What Does Peak Fascism Look Like?

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for my next." [Music] Hello and welcome back to strict scrutiny. Your podcast about the Supreme Court and the legal culture that surrounds it. I'm your lone regular host for today, The Elimin, and I'm very happy

“to be joined by guest hosts Somal Trevetti. Somal is the advocacy director and senior counsel at”

Court Accountability, whose work will be talking about some on this episode. He's also worked previously at Democracy Forward, ACLU, Maryland Legal Aid, DOJ, and Wilmer Hale. Welcome to the show, Somal. Hey, thanks for having me, Leah. Happy near end of summer. Near end of summer, which I cannot mentally get around to given that school starts today. The day this episode is released. What a world. Okay, so wow, I already started out kind of somewhat

a week at the top of this episode. We haven't even got the legal news yet. No, I'm excited

for the school year. I did after I'll choose to stay in school forever. But um, so here's what

we haven't store for you today. Somal and I are going to discuss some legal news, maybe even play little game or two, then we'll share our favorite things. After our conversation, you'll hear a great conversation that Melissa had with Jesse Wegman about Jesse's great new book, The Lost Founder, James Wilson, and The Forgotten Fight for People's Constitution. So be sure to stay tuned for that. And also, this isn't the only episode of strict scrutiny this week. The Thursday you will have

your second episode that's part of our bonus series. Know your rights. Two weeks ago, I had a conversation with Jocelyn Simonson about knowing your rights regarding copwatching to observe and record law enforcement. This week, you'll hear Melissa and me talking with Daniel Harawa about your rights not to respond to law enforcement officers. So be sure to listen in for that. But first the news, I'm thinking about shortening this transition or name of the segment just to the use as in

Yucky, like emphasizing that you in news going forward. Anyways, this is the mindset I am in. So apologies for all of the puns that might fall your way. But someone that you're going to talk about several developments that at least mentally I've grouped into a few categories. Straight up fascism. Also efforts to fight back against said fascism. So little uplifting. Then corruption that is adjacent to and probably enables said fascism. And then rising Christian nationalism as a cherry

on top. As always, it's going to be a great time. Yeah, I'm glad that some of that will be news

you can use. I'm glad you're into the rhyming and puns as well. So with that, maybe let's just start with the straight up fascism and the freaks that are into it. And when I say fascist freaks, you say what? Harmeet. As in Harmeet, you are hose Dylan. The assistant attorney general for civil rights or as Melissa would say civil wrongs. Anyways, assistant attorney general, you are hose. Announce that DOJ civil rights division will be sending around 1,000 election

monitors around the country as you can hear here. In and out since the 1957 the United States Department of Justice Civil Rights Division has sent monitors to election hotspots polling places to increase voter confidence to troubleshoot problems. And we were doing that now. We just

in the November election. So what are your thoughts? They're just doing like the Linden

“Johnson and other administrations did sending election monitors to the south, right?”

Yeah, exactly. You know, later on in that clip, she goes on to say all the people she's going to target with the new election monitors and turns out none of them are black people in the south or people in rural areas who have been disenfranchised, right? It is the same laundry list of scapegoats immigrants on down that they are going to try to intimidate. And in case you didn't believe her, her boss Todd Blanche keeps saying out loud to in front of every camera. What's

so weird about sending ice to polling places? Well, first of all, Todd, the law says that you can't

do that. You're the one charged with enforcing the law in this country. You probably ought to know that. And of course, their big boss, the president, has said at every possible turn the Republican should simply try to rig elections for themselves. He's messing with male balladning. He's doing it cycle redistricting like nobody believes that this is the kind of civil rights era monitoring

“that previous administrations have done. Get out of here. Yeah. And, you know, as she notes,”

they did send election monitors during the midterms. And so on some level, this isn't like escalation thousand time to panic. But it is something that people should be aware of going into November. It is designed to depress turnout. It shouldn't be allowed to depress turnout. And so maybe this is a great moment for the kind of collective stubbornness that Kate Amie and Julia talked about in their discussion on on courage, where we all kind of share this

information as well as what to do about it. Yeah. That's right. We can't let them scare us out of voting. Voting is still safe and effective in this country. And if you're nervous, let's make a plan together. You know, vote early, vote by mail and vote early. If you can go in a group, go in a group. If you're a vet or a priest or a lawyer or somebody else who the administration doesn't

want to see rough up on TV, take a group of people. There's actually an amazing effort called

Project Halo going on. That's recruiting community leaders, faith leaders, vets, et cetera, to be shaperones to the polls for other people who may not be in the same position. And so the pro-democracy movement has at every turn like stepped up to the plate to combat these fascist straight up fascist attempts by the government. And this will be no different. So if you are seeing this in the news and you're a little bit scared, believe me there resources out there for you.

Yeah. And I just add other opportunities you can volunteer for our election observers or poll monitors or you know, challengers because if you stay and observe, right, you can identify if and when there's any federal law enforcement overreach or intimidation. Exactly. Yeah.

“So in what I think is peak fascism and peak fascism, that was enabled by this Supreme Court”

in one of the absolute worst decisions, not from this most recent term, but from the last, we learned more about the so-called third country removals that the administration is still carrying out. Third country removals, you might recall, are where the administration expels people to countries they may have no connection to. And of course the administration picks countries with horrific prisons and where people face risks of torture, violence being

trafficked into slavery or death. Now a lower court had blocked the removals only to require the government to allow individuals to challenge whether the government could in fact send them to one of these places where they faced these grave risks before the government sent them there. But the U.S. Supreme Court said no administration can just go ahead and ship people off

with no due process. Now, the New York Times managed through incredible reporting to actually

speak to some of the people who were shipped off to these third countries here specifically to Eswetani, where they are now incarcerated with little to no sign of how or whether they might ever be released. People need to read this story in its entirety, but I just want to give people a taste and highlight some of the things that have stuck with me. So the story primarily features a man who arrived in the United States news 12 as part of the Mariel Boat Lift from Cuba,

and the story begins, quote, as he stepped out of the American military cargo plane, Roberto Mascara still couldn't tell where he was or why he had been taken there. This man is 59 years old. He was arrested when he went to a regular immigration check-in to renew a work permit, who is forced inside a metal cage. While in prison in Eswetani, he developed glaucoma, losing half his vision in one eye and 80% in the U.S., he struggled to

receive treatment. When the New York Times first spoke to him on this WhatsApp video, he said, quote, "Can I ask you a question? Do you think I'll ever get out of here?" So I just routed off like a ton of details, like, "What stuck to you from that story?" Yeah, so a couple things. One, sometimes we can get lost in the cruelty of this administration,

and we just cannot, cannot, cannot forget the moral and legal cruelty that they're visiting on people.

“Second, I want to read up your point about the Supreme Court. Their decision on the shadow”

docket in DVD is what allowed this to happen for my money, probably the most disgusting use of the shadow docket that we've seen so far, because people like Roberto Mascaro were given literally no ability to challenge their removal before they were taken off to places like El Salvador and

C-Cott, or S-Watini, or where have you, and this blood is on the Supreme Court's hands. And third,

I want to focus on a bit of a wonky detail, but one that keeps coming up, and I want folks to know about it. Mascaro is from Florida, right? He was part of the Cuban boat lift he lived in Miami, but he was taken to Texas first. Just like Kilmarburg, Oresia was taken from Maryland to Texas, and Badar card, and Suri, the Georgetown professor, was taken to Texas, and so many of the alien entities that detainees, right? We're taken from the Northeast to Texas before they were flown out of

the country. Now, why is that? Why is it that the DOJ wants to make damn sure that the last

“place that these people are are in Texas? Could it be because of the favorable judges there?”

