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Peter Robinson: Welcome to "Uncommon Knowledge". I'm Peter Robinson. Richard Epstein is a Professor of Law at New York University. A Professor of Law Emeritus at the University of Chicago, and a Fellow at the Hoover Institution. Professor Epstein is the author of a book published last spring, "The Dubious Morality of Modern Administrative Law." John Yoo is a Professor at the University of California at Berkeley Law School. He served during the administration of President George W. Bush, as Deputy Assistant Attorney General in the Office of Legal Counsel in the Department of Justice. That's a mouthful for a very important job. John is himself a Fellow at the Hoover Institution and also the author of a book published just this summer, "Defender in chief: Donald Trump's Fight for Presidential Power." John, you can count on John to promote a book, when he has one out. John, Richard, as we record this on Sunday afternoon September 27th, this event took place less than 24 hours ago, in the Rose Garden.
Amy Coney Barrett: I fully understand that this is a momentous decision for a president. And if the Senate does me the honor of confirming me, I pledge to discharge the responsibilities of this job to the very best of my ability. I love the United States and I love the United States Constitution.
Peter Robinson: Gentlemen, I'm going to hold you each to one word. A one word response to the nomination of Amy Coney Barrett. Richard, one word.
Richard Epstein: Meritorious.
Peter Robinson: Not bad, notice though that he got in as many syllables as he could. John?
John Yoo: Outstanding.
Peter Robinson: Excellent. Only six weeks before election day, Ruth Bader Ginsburg who had served on the United States Supreme Court for 27 years, succumbed to pancreatic cancer. Now only five weeks before election day, President Trump has nominated a successor, Amy Coney Barrett, to take Ruth Bader Ginsburg's seat on the Supreme Court. Two quotations gentlemen, Richard Epstein. I'm quoting you. This is the first quotation. "Trump already has five conservative votes on the Supreme Court. He should gracefully back off. Let those who win the election, very conceivably, a democratic president with Democrats in control of the Senate, choose the next Supreme Court Justice." That's Richard's position. Here's the second quotation, Senate Majority Leader Mitch McConnell. "The Republican Senate majority will do exactly the job we were elected to do. We are going to vote on President Trump's nominee to the Supreme Court this year." Richard Epstein versus the majority leader of the United States Senate. John, who's right?
John Yoo: That's not a fair Fight. Come on, poor majority leader McConnell. He's gonna have to listen to Richard, beat him about the head and shoulders for an hour. He'll be lucky to get out alive. But I think this time the majority leader is right. When the President has encountered a Supreme Court vacancy, in the final year of their term, and the Senate's has been controlled by the same party. Almost all, I think all but one, of those nominations have gone to a vote and been confirmed. Think about who we would have lost from the Supreme Court, if we were to take the Epstein view. Let's call it the Epstein view.
Peter Robinson: The Epstein rule.
John Yoo: I can't stand to call it the Schumer rule, that . We would have been deprived of the greatest justice, in the history of the Supreme Court. Chief justice, John Marshall, the great Chief justice. He was actually nominated and confirmed, after Thomas Jefferson had won the election of 1800. We on the liberal side, we would have lost William Brennan. Who's vacancy arose just a few, I think just a few weeks before the election got a recess appointment, by Dwight Eisenhower. And then was also later confirmed. The times when the seat hasn't been filled, that rose in the last year of presidency, when the President, and the Senate were from different political parties. That's what's the case four years ago, with the Scalia vacancy. And those cases almost every single vacancy, went unfilled until the election.
Peter Robinson: Richard would you care. Listen, it's going to happen Richard, the President has nominated Amy Coney Barrett, and Mitch McConnell is going to bring that nomination to a vote. So they've have rejected your advice, but still, why would you have voiced such a thing in the first place?
Richard Epstein: Well-
Peter Robinson: Explain yourself.
Richard Epstein: I'll justify myself if I can. First of all, I do not think that this in any way, shape or form is a legal debate. What John said about the power of the President nominate and the power of the Senate to confirm, is endurably correct. He can certainly go ahead with this. The problem is, that we are now faced with a political turmoil which is perhaps second to none, except maybe after the 1800 election, when John Marshall was elected. And there is a frightful fight, over legitimacy that is going to take place. And the concern that I have is, that her name is going to be dragged through the mud. They're gonna be all sorts of, very dubious misinterpretations of her social convictions, her Catholicism, her academic position, her judicial positions. The Democrats will be spoiling for a fight. If Biden gets in, there's a serious chance that they may try to make six, three into six, seven, by having four people put into the thing. There is nothing in the constitution which limits the number of Supreme Court justices to nine. What I'm concerned about, is some kind of a stability under these circumstances. And I don't think we've had in recent times, anything close to this. John mentioned the situation, with respect to Justice William Brennan right? 1956.
Peter Robinson: 56, all right. President Hower was running for reelection in 56.
Richard Epstein: Yeah. And he thinks he has to carry New Jersey, when he wins by 400 plus electoral votes, puts him in as a recess appointment. That is not what's being proposed in this particular case right? It's being proposed for full appointment. Now, why do I think it's there is, I think in effect I'm more worried about democratic hysteria than I am about essentially Republicans.
Peter Robinson: Your position is that the President of the United States, and the Senate majority leader, should permit themselves to be intimidated, by democratic threats.
Richard Epstein: Well I would not-
Peter Robinson: They should fail to fulfill a function, that the constitution clearly gives to them. Because Richard's worried that Joe Biden will be crossed.
Richard Epstein: No I'm not worried about that. I'm worried about the fact that, it gives them the function, when it says the President shall nominate. It does not impose a duty upon him, to nominate at any given point. What it does is it says that he's the exclusive person, who's entitled to do the particular nomination. My argument was one of political prudence, not one of legal situations. It's very clear that this was rejected before it was made. I mean, what happened in this-
Peter Robinson: No but I want to convert you Richard, I want-
Richard Epstein: I don't want to be-
Peter Robinson: Just once I want to change the mind of Richard Epstein, the brilliant and distinguished legal scholar, whom I so admire. But I think I've got you this time.
Richard Epstein: I don't think you have.
Peter Robinson: Political-
Richard Epstein: I don't think it's intimidation, I think the problem is it's a credible threat. Suppose he does go ahead with this, because he's not intimidated by the Wednesday election, perhaps in consequences of this, he then goes ahead with the other four. I think that's it. I think what happens is the way which-
Peter Robinson: Hold on, hold on, stop there, stop there. If you're concerned about political legitimacy, and Amy Coney Barrett is not on the court, and the court is a court of eight justices. That's an even number. This presidential election is looking as though, it is likely to be disputed questions of mailing ballots. We may not know for days or even weeks after election day who's president, who has been elected. And even as the closely contested and even as the election, 2000 went to the Supreme Court, you cannot send a presidential election, to a Supreme Court that might divide four to four. That concern alone trumps all the others you've met.
