September 1, 2026 • 14 mins
Willie talks with Scott Gerber about the use of judicial lawfare against the Trump administration.
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Speaker 1 (00:03):
All right, Billy Cunningham, the great American professor, Scott Gerber,
has been out studying teaching constitutional law for a very,
very long time. He also has a great column and
opinion piece at foxnews.com. Headline is, the left's constitutional hypocrisy
is on full display in its war against Donald Trump. Professor,
(00:24):
once again, welcome to the Bill Cunningham Show. Explain what
the liberals, what the left, and the constitutional hypocrisy is.
Describe that to the American people.
Speaker 2 (00:33):
Okay, well, first of all, it's good to talk to you, Bill,
as always. My article in Fox News is simply pointing
out that the left, you know, other presidents have taken
this exact same position on Supreme Court decisions that President
Trump is taking. So the president also swears to uphold
(00:58):
the Constitution, and he's allowed to have a different interpretation
of the Constitution. I'll give you the two most famous examples.
Abraham Lincoln, who is almost universally regarded as the greatest
president in American history. When he was running for president,
the Supreme Court decided Dred Scott versus Sanford, which, as
(01:21):
you know, since you're a lawyer... is universally regarded as
the worst decision in the history of the Supreme Court.
And that decision upheld the right of states to have slaves.
And Lincoln refused to accept that. All he said was
(01:42):
it bound the two parties in the case, but it
didn't bind the nation. And he said, when I become president,
I'm going to get rid of slavery. Okay, so that's
pretty good. He disagreed. And then the second one, during
the Great Depression, when FDR, Franklin Roosevelt, was trying to
(02:03):
get the country out of the Great Depression, he, as
you know, had a series of federal programs to try
to help do that. And the Supreme Court kept striking
them down. So he would use the taxing power. to
do something, for example, and the Supreme Court would say
(02:23):
that's unconstitutional, the taxing power can't be used to do
what you want to do. So he would then, you know,
he then used the commerce power, a different provision of
the Constitution, to enact the exact same program, and eventually
the Supreme Court, in the famous switch in time that
saved nine, upheld his power to do it. And so
(02:47):
my message is simply... Many great presidents have refused to
accept judicial decisions that they, in their solemn oath to
uphold the Constitution, think are incorrect. And President Trump is
just doing the very same thing that Abraham Lincoln, FDR,
(03:09):
Andrew Jackson, Thomas Jefferson, etc. have done. That's it.
Speaker 3 (03:12):
And the difference is, the... Threat to democracy is a
moniker used by the radical left in this country, whether
you're a member of the DSA or a communist or
Islamist extremist. They say the president, whenever he disregards or
criticizes a Supreme Court decision, he's a threat to democracy. Well,
if that's the case, then Thomas Jefferson was a threat
(03:35):
to democracy. And then Abraham Lincoln, I think it was 1858,
was the Dred Scott decision. Lincoln was a threat to democracy.
Speaker 2 (03:42):
FDR.
Speaker 3 (03:43):
ignored Supreme Court decisions. In fact, wanted to pack the
Supreme Court. That was OK, too. And so it depends
whose ox is being gored, whether you're a threat to
democracy or following the law. You can always say, well,
this is binding only upon the two parties before me,
which is Marbury versus Madison and Jefferson. Well, then eventually
(04:03):
they eventually won. And so let me ask you a
simple other question, maybe contained within your article at Fox News.
And that is, how is it possible that one federal
district court judge, appointed by Obama, say, in Massachusetts, can
issue a TRO against the entire United States of America?
How is that legitimate?
Speaker 2 (04:24):
It's not legitimate. And as you know, the Supreme Court
a year or two ago finally said it wasn't legitimate.
And so that practice, for all intents and purposes, is
supposed to be dead. It doesn't mean... that left-leaning federal
judges who want to stop President Trump or other Republicans
(04:44):
aren't going to keep trying to do it. But the
Supreme Court said they can't do it. They can't do it.