Could it be because of the bloodthirsty fifth circuit? And that's where they will have their day in court if they ever have it. I think this is a piece of law fair that we're not paying enough attention to and something that needs to absolutely be fixed. Some of these defendants have been able to be moved back to their home jurisdictions, and that will hasn't worked, but in some cases it will, and it should be absolutely illegal. Yeah, it's the perfect encapsulation of how

the stakes of these technical issues like venue or jurisdiction, right, or anything, but and also when we talk about the stakes of, for example, blue slips, and being able to nominate judges, yes. What has happened to the fifth circuit in Texas is so much a part of that story, and it has enabled some of these absolutely horrific 100%. Yeah, abuses. Just one other detail from the story, you know, for a Supreme Court that supposedly cares about religious freedom

and religious exercise, you know, another detainee that the time spoke to is Muslim. And he describes how guards blasted Christian music through speakers and ordered the men to stand outside and pray, and that this man is terrified, he will die in a Christian country and will not receive a proper

“burial. And as I was saying, you have to read this piece to understand what's being done in our names,”

and the stakes of all of these decisions when you hear people, both sides are trying to equate the parties, like, look, democratic party. I could list a trillion things they could be doing better, and they're not doing this. And, you know, the time's reported that Liberia agreed to take more than 1,000 additional people who were going to be expelled, so these third country removals are still happening and may even accelerate. Oh, yeah. Oh, yeah. They have cart blanch right now.

It's a risk. Yeah, cart blanch, Todd Blanch, as we said. So in more fascism, no transition here, I'm not Melissa, but wanted to talk a little bit about the efforts to fight back against fascism. There were some recently filed lawsuits that we wanted to discuss. And one is Disney. And Disney's subsidiary ABC lawsuit against a federal communications commission. That lawsuit argues that the FCC's review of Disney's broadcast licenses, essentially the licenses were Disney to distribute

its material across a ton of networks, that the FCC's review of those licenses is an unconstitutional retaliation against the company that violates the first amendment, because it's being done in response

to content and views that ABC had broadcast. Welcome to the resistance, Minnie Mouse. I always knew

she had it in her. So the lawsuit was filed by former Republicans, Mr. General Paul Clement. So I'll ask you for your reaction. First, since I've been talking for a while, but there's a lot about this lawsuit that I feel like is worth flagging. Yeah, I mean, I definitely want a constitutional law professor's take on the first amendment issues here. But I will say from the point of view of the resistance and Minnie being welcomed in, I know a lot of people will want to

say screw these guys. They capitulated early on. They paid blood money, right? They almost cancel Jimmy Kimmel until a bunch of us moms and dads canceled our Disney plus subscriptions and then they magically brought Jimmy Kimmel back. I get that. I get the like the instinct. But for me,

it's never too late to do the right thing. Yes. The tent is large. If folks, especially the most

powerful folks in the world, like the owners of Disney and ABC want to finally come around and realize that it's bad for business and bad for humanity for you to continually capitulate. And if you finally realized that no amount of lunch money is going to satisfy these fascists, great. Like the water and splash mountain is warm. Come on. I think the other the other point I

Like re-litigating the whole thing. We're putting the hair shirt back on and like flogging ourselves,

but like mute, mute, mute, right? Not like like first of all woke one was largely about

“holding like sexual abusers and racialized police violence accountable. And I think we might have”

gotten that part right because we have a sexual abuser unleashing police violence on the country. So like it wasn't all bad. And second, I know this is like an easy take. But where are the council culture warriors, right? You were told that the major overreach of woke one was that you couldn't say anything anymore. And the government or the mob would shut you down. And now we have the FCC actually shutting people down. Like where you at Barrywise, where you at Matt Taibi,

where are all of the motherfuckers? Well, and also like look around the world. You think our problem is that woke one went too far. The Supreme Court just said that the president's vile racist mirrors of Haitian nationals were not overtly racial. So, yes, tell me more about how woke one went too far. But since you asked with a common law professor's take on this lawsuit,

“I would say that the major lesson here is a life lesson. And that is always listen to fucking”

stringer bow when he says do not take notes on a motherfucking conspiracy. Because this lawsuit just uses the president's words against him to establish the retaliatory motive and similarly with the

words of FCC commissioner Brendan Carr. So, the third paragraph in the complaint is a truth post

from Trump that says if not work newscasts and their late night shows are almost 100% negative to president Donald J. Trump Maga. And the Republican Party shouldn't their very valuable broadcast licenses be terminated? I say yes in all caps. This is as we say in the biz OMG, he admitted. Like just saying, should I do this unconstitutional thing for the very reason that would make it unconstitutional. And then you add to that the Brendan Carr quotes in two paragraphs down,

where he's talking about Jimmy Kimmel and says we can do this the easy way or the hard way, just making clear, they're operating a mob style government threatening broadcast licenses when they don't like what these networks say. It's just utter insanity. Yeah, you wouldn't even bother giving this as a final in your class. Like the kids wouldn't even need to use AI to answer. It's just too easy. Yeah, I know. I know. Now, if you're interested in hearing more of

life's legal lessons, like always listen to Stranger Bell, may I remind you that Strick

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file lawsuit concerned something we've talked about on the show before, and that's Minnesota's efforts to try to ensure some accountability for the lawlessness that resulted in the shootings and killings of Minnesota's during Operation Metropolitan Surge earlier this year. So we had Mary Morganardy who's County Attorney for Hennep and County on the show to talk about Minnesota's efforts to protect their citizens in the fight against federal overreach. And yes, that is a hat to

up to the name of their great organization FAAO that she co-founded, but Minnesota has charged a former ice agent with unlawfully firing a gun into an occupied home, hitting Julio Sassar, Sasselis who he then the officer then falsely accused of attacking a federal officer with a broom handle. Now the former ice agent, Christian Castro, is currently in state custody in Texas and Texas being Texas is refusing to sign a warrant extraditing him to Minnesota, sending him to

Minnesota until Minnesota, quote, steps up and repays the United States of America and Americans for all the fraud that they've committed in their state through federal programs. Womp, womp. This is just bullshit and noise. Governors don't have authority to refuse to honor a valid interstate extradition request, but it seems like the game here is to run out the clock because Texas's law which implements a federal law and extradition authorizes a court to place in custody, someone

who's been arrested on an out-of-state charge and extend their time and custody but only up to 90 days. And at that point, proof the detention authorization just goes away. So Castro was arrested May 29th, which means the 90 days, the detention commitment could expire on Wednesday, the 27th. Minnesota has sued Abbott to force him to comply with the extradition rules. They've also sought

Castro once released might flee to Mexico where there is no state extradition law and also it seems like he might have a girlfriend in Mexico according to the complaint. But I'm at least like really concerned about gamesmanship here where, you know, it's in the Texas district courts, which as we were saying in the fifth circuit, like are those courts just going to sit on it and allow this to kind of disappear under cover of night. Like, I guess what are you watching for

or hoping or thinking will happen? Yeah. So first, I want to point out just how obviously

illegal it is for Abbott to refuse to send him. Like, it's not just statutory law. It's in the Constitution. We have an extradition clause of the Constitution. Fun fact, it happens to be next to the one about fugitive slaves. So like, it's a real dichotomy of America situation, but in any case, we have an extradition clause. A mandatory extradition clause in the Constitution. We have federal law. We have state law. We have, you know, administrative law. All of it being violated here.

“Keith Ellison is pointing that out very clearly in his motion and you're right. The only thing”

that the court could do here. The court's in Texas could do is let the clock run out and I worry that that's exactly what's going to happen. And, you know, two other points. One, do we want to live this way? Like, do we want to have states using the criminal justice system to make political points? Like, you know, hot murder, Luigi Manjoni was just extradited from Pennsylvania to New York. Like, what if all of a sudden the governor of Pennsylvania decided we're not going to do that anymore

because I want to make a point about health care costs or whatever. We would have total lawlessness and anarchy across the country, which obviously Greg Abbott doesn't care about, but the rest of you definitely should, including people in Texas if this guy gets out. He's on the land in Texas

for a while and he's always going to be shooting into your homes. Exactly. Exactly. So all these people

who cry on about law and order and about public safety and how they're the party of it,

“just look at this example of how they're harboring a criminal or an alleged criminal”

for the purpose of making a political point. And second, I just want to end on another hopeful note here, much like Harvey Dylan's going to send her election monitors and we're going to step up and keep the elections safe. Local and state officials who are facing ice violence by the federal government have options to fight back and Mary Moriarty and Keith Ellison are doing it. And of course, they're going to face an uphill battle with shenanigans like this and in the law itself,

but not doing anything is not an option. And I really hope that local and state officials all over the country, red or blue states doesn't matter, stand up for their own constituents and start filing these cases, ice is committing crimes in every state in the union. This could happen anywhere. And so I really hope that they see that it's not impossible. The law does support them and they go out and do it. Yeah. And it seems like at least to me what Texas is doing here

