Judging The Justices: Epstein And Yoo On The New Originalist Supreme Court

interview with John Yoo, Richard A. Epstein
Wednesday, January 26, 2022

To watch the video, click here.


Peter Robinson: Welcome to Uncommon Knowledge. I'm Peter Robinson. Professor of law at New York University, professor of law emeritus at the University of Chicago and a fellow at the Hoover Institution, Richard Epstein is one of the most widely published and influential legal scholars of the last half century. And I'm not even making that up, am I John? That is strictly speaking true.
John Yoo: I think it's longer than a half a century. I think it's about a century. I think it's about a century.
Peter Robinson: We'll come to you in a moment. Professor Epstein represents one half of the legal team on the popular podcast Law Talk. Professor of Law at the University of California at Berkeley, John Yoo served as deputy assistant attorney general during the administration of President George W. Bush. Professor Yoo is not quite as widely published as Professor Epstein, but he's getting there. Professor Yoo is the other half of the legal team on Law Talk. Richard, John, welcome.
Richard Epstein: Good to be here and nice to have my son, John 20 years my junior, on the show with me.
Peter Robinson: The big one first, abortion. Let me set it up. Roe versus Wade in 1973 and Planned Parenthood versus Casey in 1992, in those two cases, the Supreme Court overturned virtually all prohibitions on abortion during the first trimester or 24 weeks of pregnancy. In 2018, the state of Mississippi enacted a law banning abortion after 15 weeks and was promptly sued. This past December the Supreme Court heard oral arguments in Dobbs v. Jackson Women's Health Organization. Dobbs is a state official in Mississippi, who's the subject of the lawsuit, the defendant. The state of Mississippi explicitly urged the Court to overturn Roe. Before the oral arguments in December, John Yoo predicted that the Court would decide the case narrowly upholding Roe. Now this decision isn't likely to come down until June or this spring in any event. But the oral arguments have now taken place. And this is John's response to having heard the oral arguments.
John Yoo: No I was wrong. Unlike Richard Epstein, I'm willing to admit I'm wrong. I can often be wrong.
Peter Robinson: Alright, John, you no longer think that the Court is going to uphold Roe narrowly. What do you think? What do you think, what happened during oral arguments that changed your view?
John Yoo: Is that really me on the recording?
Peter Robinson: That was you.
John Yoo: I'm not so sure, the Chinese can do all kinds of amazing things with technology now. So the main thing that changed was the oral argument. And we always caution don't read too much into oral argument. But what I had thought before the oral argument was that Justice Kavanaugh and Chief Justice Roberts were not gonna wanna take such momentous step as overruling Roe so soon after three new justices joined the Court during president Trump's administration. So they would take a more gradual, evolutionary step-by-step approach, narrowing Roe, narrowing Roe until there's a better time, a better case.
Peter Robinson: Why did you have those two in particular in mind, the chief justice, John Roberts and the newest, Brett Kavanaugh, no, no Amy Coney Barrett is the newest, but the second newest, still a very new justice Brett Kavanaugh. Why those two?
John Yoo: Part is because I think Justices Gorsuch and Amy Coney Barrett have been, I think clearer in their pre-justice careers, in their academic writings and what they've done and said, that would lead me to think that they think Roe is wrong. Chief Justice Roberts, I think he has voted in several major cases, including the Obamacare case, which is also 10 years ago now, in a way that he is willing, I think to compromise on constitutional principle in order to try to keep the Court out of politics, to try to reduce its profile in severe national debates. The biggest one of which I think has got to be abortion. And then Brett Kavanaugh so far in this very limited time he's been on the Court has often voted with Chief Justice Roberts, has not, I don't think, shown himself to be a real rules-driven, black-and-white type of thinker, but someone who likes to balance all the factors and consider the politics and the appearance of things, which is, it was a disappointment to me so far. And so the thing that happened in oral argument, which was really surprising to me is that Brett Kavanaugh in the oral arguments basically said, why should this Court ever follow precedent when it's very wrong. And so instead of defending the idea of sticking with Roe, defending the idea of not upsetting things too much, he went out and said, well, Brown was wrong and we overruled Brown. Dred Scott was wrong and we overruled. And he went through all these major cases and he said a lot of times.
Peter Robinson: Plessy was wrong. Brown was the overruling. Did you misspeak there?
John Yoo: Yes.
Peter Robinson: Brown overruled Plessy.
John Yoo: Brown overruled Plessy.
Peter Robinson: Fine go ahead.
John Yoo: But he just went through and said, every time we issue a major decision, it's often overruling something that was wrong in the past. So why should we be bound by the stare decisis, the precedential effect of Roe. That's, I think, that was actually the most significant information I think to come out oral argument was that Kavanaugh's kind of signaling that he's not necessarily gonna be bound by Roe, that he's willing to consider this question afresh or anew, de nove, what lawyers would call it. And that puts his vote into play. If he's in play, if he might vote to strike down Roe, you don't need Chief Justice Roberts anymore because of the other justices. You could have easily a five, four case where it's Kavanaugh, Coney Barrett, Gorsuch, Alito and Thomas.
Peter Robinson: And is that what you now expect?
John Yoo: Yeah, that's my prediction, But I'm happy to say I'm wrong again.
Peter Robinson: Richard this issue of precedent, stare decisis, stare decisis is Latin for--
Richard Epstein: Let the decision stand.
Peter Robinson: Do not overturn settled law, all right. Two soundbites, if I may, listen to these, and then I'm going to ask you a question.
Richard Epstein: Am I going to incriminate myself.
Peter Robinson: No, but well, we'll let you get to that, first, Justice Sotomayor.
- [Sonia] Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts. If people actually believe that it's all political, how will we survive? How will the Court survive?
Peter Robinson: Justice Kavanaugh.
- [Kavanaugh] There's a string of them where the cases overruled precedent. Brown v Board outlawed separate but equal, Baker v Carr, which set the stage for one person one vote, West Coast Hotel, which recognized the state's authority to regulate business, Miranda v Arizona, which required police to give warnings about the right to remain silent and to have an attorney present to suspects in criminal custody. Lawrence v Texas said that the state may not prohibit same-sex conduct.
Peter Robinson: All right, one justice of the Supreme Court, Justice Sotomayor says we abide by precedent on this Court or we raise the possibility we produced the stench of looking political. And another justice of the Supreme Court, Brett Kavanaugh says, just listen to this list of cases that this Court overturned, correcting incorrect decisions on major issues. Who's right?
Richard Epstein: Well, they're both wrong in the following way.
Peter Robinson: Can we just agree right now, John, that only Richard would go with that answer.
John Yoo: Or he's going to tell you they're both right, but for the wrong reasons.
Richard Epstein: A bit more like that.
John Yoo: See.
Richard Epstein: First of all, with respect to Sotomayor, what's sauce for the goose is sauce for the gander. And she has to face the question, for people who think that Roe was wrongly decided, how can we allow a political act of this Court to remain. It will undermine the confidence that everybody has in our public institutions.
Peter Robinson: Can I say, I found this in your writings Richard, prepping for this show. Richard Epstein, quote, Roe versus Wade, now the quotation begins, Roe v Wade, quote, "is "one of the worst opinions ever written," close quote.
Richard Epstein: Now I could have said that in 1972 or three when I first wrote about Roe in the Supreme Court review or I could have said it as recently as last year, but the statement is surely true. I mean, to give you an idea of how utterly baffling it is, Harry Blackmun, one of the more clueless justices on this thing, he cites a famous passage from Oliver Wendell Holmes saying that the constitution is written for people with fundamentally different views, right. What Holmes meant by that quote is we therefore have to let the legislature control things, and we do not allow specious claims of individual rights to take over, as in Lochner against New York. Clueless Harry quotes for the opposite proposition and saying since we have fundamentally different persons, we have to recognize individual rights. And so the whole thing from the beginning gets it exactly backwards. Secondly, I mean, he tries to create this system of balance over trimesters, giving different sets of rights for each of them. You can't find that unless you want to torture the equal protection clause in the way which is going. So the common view that everybody held at the time, that this was a unsuppressed act of judicial arrogance. And the reason why this is important, if you're gonna play the overruling game, you don't wanna overrule some petty little precedent on an inconsequential issue, which may be right or wrong. This one, in terms of the six on the right, faces the problem that it's just intellectually bankrupt from start to finish. And I have two views on this. It's been around--
Peter Robinson: And that's the Kavanaugh view. He seems to be suggesting.
