call BS on the whole thing, and it's one
thing bug that myself and also our mutual friend Ben
weiningarn and we talked about this issue. I feel like
all the time on our knock On Squad podcast, which
we do every week. Ben and I are two of
the guys who are just beating the drum on this
because it is so important to get to the bottom
of this. I mean, this leaker must be publicly identified,
publicly shamed, and reprimanded. I mean there have to be

(12:34):
serious repercussions for this.

Speaker 2 (12:37):
This is also a moment in time where I feel
like I need to just think of all the possibilities here. Jeff,
do you think it's possible that it could have been
it would be a lib? And that's clear, and that
was clear to me from the beginning. Some people were
trying to say, we don't know, Yeah, it's someone who's
a lib. Is it definitely a staffer in your mind?

(12:57):
Or do you think that maybe one of the leftist
judges on the Court might have done this?

Speaker 1 (13:03):
So my very first thought when this first happened last May,
over a year ago now, was that it was probably
a clerk from a bold Chambers, right, I mean that's
kind of standard guests, so Soto, Mayora, Kagan at that time, Briar.
So I remember at that time, Stephen Bryer was actually
about to retire, So some people kind of immediately said,
you know, maybe he's going into yolo mode. You know,
I never really bought that, because you know, Briar was

(13:23):
on the court for thirty plus years, he was in
his eighties at Clinton appointing me, I mean fundamentally a
different era, right, I mean, he just kind of like
an older, kind of more statesmanlike liberal, not this kind
of you know, Sodo Mayora like liberal. But here's what
I will say. If it was a clerk, I think
there's probably a higher likelihood that they would not have
gone to these lengths to shield the identity. So I

(13:44):
actually genuinely do believe, especially after the Marshall's totally underwhelming
report came out back in January, and I doubly believe.
I think after this interview that that sam Alito gave
to James Tranto at the Wall Street Journal, I am
I am kind of coming to the conclusion personally that
I actually think it's it probably is a justice, and
that's not something that I would have said last May.

(14:05):
But the fact that they're going to such lengths to
try to bury this story, really it does kind of
make me think that it probably is Sonya, so to
my ore, And you know, I don't have a smoking
gun for that. I would be you know, remiss if
I didn't say that. I don't want to sound like,
you know, like tinfoil hat guy over here. But looking
just at where kind of the evidence is leading me

(14:25):
right now, again, I think if it was a clerk,
they probably would have just publicly identified the clerk, I mean,
but the fact that they're hiding it, I'm thinking it's
so my r.

Speaker 2 (14:35):
Buck my My theory all along has been they don't
they don't want to know, and what we've seen more
recently I think goes right along with that. And I
appreciate that you're willing to even say who you think
it is. To me, it was it was likely to
be a justice all along here given this issue, right,
this isn't about eminent domain. Not that that's not important,

(14:57):
but that's not you know, people generally don't lose their
mind over that, right abortion. The left thinks that this
is really it's really the foundation of their immoral ethics.
I would argue that this is like the building block
for all of their demonic insanity. So in case that
is what I were I said on all that stuff,

(15:18):
I want to ask you about the affirmative action case
what Students for Fair Admission v. North Carolina and Students
for Fair Admission v. Harvard that's expected to come out
next month. Basically, for everybody watching this, if you've ever
felt like affirmative action, this is so obviously unconstitutional. How
the hell has this been able to go on as
long as it has in admissions and a whole range

(15:38):
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Josh are they going to prevail? What do you think
the justice count will be at the Supreme Court and
what will the effect be take it away.

Speaker 1 (17:20):
Sir, Yeah, So there these are big cases. I mean,
you know, these affirmative action cases I think are by
far the most important cases, the juiciest cases, the sexiest cases.
You might say on the Supreme Court's docket this term.
You know, I would be remiss if I didn't point
out buck the intellectual godfather of these two cases was

(17:41):
someone who asked away recently, way way too young from
brain cancer, a brilliant former Clarence Thomas Claire by the
name of Will Consavoy. So you know, first of all,
it would be wonderful posthumous kind of vindication of Will Consvoy,
who I knew personally and was just an absolutely brilliant
legal mind if the Court does finally do away with
affirmative actions. So very brief history of affirmative action of

(18:02):
the Supreme Court. So, there was a case in nineteen
seventy eight out of California called Baki, which is kind
of the first time that the Supreme Court basically legit
demize the idea that despite the very clearly worded statue
that is a civil rights act which very clearly forbids
discrimination in higher education. That's Title six on the basi
of Ray. So Baki is the first time that the
Court basically said that no, you actually kind of sort

(18:24):
of can get around this with some kind of quota
style things. Infamously, in two thousand and three, two cases
out of the University of Michigan, one called Grutder, one
called Rats, the Supreme Court basically affirmed the basic holding
of Baki. They tweaked the formula a little bit, but
very bad ruling there. And the Court has punted multiple
times since then, including a case out of the University
of Texas called Fisher. They declined to overturn Grutder and Baki.