“is something that in my mind, I am thinking of as aiding and abetting federalism because, you know,”

we all see how obviously federalism interests and who cares about federalism change a little bit when we're talking about partisan violence. But here we have a pretty simple case of a state attempting to enforce a state law when federal law enforcement officers are harming their constituents. So apparently another state steps in to try to help the federal government and federal officers maintain no accountability and immunity from, you know, accountability to a state. It's just

all kinds of fucked up federalism. Again, that's right. And to like put a fine point on it, Texas has no problems saying trying to invalidate the votes of other states like they didn't 2040. They have no problem like investigating women who get abortions in other states. Right. In those instances, the other states can go kick rocks. But now that Minnesota's trying to make its interest known in Texas, they won't let them. That's very convenient for Greg Abbott. Yeah. And Greg Abbott

has been processing other extradition requests from Minnesota. Right. Like this is, as you were saying, just like pure politics and just absurdity at that. So since we're talking about lawsuits involving my home states, I did want to talk about another one that is near to me because of concerns my current home state Michigan. So I have ranted on this podcast before about how this administration has nominated to a lifetime federal judge ship, a U.S. attorney, who allegedly, among other

things, was involved in the firing of career federal prosecutors, who had the audacity to enforce the law. Specifically, a law, the administration doesn't like the face act. The free access to clinic entrances act, which makes it a federal crime to obstruct people entering healthcare clinics including abortion providers. The lawsuit was filed by Sunita Dottamani. It alleges she was fired

for her perceived political affiliation beliefs and violation of the first amendment and the Civil

Service Reform Act among other laws because she had worked on this prosecution. What are remind people that both of the ostensibly democratic senators in Michigan returned, a blue slip

by being involved in the firing of this career prosecutor and perhaps others as well.

“The firing notice itself was issued by attorney general Todd Blanch under article two because”

of course it was. But, you know, the prosecutor had worked on prosecutions against those who plotted to kidnap Michigan governor Gretchen Whitmer. And the complaint lays out, you know, the Trump administration's anti-face act campaign and actions. But it's a super compelling document and I hope this keeps the retaliation campaign in the news and maybe even prompts you rethinking of returning a blue slip against a guy who may have been involved in all of this.

Yeah, it's another heartbreaking story about like public servants being fired for their jobs. Right. We went through this with the January 6 prosecutors. We went through it with the FBI agents. Right. And this is yet another one. And so I totally agree we should keep it in the news.

Second, the motherfucking blue slips. I mean, like, you know, we talk a lot about court reform

in our spaces and the low hanging fruit, right? Term limits, it's the lowest, we can do it

“today. We did, you know, stop eating and abetting fascism by ending this practice today.”

There's another horrific story out of Illinois about a judge who got a blue slip from Senator Dick Durbin and then went and provided the only win that the administration has had in these cases trying to get rid of in-state tuition for undocumented papers. It's a long story, but they've been basically achieving their policy goals through collusive settlements, right, with like friendly folks on both sides that are illegal in their own right. But in this case, this judge handed them

an out-and-out win on the merits. And it was a blue slip, a judge from from our side of the aisle. And I just don't understand how, like, when we're going to get the message that these, these judges are just henchmen for the apocalypse. And we need to stop like paving the way for them. Right. And I understand the argument is, well, if I don't return the blue slip, then they're just not going to ask for a blue slip and the practice is going to be gone. But it's like, okay, but

they're just getting your permission to confront your selection, denying people who are destroying the civil service. And so, you're just giving them permission to do that. I just don't

understand why you think that's better. Because that'll finally make the scales fall from their eyes

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that's a nice transition into our corruption section, because good occasion has ever to remind people that now a attorney general, Todd Cartplanch, offered this assurance when he was pressed about the prospect of him doing illegal shit at the Department of Justice at Donald Trump's

direction. Can you pledge that the Justice Department will always act independently of the White

House? Well, there's a big difference between saying we will always do our job and investigate any case and act independently of the White House. No, I'm not going to pledge that. I know a attorney general should ever pledge that. If I were to pledge, I will be independent of the White House. What that means is that if President Trump says, "I want the Department of Justice to go after every violent criminal in this country," which is what he has said, "What you're

saying to me is, I just said, no sir, I'm not going to do it." So, I will act with integrity. Our prosecutors will act with integrity. We will prosecute without fear or any sort of favor,

“and that's exactly what we've been doing, and that's what every Department of Justice should do.”

Well, I guess the big picture of the President asks you to do something that you feel

crosses an ethical or legal line. Would you do it? The President will never ask me to do something

unethical or illegal. Or illegal. He never has. He never will. I can hear Sam Alito being like, well, he didn't ask me to do anything overtly illegal. But, you know, the lesson we just talked about them on challenging the firing of the career prosecutor, or led just one illegal action, and Blanche couldn't even keep himself from doing more illegal shit during his first week on the job. Because here is the corruption on top of the fascism, Todd Blanche at a fucking campaign event.

We just heard from our great NASA County executive Bruce Blakeman, who is doing everything we need him to do, to back the blue, to support law enforcement, and to make this county, and to make this county a safe county that we can all raise our kids in. So, why is this illegal? Why can't the attorney general be going around to campaign events? First of all, it should be illegal because of the utter lack of charisma that Todd Blanche is bringing to that campaign stage. I mean,

I don't know if you just cost his voice over there. No, or not. That's right. Second. Okay, so we have this thing called the Hatch Act that bars certain people in the government from campaigning. Politically, the obvious reason for that is because once you're part of our government,

“you should be working for everybody and not just one political party. Quaint, I know,”

but we used to have a government that operated on rules like that. And the nitty-gritty of it is that Todd Blanche is almost certainly a further restricted person under that act, which means he can't engage in political activity of any kind, which obviously he was doing there. And even if he were not in that higher tier of restriction, he couldn't do it when he was on duty and what we didn't show in that clip was that he was actually announced in his official capacity.

This was during work hours in the middle of the day, maybe they buried him not in prime time for a reason. But all of that also speaks to the fact that he was doing it while on duty. So this is illegal in a million ways. Now, public citizen, like one of our fantastic pro-democracy organizations in the United States, if you don't know them, look them up, filed this complaint, they're going to face an uphill battle. There's just no way around that. The internal HR systems in the government,

the Office of Special Counsel in the Merit Systems Protection Board, our budget. That's right. They've been gutted in their personnel, they've been gutted in their budget, and their subject to the slaughter case, so that if anybody even tries to bring a hatchet complaint

“or substantiate their hatchet complaint, they'll be fired anyway. However, does that make it not worthwhile?”

Not at all. We need to like, seed the historical record with all of this illegality, all of this wrongdoing every time it happens, because we're going to get power back one day, and we're going to need to not memory-hole all this stuff. And what might seem like a minor appearance at a campaign rally, a week from now when the news cycle moves on, is not. It was illegal, and we need to hold them accountable for it. Yeah. So as ever, the corruption isn't just an article

too. We also had some news-eitems that kind of tied it to Article 3 as well, and that's the

little game, who listeners, is the wealthiest Supreme Court justice? Some of you probably know but want to venture, I guess. John G. Roberts. Correct. So Forbes has suggested it's a chief

with some wealth estimated around $25 million, although that was back in 2024. Okay. How about

listeners? Who do you think is the second wealthiest justice, or likely wealthiest justice, according to

“Ford? Some of your organization actually did an analysis of this. Do you want to explain?”

Yeah. I think it's Sam Alito. And I'll tell you why. So my organization has a sister wing called Trunor 3 Search, and they do some of the most cutting-edge investigative research and reporting, especially on the Supreme Court. If you remember the Clarence Thomas RV stories and the earlier stories about Sam Alito and other corruption on the Supreme Court, that was our folks, had tip, and shout out to my peeps. And they just did yet another blockbuster investigative piece

about Sam Alito's investments in the oil and gas industry, noting that he's probably made up

to $2.9 million million in oil and gas holdings over his tenure at the Supreme Court.