Richard Epstein: I don't, no I don't think it does. Because what happens is this is the situation, where you're trying to replace a liberal with a conservative and the presumptive division on virtually all of these issues is going to be five three. If you're talking about institutionalists, who understand the nature of this particular problem, John Roberts, whatever resolved his strengths and defects is somebody who would never tolerate a situation in which a tie would come out, as so is it was to leave things undone. In fact, I think the much more serious problem right now, is one about the mail ballots, where state after state seems to be saying, that they know deadlines based upon the election day, but things could be collected later, and counted even after that. What I think the current Supreme Court should do right now, is to take all of these cases up, and in order to preserve the integrity of the ballot and make sure, that the only things that can be counted are those which are either in by the November deadline, or if there's some previous state law restriction, that went beyond it, not to expand that particular thing. So I think are many, many other ways to deal with it. But when I am really afraid of, is in fact, the Republicans, if they lose the Senate in virtue of the fact that they take this maneuver. Let me put it to another way. I was very much in favor of, and very much opposed to a McConnell in 2016. What I was opposed to was the piety saying, we ought to let the American people decide this and have an election. What he should have said is, we think Merrick Garland is a perfectly qualified judge, but this is going to tip the torts in the other way, which it's not. And we are willing to take our chances, of somebody further to the left. If in fact, we think we could get somebody like this. There are no constraints on the way in which the Senate can or cannot exercise its decision to consent. And we basically are willing to take the hard line, just the way Joe Biden had recommended early, and just the way the Democrats had done. For example, with Miguel Estrada, basically stonewalling him for three years. The tragedy on this, let me just get the one final point is that the Senate vote is a free vote. There are no four cause, no justifications that are built in it. The President nomination is a free vote. And when you have that kind of a situation, you have to expect brawls. It turns out if you're trying to limit the brawls by saying Oh, you only could reject the nominee for cause, forget about it. You have no idea what that would mean, in this particular context. So you take the system as it is. And I certainly respect the Presidents-
Peter Robinson: Hold on, hold on. We have and we can come back to this. We will come back to this. But John, you get one word, and that word is either going to be yes or no. Before we go on to Ruth Bader Ginsburg-
John Yoo: Richard just had 3000 words.
Peter Robinson: I know, I'm sorry. Life is rough, the word has to be either yes or no. Did anything that Richard just said, change your mind?
John Yoo: No.
John Yoo: That was easy.
Peter Robinson: Alright. Ruth Bader Ginsburg. We'll come back. We'll come back to the nominee. We'll come back to questions of the rightness, and wrongness of proceeding with this nomination. But first Ruth Bader Ginsburg, Richard Epstein. Again, Richard, I'm quoting you. Why I'm quoting you. John's right. You've already had 3000 words of spoken, and now I'm reading more. This is from your recent appreciation of the late Justice Ginsburg from the first time we talked. And you mentioned that you met her when you were both here at Stanford for a time in 1978. "From the first time we talked it was clear that she was a passionate advocate first and a detached academic second." And so I make brave to suggest, in the face of all these glowing tributes but that is exactly the wrong temperament for a judge.
Richard Epstein: Well, let me put it this way. I think many of the justices that we've had, have also been I think, kind of fierce advocates of one form or another. I agree with you that it is very very dangerous, but the way I would put it is slightly different. Fierce advocates they are either very very good, or they are very very bad. And Ruth had the great fortune, of coming on to this advocacy at a time that was right, for what it was that she had done. Laying way the sort of the conversion of the equal protection clause and sex cases. The first two, the first one was easy. Read, read, read actually is it went further on, other cases became harder and harder. And I think it's not to her credit as an advocate, that she did not understand the difficulties, but it is as a credit to her advocate, that she was willing to push forward to that. The interesting thing about her feminism, and I don't know if I said that in this article, but she came to the University of Chicago, just before she was put on the Supreme Court, and gave her a feminist position. And it turned out she was a very conservative feminist, and still remains one to this day. Now you ask, why are you saying that? Right? Well, it turns out modern feminists believe in restructuring society first. And what Ruth believes in is having a good marriage first. And she and Marty had the world's perfect marriage. And you know, so if Ruth had to do the nursing, Marty would change the diapers. And this is a kind of equality within marriage. And she received a buzzsaw response from many of the more adamant French feminist. And at that point I said, you know, Ruth is essentially a traditionalist, on this thing who wants to tweak the system. And there many other people want to upend it. And that is in fact, the way I think her temperament remained all the way, through the time that she was on the court. She was an adamant tweaker. She was not somebody who wanted to bust it. She didn't wanna end the military. She wanted women to be at VMI, big difference in terms of the way in which you look. And I think she was a pretty effective advocate and descent. But since she wasn't descent, for so much of the period she was on the court, there are very few landmark opinions, that she actually issued. Which has sort of reshaped the law or carried the day. So it's a kind of a mixed legacy on that point.
Peter Robinson: John, Richard, I never met Justice Ginsburg, but everyone from Richard Epstein, to Antonin Scalia enjoyed her, admired her. You and I exchanged texts the day she died, and you called her a great lawyer yourself. Distinguish between her legacy as a lawyer, and her legacy as a justice.
John Yoo: She would have been one of the last century's great lawyers, if she'd never been on a Supreme Court. She already had made her reputation for fighting for women's equality, I think you could say the same thing about Thurgood Marshall. Thurgood Marshall is also a great advocate. But when they were on the court their roles shifted. And so she doesn't, I don't think assume that kind of greatness on the court, that she'd held as an advocate and a law professor. I agree with Richard in that point. There aren't really any great majority opinions. So only one is a VMI. The one that required, the Virginia military Institute to admit women. But that's almost ironic because that was the decision which just reaffirmed the principles, she had already run 25 years earlier, as an advocate before the justices. Because it was her fate to be on a court, that was trending conservative, despite that concerns may grouse and complain about losing, say gay marriage case here, or losing on Roe vs. Wade there, the courthouse-
Peter Robinson: It has also not trifled, but go ahead.
John Yoo: But generally it's conservative. It's not the Warren Court. If she'd been on the Warren Court, who knows what she might've done, in terms of advancing the kinds of revolutionary theories, which Richard said she didn't. But on the court and she, and this is a part of her commitment, I think, to the law, rather than a commitment to some other kind of revolution. She mostly played that dissenting role criticizing, controlling, limiting, but not issuing any grand new declarations, of how to understand the law, how to reframe individual rights. It's actually part of the larger story, I think. And I think the Barrett nomination reflects this. I think the Warren Court in liberalism, and the laws kind of run out of intellectual gas. Justice Ginsburg really was a good symbol, that she was a radical in the 70s but by the 2000s there's no bright new theories for-
Peter Robinson: All right, listen. Still on Ruth Bader Ginsburg.
Richard Epstein: One more observation about this.
Peter Robinson: No, Richard, no. We have to get on to, no.
Richard Epstein: Kennedy was the leader of the gay rights movement,
Peter Robinson: Justice Kennedy, all right. Scott, edit out my saying no. I just can't say no to Richard, doggone it! Alright, listen, staying with Justice Ginsburg, but getting back to this question of the protocols, and procedures that are correct, and that are unique to the Supreme Court and what is correct and what is not, and what judgment justices themselves ought to use. Listen to this list of justice Ginsburg's maladies, colon cancer diagnosed in 1999. Pancreatic cancer diagnosed in 2009, heart surgery in 2014, hospitalization from falls and she's injured. She falls in 2012 and 2018, surgery for malignancies in her left lung in 2018, radiation treatment, when the pancreatic cancer returned in 2019. Justice Ginsburg was first diagnosed with cancer at the age of 66. And that's already a year beyond, what many people would consider a fitting retirement age. And yet despite increasing ill health and frailty, she serves until her death at the age of 87. Why didn't she step down sooner? Perhaps when president Obama, could have nominated her successor, John?
John Yoo: I'm actually mystified about that. Although you can see Justice Stevens, for example, made it to 90. You have a lot of justices who are pushing the boundaries, of the idea of how long you should serve. The constitution, gives them lifelong appointments and they can't be removed except for impeachment. It might, I maybe it's the case. I don't know for sure, but maybe it's the case, that justice Ginsburg would have been offended, at the idea that she should think politically, about her retirement, that she should try to time it in some way.
Peter Robinson: But we have her statement dictated to her granddaughter, in the final days of her life. "My most fervent wish is that I will not be replaced, until a new president is installed." If that's not political, I don't know what it is.
Richard Epstein: It is surely political. I have a different view on this.
Peter Robinson: What's that Richard.
Richard Epstein: I think when people start to get older, they think abnormally about their own legacy, and believe that they become indispensable, to the institutions of which they are a part. And so I think Ruth kind of thought, well, that me for three years is better than anybody else for 20. And one of the reasons why I'm so in favor of a constitutional amendment, that makes the United States Supreme Court look more like the patent and more like the tax, and all those stuff, is I'd like to see terms of 15 or 18 years, with regular rotation. It would ease the pain on-
Peter Robinson: We'll come to that.