(18:48):
But I really do think this is the time. I
actually genuinely think that this actually is the time in
these cases out of Harvard and University North Carolina. And
the reason that you have both those cases, by the way,
so it's one public school, one private school. The basic
idea here is that the Constitution, the fourteenth Amendment, directly
applies to a public university because of public university is

(19:08):
a state actor, whereas the private university Harvard, you could
make an argument that's a state actor because they take
federal funds, but it's it's certainly covered by Title six,
the statutory hook of the nineteen sixty four Civil Rights Act.
So long story short. So the current court you have,
I mean, you know, people would say you have five
to six conservative justice depends how you want to count
John Roberts's. It's basically a three to three three court

(19:31):
where you have three solid liberals, you have three fairly
reliable conservatives Thomas Alito and I'll count Gorse that even
though that's a more complicated conversation. Then you have these
kind of three in the middle of Barrick, Havanaugh and Roberts.
So if you're starting to count votes, which is kind
of what you have to do to play this kind
of parlor game, I count six votes, honestly, and I

(19:52):
actually think that this is one issue. This is legitimately
maybe the only issue, literally the only jurisprudential issue that
I think John Roberts is probably actually solid on because
he's been solid on this issue going back to his
first years at the Court. In fact, John roberts is
most famous line that he has ever put into a
Supreme Court opinion probably comes from a two thousand and

(20:13):
seven case that Seattle, Washington called Parents Involved, where he
famously said, quote, the way to stop discrimination on the
basis of race is to stop discriminating on the basis
of race. And you know, look, if you have Robberts,
then you clearly have the votes there, because there's no
way that Roberts would take that without everyone else falling
in line. So I am actually cautiously optimistic about the

(20:34):
last remaining actual form of systemic racism in America going
away next month. I really am.

Speaker 2 (20:40):
What will it look like if the decision comes down.
Let's say it's a six y three or it doesn't
matter right five four six three. But if the decision
does overturn it, what will the implications be for schools?
Which school's private public? How do you think that breaks down?

Speaker 1 (20:56):
So if you really get unc and Tarvard, then you're
gonna end up applying both the Constitution and the Civil
Rights Act. So you know, in theory Booth, those opinions
come out the right way. And by the way, Katanji
Brown Jackson. The reason that these cases are separate. In
addition to the public private things that Katanji Brown Jackson
has actually recused from the Harvard case because she was
on some or there ors on things. So you know,

(21:16):
my guest, formally, I guess would be six three in
the unc K six y two in the Harvard case
with Jackson recused. But you know, in theory, the consequences
should be pretty drastic. But I do you know, I
hate to sound kind of black built and pessimistic, but
I am saying in theory here because you know, I mean,
you and I know how these universities work, Buck. I mean,
there's a lot of kind of behind the scenes kind

(21:37):
of you know, you know, DEI bureaucrats who are still
kind of you know, the fox is running the hen house,
and you know, I think the conventional wisdom, which I
generally share, is that a lot of these emissions offices
will basically find a way to do it while trying
to hide the ball. So it will basically just kind
of give out offers people who are clearly underqualified while

(21:58):
basically making crap up. And you know, the question at
that point becomes, how do you police the making crap
up thing? And I don't know, I don't actually know
exactly what that would entail. I mean, at that point though,
it might be more of a state level issue. You know,
maybe some more states can kind of, you know, more
narrowly craft some very clever statues to kind of outlaw
specific practices, probably the kind of thing that here in

(22:20):
Florida around the santis and the Florida legislature might want
to take a look at next term if the form
anti faction cases do indeed go the way that I'm predicting,
but I totally totally anticipate that universities will do everything
they can to get around this.