It's called universal injunctions. And the great Clarence Thomas had
been arguing against those for years. And then Jeff Sessions,
when he was attorney general in the first Trump administration,
one of his most important speeches was arguing against universal
(05:07):
injunctions that what you're talking about for the very exact
reason that you just.
Speaker 3 (05:11):
Said as far as the uh issue of uh birthright
citizenship it is obvious that uh in the late 1860s
right after the civil war the 14th amendment was put
in and passed by the states in the congress in
order to give uh citizenship rights to recently freed slaves.
(05:31):
That was the purpose. And now Donald wants to say, well,
it doesn't apply to other groups such as those who
come across the border in order to have birth tourism
or those illegals who come here to give birth. And
the dispute is fundamentally about constitutional interpretation. And so when
Donald said, well, I'm going to go another, and he
issued another executive order about birthright citizenship of those who
(05:54):
come here for money. Ultimately, Do you buy as a
professor what the Supreme Court said? It was either five
to four, six to three about birthright citizenship. Or do
you think the Trump approach is accurate? Which is it, professor?
Speaker 2 (06:08):
Yeah, on that, I'm just going to simply say the
point of my essay. I think the great strength is
and if I could, I'm just going to read you
a couple of sentences that relate indirectly to your point.
I say this near the end. after I've made all
the points I've kind of summarized for you listeners already.
(06:29):
And this is what I wrote. This is not an
abstract point for me. Long before Donald Trump entered national politics,
I wrote a book published by Oxford University Press, making
the historical case against popular constitutionalism and departmentalism and an
(06:50):
originalist defense of judicial finality. But that scholarly position does
not mean President Trump is ignoring the rule of law
or behaving like an authoritarian when he advances a theory
of judicial review that other presidents and scholars have likewise advanced.
And what I mean by that paragraph, Bill, is I
(07:11):
don't agree with the theory that President Trump is advancing
or that FDR advanced and the like, but my point
is that other people have made good historical arguments that
that theory is correct. And so simply because Trump agrees
with them and doesn't agree with me doesn't mean that
President Trump is lawless. That's it. And so I didn't
(07:34):
get into the substance of, say, whether his position on
birthright citizenship is correct or whether his approach to putting
his name on the Kennedy Center is correct or whether
his approach to tariffs is correct. So I tried to
stay out of it. And so on the birthright citizenship point,
The best I can do for you is refer your
(07:55):
listeners to an amicus brief filed by my former lawyer
of a couple years ago, Ben Flowers, who's now on
the Sixth Circuit Court of Appeals. He wrote a brief,
and he's one of the great brief writers of recent memory,
(08:16):
making your argument for you, and he was doing it
on behalf of Richard Epstein. who's the most important libertarian
legal theorist in the world, teaches at NYU. So if
your listeners want to understand what a good historical and
theoretical and textual defense of President Trump's position is, they
(08:37):
should read Ben's brief, which is freely available on the U.S.
Supreme Court website.
Speaker 3 (08:42):
And Professor Scott Gerber, I can recall that for years,
Barack Hussein Obama said, I have a pen and a phone.
So when the Congress did not do what he wanted
to do, or the Supreme Court ruled in a way
that he did not want, Obama said, I got a
pen and a phone. I can recall during the Biden administration,
if Joe Biden was mentally alert to another issue, but
(09:04):
when the Supreme Court struck down his forgiveness of student loans,
Biden essentially said, I'm going to ignore that. It came
up with another way to forgive student loans and lower
the interest rate. So it appears that when Democrats ignore
judicial rulings, they're perceived as heroes and But when Donald
Trump does it, he's somehow an authoritarian. Isn't that revealing?
Speaker 2 (09:26):
Yeah, beautiful point. And I'll also point out that the
leading academic theory on popular constitutionalism was penned by then-Stanford
Law Dean Larry Kramer. And he did it to try
to say, just because the Supreme Court, under President George W.