Richard Epstein: Yes, but so, I mean it was a kind of a sense of indispensable vanity that happens, when people are in that particular fashion. I've known many great academics who towards the end of their lives are absolutely consumed by their legacy. And my wife was under strict orders to get me out of the business when I'm worried about the past, rather than worried about the future.
Peter Robinson: All right, he nominated-
John Yoo: So now all you gotta do is talk to your wife about this? And then you-
Richard Epstein: No, no, no. That's what. the only thing that she's allowed to order me to do, is if I can't continue with the, that I'd like to continue in-
John Yoo: You should pour some wine and pies and cookies and bribe her to.
Peter Robinson: Richard, John and I will take you out to the delicatessen on 57th street, and we'll have a word with you.
John Yoo: It's closed.
Peter Robinson: It's closed? Oh, that's how old I'm getting. All right the nominee, Amy Coney Barrett, 48 years old, married. Mother of seven including two adoptive children, adopted very young from Haiti, where they had lost their parents. And one child, one of her own biological children, with Down syndrome. Graduated from Notre Dame law school. Number one in her class/. Clerked with judge Lawrence Silberman, of the us court of appeals for the district of Columbia, as did incidentally, John Yoo. And then with justice Antonin Scalia on the Supreme Court. Devoted 15 years to teaching at the Notre Dame law school, until in 2017 President Trump nominated her, and the Senate confirmed her, to the US court of Appeals for the seventh circuit, which sits in Chicago and covers Illinois, Indiana and Wisconsin. Her judicial philosophy that the constitution, as she herself put it, should be interpreted according to its public meaning, at the time it was ratified. In other words, Judge Amy Coney Barrett, is a very accomplished originalist. Also, and since we're going to be talking, some about the politics of this, as best I can tell a truly wonderful human being. Judge Barrett, let's go ahead. Let's just take on the heart issues right now. Judge Barrett and abortion. Adam Liptak of The New York Times, "Justice Scalia wrote that the constitution, has nothing to say about abortion and that States should be allowed to decide the question for themselves. There is no reason to believe that Judge Barrett disagrees." John?
John Yoo: As far as I know, she's never actually said anything about Roe versus Wade itself. Other than as a lower court nominee where she said I will, of course obey precedent, which is what all lower court judges have to do. But she has a long track record, not just a track record of traditional decisions, where she's never really faced Roe versus Wade. But a track record of academic law review articles, which really give great insight to our thinking. She's written much more than say Justice Scalia had at the time he was nominated. And these aren't just technical favorites that Richard likes like Roman Riparian law, and tax law and accident law, tort law. These are articles about the really tough questions, that judges face. How do you interpret an ambiguous phrase of the constitution? She says, based on its original understanding. What do you do of precedent and what you think the right answer under the constitution? What do you do? She generally favors doing the right thing, answering the constitutional question with some weight, given to pass practice. What does a Catholic judge do, when she has to impose the death penalty? And she says, you follow the law. You don't import your Catholic views into law. And you . If you read all those opinions, it seems to me, she would have to say that Roe versus Wade is wrong, and then she would vote to overrule it. But you can't say, that she's ever specifically made that commitment in writing.
Peter Robinson: Richard, that sounds right to you?
Richard Epstein: I don't think any... No I think it's more complicated than that. John and I have had this long battle over the years, how much does public original meaning matter as against to accumulated practice? And John said, you give some weight to the latter and more weight to the former. And if you did that in every case, it would be a per se rule. The difficulty that you have with Roe V Wade is, if you try to overturn this particular decision, and you might get the votes for it, you're gonna be going into the teeth, of sort of general American sentiment. Which if you wanted as a rough numbers is, 2/3 of the population think that more abortion is immoral in some serious sense, unless it's done for particular cause, like saving the life of the mother. And 2/3 think that it ought to be legal. If you got rid of Roe V Wade, you would not get rid of illegal abortions. What you would do is you would see, that the States in many cases, would either resuscitate laws that allowed it beforehand. I mean, or prohibited beforehand, or would pass those laws to allow it to take place today. So again, it's the same thing as before. How much of a battle do you want to make of something? And when you do this and what you're going to see is in fact that the Roe V Wade status quo, is gonna be restored by the state constitutions or by legislation. I'm not-
Peter Robinson: If you overturn Roe.
Richard Epstein: Yes.
Peter Robinson: Within a week New York and California, make abortion legal, Mississippi and North Dakota make it illegal. And everybody else there are battles in state law. And of course in every state-
Richard Epstein: And people will then go-
John Yoo: All other important political questions in our country, that death penalty, euthanasia.
Peter Robinson: So Richard, can I just ask though as a legal, I'm just asking the two of you, to give me a bit of an education here on Stare Decisis. Stare decisis is of course obeying precedent. And all lower courts, even quite fancy lower courts. Even the even judge, well, judge Silberman is now a retired emeritas. But even the DC court of appeals, is supposed to be bound by Supreme Court decisions. That's unambiguous. The Supreme Court and the Supreme Court alone, gets to overturn previous decisions. Brown vs the board of education, overturns Plessy versus Ferguson, which has stood for decades. They still overturned it. Okay. So on the scale, I'll take just two originalist justices, known personally to both of you. Antonin Scalia, originalist though he was, argued to me when I interviewed him that there were all kinds of cases, where even if they were wrongly decided, they'd become settled law embedded in practice, and attempting to overturn them, would do more harm than good. And then you have Clarence, Johns justice, Justice Clarence Thomas, who says, you know if the Supreme Court gets something wrong, there's one institution that could correct it. And that is the Supreme Court and it is our duty to get the constitution right. And if we see an error that the court has made in the past, we ought to fix it. On that spectrum of course I'm talking, those are two subtle minds. And of course I'm giving a caricature for the sake of asking the question. But on that spectrum Scalia, let's be realistic here. There all kinds of things, that just are embedded in legal practice, even if wrongly decided. And Thomas who says well, let's be faithful to the constitution and correct our mistakes. Where is justice Barrett, John?
John Yoo: I think she's probably closer to the Thomas end, rather than the Scalia end. Although she has said publicly Justice Scalia, was her former boss and mentor. And she's written actually I think two law review articles and given speeches just going into detail, about Scalia's methodology. But at the same time I think in one of those articles, she does say Stare decisis and it's sort of a weak presumption.
Peter Robinson: Oh, I see. Okay. That's that's interesting isn't it.
John Yoo: gives it even Scalia, on all the important questions. I don't see stare decisis ever made a difference for him. It's I think it tends to limit itself to constitutional questions that aren't that important, but I don't think it made a difference for him with abortion.
Peter Robinson: So really the Scalia position was, if it's something nobody cares about, okay Stare Decisis, essentially, if it's important and we care about it, we get to overturn it.
John Yoo: I think that applies almost for all of them actually. Someone said on an important constitutional question, Oh, I'm bound by Stare Decisis. Even though I think the court was completely wrong. I can give justice Thomas's view which is, well, if that's correct then Plessy versus Ferguson never gets overruled. I think he's correct on that point.
Peter Robinson: Hey Richard, this is a sort of incidental question, but it may shed a little more light on Judge Barrett, judge, as she is for now, Barrett. What does it tell you about someone, when you discover that even after achieving tenure, at a major law school, as she did at Notre Dame, that person goes right on with the scholarship, and continues to publish article after article, after article in important legal journals. As she, as judge Barrett has done. I mean, I look at that and think, are they crazy? I'd be, I'd be improving my game of golf. What does that tell you about the quality of the mind or the nature of the character?
John Yoo: Maybe she really didn't want to be on the Supreme Court after all.