Speaker 2 (22:34):
Yeah, my sense is that they're getting rid of the
SAT for example, and a lot of supposedly lead schools.
Some people will still submit their SAT, of course, you know,
if you're you're an Asian kid, you know, Asian American kid,
you're going to submit your sixteen hundred SAT even if
it's not required. But by not making it required at
Columbia or Harvard or wherever they can, then it's hard.

(22:57):
It makes it easier to cover the tracks that the
continuation of the holistic you know, racial preference system that
they have, holistic in quotes that they have in place, right,
I mean, that's that's how I think, because I know
this because I remember one of these decisions are the
earlier ones you mentioned, came down when I was at
Amherst and studying with your main man, Hadley Arcis. By
the way, what's up. Hadley sends high fives to everybody

(23:19):
out there for those of you know Hadley Arcus in
the house. But I remember the president of Amherst College
said at some big open forum on this, look, honestly,
it doesn't matter what the Supreme Court says. We're gonna
keep taking who we want to take, and we'll get
around it. And I was I was like, wow, look
at that. Just imagine imagine the Supreme Court said you
can't discriminate against black and Latino students in admission, and

(23:42):
you had a president of a college come forward and say, well,
I mean, I don't care if the Supreme Court says
we're still gonna do that. He did that. He just
did it against other races, not those races. That's exactly
that was. That was actually, gosh, I can't render the
guy's name. We had a president Marx aptly named, I
might add, but then there was the one before him.
I can't even remember the president's name. Guy was a bureaucrat.

(24:04):
Let's talk about Trump and his legal woes. We're gonna
put you in the role of Trump legal advisor, maybe
even a Trump defense attorney here in a second, based
on what he's facing. So we'll get to that, But
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(25:08):
the number two T all right, Josh. Which additional, we
know that Trump just lost this civil case to you know,
Egene Carroll in New York. We know he's facing this
twenty some odd counts of felony like misspelling or whatever.
Basically that he's paying off the porn star with the

(25:31):
money that's in Manhattan. There's also Georgia, and there's a
Special Council, and maybe there's something else they're gonna throw
at us. We're not even thinking of right now. Which
of these are you the most certain is going to
be a problem for him? And do you think they're
going to go all the way on the Special Council
with the federal indictment from Jack Jack Smith?

Speaker 1 (25:54):
I mean they definitely might. So. Look, I mean, I
think the conventional wisdom, which I probably share, is that
the classified document stuff, the infamous mar lagu rate last August,
I think that probably will not amount to anything. I mean,
it's kind of remarkable how quickly we've forgot in. But
I mean Joe Biden literally had his own classified documents
retention scandal. I mean it was just in January. Is

(26:16):
happened to be, you know, as many things in Biden
world are has happened to have some implications for the
Chinese Communist Party. So if I were the FEDS, I personally,
you know, if I if I were mister Smith as
a special prosecutor, I probably would be shying away a
little bit from that case, a little more towards the
January sixth case. But you know, here's why. And to

(26:37):
be clear, Buck, I think that the January six stuff is,
legally speaking, is beyond frivolous. You know, this notion that
he incited violence, let alone incited insurrection. I mean, there
is direct US Supreme Court case law on points here
from the nineteen sixties. The thresholds where you have where
you have speech that is not first memen protective that

(26:57):
actually results in incitement of violence, It is a very
very very high threshold. And I've read over what Donald
Trump said at the Ellipses and that infamous speech on
January six twenty twenty one, in my estimation, did not
come anywhere close to how the DC Municipal Code defines
incitement to violence. But having said that, you know, we're
not dealing here with people who are following the black

(27:19):
letter of the law. We're dealing with a situation where
they had this January sixth Special Committee kangaroo court with
Liz Cheney and Madden kinsing Jerrem the whole thing, you know,
I mean, fundamentally, they probably wouldn't have done that. They
wouldn't have issued their report to DJ the way that
they did, recommending charges if we didn't ultimately know that
the fix was in there. So I fear that the
fix probably is in when it comes to the January

(27:41):
sixth issue. But the other one that if I were
Trump's lawyer, that I would be most concerned about is Georgia.
And you know what happened in Georgia. Of course, there
was the infamous brat Raefinsburger phone calls. Trump says it
was the greatest, most perfect phone call of all time,
kind of similar to his twenty nineteen phone call with
Vladimir Zelenski, the one that they tried to impeach him
on frivolous grounds for the first time. But the Roethensburger

(28:04):
stuff in Georgia, I think if they have the audio
that we have not heard yet, but that there are
all these rumblings that they've heard, that's potentially looking very
very dicey. And I think a lot of people there
have already kind of agreed to immunity deals. But if
I'm not mistaken there, that is typically kind of signs
that the prosecutorial apparatus is about to kick up into
very high gear. So you know, of those three cases

(28:28):
J six classify documents in Georgia, I would be least
concerned about the class by documents, but decently concerned about
the other two for sure.