Now, why is this a problem? Obviously Sam Alito decides cases that impact the oil and gas industry

“including a major case coming up this term called Suncore, which will decide whether states and”

localities, in this case Colorado, can sue fossil fuel companies for the harms that they're doing to the environment including in their states. Now, it doesn't take a lawyer or an ethics expert to know that Sam Alito is going to have proclivities toward the industry that made him a multimillionaire. And so he is at the very best, scurting the ethics laws that apply to him and refusing to refuse from this case where any person on the street can see his conflicts of interest here.

And I'll also point out that it was Sam Alito in the pages of the Wall Street Journal, who said a couple years ago that the Congress cannot regulate the Supreme Court period. This is him yet again, thumbing his nose at anybody who would dare regulate this oracle of the Supreme Court. He could make money any way he damn well pleases and he can decide in any cases he damn well pleases. Yeah, and just on big oil at the court, you know, something else that kind of

came out this week is that the American legislative exchange council at their annual meeting, they're kind of like a right wing legislative group. So, at the meeting, they were kind of discussing

by having a right wing Supreme Court is crucial for protecting oil companies from among other

things climate losses. So, one of the speakers at the meeting was a partner to firm that's unsurprisingly received millions of dollars from Leonard Leo's network said big oil really benefits from having the court in its pocket. Like that's a paraphrase, but the quote is disagree. Right, like, if we had a different Supreme Court, this would be a very different presentation. A good reminder

“of how close we are to really catastrophic outcomes. And it's like, again, did he just admit it?”

Right, like, yeah, we agree. Right, like big oil does really benefit from having the Supreme Court. Like, what else do we need to say? Yeah, stringer bell yet again. She says mother fucking head. Yeah, I mean, so the justice as you mentioned, Roberts, Alito, Gorsuch's way up there on the net worth list. All of them have, of course, been huge capos for big oil. And, you know, it takes me back to like 2016 when the court was deciding the clean power plan. Right? And this is

a little bit of a throwback, but bear with me. And the New York Times had that blockbuster reporting about how on these secret memos, John Roberts, multi-millionaire John Roberts, was saying that the clean power plan had to be emergency stopped because not because the plaintiff said, or the big oil had met their burden, not because we had heard anything on the merits, but because it would hurt the oil industry. Literally, he said it out loud, speaking yet again

of stringer bell. He wrote it down in a memo that he was basically inventing the shadow docket in the winter of 2016 in order to save big oil. Neil Gorsuch, we know, has been out for big oil his entire life, avenging the wrongs to his mom, right? And, you know, writing opinions that are actually the predecessor to Suncor, the BP case, which allowed these cases about fossil fuel accountability to be removed to federal court. So all of these guys are so deep in big oil's

Yeah. Also, the quote from Alec is like the perfect encapsulation of the victimization complex,

“like their winning. They have shaped an entire docket and yet they're working themselves into a”

frenzy about how they're on the verge of a catastrophe. It's just insane, right? Like not the catastrophe, my guys. You're up six three and you're going to be until 265 if we don't do anything about it. Exactly. And like I agree, that is a catastrophe, but not the one you have in mind. So one last question for listeners playing along with the game. This one might be the easiest, and that is, who has received the most grift, I mean gifts, while on the Supreme Court.

No points for this one. Fix the courts analysis has indeed confirmed it is Clarence Thomas,

who has received over four million dollars in gifts while on the Supreme Court quite the job

perk. I have to say. Yeah. I'll take the RV. Exactly. I'll take the like PJ trips or the life size Hagrid Hut, or, we're also like special milkshake machines or something like malt machines. Those also sounded good. Yeah, he's got to up his grift game. These are like a weird set of things to put in your trophy case. Indeed, indeed. So one final entry in the Corruption Court complex, and it's kind of an entry that is developing unfolding TBD, and that's we are currently

awaiting the Supreme Court's action. On the federal governments, Shattered Market Application request to block lower court decisions that had halted the president's continued demolition

“of the White House and construction of a fucking ballroom. So one, he says is essential both for”

throwing a good party and for national security, really, two birds, one stone here. Now, as we had explained on the previous episode, a district court blocked the continued construction, the U.S. Court appeals for the DC Circuit, left that decision in place over a descent by a

Trump appointee, auditioning real hard. And now the federal government has as always run off to

Daddy's go to us on the Shattered Market and asks the Supreme Court to stay the lower court's injunction. The DC Circuit had given the administration a temporary stay, so allowing the construction to continue i.e. wait for this injunction, telling them no more construction to go into place in order to allow the federal government to see review at the Supreme Court. But that temporary stay expires Friday. The day we are recording. And already, the administration is chomping at the

bit and sending like warning shots to the court that they're going to do what they're going to do as you can hear here. So, unless the Supreme Court acts today, that stay, that construction injunction will remain in place. We hope that will not be the case. And I don't want to get in front of the president on this, but I do know that other options are, in fact, being considered because the president has committed to the completion of this project. I mean, like the Supreme

Court produce this, you know, like they have enabled this lawlessness and the threats by rewarding

the administration's defiance of lower court orders. I know this is always hazardous. I'll share

my guess first about what the court is going to do unless you want to share yours. Do you want me to

“go for us or to want to do? Okay, so I think the court is probably going to grant the government's”

application and block the lower court orders. I'm not super confident about this. But my guess is they are going to use this case to limit the ability of plaintiffs to challenge government action on environmental grounds. And specifically, you know, for plaintiffs to argue that, you know, any federal government project is harming your neighboring lands or species or whatnot. And so, I think that that's probably the direction that they are going to go again because they just, they're so fucking

thirsty for King Trump and his ballroom. Yeah, that's right. And I'll take your parlay because there's also this totally fake national security element that they've crafted onto it. And this Supreme Court loves nothing more than to bootstrap terrible argument onto a national security argument and they make them good and polish that turn. Right. And so and the supreme and the administration has gotten wise to this, right? Literally everything they're doing can arguably have

a national security valence and the Supreme Court has just given up or I mean, willfully given up on parsing the real ones from the contextual ones. And so even though this is obviously a vanity project so we can throw himself parties and leave himself a structural legacy in DC, he'll carve like a little bunker for him and Natalie in the bottom of it, call it national security. And that'll be enough to get him to stay. I think fingers crossed no, but I think. And of course, literally as we

that has the effect of allowing the administration to continue the demolition and the construction

“until the full court says more. And I take it that this administrative state is a sign of”

what the full court is going to do. So believe me, Natalie, as they say, don't worry, we're going to get to the Natalie game. But now for the last segment, which, you know, as I kind of suggested, is the healthy dose of Christian nationalism that we are being fed on top of fascism and corruption. And for this segment, we will start with a pretty horrifying development out of the nine circuit, which is supposed to be some great, big liberal bastion. But by a two-to-one vote,

appalled one of the Department of Justice's subpoena is that was directed at hospitals, that seems designed to harass the hospitals over their provision of gender affirming care.

The subpoena's seek invasive patient information from the hospitals that provide gender affirming

care seemingly as part of the Department of Justice's requests to, like, persecute trans people and try to find ways to persecute and potentially prosecute hospitals and medical providers who support trans people. So DOJ said that the subpoenas are seeking information in investigation of a federal healthcare offense. District courts have overwhelmingly blocked these subpoenas, you know, multiple grounds, sometimes because they say the subpoenas have an improper purpose,

or they're done in bad faith. Other times because the privacy interests outweigh whatever the department's interest in getting the information might be given that there's only a minimal connection to any receiving federal law enforcement purpose. So Mal, what do you take on

“this nine circuit case, screen lighting the subpoena? So I think it's a disaster, but in mitigated one,”

as you said, there are multiple grounds on which you can quash her limited subpoena. This opinion was about whether there was an improper purpose. I think it's obvious that there is the president has made clear that he just wants to expel trans people from society and the irony of using HIPAA, which is about medical privacy, to go after the medical privacy of trans people in states where they're protected is disgusting. And so I think the ninth circuit got it wrong. I hope that

the plaintiffs go on bunk. And if and when they do, they'll also have a chance to argue the burdens of nature of this, the overbreath of this, right? So there's arguments left, but it's really not a great look. And of course, it once again leaves trans people and their families in limbo about whether they can get medical care without having the boot of the government on their necks. And so it's really, really awful. And but I hope that there's a light at the end of the tunnel on this one.