(09:47):
Bush's conservative... and issues these decisions that we on the
left don't like, we can simply ignore them because it's
the people acting through Congress that decide what to do.
Constitution means, not the Supreme Court, right? And so Trump
is simply making the same point.
Speaker 3 (10:10):
Well, lastly, Professor, if the Founding Fathers were transported from
1789 to 2026... And what would they say about the
preeminence of the judicial system in America that they perceive
to be the weakest and the most irrelevant? Would they
be shocked of how the U.S. Supreme Court, what they've
(10:31):
done to the Constitution?
Speaker 2 (10:35):
Yeah, they would be shocked. Alexander Hamilton in February of 78,
as you well know, famously said that the federal judiciary
would be the, quote, least dangerous branch.
Speaker 3 (10:50):
Not anymore. In fact, every big issue that the Congress
and the president can't resolve somehow makes its way to
the court system. And whether it's affirmative action or tariffs
or student loan debt or whatever, we all wait for
the last part of the last week in June in
order to determine whether or not how society is going
(11:13):
to be ruled. They'd be shocked that the Congress and
the president have taken so little authority on their own
and given it to another branch of government.
Speaker 2 (11:21):
Correct. And just let me harken back one second about
your point about how the left approaches this question, depending
on what the outcome is they want. You know, that's
the point of my piece. But, you know, and the
left knows that the Supreme Court barely recently said, you know,
upheld anti-abortion rules. And, of course, the left is saying,
(11:45):
you know, ignore those, that's incorrect and all of that.
So that's another example of If the court issues a
decision the left doesn't like, they say it doesn't matter
what the court said. Right. But if Trump, if the
court issues a decision President Trump doesn't like, they say
(12:06):
he has to follow it. Yeah. If they like it.
You get it? Yep.
Speaker 3 (12:09):
I got it. And it's all politics from the left end.
When the Democrats go one direction, the news media and colleges, universities,
most of the law schools go with the Democrats because
they are Democrats. Lastly, I would point out that the
Supreme Court should be extremely weak on the issue of abortion. Essentially,
they said Roe versus Wade was wrongly decided. And they're
(12:33):
going to send the issue back to the states and
let the states determine abortion within wide parameters. And the
states have done that. In fact, in Massachusetts, a practicing
Roman Catholic allegedly governor named a female named Healy is
allowing abortion up to the moment of birth. There's about
a thousand of those partial birth abortions around the country.
(12:54):
And so essentially, the Supreme Court said to the states,
you're 50 laboratories in democracy. You make your own rules.
And so whether it's a referendum initiative or bypassing statutes, essentially,
the Supreme Court empowered the people. But Democrats didn't like
that either.
Speaker 2 (13:10):
Yeah, on that one, of course, I seriously doubt that
the Democrats are objecting to what the governor of Massachusetts did.
But when the governor of Mississippi goes the other way
in this pro-life, they raise heck about that.
Speaker 3 (13:24):
All right, we got to run, but Professor Scott Gerber
reminds me of situational outrage or situational ethics. It depends
if you're a popular Democrat that says, I got a
pen and a phone, or if you're a popular, so
to speak, Democrat and Joe Biden, who says after the
Supreme Court ruled contrary to him on forgiving student loan debt, well,
(13:45):
we're going to ignore that and we're going to do
it anyway. Biden, Obama, Abraham Lincoln, FDR, we're all applauded.
When Trump does it, it's a threat to democracy, which
is all a bunch of bovine scatology. But Professor Scott Gerber,
good piece at Fox News. And once again, thanks for
coming on the Bill Cunningham Show. And Professor, you're a
(14:07):
great American. Thank you.
Speaker 2 (14:09):
Thank you, Bill.
Speaker 3 (14:10):
God bless you.
Speaker 2 (14:10):
Have a nice week.
Speaker 3 (14:11):
God bless you.
Speaker 1 (14:12):
Bye-bye.
Speaker 3 (14:13):
Let's continue. Depends whose ox is being gored. When a
Republican does it, it's outrageous. When a Democrat does it, well,
it's about time. Bill Cunningham, 700 WLW.