Speaker 2 (28:36):
Do you think that they intend to try to lock
Donald Trump up?

Speaker 1 (28:41):
Yeah? I do. I mean, I absolutely do think that,
body do. I mean, yeah, I think that they're probably
I hate to sound like borderline conspiratorial, but you know,
I think we're only five ten years away from people
like you and me being in their crosshairs at being
locked up. I mean five to ten years. Maybe is
being a little too generous here, right, I mean, I

(29:02):
mean the stuff that you say on the radio every day,
the stuff that, like I write and say, I mean,
are we not kind of inciting like you know, all
sorts of fabricators charges. So I mean that basically, I
think is where we're headed. But Donald Trump is the
tip of the spear. So look, I mean, I have
definitely been critical of Donald Trump on any number of occasions.
But one thing where I think he actually is exactly
right is when he goes on social media and he

(29:24):
says to his most diehard supporters, they're coming after me
because they're eventually going to come after you. I think
that's actually exactly right. I think that that is you know,
I'm not sure if it's sincere or cynical when he
says it subjectively, but as a matter of analysis, I
think it happens to be exactly right. So yeah, I
mean there's nothing that Merrick Garland and Joe Biden would
ultimately like more if they do when reelection twenty twenty

(29:44):
four and sending Donald Trump to prison, I think that's
absolutely the end game.

Speaker 2 (29:49):
What is your what is the most interesting Supreme Court decision?
To you, it's like a trivia question to close us
out here.

Speaker 1 (30:00):
The most the most interesting case of all time. Wow,
that's a tough one to be honest with you.

Speaker 2 (30:09):
You can differ, well, we could bring you back. You
can tell us another time. I've never asked any of
that question before.

Speaker 1 (30:14):
But yeah, I mean, look, I mean there's like a
few that come immediately to mine, right, I mean, you know,
the term interesting is kind of doing a lot of
work there. So I'm trying to like think of like
interesting fat patterns, whatever looks. I mean, like, there's a
case out of the late nineteen eighties called Morrison versus
Olsen pertaining to the constitutionality of an independent council. This
idea that you can not have a special counsel, but

(30:34):
an actual independent council, someone who is outside the chain
of command of the Department of Justice. And you know,
this became quite relevant ultimately in the nineteen nineties with
ken Starr and Whitewater and all that good stuff. Back
from my childhood before I was paying attention to any
of this sordid business. And in Morrison versus Olsen, the
court held eight to one actually that the independent Council

(30:57):
was constitutional, but in a dissent, a solo descent that
has been completely vindicated antonin Scalia, the late Great Justice
Anthony Scalia said that no, this actually is totally unconstitutional,
because you know, this is basically what conservative lawyers called
unitary executive theory, which is a very fancy, loyally term,

(31:18):
meaning that the commander in chief, the president has unilateral
pulinary authority over the executive branch, full stop, period, end
of story. And you know, ultimately the Independent Council phased
out that law was not renewed, and Scale is descent
is solo descent in an eight one case is now
basically universally viewed as correct across law school, academia, faculty lounges,

(31:40):
across the country. Now, why is that relevant? Why do
I say it's interesting because if you take that seriously,
if you take seriously the basic holding that the president
has unilateral authority over his entire executive branch, that makes
all the difference in the world when it comes to
the administrative state, when it comes to the deep state,
when it comes to kind of ferreting out all these

(32:01):
leftists whistleblower hacks deep in the bowels of the intelligence community.
So I think it's actually it's a very interesting opinion
because Scale is also just a wonderful writer, has deep,
deep real world implications in the twenty twenties as well.

Speaker 2 (32:15):
I wanted to just let Josh Hammer do a constitutional
nerd flex there for everybody, and there we go or
Supreme Court slash constitutional flex. So well done, sir, impressive.
Thanks for being with us, man. Go check out the
Josh Hammer Show podcast where he gets into a lot
of things we talked about today and a whole lot more,
and look for his latest at Newsweek, where he's been
writing lots of good stuff. Josh, Thanks so much, man,

(32:38):
any signed Bucky Bett