Richard Epstein: No, no, no, no, no. I mean, it's somebody who basically got tenure, and then committed judicial suicide, when he wrote his book on takings.
John Yoo: But you've committed judicial suicide long before that.
Richard Epstein: I think what happens is she like many important minds, is internally motivated
Peter Robinson: Mr.Yoo, whom I'm about to quote as we-
John Yoo: Are you still wondering about the fact that she kept writing after tenure? We said and it spells trouble to the democrats in the hearing, it shows she's tough and brave. I mean, if you want it to get on the Supreme Court, You would go quiet. The last thing you would do would be writing articles about why originalism is the best theory, and why Stare Decisis should have so much weight. And what Catholic judges should think about, when they vote on things like the death penalty. I mean she actually confronted the hardest questions. Rather as you said Peter, if you were thinking about it politically, you would have written about, all the stuff Richard writes about. Taxes and Roman law. Things that would never get you in trouble in a confirmation hearing.
Peter Robinson: Richard's done plenty that has gotten him in trouble. All right. Listen, John Yoo writing shortly after President Trump, announced his nomination of Judge Barrett. Actually this went up minutes, after the President announced the nomination. Raising the suspicion in certain cynical minds, that you had written it before you even heard the nomination. Democrats, this is John, "Democrats will attack Barrett, for her Catholic beliefs." Straight forwardly. We've already had a taste of that in the hearings in 2017. Senator Dianne Feinstein of California then, is now the ranking Democrat, on the Senate judiciary committee.
Dianne Feinstein: Why is it that so many of us on this side have this very uncomfortable feeling, that, you know, dogma and law are two different things. And I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case professor, when you read your speeches, the conclusion one draws is that, the dogma lives loudly within you. And that's of concern. When you come to big issues that large numbers of people have fought for, for years in this country.
Peter Robinson: Senator Feinstein has been attacked, got attacked at the time for asking that question, and it's all been replayed. I just replayed it myself for you. But when it comes to it, didn't she actually lay out a perfectly fair point. That there may be areas in which one religion or another, she was talking about all religions. Of course Judge Barrett is Catholic, but there's a difference between religious belief, and the law and the let's up put this crudely, but the liberal social revolution, which has taken place largely by way of the courts. We, all three of us might argue that it should never have taken place by way of the courts, but it has. And Diane Feinstein says, you know, there are a lot of people who have a lot invested in that social revolution, and along comes a devout Catholic nominee. And I wanna know, are you going to rule on the law, and what she's really getting at, is are you going to permit to stand decisions, that have enabled and in some cases, quite directly advanced the revolution in more ways, the social revolution, or are you going to rule as a Catholic? And my first question is, isn't that a fair question, Richard?
Richard Epstein: I think it's a fair question, but I think it's already been asked and answered. The whole point is-
Peter Robinson: Its done.
Richard Epstein: That she sort of understood that, and sort of recognize the cleavage and she would go the opposite way. So to give you another illustration, both Nino Scalia and William Brennan were Catholics, right? Then it isn't just so, they came out the same way on Roe V. Wade. Mr. Brennan sort of found that his religion, was a slight nuisance in some sense, to what he wanted to do politically. And he did exactly what he wanted. And it goes in the opposite direction. Sonia Sotomayor is a Catholic and she's also on the pro abortion side of these things. I think it's just very, very dangerous to take some sort of general hypothetical concern and treat that as a reality, with respect to the person who's in front of you. I'm Jewish. I mean, I have no idea whether this does, or does not influence the way I think on property rights and so forth. And I think generally speaking, the correct answer is innocent until proven guilty. So asking a question creates an innuendo, but it's not the same thing as making an argument. And so I think it's a general point, to be taken into account in the abstract, but it's a little bit of, shall we say improper behavior, when it's done in a direct confrontation, in a hearing where it is well known, that Senator Feinstein opposes Judge Barrett, for what she believes on a wide range of issues. Many of which have nothing whatsoever, to do with the Roman Catholic faith.
Peter Robinson: Richard, we already know every single Democrat, on the judiciary. Do we know this? I think a number of them have already declared they're gonna vote against her. Why even hold the hearings? Why shouldn't Mitch McConnell, just move this straight to the floor, and vote her up or down.
Richard Epstein: Well, I have the following view about this, as I think that no nominee should ever be asked to go before a hearing. Because-
Peter Robinson: Oh really? So you do oppose both hearings and principle?
Richard Epstein: No not principles, I'm willing to have people testify about her, but I don't wanna put her on the stand, because what they're gonna do is play the same kind of game. Here's a sentence that you say, explain it away. Our friends could do that quite well. And then they're gonna try to do is, to get it to pre commit on future cases, which nobody ought to do. So the correct way to do this thing is to have a battle about her, but not to put her in the middle of it. Which was standard practice I believe if I'm not mistaken, it was Felix Frankfurter took to the floor, in order to explain himself. Brandeis did not appear at his own hearing. And by the way, this controversial hearing, where the Jewish issue, is very much on the mind of everybody, I think took five days to complete. So I think in effect that what happens, is you put the nominee up there, you're guaranteeing a circus, and in the worst possible way it could go. And I don't think this what happened here, is you would try a carbinal.
John Yoo: That's 80 years ago. I mean we're gonna have hearings are always-
Richard Epstein: 904 years ago of Frankfurter.
John Yoo: It's sort of like saying the President, should nominate anybody. Either I mean there was a nomination. The Senate will vote. There will be hearings. I actually was really repulsed by Senator Feinstein's and it's not a question she's making an accusation. And I'm not Catholic, but I'm sitting there thinking, well, what's good enough for JFK. He's not good enough for ACB, which is this idea that if you're a Catholic, you'll be singled out and accused, of allegedly believing a certain set of things, just because of your religion. So I put it to you this way. Could you imagine if senators had asked justice Ginsburg, the exact same question except about a Jewish faith? Or that senators asking the same question to Protestant because of their faith and said, Oh, I see you're a religious person, you're a devout very person. Does your Jewish dogma live loudly? I mean, it's just such a bizarre way of putting it in fact, but I think it shows to me that, what the Democrats are gonna do here. I really wish they didn't. I hope they wouldn't take it on the merits. But instead they're gonna use the fact, that she's a devout Catholic, that she went to Notre Dame, that she's a professor at Notre Dame, that she has a large family, and has had a good, upstanding moral life. They're going to try to use that against her. And say, oh, being Catholic me is a stand in our proxy, for a certain view about Roe versus Wade or gay marriage. But as Richard just said, Catholic justices vote on both sides of all of those issues. You have Catholic justices from and against Roe versus Wade, for and against the death penalty. For and against gay marriage. I think it's terribly, terribly unfair to me. It almost verges on the constitutional prohibition, of having a religious test for public office.
Peter Robinson: Got it, got it. Alright. Listen, we can't talk about all of this, without talking about how we got to this point. That is to say the place where the Supreme Court, holds such a position in public life. That all three of us are in one way or another dreading, what's about to happen, as if the presidential campaign weren't bitter enough, right? So here's where here's Rich Lowry editor of national review. The left is taken up court packing. They're threatening to pack the court, just as Richard said earlier. If Biden wins, the Democrats take the Senate they'll add three, four justices to the Supreme Court, they're threatening. Rich Lowry writes, "That the left that the left has taken up court packing so readily shows how it never really took the court seriously, as a court. Instead it thought of it, as a quasi legislative body useful to the extent, that it enshrines the left's own policy goals." Now Rich's a conservative and editor of a conservative magazine, but you could almost drop out the ideological component and simply say, that large components of the chattering classes, view the court as a quasi legislative body. And that's the prob, that's wrong, right?
John Yoo, Richard Epstein: Yes.