All right, Billy Cunningham, the great American professor, Scott Gerber,
has been out studying teaching constitutional law for a very,
very long time. He also has a great column and
opinion piece at foxnews.com. Headline is, the left's constitutional hypocrisy
is on full display in its war against Donald Trump. Professor,
(00:24):
once again, welcome to the Bill Cunningham Show. Explain what
the liberals, what the left, and the constitutional hypocrisy is.
Describe that to the American people.
Speaker 2 (00:33):
Okay, well, first of all, it's good to talk to you, Bill,
as always. My article in Fox News is simply pointing
out that the left, you know, other presidents have taken
this exact same position on Supreme Court decisions that President
Trump is taking. So the president also swears to uphold
(00:58):
the Constitution, and he's allowed to have a different interpretation
of the Constitution. I'll give you the two most famous examples.
Abraham Lincoln, who is almost universally regarded as the greatest
president in American history. When he was running for president,
the Supreme Court decided Dred Scott versus Sanford, which, as
(01:21):
you know, since you're a lawyer... is universally regarded as
the worst decision in the history of the Supreme Court.
And that decision upheld the right of states to have slaves.
And Lincoln refused to accept that. All he said was
(01:42):
it bound the two parties in the case, but it
didn't bind the nation. And he said, when I become president,
I'm going to get rid of slavery. Okay, so that's
pretty good. He disagreed. And then the second one, during
the Great Depression, when FDR, Franklin Roosevelt, was trying to
(02:03):
get the country out of the Great Depression, he, as
you know, had a series of federal programs to try
to help do that. And the Supreme Court kept striking
them down. So he would use the taxing power. to
do something, for example, and the Supreme Court would say
(02:23):
that's unconstitutional, the taxing power can't be used to do
what you want to do. So he would then, you know,
he then used the commerce power, a different provision of
the Constitution, to enact the exact same program, and eventually
the Supreme Court, in the famous switch in time that
saved nine, upheld his power to do it. And so
(02:47):
my message is simply... Many great presidents have refused to
accept judicial decisions that they, in their solemn oath to
uphold the Constitution, think are incorrect. And President Trump is
just doing the very same thing that Abraham Lincoln, FDR,
(03:09):
Andrew Jackson, Thomas Jefferson, etc. have done. That's it.
Speaker 3 (03:12):
And the difference is, the... Threat to democracy is a
moniker used by the radical left in this country, whether
you're a member of the DSA or a communist or
Islamist extremist. They say the president, whenever he disregards or
criticizes a Supreme Court decision, he's a threat to democracy. Well,
if that's the case, then Thomas Jefferson was a threat
(03:35):
to democracy. And then Abraham Lincoln, I think it was 1858,
was the Dred Scott decision. Lincoln was a threat to democracy.
Speaker 2 (03:42):
FDR.
Speaker 3 (03:43):
ignored Supreme Court decisions. In fact, wanted to pack the
Supreme Court. That was OK, too. And so it depends
whose ox is being gored, whether you're a threat to
democracy or following the law. You can always say, well,
this is binding only upon the two parties before me,
which is Marbury versus Madison and Jefferson. Well, then eventually
(04:03):
they eventually won. And so let me ask you a
simple other question, maybe contained within your article at Fox News.
And that is, how is it possible that one federal
district court judge, appointed by Obama, say, in Massachusetts, can
issue a TRO against the entire United States of America?
How is that legitimate?
Speaker 2 (04:24):
It's not legitimate. And as you know, the Supreme Court
a year or two ago finally said it wasn't legitimate.
And so that practice, for all intents and purposes, is
supposed to be dead. It doesn't mean... that left-leaning federal
judges who want to stop President Trump or other Republicans
(04:44):
aren't going to keep trying to do it. But the
Supreme Court said they can't do it. They can't do it.