Richard Epstein: Well, the whole question is, do you believe that long use stare decisis should override fundamental error. That's the choice that she's got. Now what's wrong with Kavanaugh is he doesn't have all the cases right. That is, in my view, you don't want to overrule Lochner and New York and create West Post Hotel v Harris. What that does is it creates this enormous federal bureaucracy, which leads to such grotesque statutes as the Fair Labor Standards Act and so forth. You don't need all of that. And so what you have to do is you have to go down every particular case on the list and you come up with the following really serious problem, is you have to make individual judgements as to whether or not the decision that was overruled was correct or the decision that's doing the overruling is correct. And I'm not only going to allow this. I think it's probably true if you're talking about Plessy against Brown v Board. But it's not true with respect to every other case. So what really?
Peter Robinson: Okay, so suppose we just take Plessy. Plessy is a decision that provides constitutional basis for segregation. It formalizes Jim Crow. Intellectually, was it as contemptible as Roe? Morally, it's repugnant
Richard Epstein: Yeah, I mean, it got everything wrong.
Peter Robinson: Got everything wrong.
John Yoo: It is more wrong than Roe was in terms of the original.
Richard Epstein: It's really complicated.
Peter Robinson: We agree that Plessy was catastrophically bad as a moral matter and as a legal matter and that Brown was quite right to overturn it 58 years later.
Richard Epstein: But no, it's more complicated than that, like everything, right. If you go back and you look--
Peter Robinson: Come in and save me at any moment here.
John Yoo: Well first, I would say put morality out of it. Just what's constitutionally correct.
Peter Robinson: We'll come back to you in a second, I promise.
John Yoo: Richard's point is right when he says, sorry, Richard's point is how long do you let a constitutional error survive in the interest of just stability.
Richard Epstein: What I want to do is to give a little bit of the historiography of Plessy. I'm not going to defend. What case and what jurisdiction did Judge Brown rely on in order to say that separate but equal was illegal.
Peter Robinson: I don't have a clue.
Richard Epstein: Well I do.
Peter Robinson: I probably knew when I was 21 and I studied in--
John Yoo: There's no way you would've known.
Richard Epstein: It's a decision by Lemuel Shaw, a famous judge, and very much an abolitionist and so forth in a case called Roberts against the City of Boston, which upheld the principle of separate and equal. And that was the dominant case was cited in Plessy, a Northern decision by a liberal judge. And so, when you're trying to figure out what's wrong with that, you have to go and figure this out. And there's historiography explanation to it. It turns out Shaw knew that the Boston legislature or the city council was going to overturn this anyhow. So he decided if I strike it down, I don't have to go into constitutional adventurism, because it will be corrected by legislation. Then you go forward. You get the Plessy in 1896, there's no southern legislature that's going to reverse it the way that Boston would. And so when you do is you're playing this game. But what's wrong with the decision analytically is what this guy does is he says famously we are great believers in freedom of association, right. And if black people don't want to associate with white people, that's just fine. The problem is this is for segregation, which prevents voluntary interaction. So the mistake in the opinion was to sort of treat this decision as though it's assuring voluntary choices, when Plessy, I don't know if you know this, it was a rape case.
Peter Robinson: I would go farther than that. I would say the constitution just doesn't take account of people on the basis of race. It's a much simpler principle in that to uphold a state law that says you're allowed to identify people by race and treat them differently.
Richard Epstein: Well, it turns out it's complicated.
Peter Robinson: That's all I want to hear on Plessy, because it's television Richard.
Richard Epstein: It's complicated.
Peter Robinson: So there's a bad case, bad decision, leave out the moral question. It's bad law, and it gets overturned 58 years later. The question now before the Court is whether to overturn Roe 49 years later.
Richard Epstein: This week.
Peter Robinson: And so, John, how do you handle the question of precedent? By the way that seems to be the only argument.
John Yoo: That is a good point. I was just going to point that out. The other thing about the oral argument is that no one actually defended Roe on the merits. I think Richard's right. When Roe came out, most constitutional law scholars thought this is ridiculous or, even John Hart Ely who was a Stanford law professor, one of the most prominent liberal professors, he thought Roe wasn't even constitutional law. He said, he has famously said, Roe's not constitutional law and doesn't even try to be constitutional.
Richard Epstein: His Wages of Crying Wolf was the title of his article.
John Yoo:  It's a great piece.
Richard Epstein: My article on the same subject had a--
John Yoo: Which had a very boring title compared to John Hart Ely.
Richard Epstein: It was substantive due process by another name was put on--
John Yoo: That's not a bad title, actually.
Richard Epstein: But it turns out it was actually Phil Turlin's not my title.
Peter Robinson: All right.
John Yoo: So you could always say, and I think this is the view of some of the justices, we shouldn't pay any attention to precedent at all. Let's just get it right, especially because we're in a world, and this does echo what Richard was saying, especially in a world where no one can overrule us. The only way to overrule a mistake by the Supreme Court is to get two thirds of Congress to pass constitutional amendment that's then approved by 3/4 of the legislature, which we barely ever do and isn't really going to be used to overturn Supreme Court cases one by one. And so if you have this world where no one can correct you the way a legislature could, then the Supreme Court is the only one that can correct its own mistakes. So why should we give any deference, any acceptance to the past Supreme Courts that were wrong? I think that's one principled position.
Peter Robinson: And that's roughly Justice Thomas' position.
John Yoo: Yes Thomas and I think Alito and Gorsuch.
Richard Epstein: And maybe Barrett.
John Yoo: Yeah, maybe Barrett. So Barrett wrote a very important law review article before she went on the bench about precedent. And she basically said, I think, if it's a really important constitutional question, precedent should not cause you to decide differently.
Peter Robinson: I'm coming to you Richard, I promise.
John Yoo: The other point I want to make was so we're in a world where none of the justices, not even the three liberal justices, Breyer, Sotomayor, and Kagan defended Roe on the merits. Instead, all the arguments were, as you said about precedent, just is it as you, the clip you play from Sotomayor said, are we just gonna look too political? Are we gonna look too brazen in our politics, if we overrule Roe. That's all that this is about, I think, at this point, because no one thinks Roe was correct as an original matter. And if that's true, then you have to, and this is where I think Richard and I disagree, I'm more on the Thomas line of things. I don't think precedent should count. Richard, I think, you actually do pay some attention to instability and institutional politics and so on. But I think, look, if you think Roe wrong, why should you keep anything you know to be wrong in place?
Richard Epstein: Can I basically answer this question?
Peter Robinson: Please.
Richard Epstein: The first thing that you asked, why do I think it's gonna come out the way John predicted.
Peter Robinson:  Meaning overturning Roe?
Richard Epstein: Yes.
Richard EpsteinYes, nobody on the left made the defense off the court, the right of a woman to control her body. The privacy interest and non-discrimination rules were raised very commonly in all the arguments. The Supreme Court, none of the three did it. But there's also something else about correction. The most important statute to worry about is a statute passed in New York and in California and other places which says the following. If Roe is overruled, we will now adopt it as a legislative decision for the state that were involved. So what happens is you can correct Roe if you leave it right, but you can correct it if you overturn it. And to the extent that you argue that this is a political process decision, you now have evidence that the process works in liberal states for doing what you want.
Peter Robinson: So, it is a terrifically important, and thoroughly obvious point that nevertheless gets overlooked as best I can tell again and again and again, if the Court strikes down Roe, it does not make abortion illegal anywhere. It simply returns to the 50 state legislature as a matter of criminal law, which is where state legislature.