Richard Epstein: I mean the simplest observation should be, that you should never be a judge such that, every time you have a political preference, you always find that it is justified, in the particular case in front of you. A good judge essentially will be able to say, this is what I prefer, but this is what I think to be the law. And oftentimes to be quite explicit about the difference. But today, when you have fluid causes like equal protection and privacy doctrines, which are not textually binding and so forth, it gives you a lot more. The other thing I just mentioned about this, is the reason why the court has such enormous power today is sometimes it allows things. Sometimes it strikes it down, you have no idea when and where, but also the scope of federal jurisdiction today, given the enormous power of the federal government, which expanded in 1937, means that things are now brought before the court, which would never be the subject of federal legislation to begin with. The Supreme Court today, is basically a quarterback public law. It has nothing to do very much with private disputes, even areas like antitrust, which are close to public as you get, generally tend to get relatively less coverage than they did 25 years ago.
Peter Robinson: Okay, so here's another question. The ratchet to the left, two quotations here. Here's Ross Delvin, New York times columnist, "For decades, conservatives elected, Republican presidents. Republican presidents appointed Supreme Court justices. And yet about half of those justices, turned out to be either outright liberals, or so-called swing votes, who always seem to swing toward liberalism." And here's another quotation from, again, I hope this doesn't annoy you John, Richard Epstein, "Defections from the conservative side are more frequent, than those from the liberal. Chief Justice Roberts critical vote, to sustain the affordable care act in 2012. Justice Anthony Kennedy's 2015 decision, giving constitutional protection to same sex marriage, and Justice Gorsuch's 2020 opinion, that the 1964 civil rights act protects both gay and transgender employees." Even though such a thought could not have entered. That was unimaginable in 1964. Okay. Voters elect Republican presidents, Republican presidents appoint to the Supreme Court, and half of those justices defect. Why, why is it always in one direction? John?
John Yoo: I think that conventional view amongst conservatives is that because the political, and legal culture encourage people who grow in office, by becoming more liberal. And this has a special effect on judges, who had previously very little experience, or contact with Washington DC, or ever been under attack or had to deal with all the kinds of political and cultural incentives there are. So say you're Justice Kennedy, you're appointed by President Reagan but you start to move towards the middle. Then obviously as you start getting praised, in the New York times is CBS news, and you get invited to give speeches of fancy law schools.
Peter Robinson: Get to associate with a nicer class of people in Washington, you got invited to better parties.
John Yoo: I don't know if they're nicer, but more of them perhaps. If you are Justice Thomas, you'd become more conservative, or you're more concerted with people thought, then you don't get invited to give all the fancy lectures, at all the fancy law schools perhaps. Which I can tell you he could care less about. But the idea is if you're coming in from outside Washington, where you've been a fairly obscure judge, out in the country, then it's easy to be seduced, by all those kinds of encouragements. Also, you could look part of it also, maybe there's a deeper explanation is, in this thing we start talking about in the beginning, where Richard favor Stare Decisis. If you come in as a conservative, and you believe in Stare Decisis, after the liberal revolution of the Warren Court, well then you're going to keep upholding liberal precedents. That's what you talked about, Peter called it a liberal ratchet. Conservatives stay attached to Stare Decisis. Even if they know that previous decisions are wrong. And then the liberal justices, have no such similar commitment, except when it threatens cases that they like. Then the court is always gonna keep moving, in a liberal direction no matter what you do. And so that's why conservative justices, to prevent that from happening. Have to have less attachment to Stare Decisis, than they've had in the past.
Peter Robinson: Richard, there's a G.K Chesterton quotation, which I got a little bit wrong, but it was something like this. "It is the job of liberals to keep on making mistakes. And it is the job of conservatives, to prevent them from being corrected." Does that explain the ratchet?
Richard Epstein: Not entirely. Let me see. I think John gives too much of a broad scope, and not enough of individual choices. So let me just go with the two major Eisenhower appointments. One, why did he choose her Warren? Well, it was a political verdi 1952. He said, I'll get you a seat if you kind of back me. And it turns out it's Fred Vincent who dies. And so all of a sudden, what we do is we have Warren getting the presidential appointment, to the chief justice position. And by the way, if you looked at his past record, I don't think you'd necessarily know, that he's as liberal as he was. Remember he was the man who organized the Japanese interment, was the attorney general in the state of California, Which should have been to his lasting fame. There wasn't much vetting by anybody then of these things, because the Supreme Court was audited, as a somewhat less important institution. So you get to Brendan Eisenhower was well ahead, and going on, he decides to give the recess appointment, to Bill Brennan right, to carry New Jersey without thinking, about the longterm consequences of that appointment for anything else that goes on. When it came to Sandra Day O'Connor, who's also had a somewhat of a leftist, a leftward drive on that foot. I think there were one or two people, in the Arizona delegation that kind of said, this is somebody whom you were to appoint. Then that was fine by Reagan. He was looking for a woman and she's kind of fit the bill. And in many ways she outperformed expectations, on some of the federalism issues. But in other cases, you know, towards the end of life, she too became a little bit wobbly. So you go to Justice Souter I mean, essentially the choice in the white house, at that particular point was between Souter on the one hand. Who'd just been appointed to the first circuit, and Edith Jones who was a tiger right? And it turned out a Senator Redmond, I think it was, or some such person.
Peter Robinson: Senator Redmond.
Richard Epstein: He said, "Souter is a good guy, why don't you nominate him?" And so what you do is you get a perfectly spent the central left justice out it. I once did a calculation by the way, Edward Levy making sure that John Paul Stevens got the same thing. I did a calculation from about 1955 to about 2005, 50 years. That on average, there were about 150 court years of right-side appointees who had voted more to the left. That's three seats. So it's just since 2005, by the way, this is not happened. Right? And that's because the vetting game has changed, really.
Peter Robinson: Right John, the Federalist society the vetting that goes on now, is much more thorough. For sure it's more thorough, than it was in the Reagan years, all right.
John Yoo: And also when you go through all those names you realize the talent pool was not that deep surprisingly to fit the political needs, of the Reagan administration or the Bush administration. But-
Peter Robinson: so Antonin Scalia, Richard, I think you're gonna dislike this. And so if I'm wrong say so, maybe not. Forget it. I'm sorry I tried to predict your view. You live in my head now, not only do I have you on my screen, but I think what would Richard say.
John Yoo: It's already, there's not a lot of space there, for more than one.
Peter Robinson: Exactly, exactly. There's so much-
Richard Epstein: So long as you Keep John out of your mind, we're in fine shape.
Peter Robinson: Antonin Scalia and Robert Bork, and the whole originalist movement, which was just getting started really in the 80s. And now has blossomed into a through, and excuse me I should, of course include you Richard. Much of your work fits right into that body, of broadly speaking, conservative, legal thought. I know you consider yourself a libertarian, fine. But for my purposes now, there is a richer talent pool, because there's a wider, deeper body of thought now. Is that correct?
Richard Epstein: When I was asked to give a speech, to the Federal society last year after Mitch McConnell spoke about, the judges, the appointed. I said, look I'm responsible, in many ways with all of this to training them. And the secret for training eight justices, is to stress Roman riparian law. And standing there on the platform with David McIntosh and Noah Francisco, both of whom were my Roman law students. And there were probably 50 people in that audience who I taught in one way or another Roman law. I think what happens is, you cannot train somebody to be a serious justice, if you start on the politics, and then go back to the principles. Why do you want us to talk about something, that's crazy as Roman law? Because it's the coherence system. And if you try to understand why it works, you can actually come up with answers, that explains that it did work. And so you become much less committed to the fact that there are infinite numbers of degrees of freedom in the way, in which you could decide cases. You become inoculated as it were by an innocent bug, so that you don't have, the kind of deep anti-originalist kind of theory. But the tension in the libertarian side, was very much sound by Scalia. If you're an originalist on the one hand, and you have a very broad cause on the other, like the takings clause and so forth, judicial restraint doesn't get it right. And so most his takings opinions are wrong, precisely because in one case, Stop the Beach Renourishment, he didn't understand riparian law. He just got it wrong. I don't mean it as a joke. I mean, it's a serious statement.
