“What’s going on at the Supreme Court is that not enough is going on”

“What’s going on at the Supreme Court is that not enough is going on”

I appeared on the I’m Right with Jesse Kelly on May 21. I’ve been on the show many times, and it’s always good to come back on.

The topic was mostly the Supreme Court and what John Robert’s doesn’t seem to understand. Towards the end I answered the question: DEI, are we gonna go get a win there?

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(Transcript auto-generated, may contain transcription errors, lightly edited for transcript clarity)

Kelly (00:05):

The Supreme Court is an odd duck for those of us who aren’t legal experts like Bill Jacobson is. They’re always hearing things. They’re about to make a decision. We’ve made a decision, but you don’t know the decision yet. There’s a lot going on at the Supreme Court and a lot of it matters and not all of it gets headlines. So I thought maybe we should talk to Bill Jacobson about what exactly is going on and why we should care.

Joining me now, founder of Legal Insurrection, which I’ve always loved, professor at Cornell, William Jacobson. Bill, what’s going on at the Supreme Court that I should know about that I don’t know about?

WAJ (00:40):

Well, I think there’s a little bit of inertia, which is not good. They really have not done the job. They need to crack down on some district courts that have gone off track, that have exceeded their powers under separation of powers and have really involved themselves too heavily in running the executive branch. So I think that’s the main problem. What’s going on at the Supreme Court is that not enough is going on.

They have heard some arguments in some cases and issued some stays, but the massive onslaught, and your viewers probably know, but they may not know the magnitude of it. There are at least 300 cases that have been filed against the Trump administration. That’s the last count I saw. And it’s probably higher. I think it’s probably closer to 400. And this is part of a coordinated effort to disrupt the Executive branch, to disrupt Trump 2.0. And unfortunately the Supreme Court has not gotten a handle on it.

Kelly (01:41):

Okay, so you say this is a coordinated effort. Very clearly the Democrats are trying to flood the zone. So what should the Supreme Court have already done or be doing as we speak, that they’re not doing

WAJ (01:54):

Well, the first thing they need to do is send a message to the district court judges. I mean, Chief Justice Roberts has not hesitated to criticize, maybe not by name, but everybody knows who he’s talking about, but criticize Trump, criticize Trump supporters who’ve complained about what’s happening in the courts. So he doesn’t hesitate to lash out.

But why hasn’t he gotten on TV like he’s done when he criticizes the Trump administration and said the District court judges need to get in line. They need to pay attention to things like their own jurisdiction. They need to pay attention to venue, if you are even in the right court. They need to pay attention to the privilege that the executive branch has to run the executive branch. He could use the bully pulpit to get the District court judges in line, much like he’s tried to use the bully pulpit to get the Trump administration in line.

So that’s one thing they could do.

The second thing they could do is be more receptive to stay applications by the government. A stay application is where a district court judge does something that administration believes is improper and then you have to go to the appeals court and then you have to go to the Supreme Court. And they have not been quick to rule on those. They have done a little bit, but they should have done more earlier.

So the Supreme Court needs to send messages to district court judges that when you are usurping the power of the executive branch, when you are disrespecting our constitutional structure, when you are exceeding your own jurisdiction and authority, that the Supreme Court is going to step in very quickly.

Now, Chief Justice Roberts made a statement fairly early on in this administration that people need to let the process work, they need to let the appeals process work. The problem with that is district court judges, mostly in five judicial districts by the way, have issued what’s called temporary restraining orders, which are very hard to appeal. They’re generally not appealable. And so what that does is that creates anywhere from two to four, two to six weeks of disruption of the executive branch before they can even get something before either an appeals court or the Supreme Court. So this is a situation which in many ways is out of control.

Getting back to what the organized effort to flood the zone, as you say, the New York Times of all places reported in late November of last year that Democrats had organized an army of 800 lawyers with a huge bank of money to fund it, over 40 organizations, to flood the administration.