John Yoo: Not just that but where most life and death decisions are vested. The death penalty, euthanasia, these are all--
Richard EpsteinWell no, in the death penalty cases the Supreme Court has decided to take it over, right. And they had the following fiasco. Had a case in which there was a very heavy man who sort of raped a seven year old girl or something like that. And the question was whether or not he could be punished with death, cruel and unusual punishment. And the argument came out that, well, you can't have the death penalty for rape cases, one of these categorical rules utterly inconsistent with the framework of the eighth amendment, right. And so they said, oh, it'd never happen. Then it turned out somebody found a case in which an execution had taken place or a new statute had been passed on this very topic. And they said, well, you can say that mores have changed, so it never happened, because it changed. Well the Supreme Court refused to acknowledge the case or deal with anything associated with its operation. So if you want to talk about dangerous precedents, there's no structural evidence whatsoever to say that the death penalty is prohibited by the cruel and unusual punishment clause. And, so you have all these constant kind of tension that should go as well. And yet there's no movement whatsoever to overturn.
Peter Robinson: Richard on a recent episode of Law Talk, Richard Epstein, quote, "the really important debate on this subject," this subject being abortion, "is one that I think "the anti-abortion forces are winning. "It concerns the development of the fetus, "cell differentiation, the creation of organs, "and all the rest of that stuff," in the inimitable phrasing by Richard. You're making a political argument here. The justices should not take any of this into account. Is that correct or is it incorrect?
Richard EpsteinLet me tell you what I'm doing.
Peter Robinson: All right.
Richard EpsteinYou would turn it back to the states, right.
Peter Robinson: Right.
Richard EpsteinThe states have to decide what to do.
Peter Robinson: Right.
Richard EpsteinAnd some states like New York have decided to basically institutionalize Roe. But in other states you're gonna have a political argument. And the argument is gonna turn around what's the status of the fetus. And if you start looking at the rate in which cell differentiation takes place, consciousness takes place, and so forth, it's more difficult to say that abortion is just like cutting off a fingernail, of no legal consequence whatsoever. So when I wrote about this in 1973, before this guy was much of a lawyer.
John Yoo: I was around, but I don't remember much.
Peter Robinson: At the age of two, were you reading his work? Probably you were.
Richard EpsteinBut I said, the problem that you have with the Roe decision and the trimesters is to say a principle of legality requires a sharp point of differentiation. And viability doesn't give you that or anything of the sort. So I said, the only principle that actually works is conception. And that makes me into a Catholic theologian--
Peter Robinson: You said that in 1973?
Richard EpsteinYes.
John Yoo: What did the Catholic church say when they heard this news?
Richard EpsteinWell look, I mean, they didn't say much of anything, but it turns out I think they're right. I mean, I have this weird situation is that I have no particular religious beliefs. I'm a Jewish guy sort of, maybe. But when you actually go to the question, and you look at the theological work and strip it of the theology and just ask about the political question or the moral question, it turns out that their arguments could be recast in moral terms without the religious overhang. And they're gonna have some purchase.
Peter Robinson: As incidentally, Catholic theologians themselves insist it is not a specifically religious question.
Richard EpsteinAnd look, they are right.
Peter Robinson: Really?
Richard EpsteinYes.
Peter Robinson: And so I find myself defending fundamentalist, Christians in all sorts of cases, having to do with dressmakers and things.
John Yoo: The better, or one way to rephrase it is if you'd not sure, if as you said, lots of people in society have very different views, what's the better way to make the decision, five justices of the Supreme Court making a universal one rule fits all, omniscient imposition of, right, abortion, life begins at this point, and we know, and so on and so forth, or do you let people of good faith and goodwill, with all different moral views and religions participate in the political process and vote and persuade each other to adopt the rules state by state.
Richard EpsteinAnd the answer is John is wrong again. Some of the time, but none of the time. The problem with John's argument is very simple and very profound. You have an argument, which means there's no individually protected rights, if it's always subject to political--
John Yoo: Well there's the Bill of Rights.
Richard EpsteinWell, and the question then is what falls in the Bill of Rights. And so the central problem in political theory is always which things do you commit to the legislature and which things do you commit to individual rights. And we do not have a corner solution on that problem. So everybody--
Peter Robinson: Hold on. But in the Dobbs case, we're pretty sure this should go back to the states.
Richard EpsteinWell, what did I say? I agree with that.
Peter Robinson: Okay. So you both suspect now, you're both predicting that the Court will overturn Roe outright. Correct? So here's a question. Last question on this, because Lord knows there's other material to cover here. Last question. How will the Chief Justice vote? And here's what I have in mind. I can't quote it exactly. Although the two of you being the two of you may be able to, he dissented, the Chief Justice dissented from Obergefell, the decision in which, who wrote that?
John Yoo: Kennedy.
Richard EpsteinJustice Kennedy.
Peter Robinson: Justice Kennedy discovered a right to gay marriage. And the last line, as I recall, of the Chief Justice's dissent read as follows. Who do we believe we are or who does this court think it is. And it's the same, it's exactly the argument that you just made. Who are we, this handful of people wearing black robes to be making profound decisions for the nation? So wouldn't, on that very argument that he states in Obergefell and this ringing dissent in Obergefell, wouldn't that compel him to overturn Roe?
John Yoo: That's the Chief Justice when he's not being a politician. So when he's being a politician, if you listen to oral argument, what he, he did not say that in oral argument.
Peter Robinson: No he didn't.
John Yoo: In oral argument, he actually tried to find a compromise that would allow the Court to uphold this law, at the same time keeping Roe intact.
Peter Robinson: And nobody went for it.
John Yoo: Nobody went for it. That was the other interesting thing from oral argument. He threw that out there. At least the three liberals should have wrapped their arms around it.
Peter Robinson: Retain the principle of viability, but roll it back from 24 weeks to 15 weeks.
John Yoo: It wouldn't be viability, because-
Richard Epstein: No he didn't even say that. It was even worse.
John Yoo: It doesn't make any sense.
Richard Epstein: He said that the trimester stuff was dicta.
Peter Robinson: Was what?
Richard Epstein: Dicta, doesn't count as law, which is just a preposterous misreading of the case.
Peter Robinson: So what does he decide in this case?
Richard Epstein: Well he's going to try keep it at 15 weeks.
John Yoo: Yeah, so what he'll do is he'll say we'll uphold, it doesn't make any logical sense based on the precedent. He's basically going to throw out all the precedent. He has to.
Peter Robinson: The Chief.
John Yoo: Yeah, he'll have to throw out Roe. He'll have to throw out Casey. And he'll have to say, Casey's the 1992 case that reaffirmed Roe and created the undue burden standard. Now the test is can the state regulate abortion without placing an undue burden on the woman's right. So he's going to have to toss the most of that out and instead say, we're going to allow a state to regulate up to 15 weeks of pregnancy, but not before 15 weeks. But there's no rationale that makes sense that justifies that.
Peter Robinson: So how does this play out. I actually, give me a little--
Richard Epstein: He's going to be a lone ranger.
Peter Robinson: There's the conference room, which I've seen, the conference table's quite small. These people are about this far apart from each other.
John Yoo: How did you make it past security? It's designed to stop people like you.
Richard Epstein: Well, he was a nominee.
John Yoo: He was an executive.
Peter Robinson: I was on the shortlist.
John Yoo: Like Richard was, I hear.
Peter Robinson: So does the Chief Justice make that argument to his colleagues on the Court at the conference table? When it becomes clear to him that he has five justices who are going to vote to overturn Roe, does he say, oh, well, I may as well throw in with them or does he write it to dissent?
John Yoo: I think there's the formal process and the informal process. I think this going to be decided by the informal process. Formally you're right. They have the oral argument. They've already voted. They have a meeting usually that week, the Friday of that week in that conference room.
Peter Robinson: This decision has already been made.
John Yoo:Yeah, yeah, they're just writing it out now. So they will go in order of seniority with the Chief Justice going first. So Chief Justice Roberts might throw this idea out, saying, I'm not going to vote to strike this law down, but I would be willing to say, blah, blah, blah. And then they go in order and at by the end you have the vote. And then the Chief Justice, if he's in the majority, he'll assign the opinion. If he's not, then this is amazing, Justice Thomas gets to assign the opinion who I would hope he would keep it for himself. Then there's an informal process which occurs after this, which is then there's all kinds of discussion. This is where Richard really is--
Peter Robinson: This is when they're in and out of each other's chambers.