Peter Robinson: No, no no. I know you took all that. Absolutely fascinating. And I don't doubt for a moment, the validity of every word you just said. It's a little different from the point I was asking about, which is the development of a body of thought, conservative or originalist legal thought, over the last three decades. John?
Richard Epstein: You have to start before.
John Yoo: There aren't that many conservative professors, or students that have the opportunity, to take Roman riparian law. Thank God. But what happened is I think the Federal society. It's not like the federal side has a book, and says memorize this book, learn these things, and become a conservative lawyer or judge. With the fellows I did, I wish that this happened in field after field. He said, just said let's have an open and vigorous debate, so that law schools couldn't get away, with impressing on young minds a singular view, of that the Warren Court was right. Because what the federal side did, is that brought in judges, brings in professors like Richard, or me, brings in a form of government officials, and they debate conservative liberal ideas.
Peter Robinson: The federal society as I recall, was central to founding the Federal society, which it's founded roughly when?
Richard Epstein: 1981.
John Yoo: Mid 80s, right?
Richard Epstein: No no earlier, 1981.
Peter Robinson: One of the leading lights of the Federalist society, today is Leonard Leo. If you're gonna mention the Federalist society, we should mention, all these things are done by dedicated individuals.
John Yoo: One last thing is that what it did, and what you're seeing now, is that the Barrett nomination, may be Kavanaugh, Gorsuch too. You are seeing the maturation of all of those efforts, and investments to produce free thinking people, who happen to be conservative.
Peter Robinson: Right. All right. Listen, back to the state of the court today. I just wanna come back to one case, but I want to hit it head on. Ross Douthat, "For many conservatives, the High Court eviscerated its own authority decades ago, when it set itself up as the arbiter, of America's major moral controversies, removing from the democratic process, not just debates about sex and marriage, and school, prayer, but life and death itself. Those many conservatives include this columnist. 'That is to say it includes Rostow that himself. since I became opposed to abortion, sometime in my later teens, I have never regarded the Supreme Court, with warmth admiration or patriotic trust." Now another couple of quotations, and then comes the question. Robert, George constitutional expert at Princeton. "When the Supreme Court struck down all state laws, providing unborn children, with protection against lethal assault, it did so in a decision lacking any warrant, in text, logic, structure, or original understanding of the constitution." Now Robbie George is of course a prominent conservative. And so you could argue that he would say that. Just two or three more quotations. The liberal Laurence Tribe of Harvard law school, "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests, is nowhere to be found." The liberal Cass Sunstein, of Richard's institution, the university of Chicago, "In the courts first confrontation with the abortion issue, it should have allowed the democratic processes of the States to adapt and to generate sensible solutions. Roe was way overreached." The late and revered liberal Archibald Cox of Harvard law. "Neither historian, nor layman, nor lawyer will be persuaded that the prescriptions of justice Blackmun who wrote the decision, are part of the constitution." Last quotation, Ruth Bader Ginsburg, "The heavy handed judicial intervention in Roe, was difficult to justify and appears to have provoked, not resolved, the conflict." So for almost half a century now, Roe which is an act as judge Bork used to say, that entire decision contains, not one sentence of legal reasoning. It has undermined the authority and legitimacy of the court, and poisons the nation's politics. And if the left protests that confirming judge Barrett, to the Supreme Court will place Roe in danger. So be it, Roe should be in danger. John?
John Yoo: You could say it reminds me of another quote. The there's no legal reasoning in Roe, including the, the and, but, and the periods. That's just like, there's, it's a terrible opinion. Well known liberal scholars, and conservative scholars, both agree. In fact, liberal scholars spend a lot of time, trying to figure out alternative justifications, for a right to an abortion. The court in that case, never really explained where it came from, how it's consistent with the constitutional text structure, its history. I agree it would have been much better for the court, and our politics. If we treated abortion, just like we treat a lot of all of public policy decisions, including life and death decisions, that we handle at the state level all the time. And I'm someone who, if I live in California, if abortion came up for a vote, I would vote for it. But I don't think it's up to the Supreme Court, to tell all 50 States how to do it. If judge, so here's the ironic thing, Judge Barrett, suppose she goes on the court, it's a political process. It gets nasty. She does sit on the court. Suppose she provides the fifth, or sixth vote to overturn Roe? Even though that might be seen as a political act, the longterm effect might be a healthy one to depoliticize the court. Maybe we won't care about the court so much, once it's not deciding cases like Roe. Maybe the confirmation hearing process, will return to what it was and Richard's golden days, because the court itself won't have so much power. And we won't worry so much about the individuals who happen to be on it.
Richard Epstein: May I make one observation?
Peter Robinson: Absolutely.
Richard Epstein: One of the quotations you did not pick was from the article I wrote in 1973.
John Yoo: You are a man of many sins Peter.
Peter Robinson: You wrote a piece on Roe the year it came out?.
Richard Epstein: Of course, I was asked by Phil Kurlan to write it. And I wrote the following attack on Roe, which is that, if you understood the basic structure of the police power, you cannot duct the question of, "When is a person to use the expression of a Kurlan and that you couldn't find any point, in the cycle after conception, that was more powerful than conception itself. And so even though you normally believe in ordinary liberty protecting the health of an innocent party gives you a full justification." That was the argument that I made. The head on that Kurlan put on, was a completely different heading. He put on a substantive due process by any other name. He wanted to make this case, the equivalent of Lochner in New York which he also loathed, after for being a form of judicial legislation. I however, not knowing what the title was. I've always defended Lochner on the grounds that if you apply the same theory about health and safety and so forth, that's just a straight anti-competitive statute, and has nothing to do with protecting worker stuff. So my defense of the decision or the attack on Roe, was not the one that most people make. John Eley was the most famous person to make it. Mine was the fact that you'd would take the internal logic of the clause and assume that there is coverage with respect to personal Liberty and the Lochner style, the justification plays out completely differently. And that issue has been completely lost. Now, 50 odd years later, we do have this battle, over Stare Decisis, but I've never wavered from the belief, that in terms of the basic original decision, they had gone wrong and the political consequences, that John pointed out pointed out, are indeed correct. On other areas like with zoning decisions, I've always been in favor of intervention. Because the property rights arguments, work out the other way. So a judicial restraint is not across the board, right? Judicial intervention is not across the board, right? I think one has to worry much less about institutions, and much more about substantive principles, in order to get these demarcations correct. And people on both sides are much more concerned, with the institutional issues rather than with so-called Roman law type questions. Stop Beach problem. What do we mean by avulsion?
Peter Robinson: Richard, You hear, you wake up six months from now in New York, and you look at your phone, or you get the New York times, open the apartment door, and there's the New York times, being delivered, you bring it in. And Roe has just been overturned the day before your reaction is relief, pleasure, horror? What's your reaction?
Richard Epstein: I think my reaction is uneasiness. I'm in favor of the overruling, because I thought the decision was originally wrong. But I fear the reaction might be something untoured. I suspect it might happen. Although Justice Roberts is very much on the Stare Decisis, don't upset the capital part and so forth. So a lot of it will depend on two things. One is what kind of opinion do they write, when they overturn it? If they overturn it. And secondly, what's the popular response going to be? My hope would be that the defenders of Roe, would go to the state legislatures, and see if they could put their case forward. And that if they did so I'd agree to join in. At that point, you'd have much more institutional legitimacy on that point then doing it. Look, the difference between Obergerfell and Roe, or Griswold and Roe. Is Obergefell, the movement had already taken place on same sex marriage. Politically this thing was accepted, in very large numbers of cases. The problem about Roe, is it has never been accepted by the opponents. They regard it as a moral-
Peter Robinson: That's not much of a legal argument though.
Richard Epstein: No, no no. But it's an argument to explain why the social dynamics is so different.