They’ve decided that since they lost the election, they’re therefore going to use the court system to try to prevent the president from being president.

So this is all coordinated. The Supreme Court knows it’s coordinated. They can read the New York Times, just like I can read the New York Times. I don’t frequently read it, but I did read that. And they know what’s going on and they need to get a handle on it because at the end of last year, trust in the judiciary was at the lowest point in history. The judiciary really has the trust of people and its reputation and respect for the system. They don’t have an army. They don’t have the ability to enforce anything other than people obeying them.

And they really need to consider, John Roberts needs to consider, whether the inaction from the Supreme Court is so destroying the legitimacy of the court system that in trying to preserve the court and try to keep it out of politics, he’s actually putting it into politics.

Kelly (05:43):

So Bill, I’m going to ask you something that I probably shouldn’t even ask ’cause we’re venturing outside of the realm of what is legal and what is the law, what is precedent and things like that. But why? John Roberts is not a fool as much as I may dislike the man, like you said, he reads the New York Times, I promise he wakes up in the morning like the rest of us do, and he looks at his phone and he reads stories. He knows what you just said is true. In the short term, they may feel high and mighty, but in the long term he’s destroying the legitimacy of the court. We’re going to go into a dark place as a country ’cause the next Republican nominee’s gonna run on arresting Supreme Court justices and he is gonna win the nomination <laugh>. So why can’t he see it?

WAJ (06:25):

I don’t know. But that’s really been his history that you can go back probably further than the Obamacare ruling. But let’s start at the Obamacare ruling, I think it was 2012, where reports were that he flipped his vote because of the pressure from the Democrats. Barack Obama went public with saying that the legitimacy of the court will be destroyed if he strikes down Obamacare. And reports were that Roberts shifted because he didn’t want to put the court in a position that it was running up against a major Democrat president, popular, and so that has kind of been his role, is that he thinks by doing nothing, he keeps the court out of it. I can’t explain why he doesn’t see what’s going on, but it’s pretty clear he doesn’t see the bigger picture here.

Kelly (07:18):

Alright, let’s focus on something decent. DEI, are we gonna go get a win there?

WAJ (07:24):

We are winning, but it’s going to be a long-term effort.

The one thing I always try to emphasize to people is that DEI, the racialization of everything, mostly we talk about it in terms of education, but it’s in companies now. It’s in government now, but the racialization of everything is so deeply embedded in the culture and so supported by a bureaucracy that’s embedded in companies, usually the HR department, it’s embedded in universities almost everywhere, that it’s not going go away just because Trump signed some executive orders. His executive orders have been extremely important and extremely impactful. He has seriously disrupted billions of dollars flowing not just to the bureaucracy that supports DEI, but to the consultant class that supports DEI.

I don’t think we really realized, and I’ve been working in this area for a decade, I don’t think I fully realized how much of the DEI industry was funded by the federal government, by the Department of Education, by USAID, by other agencies.

And a lot of that is being terminated. A lot of it will not be renewed. And that’s hugely impactful.

So at many levels what the Trump administration has done is putting us on the path to victory against DEI. But it’s not a path that’s going to be a year or two years. I’m not even sure victory can be achieved in one Trump term. Now, whether there’s a third Trump term, saying that jokingly of course, or whether it’s Vance or whether whoever it happens to be, if you put back to back four year terms and they keep up the fight against DEI and they cut off the funding and they eliminate the job market within government for these sort of careers, I think it will have a profound impact.

But nobody should think that it’s over and just because there have been some early victories that they’re going to to win. As somebody who works in higher ed at Cornell, Cornell Law School, I can tell you the DEI culture is deeply embedded everywhere in the university. And it is the one thing they will never give up if they have any choice.

So it’s going to be a long slog, but I think the Trump administration is on the right track.

Kelly (09:52):

See, we ended up on a positive note. Everybody. Bill, as always, I appreciate you very much. Thank you, sir.

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