John Yoo: Well, they're going to talk by memos, on the phone, in person, through the clerk's, negotiation. And you could easily see, it's not uncommon for the votes to change in that process of getting from the first vote to the written opinion.
Richard Epstein: But I think in this case, I have a different response. Everybody's set in concrete.
John Yoo: Really, you think so.
Richard Epstein: I think--
John Yoo: Even the Chief Justice.
Richard Epstein: I think, in terms of their basic substantive provisions, nobody's going to persuade anybody. It's all going to be political compromise. So I give up something I believe to get something I want.
Richard Epstein: Yes, but that's all--
Peter Robinson: So you get a majority decision signed by five, a dissent signed by three and then a concurrent--
Richard Epstein: That's the one.
Peter Robinson: And the Chief writes his own dissent.
Richard Epstein: No, a partial concurrence, partial dissent.
John Yoo: If you believed in a woman's right to choose, what you are hoping for is the Chief Justice Roberts somehow works some kind of voodoo magic on Brett Kavanaugh to say, oh, you may not look like Roe, but politically, this is the wrong time to, blow open, ready to blow open the jurisprudential universe and invite all the furies of the political system upon us. So just, just please don't overturn Roe this time.
Richard Epstein: But that's going to be a private conversation.
John Yoo: Yes, it's all going to be informal.
Peter Robinson: And wait a minute. But that... Suppose here's what the Chief Justice says, Brett, here's what could happen, you remember that vitriol during your nomination hearings, do you remember the anger. That will engulf not the Dirksen caucus room in the United States Senate, that will engulf the nation.
Richard Epstein: But by the way--
Peter Robinson: And the Supreme Court which is really important.
Richard Epstein: The argument will go both ways.
Peter Robinson: Yeah.
Richard Epstein:The problem is if he does it, he will be called a turncoat by the conservative movement, somebody who betrayed everything. So there's going to be hell to pay no matter which way it goes. I remember sometimes a famous lawyer told me, he says, I get hell if I do this, I get hell if I do that. What I conclude from this is I might as well do the right thing.
Peter Robinson: And that's what we hope Justice Kavanaugh replies to the Chief. Is that correct?
Richard Epstein:But yes. But let me also mention what I think is wrong with Obergefell.
Peter Robinson: No, no Richard, we don't--
Richard Epstein: Yes, one sentence, because it's critical.
Peter Robinson: Okay, one sentence, all right.
Richard Epstein: Is that he basically said this is a Lochner type case, but they're hugely different. Lochner had nothing to do with health and safety. Whereas the abortion cases did. So he didn't even understand--
Peter Robinson: He being Anthony Kennedy.
Richard Epstein: No, he being Roberts.
Peter Robinson: No, Chief Justice Roberts.
John Yoo: He didn't understand the traditional cases, 'cause he didn't have any idea what the police power was right. So, as I said about John, you can't take the always democratic or always individual rights. He didn't get the line drawn in the right place, because he's so anti-Lochner that he simply didn't understand the logic of the case. And that's a serious intellectual weakness now.
Peter Robinson: John, I am now required, because Richard exceeded his one sentence a little bit, I am now required to ask you to explain to listeners, including this one, remind me of Lochner.
John Yoo: Ah.
Peter Robinson:  Richard is mentioning Lochner again and again. Just remind us of Lochner.
John Yoo: This is one Lochner's kind of a shorthand--
Peter Robinson:  In three sentences, all right, go ahead. No, go ahead, go ahead.
John Yoo: So Lochner refers to this period before the New Deal When the Supreme Court struck down a large variety of regulations of the economy, regulation of contract--
Peter Robinson: Regulation of commerce, wasn't it?
John Yoo: No, well both, federal and state laws that interfered with contracts, mortgages, all kinds of economic regulation. And so what happened is the Court stuck to its guns all the way between, right, pretty much the Civil War all the way to the New Deal.
Peter Robinson: In Lochner, the Court is asserting the right of private contractor.
John Yoo: Yes.
Peter Robinson: Yes.
Richard Epstein: Except when health and safety are at issue.
Peter Robinson: Okay.
John Yoo: So the hard thing is I think constitutionally is for a long time, people criticized Lochner, because they said, oh, the courts are just imposing their own personal views of what's good political philosophy, or what's good economics, for example. Why doesn't the political process just decide how many hours bakers can work on the floor of a bakery per week. Is that really any different than Roe v Wade where the justice are saying, oh, well, we think individual rights includes the right to an abortion, just like a hundred years ago the justices said individual rights includes the right to work as much as I want.
Peter Robinson: Right.
John Yoo: So I think this fair conservatives actually used to be the ones who used to say the Court should just be out of this business.
Richard Epstein: This is Bob Bork and Nino Scalia.
John Yoo: Yeah, they were saying, just let the political process decide all of that. So the reason Richard doesn't like that is because it treats Roe and Lochner as the same problem. And then Richard's claiming, oh, no, there is an individual right to pursue economic liberty that's very different than these newer rights, like abortion.
Richard Epstein: To try to murder off an offspring, right.
Peter Robinson: I see.
Richard Epstein: So, I mean, and it's correct. So you don't get something--
John Yoo: But this is very controversial. You are very controversial, Richard, on many things.
Richard Epstein: But remember I said Waste Coast or Potel, which overruled these things was a wrong decision. That's what I said. And what you have to do is you got to have a theory. The problem about the Chief Justice, he's such an institutionalist. He has no normative theory of what the constitution itself requires.
John Yoo: This is actually a good way to explain the difference between the new Trump justices and the older conservative justices, 'cause the older conservative justices who are very much of the Bork, Scalia school would say--
Peter Robinson: The older are...
John Yoo: Alito, I would say, but also Scalia, people like that, not Thomas actually.
John Yoo: But they would say, but also, Roberts probably Kavanaugh, they would say, courts should just get out of the business of value judgements, of avoiding policy disputes. All that should be for the Congress and the states. And the main goal of all of this is to limit the damage that the judiciary does. So we must be restrained. The newer justices who I think have little idols of Richard Epstein in there--
Peter Robinson: At least bobbleheads.
John Yoo: Yes at least a bobblehead. They would say, no. There are certain fundamental values in the constitution, and we should go out and enforce them. And we shouldn't pay deference to Congress or the states. The main problem of Roe is it just got the fundamental value wrong. It's not abortion. It's these other kinds of rights, like free speech and political activity and religion and gun rights. So the new justices are willing to be much more activist than the older, conservative justices.
Richard Epstein: But what happens is I'm more willing. When I wrote my book on Takings back in 1985, the central takeaway, go to page 281, just in case you're curious is, oh, by the way, the New Deal is unconstitutional and all on the individual grounds, right, and on the federalism argument or that was not the part of the Takings book. That's what made me into a pariah, right.
John Yoo: Well, the best part of it was the current sitting president of the United States took Richard's book and it would flash it in front of nominees to the Supreme Court and say, do you agree with this madness.
Peter Robinson: With this nonsense.
Richard Epstein: This was Joe Biden, and this was essentially before Clarence Thomas.
[Video] In the case of Epstein and the ability to have zoning laws.
Richard Epstein: He took the book out from underneath his desk and said, anybody who believes anything that's written in this book is unfit to sit on the Supreme Court. And Thomas--
John Yoo: Richard said, I couldn't agree more.
Richard Epstein: But I said, private property is written in the constitution and that was a revelation to Joe Biden.
Peter Robinson: All right. Speaking of whom the Biden mandates, the Biden administration imposed a mandate on businesses that employ 100 or more workers to require the workers to receive vaccinations. Just last week, we were talking on January 20th, just last week, the Supreme Court heard oral arguments in the case, challenging those mandates. And then the Court handed down its decision, 48 hours later. It blocked the Biden mandate on most employees of large companies, but permitted the mandate to stand on some 10 million healthcare workers. The Wall Street Journal editorialized as follows, quote, "the split decision counts as a welcome setback "for the overarching administrative state, "but not as welcome as it might've been," close quote.
Richard Epstein: Amen.
Peter Robinson: So why do they produce the split decision?