It's called universal injunctions. And the great Clarence Thomas had
been arguing against those for years. And then Jeff Sessions,
when he was attorney general in the first Trump administration,
one of his most important speeches was arguing against universal
(05:07):
injunctions that what you're talking about for the very exact
reason that you just.
Speaker 3 (05:11):
Said as far as the uh issue of uh birthright
citizenship it is obvious that uh in the late 1860s
right after the civil war the 14th amendment was put
in and passed by the states in the congress in
order to give uh citizenship rights to recently freed slaves.
(05:31):
That was the purpose. And now Donald wants to say, well,
it doesn't apply to other groups such as those who
come across the border in order to have birth tourism
or those illegals who come here to give birth. And
the dispute is fundamentally about constitutional interpretation. And so when
Donald said, well, I'm going to go another, and he
issued another executive order about birthright citizenship of those who
(05:54):
come here for money. Ultimately, Do you buy as a
professor what the Supreme Court said? It was either five
to four, six to three about birthright citizenship. Or do
you think the Trump approach is accurate? Which is it, professor?
Speaker 2 (06:08):
Yeah, on that, I'm just going to simply say the
point of my essay. I think the great strength is
and if I could, I'm just going to read you
a couple of sentences that relate indirectly to your point.
I say this near the end. after I've made all
the points I've kind of summarized for you listeners already.
(06:29):
And this is what I wrote. This is not an
abstract point for me. Long before Donald Trump entered national politics,
I wrote a book published by Oxford University Press, making
the historical case against popular constitutionalism and departmentalism and an
(06:50):
originalist defense of judicial finality. But that scholarly position does
not mean President Trump is ignoring the rule of law
or behaving like an authoritarian when he advances a theory
of judicial review that other presidents and scholars have likewise advanced.
And what I mean by that paragraph, Bill, is I
(07:11):
don't agree with the theory that President Trump is advancing
or that FDR advanced and the like, but my point
is that other people have made good historical arguments that
that theory is correct. And so simply because Trump agrees
with them and doesn't agree with me doesn't mean that
President Trump is lawless. That's it. And so I didn't
(07:34):
get into the substance of, say, whether his position on
birthright citizenship is correct or whether his approach to putting
his name on the Kennedy Center is correct or whether
his approach to tariffs is correct. So I tried to
stay out of it. And so on the birthright citizenship point,
The best I can do for you is refer your
(07:55):
listeners to an amicus brief filed by my former lawyer
of a couple years ago, Ben Flowers, who's now on
the Sixth Circuit Court of Appeals. He wrote a brief,
and he's one of the great brief writers of recent memory,
(08:16):
making your argument for you, and he was doing it
on behalf of Richard Epstein. who's the most important libertarian
legal theorist in the world, teaches at NYU. So if
your listeners want to understand what a good historical and
theoretical and textual defense of President Trump's position is, they
(08:37):
should read Ben's brief, which is freely available on the U.S.
Supreme Court website.
Speaker 3 (08:42):
And Professor Scott Gerber, I can recall that for years,
Barack Hussein Obama said, I have a pen and a phone.
So when the Congress did not do what he wanted
to do, or the Supreme Court ruled in a way
that he did not want, Obama said, I got a
pen and a phone. I can recall during the Biden administration,
if Joe Biden was mentally alert to another issue, but
(09:04):
when the Supreme Court struck down his forgiveness of student loans,
Biden essentially said, I'm going to ignore that. It came
up with another way to forgive student loans and lower
the interest rate. So it appears that when Democrats ignore
judicial rulings, they're perceived as heroes and But when Donald
Trump does it, he's somehow an authoritarian. Isn't that revealing?
Speaker 2 (09:26):
Yeah, beautiful point. And I'll also point out that the
leading academic theory on popular constitutionalism was penned by then-Stanford
Law Dean Larry Kramer. And he did it to try
to say, just because the Supreme Court, under President George W.
(09:47):
Bush's conservative... and issues these decisions that we on the
left don't like, we can simply ignore them because it's
the people acting through Congress that decide what to do.