Yeah, there was a really great dissent by Judge Pious because with a majority basically says,

it's like, what's the big deal? Presidents can have policy preferences about how laws enforce, but as the dissent points out, like their preference can't be to ignore the limitations that federal law places on their ability to make these subpoenas and yet. Yeah, well, like, oh, my beer. Of course, they're going to take this one of the Supreme Court too,

“but we'll say, yeah. But, you know, I think you're right to kind of situate this case as part of”

the broader kind of attack on trans people and trans healthcare, you know, on that kind of context, I wanted to note that this past week, Keg's breath confirmed the anti-trans animus of this administration. So wanted to play a short clip of him at a campaign event in Iowa. If you do not want to hear an anti-transler, just hit fast forward for 30 seconds right now. At the Department of War, we do training not trainees.

Just like disgusting, gross, hateful rhetoric that, again, confirms what is actually animating so many of their actions. And the same week, you know, since we were talking about like public service, public servants, you know, in the federal government, there was really moving, and I think courageous essay by a trans CIA officer, Julia Curley, in the Atlantic, called the wrong kind of American. And it's just astonishing. It documents her time serving, trump during the 1.0

Trump administration, and vice president Pence specifically. And what's astonishing is they knew she was trans. But as she says, they needed her because she's a fucking good CIA officer. And it seems she was fired when, essentially, it got out that she was trans. And other people found out because someone may have leaked it to Laura Lumer. And it's just a gutting essay about how this woman continued her service, obviously putting country above, you know, her own kind of

personal interests, safety, and whatnot, and serving people who went out of their way to target trans people, people in same sex relationships, and it just paints a very stark picture of what is real public service, and who has courage in this situation. Exactly. I mean, what a contrast,

Julia Curley? I'll take Julia Curley every day, the weekend twice on Sunday. Yeah. One last

note on development at the court related to Christian nationalism to watch, and that is, the case challenging whether states, public schools can display the 10 commandments is now up at the Supreme Court. So a certain petition has been filed in the case challenging the Texas law that requires 10 commandments to be displayed at schools. The fifth circuit, you know, what I'm about to say, it is the fifth circuit upheld the law, because it is the fifth circuit,

and everything, including lack of respect for binding Supreme Court precedent is bigger there. So there is a directly on point Supreme Court case, stone for this gram, from 1980, that invalidated a Kentucky law requiring the display of the 10 commandments at public schools. But the fifth circuit opinion was written by Stuart Kyle Duncan, because Stuart Kyle Duncan,

and who basically said, like, what's the big deal? This is a poster.

Please note that this is a poster that says, I am the Lord thy God, thou shalt have no other gods before me. Also, the opinion by Stuart Kyle Duncan said, stone for this gram is in real law, because the Supreme Court has abandoned lemon, the lemon test about, you know, when something violates establishment of religion, and stone had cited that decision in lemon, that cannot possibly make every case citing lemon invalid, but whatever.

Also, the fifth circuit said, like you plain to challenging this law, you can't rely on the Supreme Court's decision in mock mood versus Taylor, the case about opt-out rights for parents during

“LGBTQ, inclusive curriculum. I think the fifth circuit was kind of like, well, you plain to”

challenging the 10 commandments, aren't Christian nationalists, you know, kind of a paraphrase, but you get the point. But there, attitudes seem to be like, it's coercive for kids to be read storybooks with LGBT characters, but not coercive for them to have to stare at the state, select edited version of scripture. Like, that's called law, you idiots, but now text us together with other states, Louisiana, Alabama, Tennessee, are trying to make this happen. And, you know,

as a proud graduate of public schools in a community where I was not part of the, you know, majority faith, it's just so deeply sad and gutting to watch this happen. But the case is now up at the Supreme Court, and I guess my guess is they'll probably take it, but I guess we will see. Yeah, I mean, seconding your point about public school also a minority religious attendee of public schools in the Midwest and South, and I can tell you it would have felt coercive and

exclusionary for me to have to read that every day, not for lack of trying in the states that I grew up in. And I think the other dynamic here, we've sort of been, like circling around this,

“is that oddly, the best way to audition for upcoming Supreme Court seats is actually to”

thumb your nose at the Supreme Court right now, because even Donald Trump is an order to the Supreme Court. So, sir, Kyle Duncan is, is auditioning James, who is auditioning Rido Connor down below his auditioning, right? And they're all, they're all issuing opinions in outright defiance of current Supreme Court president, because that is actually how you get yourself on the Supreme Court right now to show your fieldy to Donald Trump and the extreme right wing and not even

Supreme Court president. So, this is just one more example of that. I actually think that the Supreme Court will take this to shoot it down, to show their independence, right? That whole game and song and dance they would play. I think so, I think they will take it to rule against the Fifth Circuit. They have been, you know, decently good at shooting down the worst Fifth Circuit cases, but that's only one more feather in the cap of the Fifth Circuit, just as trying to take over.

“And so, that's, I think that's what's happening sort of one step under the radar here.”

Okay. So, I guess no transition can ever really take us to favorite things, but that is where we are. We are. Yeah, right, in a catering cart, and that is going to be part of my favorite thing. So, my real favorite things, well, the last is going to be a real favorite thing, too. But Phoebe Bridgers, Alan Loss, we can, love that. Just watch Five Star Weekend, terrific.

Recommend to everyone the New York Times piece on third country removals as well as the segment

Kate did last week on on courage. But my new favorite thing, John fucking awesome. Let's play that clip. And while the sailors on the Lincoln fight his war, while he fruitlessly drains our munitions and oil reserves, the president sleeps through his meetings. He gulfs and trade stocks. So, he doesn't want to do a job. He wants to build his ballroom and travel with Natalie on their apparently defenseless flying palace gifted by the Amir of Qatar.

Okay, so I have to say, like, I'm extremely online. I did not know who the fuck Natalie was when this clip came out. But John asks off new because he set off this insane media firestorm where

weirdest facts about Natalie Harp game? We're going to go back and forth as well. Okay, okay,

“you're the guest, you can go first. So, I will start, so the little bit of background that you need to”

know is Natalie Harp is dangerously obsessed with Donald Trump. To the point where other staffers would like try to get rid of her on trips and she just couldn't be gotten rid of. And so, one time in order to be close to the president, she hid in the trunk of a car. Another time to be close to the president while he was golfing. She slept in the women's locker room. I've taken two off the board, I apologize, but that's totally horrible level of stalkering and single-white

femaleing we have going on here. Yeah, she reportedly ran behind his golf cart so she could remain available to him and she's written super personal letters to Trump that reportedly concern the secret service because they say things like, you were all that matters to me and they thank him for being her, quote, guardian and protector in this life. Yeah. And it's just so fucking weird. Yeah, so fucking weird. Yeah, and like the the fake outrage machine on the right

has kicked into overdrive, right? And I'm of two minds here because like, yes, in some ways, Natalie Harp is like a deeply damaged person to be like hero worshiping Donald Trump and ultimately this is Donald Trump's fault for allowing this kind of relationship to faster, etc. Right. So like put that on the table, but she is a highly paid,

highly powerful adult human being in the federal government who's like inches from the nuclear

codes all day. So she gets treated as such. So this like this like claim that we're attacking a vulnerable young female staffer with our innuendo about what she's doing with Donald Trump in the catering cart like miss me with that. She spends 24 hours a day with the most powerful human alive often has to wake him up as he's asleep in meetings. She has a lot of power over our lives and she should be scrutinized as such. Yeah, she's also reportedly declined a security clearance

“which I think is not something you can decline, but as apparently what she does. And you know,”

also on the like spare me the accusations of sexism like your secretary of defense literally fires officers because they're women and blocks women from promotions because they're women like get over it. Also, I don't really take all of this in yuendo to be about like they're in some sort of like sexual or romantic relationship. She kind of seems to be like his nanny or nurse, like his storm comfort pet, which is also weird and creepy as fuck. And like it's just a weird

situation. And it's just I'm over it obviously bothers them way more than he can nanny than has a concubine like the story that he was having sex with a 35-year-old. He obviously isn't and can't most likely. And this is way, way worse. Yeah. Yeah. Okay, so that was my set of favorite things. So what would you like to add? Yeah, so seconding Phoebe Bridgers. I also I declined to go back stage and meet Phoebe Bridgers the last time I saw her. I declined yet. No, I did not work.