Richard Epstein: Well let me tell you what the problem is, and then I'll tell you what the distinction. The problem is that there's a chronic shortage of healthcare workers. And this is going to result in more deaths by striking down the industry. Why did they come to the decision? Because of what I said before, the regard of the health, the mandate for hospital workers to health and safety issue for which you need narrower statutory authorization. Whereas everything else was not within the purview of the emergency powers that were given with respect to OSHA. And so they did a kind of a doctrinal split, and let's put it this way.
Peter Robinson: But it was a reasonable split.
Richard Epstein: Well, let's put it this way. I think they were wrong, but if they'd done the split the other way, they would have been mad. And so, mistake, not insane.
Peter Robinson: All right. You agree, John?
John Yoo: So I read it a little differently than Richard. I'm not sure about the consequences for the pandemic and how we're coming to it, but it's just the two mandates. They're two separate mandates, and they were done under different grants of power. And so the first one, the nationwide mandate on all employees, yeah, the OSHA mandate, the Court didn't actually even reach any constitutional question. They could have. And the three most conservative justices, Thomas, Alito and Gorsuch wanted to reach a constitutional question. But instead the six conservatives agreed that Congress in the OSHA law, which is about workplace safety, it's really passed about to deal with asbestos and that kind of stuff in on factory floors and offices, the Court just said, Congress didn't give you the power, you Joe Biden, you the White House, you OSHA to require vaccines. It doesn't. And they went a little far. They said it doesn't give you the power to regulate problems, which aren't really unique to the workplace. So COVID is something you can get in the supermarket. You could get it at home.
Richard Epstein: Health care workers are very different.
John Yoo: The healthcare workers is about the spending power, which is very different. The spending power, Court has always been very deferential, which is when the government spends its money it's allowed to place conditions on how the money's used. So the Congress here, basically funds, most of health, has taken over the healthcare system in the country. And the government said, if you take federal healthcare dollars, then you have to get your employees vaccinated.
Richard Epstein: This of course when they had the--
John Yoo: The courts have always been hands-off on that, 'cause there's no legal rule.
Richard Epstein: I'm gonna bring back district of John. I said back when they talked about the various Medicaid mandates in the healthcare case, I said to--
Peter Robinson: Healthcare case, the Obamamcare case.
John Yoo: 10 years ago, yeah 10 years ago.
Richard Epstein: I said the Supreme Court is going to balk on the question as to whether or not you could tell a state that if you don't take this additional funds, you're going to have to lose all of your existing funds.
Richard Epstein: You were wrong.
Peter Robinson: John laughed all the way to the bank. I was right on that one.
Richard Epstein: No, you were wrong. It turns out they struck down the condition, right. And so, I mean, he never apologized publicly. I will take it now, but it doesn't matter. The point is unconstitutional conditions depends on the level of deference, which is John said. And in this case, they gave a lot of it.
Peter Robinson: All right, a question that arises from oral arguments. I'm going to take a moment to set this up. You may think I'm being flippant. I really and truly am not. I'll get your question in a moment. A few moments during oral arguments in this mandate case Justice Kagan insist the vaccinations are quote, "the best way to prevent spread," close quote.
Richard Epstein: She's an idiot.
Peter Robinson: This is totally untrue.
Richard Epstein: She's absolutely false. She doesn't know what she's talking about.
Peter Robinson: Justice Sotomayor claims that Omicron is filling hospitals with children, quote, "many on ventilators." Again, totally untrue. Omicron, very mild, almost no effect on over the overwhelming number of children. She's just wrong. Justice Breyer, it would be unbelievable that it could be in the public interest to suddenly stop these vaccinations, close quote. But the mandate targeted only about 25% of the population in the private workforce. Most had already been vaccinated. And so the mandate Holman Jenkins writes in the Wall Street Journal, "even if approved the Biden mandate is destined "to have a negligible, almost invisible impact "on either the vaccination rates "or the unfolding of the pandemic," close quote.
Richard Epstein: He's wrong.
Peter Robinson: And here's the question. He's too optimistic. Justice Breyer is mistaken, at least he seems to be badly mistaken in saying it couldn't possibly be in the public interest to suspend these vaccinations. Look, hold on, let me ask the question. The question is this. What do we make of Supreme Court justices when they very clearly have not the slightest idea what they're talking about, when they have even less information, oh, well, you wouldn't expect them all to be epidemiologists, but when they have less information than the informed layman can gather, simply by keeping up with the news each day? What do we make of these people when they don't know what they're doing?
Richard Epstein: Well, I'm going to answer the following way. They basically are completely irresponsible. But even holman Jenkins doesn't quite get it right. What you have to understand is that if you give this vaccine, particularly to young people, it actually has serious potentials for adverse harm. The evidence is now beginning to accumulate that you could get myocarditis, a serious disease if you're a male between 20 and 40. There's some nascent evidence that maybe it will change menstruation cycles for women. There are all sorts of other collateral consequences that might happen. And so what's going on is they're making a mandate on the theory that it's risk-free when it's not. And then they systematically ignore the power of natural immunities, which is widely established. And so you don't want to ever require a vaccination of anybody who's got natural immunity. So what's really going on there is the three liberal judges are inexcusably wrong, but even the people on the other side of this thing don't keep up with the serious literature on this. It's a national scandal.
Peter Robinson: Okay.
Richard Epstein: I just say--
Peter Robinson: My question is, sorry, we just heard Justice Sotomayor how does the Court survive the stench of illegitimacy. And then she produces a question during oral arguments two weeks later that shows she has no idea what she's talking about. Does that somehow, should they just shut up? Should they stop making oral arguments? Stop taping them.
Richard Epstein:No, they should make them. We want the Court to lose legitimacy. That's what they're doing.
John Yoo: I actually think it's the same flaw that we saw in the discussion of the abortion cases in that the three liberal justices are almost talking themselves out of the conversation. They're not really seriously engaging with the majority. They're not... And I think this also is a product of, as you started the show, this six justice conservative, super majority, they're not going to pay attention to the three liberal justices if they continue to talk this way and act this way. They're not really trying to persuade, these three liberal justices. They're trying to persuade the other six to try to make a majority. I think they're really pitching their statements to the public. They're really protesting. The problem here is that they're not really making legal arguments. None of those are legal arguments. They're almost acting like they're the head of the CDC. Whereas the majority, what their question, notice the majority, I don't know if you remember this, but for example, Justice Alito said several times, I'm not questioning whether vaccines work. I'm not questioning vaccine policy. For the majority, as it was in Roe, the question is who decides the question. And they're actually both trending the same way, which is--
Peter Robinson: Those are legal questions.
John Yoo: Who decides, not what the facts are. What's the best policy.
John Yoo: They're pushing the decision, in both cases, I think, to the states, to the decentralized decisions of the states, yeah, the majority, the states, businesses, you and me when we decide what risks we want to accept when we go into coffee shops or schools, whatever.
Peter Robinson: Hold on, Richard I am going to exercise, what are some lovely Latin phrase for--
Richard Epstein: You're a tyrant.
Peter Robinson: Exactly, all right. Voting rights legislation. Again, this takes a moment or two to set up, but I'll do it. A legal matter that's not before the Supreme Court, but that might have been, I'll get to that. The Democrats in Congress and the administration attempted to enact two pieces of legislation, both of which had already cleared the House. Richard Epstein on each, quote, "the Freedom to Vote Act contains a long list of reforms, "and the John R. Lewis Voting Rights Advancement Act "would require pre-clearance "from the federal government "before a state introduced any changes "to its voting practices," close quote. Last night, again, we're speaking on January 20th, Senate majority leader, Chuck Schumer of New York attempted to eliminate the filibuster to ram through these two pieces of legislation, two Democrats, two of members of his own party. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona voted to uphold the filibuster and kill these two pieces of legislation. Okay, first, the constitutional question, this is the federal government inserting itself into the voting procedures. If those two pieces of legislation had been enacted, would the Supreme Court have upheld them, should the Supreme Court have upheld them? John looks puzzled on this. Go, go, you go first. We'll give John the time to think.