Constitution means, not the Supreme Court, right? And so Trump
is simply making the same point.
Speaker 3 (10:10):
Well, lastly, Professor, if the Founding Fathers were transported from
1789 to 2026... And what would they say about the
preeminence of the judicial system in America that they perceive
to be the weakest and the most irrelevant? Would they
be shocked of how the U.S. Supreme Court, what they've
(10:31):
done to the Constitution?
Speaker 2 (10:35):
Yeah, they would be shocked. Alexander Hamilton in February of 78,
as you well know, famously said that the federal judiciary
would be the, quote, least dangerous branch.
Speaker 3 (10:50):
Not anymore. In fact, every big issue that the Congress
and the president can't resolve somehow makes its way to
the court system. And whether it's affirmative action or tariffs
or student loan debt or whatever, we all wait for
the last part of the last week in June in
order to determine whether or not how society is going
(11:13):
to be ruled. They'd be shocked that the Congress and
the president have taken so little authority on their own
and given it to another branch of government.
Speaker 2 (11:21):
Correct. And just let me harken back one second about
your point about how the left approaches this question, depending
on what the outcome is they want. You know, that's
the point of my piece. But, you know, and the
left knows that the Supreme Court barely recently said, you know,
upheld anti-abortion rules. And, of course, the left is saying,
(11:45):
you know, ignore those, that's incorrect and all of that.
So that's another example of If the court issues a
decision the left doesn't like, they say it doesn't matter
what the court said. Right. But if Trump, if the
court issues a decision President Trump doesn't like, they say
(12:06):
he has to follow it. Yeah. If they like it.
You get it? Yep.
Speaker 3 (12:09):
I got it. And it's all politics from the left end.
When the Democrats go one direction, the news media and colleges, universities,
most of the law schools go with the Democrats because
they are Democrats. Lastly, I would point out that the
Supreme Court should be extremely weak on the issue of abortion. Essentially,
they said Roe versus Wade was wrongly decided. And they're
(12:33):
going to send the issue back to the states and
let the states determine abortion within wide parameters. And the
states have done that. In fact, in Massachusetts, a practicing
Roman Catholic allegedly governor named a female named Healy is
allowing abortion up to the moment of birth. There's about
a thousand of those partial birth abortions around the country.
(12:54):
And so essentially, the Supreme Court said to the states,
you're 50 laboratories in democracy. You make your own rules.
And so whether it's a referendum initiative or bypassing statutes, essentially,
the Supreme Court empowered the people. But Democrats didn't like
that either.
Speaker 2 (13:10):
Yeah, on that one, of course, I seriously doubt that
the Democrats are objecting to what the governor of Massachusetts did.
But when the governor of Mississippi goes the other way
in this pro-life, they raise heck about that.
Speaker 3 (13:24):
All right, we got to run, but Professor Scott Gerber
reminds me of situational outrage or situational ethics. It depends
if you're a popular Democrat that says, I got a
pen and a phone, or if you're a popular, so
to speak, Democrat and Joe Biden, who says after the
Supreme Court ruled contrary to him on forgiving student loan debt, well,
(13:45):
we're going to ignore that and we're going to do
it anyway. Biden, Obama, Abraham Lincoln, FDR, we're all applauded.
When Trump does it, it's a threat to democracy, which
is all a bunch of bovine scatology. But Professor Scott Gerber,
good piece at Fox News. And once again, thanks for
coming on the Bill Cunningham Show. And Professor, you're a
(14:07):
great American. Thank you.
Speaker 2 (14:09):
Thank you, Bill.
Speaker 3 (14:10):
God bless you.
Speaker 2 (14:10):
Have a nice week.
Speaker 3 (14:11):
God bless you.
Speaker 1 (14:12):
Bye-bye.
Speaker 3 (14:13):
Let's continue. Depends whose ox is being gored. When a
Republican does it, it's outrageous. When a Democrat does it, well,
it's about time. Bill Cunningham, 700 WLW.
Bill Cunningham News
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