I get it. I get it. I was like, I was for so far. I was like, what's the staying on? Staying on

never going to be invited back to the podcast. So that's right. Phoebe, I'm available to come back

stage any time. Staying on the music front and staying in your home state of Michigan. I've been wearing through Jack White's new album. Please go check it out. It's not exactly recent came out last month, but it resurface this week because he's in a beef with some no name country singer because the country singer as a Miss Charlie Crocket dropped one of his opening acts because they were too satanic. This is like, you know, some mega attention play and Jack White nicely scoop them up and

said you can open for me instead. And now this country singer is trying to get his 15 minutes of fame by going after the American hero Jack White. So I'll to say that it's re-up to my love for the

“man and I'm listening to his new album. You should check it out. And I'll close with where we open”

today, which is the kids are going back to school next week. And I love my children. We all love our children. But it is time for them to go back and free me of my warnings and after noons. And so to all the parents out there, like making it through back to school week, good luck and got speed. All right. Well, thank you so much to you so much for joining this episode against some of us at court accountability. Please check out

their work, which we were discussing in this episode as well as the work of their partner true noron. And we hope to have you back sometime soon. Absolutely. Thanks for having me. And listeners now stay tuned for a great conversation that Melissa had with Jesse Weckman about the Lost Founder. James Wilson and the forgotten fight for a people's constitution.

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code strict. After you purchase, they'll ask you where you heard about them. Please support our show until then we send you. Stricties, this summer marks the 250th anniversary of the founding of the United States. And obviously, we here at Strict scrutiny wanted to commemorate the semi-quincentennial of the nation. And there were so many options available to us. So we thought about having a cage fight on

Leia's lawn. Couldn't get the permits for that. Then we thought about maybe doing a tall ship's parade. We don't have any ships, though. So that was obviously a problem. We thought about maybe creating a fair on the grounds of one of our law schools couldn't get permits for that either. And so when all of those options were exhausted, we realized we actually had the perfect commemorative event right here at our fingertips because we had been given advanced copies of Jesse Wegman's recent

book. The Lost Founder James Wilson and the Forgotten Fight for People's Constitution. And we realized that maybe an interview with Jesse Wegman about the lost promise of a populist constitution would be the perfect way to commemorate America's 250th birthday. So with that, let me bring in our guest, Jesse Wegman. Welcome to Strict scrutiny, Jesse. Thank you so much for having me. I'm thrilled to be here. I'm sorry that you're getting short-shrift relative to the cage fight and the tall ships.

I think we all are second-fittle to such events, but what a backup you are. Like this is absolutely

but I'm going to give him one anyway. He is a graduate of NYU School of Law, where only the best

“lawyers go. And he was for many years a member of the New York Times editorial board. He is now a”

senior fellow at the Brennan Center. Much of Jesse's journalistic career has been spent covering the court, legal affairs, and politics, and ultimately culminated in his 2020 book, let the people pick the president the case for abolishing the Electoral College. His most recent

book, The Lost Founder, focuses on James Wilson. The founder that you may never have known

you needed to know, but that's where we'll start today. Who is James Wilson and why should we know this forgotten founder? Well, I have the exact same question who is James Wilson, and this was something I discovered him while I was working on that Electoral College book. I was in the basement, the sub-basement of the NYU Law Library actually. This is probably 2018, 2019, so I'm utilizing my alumni privileges. And I'm reading the Madison's notes of the convention to find out where it is

that the founders adopt the Electoral College. How do they do? How do they actually settle on this weird method of choosing the president? And while I'm reading the notes, I keep running into this guy, this long-winded guy from Scotland who keeps talking about politically quality and popular sovereignty and the importance of people being directly involved in the choosing of their leaders

and represented equally. I mean, all of these things that we talk about today is sort of second nature.

This guy is talking about 250 years ago in a room that's pretty hostile to those ideas, largely

“hostile to those ideas. And I see it's James Wilson. I'm like, I think I've heard of him. I don't”

know if I've heard of him. Either way, how could I be unaware, so unaware of someone who seems so central to the whole story. He then proposes electing the president directly. This is his first one of the first things he says that the convention is when they're talking about how to choose this new executive of the country. He says, well, it's the people that people should choose the president directly. And obviously, as we all grew up learning, the founders were not people who

had a lot of trust in the public at large. They were building a government that was in many ways meant to deflect or limit the participation of the regular person. So to read about this guy, Wilson, saying the opposite was just a shock to me. And then as I dug into him more, and his history, I couldn't believe that I didn't know he was. And this is what the who is James Wilson part comes

“in. I was like, I can't believe I don't know him. I went to law school. I went, you know,”

I write for the New York Times about the Supreme Court. This is neither a failing of NYU law nor the New York Times. I don't think many people know much about James Wilson. And part of that is Wilson doesn't leave behind a lot of archival material. So, you know, one question for you is, how'd you find him? I mean, he's hiding, but there's not a lot of written material. He's not a guy who keeps a diary. He's not like Jefferson who not only writes voluminously, but has a machine

of his own making that makes copies of every letter that he writes. So, you know, Jefferson leaves behind an archive of his own. Wilson doesn't seem to be that self-conscious about his legacy yet his legacy is outside. So, how did you find him here? This is a great question. And you really

raise a critical point, which is that so many of the American founders saw themselves in that

outsized way, right? They understood themselves as world historical figures even at the time, which is an enormous amount of signal to us. Maybe something was going on. Yeah, there's a lot of hubris in that. And yet, at the same time, they were right, you know, thank God that they, that they were so full of themselves, because now we have that a meal gorsuch problem. So, Fox right, at least our fair enough. Fair enough. But, but, but for biographers of those founders, the ones we know,

the Jefferson's and the Hamilton's and the Washington's and the Madison's, you know, they have a kind of, it's a mixed blessing. They have so much to work from that it's hard to know, you know, what to cut. Whereas with Wilson, I had the opposite problem. Wilson, like you say, is, somebody who kind of was, although very ambitious and very interested in his own political and legal and financial advancement, he didn't quite understand how to preserve his own legacy, how to build

the legacy and preserve it. He cared very much about the principles, the ones that I mentioned, a popular sovereignty, the idea that all people, you know, that people are at the foundation of government, people are the ultimate authority in government. But, you know, he didn't save his letters, he didn't save his speeches, you know, that was left to other people. His son, after his

almost a century later, one of his granddaughters delivers this, like, mess of papers to the

“Historical Society of Pennsylvania and says, you know, do what you will with these. I don't know”

what's in there. What happened to be in there was, among other things, the first draft of the United States Constitution, which Wilson wrote. So, so he actually, he is this repository,

this incredible repository of American history, and yet he did his best to kind of disappear

himself from our founding narrative. So, this book was really, as much of a resurrection project, it was an excavation project. That's a great way to put it down. So, as you're excavating him, as you implied earlier, he's something of an anomaly, right? He's kind of a radical populace at a time where most of the people around him are elitists. Which is not to say he doesn't have elitist tendencies. He does, and he ultimately becomes quite wealthy. But nonetheless, he

maintains the staunch belief in the people and their ability to govern themselves. What made him