Richard Epstein: What it is it divided authority over this thing in which the state passes its certainly rules, but the Congress has the power to override them on certain limited issue.
Peter Robinson: Right.
Richard Epstein: One of those issues that is not in the Congress power override is turns out to be eligibility to vote, prisoners and things of that sort. So what will happen is if it ever got to the Supreme Court, there would be some provisions that would survive. Some would be struck down.
Peter Robinson: It would be a complicated, messy result.
Richard Epstein: And then you'd have to ask the question, if you only have part of it, but not all of it, do you allow separability so that some survives and one does not. I wrote in another paper, which you didn't quote, saying that I thought that most of this thing was fatally flawed and that the whole thing would in effect be struck down. But remember, the problem about the entire constitutional system is the non-voting, non-deliberative executive electoral college that we put together is not an originalist device. It was supposed to be a deliberative body in each of the states. But we changed to these automatic ballots, 'cause it was the only thing that worked.
Peter Robinson: States, state legislatures--
Richard Epstein: And what happens is they now want to change the rules so that the state legislatures don't control the voting system. It's a huge constitutional revolution. The Democrats say, well, these guys are going to subvert the votes, because there was some suggestions early on that the legislation's at the ninth hour, the 11th hour should strike down the popular vote and insert itself, 'cause it had that power. No state legislature was willing to do this, because we have what I would call a customary constitution in which the only thing you can do as a legislature is to say that the party with the most votes is going to win. You have discretion to whether you do it state by state, an entire state all or nothing, or by district. But you don't have the power to essentially insert yourself after the process is run. And this kind of customary constitution is absolutely critical to the continuity of the government. And one thing that's wrong with originalism as a kind of comprehensive theory is when these things take place by way of evolution. After the original design and flat contradiction to it, the last thing you want to do is to blow it up and go back to a design that was known to fail. And in this case, the heroine of this thing, the best justice on this has always been Elena Kagan.
Peter Robinson: So wait a minute. If you'd been in the Senate last night, you would've voted to pass this legislation.
Richard Epstein: Oh no, the filibuster's completely different. That's an internal Senate rule. It could do whatever it wants and is not even reviewable, I think I'm correct on this, in any way, shape by the Court. I would never get rid of the filibuster.
Peter Robinson: You're in the favor of the filibuster.
Richard Epstein: Strongly so, because I think major institutional changes need a super majority, legitimacy just as you do for constitutional amendments. And to have 50 Democrats and the vice president go one way when every Republican is opposed is a political legitimacy disaster.
John Yoo: Let me defend originalism a little bit from Richards' dastardly attack. So I think if, one thing is neither of these bills can constitutionally control presidential elections, 'cause the constitutional text says the electors are chosen in the manner designed by the state legislatures.
Peter Robinson: That's in the text.
John Yoo: That's in the text. So none of these bills are allowed to affect the selection of the president. The provision Richard's talking about says a Congress, that states generally set the rules for their elections, Congress can override them for congressional elections as to the time, place and manner of the ticket. So that's the originalist in me. Let's just start with the constitutional provisions. They make that separation. So this can only really apply to congressional elections. And then some of these things that are in the bills are not really related to time, place and manner, and some are. So I think I actually disagree a little bit with Richard. I think a lot of the things in the legislation are time, place and manner, and would be upheld by the courts. But there are weird things like, for example, voter ID. I take it, the bills don't or prohibit using voter ID, yeah, certain kinds of voter, like driver's licenses. I'm not sure if that's a time, place or manner restriction or not.
Peter Robinson: It's not.
John Yoo: I just don't know. But it's a case of first impression for the courts. They've generally upheld time. They've upheld voter ID laws of the state.
Peter Robinson: How would you have voted in the Senate last night?
John Yoo: So when the filibuster, so I'm a little different than Richard. I agree with him completely. It's a Senate rule. It's up to the Senate. The courts will not review it. I've never really been sure whether the filibuster is a good idea or not. I do agree that there's a certain need for institutional stability, but the setup of the Senate itself by being anti-democratic is a very strong stabilizing force already. But I don't think the filibusters, I worked in the Senate, I don't think it's going to change. I think that Manchin and Sinema are actually taking the heat for a lot of their other colleagues who also don't want to get rid of the filibuster. And Sinema's quite right, because I remember 10 years ago or 15 when George W. Bush was president, and there were a lot of things he would have liked to have done, but for the Senate filibuster and some of the same characters who are attacking it were then defending it.
Peter Robinson: Chuck Schumer for one.
John Yoo: Yeah.
Peter Robinson: All right, January 6th, last big topic here.
John Yoo: Oh, I love it.
Peter Robinson: Lots of legal matters connected with a House committee investigating the riot in the Capitol on January 6th, of 2021. Just yesterday, the Supreme Court refused a request from former president, Trump. I've got about three of these. So I'm just mentioning, we will want to move through these fairly quickly, if we can. The Supreme Court refused to request from former President Trump to block the release of certain White House records connected with January 6th. The Court rejects Trump's claim of executive privilege, and the national archives begins delivering thousands of pages of documents. As I understand it, they began delivering this to the January six committee staff within a few hours.
John Yoo: No doubt.
Peter Robinson: All right. What are the issues here? Did the court do right? Was Trump out of line to make this claim, a former president claims executive privilege?
John Yoo: I mean, I think he was going to lose, but it's actually an open, constitutional question that the Court has not decided. So there's this thing called executive privilege, which the court has upheld in the Nixon Watergate tapes case amongst others, where the court has said, we are going to protect the right of a president to communicate with his advisors or her advisors to get advice, to shield it from the other branches being able to discover it. And I think just like we would not allow the president to say, I want to know what Chief Justice Roberts is saying to his clerks or what Elena Kagan is saying to her clerks, or what senators say to their staff. And the Court said part of that, so the executive branch can function properly, and part of it is so that we have good decision making. So you have candid airing of views. So what happens when the president is no longer in office and you have someone new in office? Does the privilege continue? So you have a political problem is that when you have presidents of different parties, there's always going to be this temptation by say a Republican, to say, I'm going to hand over all the stuff that the democratic president was saying with his or her aids, because it's going to help me politically.
Peter Robinson: Right.
John Yoo: That's one issue that the Court has never really decided, which is that someone like Trump, who's the past president, have some claims still or is it still up to just to Biden, 'cause Biden's the president now, President Biden can decide to release information or to keep it secret, covered by executive privilege. The second argument, and this was actually the thing that turned the case, was that the Supreme Court also said in the Watergate tapes case, I think wrongly, but they said, but there are certain situations when the need by the other branches for that information is so great it overrides the secrecy of the executive branch, and so must be handed over anyway. And so the Court here said, well, the need of the January six committee is so great that it overcomes any privilege that might exist within the executive branch. That I think is actually another question that should be decided by the Supreme Court instead of just being quietly decided late at night.
Richard Epstein: I think this is all quite terrible. Let me go back.
Peter Robinson: What the Court did yesterday was terrible?
Richard Epstein: What the Court did, yes. I mean, look, there's so much, anti-Trump sentiment that people forget the principle. If you go back, one of the things to the Pentagon Papers, right, this was a situation. Yes, and this is when Nixon refused to release the papers. Basically, he was preserving the executive privilege as he thought by a previous democratic administration, because he thought that this was a strong institutional interest. What happens is I agree. I think it's utterly absurd to say that the current administration who's a bitter political enemy of the previous administration can put itself in a position where it releases their documents while claiming privilege with respect to itself.
John Yoo: Can I amend just one thing? I have to say, all the lower courts and the Justice Department, in which I worked, have always taken the position that it, for example, this circumstance, it's only up to President Biden and Trump gets no say.
Richard Epstein: And I agree.
John Yoo: Only the sitting president.
Richard Epstein: Yeah, only a sitting president get to decide. My view is that they're completely wrong. This is something I've said many a time, but I know that that's the situation.
John Yoo: This is why we have to wait for the Supreme Court expansion bill to go through. So he could be added to the Supreme Court, 'cause there's no way you're getting on now.
Richard Epstein: I will get the geriatric seat.
John Yoo: Well, we're letting geriatrics run the whole country right now, anyway.