Peter Robinson: So what John, I want to ask about Richard's much beloved reform. Which I have to say the more I think about it, the better it sounds to me. But I just wanna return to John on Roe. If, and I'd like to talk for a moment or two about reforms, that we might envision of the Supreme Court. But did I hear you effectively argue just now, that overturning Roe might be just about the most significant and salutatory reform, that could take place?
John Yoo: Yes. If the, if the diagnosis is, which I tend to agree with, is that Rowe has radicalized politics surrounding the Supreme Court, politics surrounding the constitution. And you want to depoliticize it. They get Roe off the agenda.
Peter Robinson: Get it off the agenda. All right.
John Yoo: You could either by saying it'll never be overruled, which I don't think is the case. Or you could just say it was wrong, and let the political process answer the questions.
Peter Robinson: It was a Plessy. It was bad decision from the get go.
John Yoo: Bad decision, overrule it and let the political process make the choice. Which will have much broader support, legitimacy, and people won't care about the Supreme Court.
Richard Epstein: No, no, no, no. I disagree with the comparison to Plessy. Because if what you're saying about Plessy is it's wrong. We should leave it to the legislature, that left it to the legislature.
Peter Robinson: That's fair. But if the comparison is that that was a bad decision, improperly reasoned.
Richard Epstein: But the reason it was such a terrible decision was, that it misused the police power argument again.
John Yoo: But this is not going to be before Judge Barrett I think.
Richard Epstein: No but I think if you wanna understand what's going on, the reason why Plessy is easy to overturn is that it offends every classical liberal principle, which limits the scope of the police power. And disrupts voluntary arrangements, for no particular reason at all. And I would overturn Plessy V Ferguson, no matter what one did with respect to Roe.
Peter Robinson: Okay. Onto, onto Richard's reform. And here's Richard's reform. Limit Supreme Court justices to single terms, of 18 years each, keep the court at nine justices, stagger the terms. So that the President, whoever the president may be gets to make two appointments, per four year term. And I don't know whether this is part of Richard's, or whether this is an elaboration that I read elsewhere. But the suggestion is that the president, they should be times that the president makes one nomination in his first year of his term, and another nomination in his third year. So you'll eliminate altogether the question of nominations during presidential election years. You also, it occurs to me. We touched on this earlier. You also eliminate the problem, of John Paul Stevens sticking around, until he's well into his 90s. Of William O. Douglas refusing to retire from the court. And you see Justice Douglas, in his final days being wheeled in, half paralyzed from strokes, and Ruth Bader Ginsburg sticking around. You both seem to have the feeling, she stayed around too long. It eliminates that problem. It eliminates these horrible political Donny Brooks, that come when somebody dies. We had at Ross Dow that wrote it, permitting important questions in the nation to be decided by the deaths of octogenarians is too close, to the Soviet pull out Bureau in the old days. John, brilliant, isn't it?
John Yoo: No, I presumptively don't like amending the constitution for anything, unless it's extremely important.
Peter Robinson: This requires an amendment. This could not be done by statute.
John Yoo: It couldn't by statute. Because judges have lifetime, they get to be judges for life at irreducible salary. So I think this is part of making them independent, and making hopefully more neutral side. I think amending the constitution is a dangerous thing. Who knows what the actual provision will be. Who knows what the unintended consequences will be. Now, it is true that a lot of State Supreme Courts, have a totally different approach. They elect people on the court, and they have these kind of term limits, where you come up for reelection. But those courts are openly, most of them are openly partisan, and the do their decisions are political. I don't wanna see our federal courts getting to be like that. And then one's a small thing, about how it works in operation. It has this, as you described it to Peter, this nice kind of every president gets two, that's assuming everybody serves their 18 year terms. So what happens if someone dies? What if someone leaves early? What if someone retires? Just because you schedule them out in that kind of rotation, doesn't mean the vacancies will always occur on time every 18 years. A president could get a whole bench, in a certain period of time, just through chance.
Peter Robinson: Predictions. And I've got one last slightly intricate question, to set up for you, intricate to this layman. Let's suppose for a moment, only for a moment, that Judge Barrett is confirmed, before the election. On November 10th, one week after the election, the Supreme Court will hear arguments, in a new challenge to the affordable care act. That is to Obamacare. Originally as you well know, Obamacare imposed a penalty, on those who failed to purchase health insurance. Chief Justice Roberts upheld the constitutionality of Obamacare by redefining the penalty as attacks, and saying that therefore Obamacare came under the taxing powers of the federal government. Now Congress has eliminated that penalty. So even this Justice Robert's argument, no longer even applies. There's been a new challenge, which argues that because Justice Robert's argument no longer applies, the whole thing is unconstitutional. It's a very sweeping, and very direct attack on Obamacare. And it comes before the court on November 10th. Amy Coney Barrett in a 2017 law review article, written before she joined the court in Chicago, "Chief Justice Roberts pushed the affordable care act, beyond its plausible meaning, to save the statute." And now again, his argument is it doesn't even come to bear in the case. Is it conceivable that what would this be? Six, seven weeks after she was confirmed, then Justice Barrett might vote to overturn Obamacare? We've been talking about Roe versus Wade, which if it's ever overturned, that's off in the indeterminate future. This is a case that's on the docket. Is it conceivable, that such a major disruption could take place? John?
John Yoo: Of course it wouldn't matter who filled the seat. Whether it was Barrett or anybody else, they're still faced with this challenge. And I happen to agree with her. I think Chief Justice Roberts pulled a fast one. I think a lot of scholars do by pretending, that if you didn't buy health insurance, you got to pay this. It's obviously a penalty. Oh no, it's really like an income tax. And so therefore. The second thing I think Roberts got wrong, was simply say, "Oh the taxing power, essentially knows no limits." I think that's actually the more interesting constitutional question is, can the federal government just call anything it wants to attack, or recharacterize it's attacks? And then there's no more limits on federal power. And if you read judge, I mean, sorry professor Barrett's writings. And then it's her performance as judge. She's very sensitive as a lot of the justices appointed by Republican presidents are, she's very sensitive to making sure, we police the limits on federal power. That doesn't mean anything about whether she's in favor of healthcare for everybody or not. You get the right way and the right way was not through this terribly complicated, screwed up overly centralized Obamacare system.
Richard Epstein: Now it turns out, I had actually written a brief in that case. I don't know if you were aware of it.
Peter Robinson: No I'm not, sorry.
Richard Epstein: I was Mario Loyola.
Peter Robinson: I just don't have time in my life to read everything that you write.
Richard Epstein: I mean, but we made all of these arguments and Justice Roberts completely screwed up the tax point, by in fact, a permissive re desperate position. But there were other kinds of cases which says, if you cannot do something under the commerce clause you're not allowed to do it through the taxing power. And that's exactly what he did. He said, Oh I can't find this in commerce, but I could find it in taxing. And if you went back to the child labor tax cases of 1923, there had been a following situation in 1918. There had been passed the statute, which had said that nobody can ship goods, into interstate commerce, if in fact they're made with child labor. And this was an indirect effort, to overcome the local exclusive power, under the existing doctrine on commerce. That said it was manufacturing just exclusively local. And then they said, okay, we're not gonna regulate it. We're gonna tax it to make the tax so prohibitive. There was a grotesque tax. It was on the first item you send an interstate commerce, you pay 10% of your total learnings or something like that. It was crazy. And the Supreme Court refused to allow it. So Mario Loyola and I wrote, we cited this particular case. The cases involving the beer tow, liquor taxes and minimum ages. Saying you just can't do it in this way. And he just completely ignored that line of authority. And so it was really a quite doubtful opinion. And now what you do is you have 15 million people, under these programs. You've got the old reliance interest problem coming up again on reverse.