“stand out in this way? And what made him so committed to this idea of popular sovereignty? Was it”

his hard-scrabble upbringing in Scotland where he attended a Presbyterian Church, like far less

hierarchical than the Anglican Church and the Catholic Church, he also attends a Scottish common school. So, this is sort of the precursor of what we would know as public education. But that kind of education that was intended to educate everyone in Scotland was unknown in either the rest of Great Britain and certainly in the Americas. So, was that the genesis of his populism? The fact that he was just in these very democratic circles in his early life? Yes, what you just described is the

essence of it. This upbringing, he was born into a poor farming family in the lowlands of Scotland. So, that's outside of Edinburgh and the South. And he was raised in, as you described, these very democratic environments, right? And I mean that in just in the most general sense, not politically democratic, but democratic in terms of their conception of peoples being treated as equals. So, he went to a school where everyone gets educated the same, right? The Scottish schools are famous

at this time for educating all the Scottish children no matter what station in life they come from. And, you know, that was in order to teach them scripture, but of course, the effective it is they make a nation of readers. Scotland is the most literate country or the country with the highest literacy in Europe at the time. And it had only recently been a fairly back words nation. So, you have that training, you have the the Presbyterian Church, which, as you say, is much more

democratically structured than the Anglican or the Catholic churches. There, you know, that the congregation has votes to elect the Presbyterians, the leaders. And that's another way in which he's just being imbued from very, very early with these notions that everybody is equal and everybody should have

a say in how they are governed. The third element that I would add to that is Wilson's unique

training in the, what we now call the Scottish Enlightenment. He went to Saint Andrews University, which was down the road from his farm in in Scotland. And he also went to the University of Glasgow. And there he's studying with the great minds of the Scottish Enlightenment. This is Thomas Reed, Adam Smith, you know, this earlier, generation earlier was David, Hume, and Francis Hutchison. These are the people who, in many ways, defined a lot of modern thought in the West with, you know,

ideas about democracy and self-governance and philosophy and society. And Wilson is, you know, all the founders read these guys, but Wilson, right. But he's trained in them. He is literally studies with them. He comes to America as a 23 year old in this, in 1765, completely filled with

“these ideas that I think really set him apart from the other founders who are much more, you know,”

they're wary of the, of the public, they're wary of the rabble. And Wilson is just kind of enamored of them. And he brings that spirit into the new country. And he starts to spread it. He has a kind of Horatio Alger story. I mean, like, he has these opportunities that are created by, you know, mass education. That's available to him. So he gets a great education. He's able to harness a little bit of privilege, like he has a cousin who's able to help him buy some land.

And he uses that, like, afford his passage to the United States. He gets to the United States. And he marries up. I mean, part of this, I thought, was an interesting story about the upward mobility of marriage for a guy who's, you know, born, you know, pretty lowly. And he marries the daughter of someone who's actually quite wealthy. She survives her father. And she's a huge eras. And, you know,

just so interesting, because he's kind of a stalker, right? He's just, like, totally. That was the word that came to my mind. I didn't put it in the book, because it felt a little bit and acronyms, but absolutely he had stopped. There was, there was, it was, today he would be canceled for that behavior. Today she would have a restraining order. And she had a marriage license. Right. Right. So, right. And she says to him, this is this

young woman, Rachel bird, is her name. And I'm glad you've focused on her, because I mean,

“she does open vistas to him and opportunities to him that are both extremely important to his”

acceptance into the Philadelphia elite, which is part of what helps him become the major figure in the founding of his, but also to buying and selling land. Right. That's the dark side of all this. Which, which comes his downfall. Right. I'm not blaming Rachel for either of these things, but definitely her wealth. Right. She's the daughter of an ironworks. You know, a guy who owns an ironworks. And, you know, it's the equivalent of millions of dollars today that her estate is when her father

dies. Wilson pursues her with just incredible tenacity. She says, no, I'm not the marrying kind.

She rejects him again and again and again and again. And he just keeps writing her letters. And then he writes his best friend, Billy letters. And he says, Billy, I'm so, I'm just basically so, I mean, it is kind of like, it's a little creepy, right. But finally, in a way that we don't have a record

“of, sadly, or that I wasn't able to locate a record of, he wins her over. And part of me thinks,”

like, I'd say, where's her down, but okay. Yeah, fine. Where's her down? Is it, it may be a fair description. But it also, there's, there's a troubling element to that, which is, I would expect the lesson he takes from that is, if I just push hard enough, I can overcome reality. I can overcome opposition. If I just am persistent and dog it enough and refuse to take no for an answer. And you see that play out in his political life too. You see that play out in how he

attempts to convince other founders of the principles that he believes in, sometimes, often, not successfully. So, it's, it's a really interesting, that relationship is a really interesting proxy in a way for all the other relationships of his life. You know, it's a really uniquely American story, you know, someone who is imbued with all of these talents, and then really does meet opportunity, this eras that he marries, who's wealth underwrites his ambitions, and then he finds

himself in the center of a revolutionary generation that is poised to do the unimaginable. And it's

actually his logic that fuels the American experiment. So, you note in the book that he writes an essay that is actually radical for the time. So, at the moment, the colonists are struggling with their relationship with the British Crown and Parliament. Parliament has taxed them relentlessly and they are chafing at it, but they still understand themselves to be subjects of the British Crown and British authority. They just don't think they should be subjects for the purposes of taxation.

So, they are trying to kind of have it both ways. Like, we are subjects, but not for this purpose. And he writes an essay that's like, wait a minute, Parliament can't check me. Like, Parliament can't check us. Like, we are the people and government proceeds from the consent of the people. And that's radical. I mean, it's part of the Scottish Enlightenment,

“but no one else is talking about it and he writes it. I think he realizes at the time that”

this is too much for this moment. And so, he puts it in a drawer and then it surfaces again.

It is attributed first to Ben Franklin. And he's like, no, no, no, this is not Ben Franklin.

This is James Wilson. And suddenly, he finds himself, like, primed for this moment of revolution. Yeah, that's exactly right is that he writes this essay when he's 26 years old, which I've been pointing out to people as the same age that Bruce Springsteen was when he wrote Born to Run. So, it's in a similar way. It's a kind of semational statement of principle that will carry through his life, right? And it is the argument that Parliament, the British

Parliament, has no authority at all over the colonies. And that, as you say, is an incredibly unorthodox bold thing to say, at the time, 1768, yes, people are getting upset. We've had the stamp-backed crisis, right, that there's all kinds of burbling up of independence energy, but no one is prepared yet to go that far. Wilson writes it. It's actually his mentor, who kind of nudges him and says, James, this is too much. Don't publish this right now.

It's going to destroy your career. It's way too bold. He puts it in a drawer six years later, he publishes it. And yes, it does get attributed to Benjamin Franklin. Wilson and Franklin have

amusing ways, but this is one of the first where Franklin gets the credit for this argument.

And somebody, maybe even Franklin himself, like, you know, there's a letter to the editor of the newspaper that published it and attributed it to Franklin saying, this isn't by Ben Franklin. This is by the Scottish guy, James Wilson. And that helped make his name. And this is 1774 when it published it. So now, six years on, there is a lot more energy and a lot more openness to arguments for independence, arguments to push back against British sovereignty. And Wilson is the

man who's made this argument most clearly two years later, less than two years later. Actually, year and a half later, Thomas Jefferson is drafting the Declaration of Independence. And he has Wilson's essay, this essay about British Parliament on his desk. And we know this because he has copied huge passages of it into his commonplace book where he keeps quotes that he likes. The essay is 11,000 words long, right? It's not a brief, like, sort of polemic. You know,

it's not a common sense or a summary of you, like Jefferson. It is a legal, it's a legal argument. It's heavily footnoted. It's incredibly learned. It dips into history and, you know, philosophy and all these various things. It's a lot of you article. And Wilson is showing off, right? He knows

he's smarter than everybody else. So he's showing off a bit. He's always pro-legs. He's always

“like says more than he needs to say. But Jefferson derives. I think historians going back now”

a century have really credited Wilson with inspiring the key lines for us of the Declaration of Independence. We hold these truths to be self-evident. Can I just kind of read just briefly that passage from the essay? So Wilson says in the beginning, in the first installment of this essay, he writes, "All men are by nature equal and free. No one has a right to any authority over another without his consent. All lawful government is founded on the consent of those who are subject

to it. Such consent was given with a view to ensure and to increase the happiness of the governed and so on and so forth." It's not that he came up with all these ideas, but he was putting them together in a way that nobody had to that point. And you really hear their echo in the Declaration of Independence, the preamble to the Declaration two years later. So Wilson is right there at his, you know, the youngest, you know, 26 years old coming up with these principles that become,

you know, central to the American experiment. It's almost like we hold these truths to be self-evident apparently the greatest sentence ever to be written according to Walter Isaacson. Was he Pete in some ways? So Jefferson is profoundly influenced by Wilson. Wilson in turn is one of the signatories of the Declaration of Independence, and then 11 years later, he is a signatory to the Constitution. He is one of only six framers to have signed both documents.