Richard Epstein: But I think--
Peter Robinson: I, excuse me, I have to just because it's one of my favorite lines ever. I don't know whether John has said this to your face, but he once said to me, if Richard occupied all nine seats on the Supreme Court, all the important decisions would still be five, four.
John Yoo: Yeah, that's totally true.
Peter Robinson: Make your point, go ahead Richard.
Richard Epstein: But the point is, I think that they got this completely wrong on the dynamics. And what you need to do is to secure stability across generations. And so I would not want the Republican successor of Biden to be able to release his particular papers. Then on the question of need, this was very similar to some of the questions with the executive, the House representative committee. And they took a very different position then. They said, look, you've got to show need on an individual case after you've exhausted other sources of information that are not controversial before you could make essentially a drop to get everything and everything that came out. And in this particular case they didn't do any--
Peter Robinson: Thousands of pages.
Richard Epstein: They said, we're given you everything. Normally my view is the correct procedure, which they'd used before is okay, you've got all of these pages. What happens is we're not going to allow the blanket privilege. But what we would do is we would require a review individually of different classes of documents and then maybe even the individual document to see if the privilege applies to some of them, but not the others. And the Supreme Court did not do this. This is a terrible problem. Donald Trump is not my favorite president. Donald Trump is a man whom I wanted to resign in January of 2017, if you recall. But this is not what the issue is. The questions you never make sound general policies by being an anti-Trumper and using that to essentially force this thing. And that's what they've done in so many areas.
Peter Robinson: By the way, it should be noted that Justice Thomas dissented from yesterday's decision.
Richard Epstein: Good for him.
Peter Robinson: All right. Another aspect of this January 6th issue, set of issues, a week ago, the FBI arrested a man called Stuart Rhodes, founder of what the New York Times calls the quote, "the far right Oath Keepers militia." The FBI charged Stuart Rhodes and 10 others with, and the wording here matters, quote, "seditious, conspiracy," close quote. Now the Justice Department has already prosecuted almost 300 people in connection with January 6th. But those, I think it's 275 as we talk today, those people were all charged with relatively minor offenses, trespassing and so forth, that is, until the arrest a week ago. Again, the New York Times justice "had not "previously brought a sedition charge. "The charge of seditious conspiracy requires prosecutors "to show that at least two people agreed "to the use of force to overthrow government authority "or delay the execution of a US law," close quote. Okay, last question, probably not a terribly complicated one, but again, it'll take a moment to set up. And the question is politics versus the administration of justice. And the argument goes as follows. The FBI is devoting a lot more time and resources to the riot on January 6th than to the riots that disrupted cities across the country during the last 18 months. The January six committee itself is problematic. It's perfectly typical in the House for the minority leader to nominate the Republicans, in this case to a committee. The minority leader did so and Speaker Pelosi, a Democrat, refused to seat them and chose two Republicans herself, both Republicans, Liz Cheney is one, with a history of being very strongly anti-Trump, okay. And whole lines of inquiry have been simply ignored, what did the speaker do during that day? What was the performance of the Capitol police and so forth. Against all of that, we do have a singular event in American history, rioters broke into the Capitol of the United States while the Congress of the United States was in session and cleared the chambers in a panic. So what do you make of all of this? Go ahead.
Richard Epstein: It's clearly criminal trespass by the people who came in and they ought to be punished. But as you mentioned, there were people who broke in in situations like Seattle and Portland who've been let go. So that leads you to the sense that there's a kind of a bias. The question of whether these guys did engage in seditious libel is to my mind a question of fact on which you have to look. The most instructive feature about that is they didn't include a third guy, Donald Trump.
Peter Robinson: They did not.
Richard Epstein: He did not say charge him with seditious libel.
John Yoo: Yet.
Richard Epstein: But I don't think they will be able to. That is, they're trying to figure out some communications between him and them.
Peter Robinson: The January six committee is trying to do that.
John Yoo: No, the Justice Department.
Richard Epstein: The Justice Department. That's the point. And remember when they ran the impeachment hearing, I don't believe they charged insurrection either. Did they John?
John Yoo: No.
Peter Robinson: But I thought the articles of impeachment did use the word insurrection and that was what you objected to, the second.
Richard Epstein: No, no the constant, they talked about this as a constant problem, but I don't think the particular charge.
John Yoo: They really charged him with, was failing to do his duty which was to protect the Capitol.
Richard Epstein: Yes, that is, what he did is he did not resist the raid. He basically encouraged people to fight for--
Peter Robinson: That isn't what the article said.
Richard Epstein: No, it did not refer. It's essentially a failure to prevent rather than affirm.
Peter Robinson: Okay, so what do you make of this current situation?
John Yoo: So, I mean, I get the idea that the protest from two summers ago now--
Peter Robinson: Well there'd been riots for 18 months. But the worst took place two summers ago. But that's really a matter for state and local police authority.
Richard Epstein: It's not when you're taking a federal court building.
John Yoo: Yeah, so the Portland one, but it's not really a national FBI, federal law enforcement issue. It really is a state and local issue unless people are coordinating it nationally. I think that's just a very different issue than how much resources the federal government's using to go after the January six players. I have to say maybe seditious conspiracies going too far, but it does seem to me based on the facts we've seen so far that these people are more responsible in some way than the people who are being charged with trespass, the people who just sort of were listening were drawn into it. These, I mean, the facts look like these people had supplies of weapons stashed outside the Capitol, that they were organized. They were moving together. They actually were the ones who wanted to find Michael Pence, the vice president, stop him from counting the electoral votes. But this is the way a Justice Department investigation works, is you start with the little people and you keep moving higher and higher, so that after this, the next stage is what Richard's calling for. Is there a connection between that group, the Oath Keepers or other people who are, you can see them in the video acting in a very sort of military tactics style, people who are organized, talking on phones, were they communicating in any way with Trump, the next step would be the Trump campaign people, like Rudy Giuliani and the people around him who were allegedly sitting out in the Willard Hotel, communicating back-and-forth?
Peter Robinson: John, you listen to the reports, you read the newspapers, and you say to yourself, that's about the way the FBI ought to behave. And that's about the way the Justice Department ought to behave. You don't say something's off here.
John Yoo: The only thing I think they might have gone too far is to charge these people with sedition, because that's really hard to prove. They've already violated, as Richard said, other federal laws. Sedition is rarely charged, because it's very hard to prove, because it can cross into the line of your free speech and your right to believe what you want to believe.
Richard Epstein: But let me sort of mention one thing. If the charge is I was trying to prevent Pence from casting the votes account that would in my view be sedition, because it interferes with the ordinary discharge of the government situation. The Trump allegations were, why don't you march up, say that you want to fight, and tell the people by parading outside the Capitol building. That's protected speech.
John Yoo: Yeah, that's not enough.
Peter Robinson: You're paraphrasing what Donald Trump said in his speech on January six, down on the mall.
John Yoo: If that's all they have, then they're not going to be able to get Trump or the KV and the investigation is just, the cases will stop here.
Richard Epstein: Let me disagree with John on one point.
Peter Robinson: All right.
Richard Epstein: What happened is when Merrick Garland was asked about the differential situation, he said they were willing to bomb the courthouse building when nobody was in it, right. That was the reason why we didn't do--
Peter Robinson: In Portland.
Richard Epstein: In Portland. My view is if you attack a federal building, it's a federal crime. And if you attack a federal building when nobody's in it, you're trying to interfere with the course of justice, because the next morning people are going to be reluctant to come. And so that's an absolute abnegation of duty, because of the kinds of force and the target. This is not a state law matter. It's not as though you're attacking the state courts only. And they did it for days.