Peter Robinson: Right, so what, to all our listeners, I wanna make an announcement. We are recording this on a Sunday, and I am on a Sunday frame of mind. Which is I'm talking to two of my best friends, and I'm just enjoying the conversation. So I'm not paying too much attention to the clock. I have to be honest about that. So here's the question that just occurred-
John Yoo: listeners are saying, what the hell is with Peter? Why aren't you out playing golf or doing something. Spend all your Sunday afternoons talking to us two.
Peter Robinson: Talking to the two of you, almost as good as gold.
Richard Epstein: You almost got rid of, I'm gonna have to hook up to my, I took off and I have to cook up to my power source. Cause you're running me out. I've got only 16% left.
Peter Robinson: Oh, you mean on your computer? I thought your pacemaker was about to go off.
Richard Epstein: Thank God. I don't have one of those yet.
Peter Robinson: No you don't. Listen. So here's the question. Here's the question. What effect does Justice Barrett, have on Chief Justice Roberts? You both know him. Actually, he's a friend of many years standing, because we worked in the same hallway, in the Reagan white house, 3 1/2 decades ago, four decades ago. But I've heard it argued many times, that if he were an associate justice, he'd have been more reliably conservative. It says Chief Justice, where he feels this terrible responsibility, for the legitimacy of the institution, and where he feels a responsibility, for holding the associate justices together, as best he can. It's as Chief Justice that he's making decisions, of which for example, the two of you just disapprove. Amy Coney Barrett comes on now broadly speaking, the conservative liberal split goes six three. Does that cause the Chief Justice, to become even more liberal to prop up the liberal wing, or does it free him? John?
John Yoo: I think it makes his vote matter less. I think you're right Peter, in your diagnosis of the problem. He feels, this is the best face to put on it. He wants to lower the political profile of the court. But he thinks the way to do that, is to cave in to demands, from liberals in the political system. So he avowed uphold Obamacare twice during the Obama years. And then he most recently, he voted to prevent, the overall the DACA program this last summer. And voted to strike down a Louisiana statute on abortion. Even though a few years ago, he voted to uphold the exact same one.
Peter Robinson: The exact same statute right.
John Yoo: I think his view is Oh, the liberals, and the will keep attacking the court. I've gotta make us less of a target, by essentially doing things they agree with. The problem is that, he makes the court even more vulnerable, to political pressure. by showing that he can be pushed around that way. If once you have six justices, who are supposedly originalists Roberts could still have that concern. He could still vote that way, but it's not going to matter, if you have five conservatives, who are committed to originalism. And so maybe the Barrett approach, or the Scalia maybe approach which is get the constitution right. That will depoliticize the court, may eventually prevail over the Roberts. I'm a politician. I'm going to react, to the little fishbowl of Washington DC.
Peter Robinson: Richard the effect of Justice Barrett on the chief.
Richard Epstein: I think she's much more rigidly principled than he is. But I have a slightly different explanation.
Peter Robinson: Rigidly principled, that means you don't like-
Richard Epstein: I don't mean that. No, I don't mean it as a bad thing. I mean, somebody for whom consistency really matters. We have to remember where Justice Roberts, was before he came here. He was an appellate advocate, and an appellate advocate has to take all sorts of cases. Some of which he might disagree with. The way in which you become an effective appellate advocate, is compartmentalize your mind. So that the decision on one particular issue, doesn't influence what you think about another. I'm exactly the opposite time. I'm a man who has a theory of everything. And so the quote my old, late friend, Brian Simpson, he said, "Richard, you are sufficiently crazy that you believe that you have views on usually will influence your views on native originalist on marriage rights." I said, that's exactly right. I mean to me, you've gotta be able to see all these connections. Part of that Roman law universality again. Roberts comes from exactly the opposite tradition. So he is used to being able to make, very sharp distinctions between things, which intellectually might stick together. Which makes him somebody who's likely to do that. But remember if you look at Justice Scalia, he has some real howlers too with respect to that, including all sorts of mistakes. For example, in Smith against the employment situation., where there've been a long settled tradition of accommodation. He imposed a neutrality rule, which was just wrong in terms of the history, and the problem-
John Yoo: It was actually brought before the court this term.
Richard Epstein: And it's up before the court again. Smith is just wrong. The reason the weakness of originalism, as a textual matter is, there's so much in the constitution which is a balancing issue. Free exercise of religion, as opposed to the ability to protect children, to get a decent education is one such trade off. And if you spend too much time on the text, you don't spend enough time on the justification side, which is what I referred to, in explaining the difference between, a Lochner decision on the one hand, and a Roe decision on the other hand. And so constitutional interpretation, it must go beyond the text, and it's really difficult to figure out, how you develop those rules of implication. And that's where all the classical studies make a huge difference.
Peter Robinson: Gentlemen, last questions. These are brief questions and I forbid-
Richard Epstein: Long answers.
Peter Robinson: Roman riparian law to be raised, in answering these questions. Five weeks from now, will Judge Amy Coney Barrett, have been sworn in as Justice Amy Coney Barrett? Prediction, Richard?
Richard Epstein: Yes.
Peter Robinson: John?
John Yoo: Yes. It'll happen. Five years from now, will Roe versus Wade still stand? Richard.
Richard Epstein: 50, 50.
Peter Robinson: John?
John Yoo: Oh yes. I think it will be, because there won't be a case, that calls for it to be overruled yet.
Peter Robinson: Really? All right. Last question. I'm not asking how you voted last time, or how you're going to vote, but I am going to ask this. Does his nomination of Judge Amy Coney Barrett, make you more or less inclined to vote for President Trump? Richard?
Richard Epstein: Marginally more, I like the degree of courage, but I'm obviously uneasy about the entire process. But it makes me more inclined to vote in his favor, because I think the democratic response is too revealing.
Peter Robinson: Is too revealing?
Richard Epstein: Yeah, it's too dramatic on the opposite side.
Peter Robinson: I see. All right. John?
John Yoo: Oh yes. I mean, actually you wanna say, if you're worried about Trump being impulsive, and a norm breaker. This is actually something he did, in his sort of very regular, transparent, open and I think praiseworthy way.
Peter Robinson: And furthermore, he chose that name from a list, that he first made public more than four years ago, when he was first campaigning for president.
John Yoo: Yeah.
Peter Robinson: So that's an impressive data, isn't it? Do you Richard even-
Richard Epstein: He's been very good on the judges. There are occasional spots that you might disagree with, but again I'm so pleased that so many of my former students, have been appointed judges on these courts. That I have a kind of a best in interest, these are superb students from many law schools. And I'm just proud of the extent to which, they have been able to serve so well. And I think the attacks on them are extremely unprincipled, because these a splendid human beings with impeccable credentials.
Peter Robinson: John one last question, but it's only for you. Half a century from now.
John Yoo: Let's just hope Richard, is not the one that's gonna answer it.
Peter Robinson: Half a century from now you're on your death bed. Will you buy then will you have achieved, an appreciation for Roman riparian law?
John Yoo: Are you ready? This is the scary thing. Look at this book on my desk. I already know about Roman riparian law.
Peter Robinson: If I had known that you two are both insane, darn you!
John Yoo: I don't think it's very interesting. So I never talk about it. That's the big problem.
Richard Epstein: John shows a narrowness of mind on this-
Peter Robinson: I'm trying to close the show. Will you please let me do it? John Yoo of the university of California at Berkeley law school, and the author of , "Defender in Chief" and Richard Epstein, the irresistible Richard Epstein. The only man to whom I will listen on Roman riparian law. Currently of New York university, Emeritas at the university of Chicago, a fellow at the Hoover institution, and the author of one volume after another, countless articles. And most recently, "The dubious morality of administrative law." Gentlemen, thank you. I return you to your Sunday afternoons.
Richard Epstein: You'll give me eight weeks of power.
John Yoo: Thanks more.
Peter Robinson: For uncommon knowledge, the Hoover institution and Fox nation on Peter Robinson.