John Yoo: It's one city out of a nationwide--
Peter Robinson: Okay, we're moving to the last question, now gentlemen. And it takes us back to the Supreme Court, one more time. It takes me a moment or two to set this up, but then I will turn it over to you. Warren Court of the fifties and sixties begins implementing the idea of the so-called living constitution, the idea that the Court reinterprets the constitution to adjust it to changing norms, mores, and so forth. Now six decades later, two things have happened. The first development is that originalists have finally achieved a majority on the Court. By the way, we didn't come to these, but the cases that are before the Court in this session, this first session, with six conservatives on the court, six out of nine, if you count the Chief Justice, include a case in New York in which the new majority on the Court is widely expected to strike down an anti-gun law, claiming that it violates the second amendment, tuition assistance program in Maine, where the state of Maine said, you may spend state money to send your children to school, but not if it's a religious school as judged by us, the state of Maine. And the majority is expected to look askance at that one as a violation of free exercise. All right. So as I say, the first development is that the originalists have achieved a majority, and the second is that one of the two major parties in this country has shifted to the left. Legal scholar, John McGuinness, I'm sure known to both of you at Northwestern, "as the originalist band of justices has grown "so too have the attacks on originalism. During Justice Barrett's confirmation, "Senator Markey labeled the originalist position, "'racist, sexist, and homophobic'. "Many senators and commentators advocate, "court-packing that would deprive "originalists of a working majority."
Richard Epstein: Wow.
Peter Robinson: Now I come to the Chief Justice of the United States, John Roberts. You've already said that he's worked to hold the Court together. He's an institutionalist. In the Obamacare decision, he invented, as far as I can tell, I think we've all been talked about this, he invented a rationale that permitted him to uphold Obamacare rather than overturn it, showing extreme deference to the chief executive. What would you say to Chief Justice Roberts, above all on the abortion case, but also on this New York state gun case, on the main free exercise of religion case? Do you say Mr Chief Justice do all you can to move this Court incrementally, go slowly, holding the country together falls to you or do you say Mr Chief Justice get the law right?
Richard Epstein: Well, my view is, if you say, get the law right, you'll hold the country together better than if you don't. So this is one of the kinds of situations I have taken on originalist grounds the view that one of the worst decisions ever written was Heller against Washington. I think he's just wrong,
Peter Robinson: Justice Scalia, reanimated, I think.
Richard Epstein: Yeah, I mean, the second amendment does not govern the district of Columbia. It's the simplest argument. Now we could explain it later, but now what's going on is you've got Heller. We're not going to overturn it. So the real question today is given the level of intermediate scrutiny demanded by Heller does the New York statute meet it. And the answer to that question is clearly no. So the question you always have to ask is how many layers back are you prepared to go. Go back one the statute is struck down. Go back two you have to undo Heller. And, I think Heller is as wrong in some sense as Plessy, not because it's terrible. I think it's just wrong, but I think it's much more commendable. And so you do that. The main decision, I think in effect, it is clearly unconstitutional to give public benefits to one side and not to the other. It becomes essentially a tax on one group to benefit the other group. But they say is taxpayers don't want to do one, but religious taxpayers have no desire to subsidize secular schools. So I think that case should come out the other way. Now, John is going to disagree with me on--
Peter Robinson: But Richard, on the larger question, you're going to case by case.
Richard Epstein: Yeah, but you have to do.
Peter Robinson: Well, hold on. The larger question is the Chief Justice's approach. Does it fall to him to hold the country together or should he, I can't quote the Latin, but the Latin, the famous phrase is--
Richard Epstein: De rebus extendibus.
Peter Robinson: No, that's not that I had.
John Yoo: Stare decisis.
Peter Robinson: That isn't even the one I had. Do justice till the heavens fall.
Richard Epstein: Fiat justitia ruat caelum.
Peter Robinson: Exactly, thank you.
John Yoo: I'm a little different than Richard. Richard said, do the right thing and that will hold the country together. I would say, just do the right thing. There's no way Chief Justice Roberts or any of the justices really know what the political consequences of their decisions have been. And when they have tried to hem and haw or moderate things, because they're worried about political consequences, sometimes you've been grievously disastrous. The best example is Dred Scott, right.
Richard Epstein: Coming out of both our mouths, right.
John Yoo: So Dred is a case where Chief Justice Taney thought he was going to head off the Civil War, that he was going to bring peace to the country by settling the slavery question once and for all or Plessy versus Ferguson, right, a case where the Court was sort of backing up the political views of the--
Richard Epstein: He's wrong on the history about Plessy.
Peter Robinson: I'm not interested in Plessy. This is the last question. We've gone for longer than an hour, which only because I'm indulging myself, I love this stuff.
John Yoo: What's wrong with you?
Peter Robinson: There were many connections to that one could be polled. So Richard you've dedicated your life to a more or less, you're not an originalist. You find it has its limitations. But the notion that the Warren Court was, set something in motion that needed to be corrected--
Richard Epstein: Was correct.
Peter Robinson: And now it looks as though it could be corrected.
Richard Epstein: But they make correct it in the wrong way.
Peter Robinson: You would call yourself an originalist.
John Yoo: Yeah, I would say I'm an originalist. And I would also say--
Peter Robinson: So are you saying terrific, for the next decade things are going to go right?
John Yoo: I think they're going to go better than they have for the last hundred years and--
Peter Robinson: Better than they have for the last hundred years.
John Yoo: Yeah, pretty much, since the New Deal. And the other thing is a lot of conservatives are actually already getting worried about the Court. They're already saying, was this all worth it. If the justices don't overturn Roe doesn't this mean the conservative movement failed. And I would just say, give the Court time. There's only been one, as you point out, this is really the first term with an originalist majority. Give it 10 years, give it 15 years. Let them go precedent by precedent, case by case. Don't expect them to restore the 18th century constitution in one year. It's going to take a long time to go back to the founding principles.
Richard Epstein: We don't want to restore the 18th century constitution. But let me mention to you.
John Yoo: We differ on that one. We differ on that.
Peter Robinson: The two most dubious decisions that are absolutely necessary for the survival of the nation are Marbury and Madison, which got it wrong.
John Yoo: See, we disagree on that too.
Richard Epstein: And Martin against Hunter's Lessee talking about appellate jurisdiction.
John Yoo: That case doesn't matter.
Richard Epstein: Oh it does, because--
Peter Robinson: Marbury is seven is
Richard Epstein: Is 1803.
John Yoo: 1803. The case that created judicial review or found it.
Richard Epstein: Found it and ambiguously so. And Martin versus Hunter Lessee is the question do the state courts have the last word on federal legislation, which is the way the doctrine was designed. That leads to a complete disintegration of the union.
Peter Robinson: The date?
Richard Epstein: The date is 1816.
John Yoo: You're giving it too much importance.
Richard Epstein: Well, this is what Holmes said about it. He said, we could live without Marbury v Madison, 'cause the federal government would still being charged. We could not live without Martin and Hunter's Lessee, because the decentralization of federal constitutional law across 60 state courts is essentially created an utter situation. That's what story?
John Yoo: It's another thing that Holmes was wrong about.
Richard Epstein: No, he was right about it. Story himself said the same thing. He's wrong on every piece of statutory interpretation. But his view is if I don't get this one, right, the patient falls apart. And he's like my daddy who told me a long time ago, and I'm happy to end on this note. He said, son, sometimes you have to rise above principle.
Peter Robinson: Richard, no.
John Yoo:What does that mean?
Peter Robinson: That is so contradictory to your entire approach that I cannot permit that to be the last word out of your mouth.
John Yoo: What does that even mean?
Richard Epstein: What it means is that when you're looking at this case, if you're an originalist, and you see Martin against Hunter's Lessee and you realize it's wrong, and what you do is your decentralize the review of every case to 50 state courts. It's the end of the nation.
John Yoo: No, it's not.
Richard Epstein: Oh, it most certainly is.
John Yoo: No, it's not.
Peter Robinson: Richard, one sentence, and I'm going to hold you to it. The Chief Justice of the United States is sitting right here, given all that we've discussed what advice do you have for him in one sentence?
Richard Epstein: Don't mess with established institutions that work. Do mess with established institutions that don't work.
Peter Robinson: That's it, that's your sentence. John?
John Yoo: Oh, no, that's actually pretty good, actually. I think I agree with Richard on that.
Peter Robinson: Richard Epstein and John Yoo on this moment of surely temporary agreement, we end the program. Thank you, gentlemen.
John Yoo: Thanks.
Peter Robinson: For Uncommon Knowledge, the Hoover institution and Fox Nation, I'm Peter Robinson.

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