“And I think maybe among all of the framers is the only one who really seems to grasp the”

relationship of each of those documents to each other and to a greater American project that is about to be launched. How does he put the Declaration and the Constitution into conversation with each other? And what is he able to discern about this country and its government and its values that his peers don't quite grasp at that moment and maybe will not grasp for generations? I love that you bring this up because it was one of the most fascinating things I learned in

writing the book and I credit the scholar at the University of Pennsylvania bill Ewald who's one of the leading Wilson scholars in the world for making this connection. But Wilson unlike any other founder saw that the Declaration of Independence was the ultimate expression of the idea of popular sovereignty, right? This idea that the people are in charge and they may change their government when ever and however they please. This is Wilson's guiding light right throughout his

life. It is what embodies his essay in 1768. It's all the way through to his law lectures in 1790

and then to the most important Supreme Court decision he wrote a few years after that Chism V. Georgia.

But where he connects it is that document for most of the founders was primarily important for its list of grievances, right? That is a document where it is explaining why we are separating

“from Britain and so what matters is the reasons for separation. Not this other part that says,”

people are equal, right? That is something that we hold to today quite fiercely, at least in the theory. But it was not something that came up among the founders. Professor Ewald goes through all of their records, their speeches, their letters, their, you know, all the documents pertaining

that are central to us today, they didn't, they didn't cite, they didn't seem interested in that.

“Wilson alone has that he sees the connection and when he is at the constitutional convention”

11 years later, he insists that the declaration is the foundation for everything. He pulls it out on the floor of the convention and starts reading from it, right? From the beginning, from the preamble, right? The part that he inspired and he's reading to his fellow framers and saying, "This is what we are doing here. This is a people's document." So he says, he puts the words, "We, the people at the beginning of the Constitution." And that is importing the spirit of the

declaration of independence, that popular sovereignty spirit into the very beginning, the very opening of the Constitution to say the people ordained and established the document and it is the people's

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There's this tension that he's constantly surfacing at the constitutional contention because there are those among the framers who understand the relevant unit of governance to be the state, the states, all 13 of them, and he's like, it's not about the states, it's about the people. And so he is pushing for popular representation in Congress. He is successful in one chamber of Congress. The House of Representatives is popularly elected. He is not successful

in getting the Senate to be popularly elected. This becomes sort of state-based representation where the smallest states, their least populous, have the same power as the most populous states. And this

“really chafes at him. But he is very much like the people that's the unit. That's what we should be”

thinking of. But there are these other moments in the constitutional convention where Wilson is really confounding and almost mired in his own contradiction. So he's totally committed to popular sovereignty even after almost being killed by an angry mob. So you write about the siege on Fort Wilson, his home in Philadelphia. And even after he's almost killed by this angry mob, he's still like, I'm all for the people. So he's deeply committed to popular sovereignty.

He believes in equality. And yet he becomes the person who proposes what becomes the electoral college system for presidential elections. He does that as a compromise when it's clear that he will be unsuccessful in persuading his colleagues to popularly elect the president. He's also the person who endorses and proposes the three fifth clause, which, you know, the idea of enslaved persons counting as three fifths is not new. But he is the one who offers it up as a compromise to

the southern states when they're trying to figure out the representation arithmetic of the country

at least in presidential elections and certainly slavery in the Constitution itself.

“It's one of the great ironies of his life that he is in at least indirectly but significantly”

responsible for two of the provisions of the Constitution that we look back on today as the most anti-majoritarian, the most anti-igalitarian, right? And obviously the most morally profane in the case of slavery just to very briefly touch on each of those. The idea for the electoral college originates with him and it's the day after he had proposed popular election for presidents and there's crickets in the room, right? Everybody's looking around. They're all feeling pretty

uncomfortable. They're like, why are we talking about this? George Washington sitting right there,

you know, Washington is the president of the convention and he does says almost not a word for the

whole summer but his very presence in just it pervades the room and influences the way the delegates are thinking about fit forming this new government. They knew that if they had a leader and executive it was going to be him. So they're very uncomfortable with talking about how he's going to get chosen. Wilson gets virtually no buy-in on popular election. So he say say James, go home, come up with something better. He comes back the next day and he proposes this idea of these electors who are sort of an

intermediary step between the people and the executive. I don't mean it's, yeah. It's four months later that they actually adopt what we today refer to as the electoral college but it was almost identical to the idea Wilson had proposed in early June. So that's that irony and then of course, as you say, three fits. You know, I was trying to address this in so many ways in the book and I eventually had to pull it out and make it a whole separate chapter because there's just no way to grapple with Wilson's

inconsistencies here, his willingness to countenance human bondage. You know, when everything else about his life seems to auger against that. So, you know, I've had people say to me, well, don't be presentist. Don't don't apply your 21st century values to this guy in the 18th century. And I say, I'm not applying my values. I'm applying his values, like he at the time was so clear about the importance of consent and people being in control of their own destiny and human equality,

like those were his values and he very well could have spoken up more aggressively about the evil of

“slavery as many of his peers did. And among those peers are slaveholders themselves, right?”

I quote in the book from Thomas Jefferson and from George Mason and from Luther Martin, people who, you know, Madison, people who hold slaves in some cases hundreds of people in bondage

and who are very clear-eyed about the evil that they are perpetrating. Wilson could never

bring himself to speak so clearly. And I found that to be a real moral and political failing on his part. I don't, I don't harbor any illusions that he could have, you know, single-handedly kept slavery, you know, ended slavery. But you're right, by introducing the three fifth clause as he did in the middle of the summer to play Kate the Southerners who were threatening to walk away from the convention if they didn't get credit for their slaves, he was placing the union and the establishment

and the cohesion of the union, the American union, above the human rights and the equality of, you know, what would become millions of enslaved Africans brought to America. It was just, it was a deal that many of them made, some of them more explicitly than others. He wasn't a slave holder, of course, he, you know, he did have one man he kept named Thomas Purcell. It's unclear exactly what the relationship was, but he was certainly at least an indentured servant. And yet he couldn't

bring himself to speak out against it. And I was, I was really upset at him for this. I,

“that's why I did a whole chapter. And I was like, James, why can't you speak out more?”

What are we doing here? Yeah. Yeah. What are we doing here if we're not arguing to end this nefarious practice as the other founders described it? So, you know, in the end, I think it really was that it was that he, in his hierarchy of sort of urgency, creating the union, having a stable and cohere cohesive union was more important than ending slavery. He says, hey, I don't like slavery. We did the best we could in the convention. He tells this, you know, he says if at the ratifying

convention in Philadelphia a few months later, he says, but we did the best we could. It wasn't enough, but, you know, I hope we've laid the groundwork for the eventual end of slavery. But, you know, that's, that's kind of cold comfort, you know, at the time. I mean, it's kind of a slavery Appologia, like many of them engage in it. And to be fair and generous to James Wilson, there is something of a modernity about him that is, I don't think glimpsed in the other

but he is much more forward thinking about these questions of popular sovereignty, about who should

“be included than any of the other founders. And he like, these are people who are elitist and he”

too is an elitist, but not quite in the same way. And he's much less, um, wary of the common man than some of his contemporaries. He didn't succeed in persuading his contemporaries of the value of popular sovereignty, but he does lay the foundation for what comes later. Generations later. So Wilson's thinking is cited by the Supreme Court in cases like Reynolds versus Sims, which espouses the principle of one person, one vote. His views also underwrite the electoral

college reforms of the 1960s and the unsuccessful attempt to abolish the electoral college, which is actually interesting. Like, you know, he is the architect of the dismantling of the thing

that he is the architect of. So it's true. I mean, you're right. He really is a person of incredible

contradiction, but also a person who seems elcuted for his own time. Oh my god, absolutely. And I wonder if he had lived longer if we could have seen his reaction to some of the development of the country that he had had such a central hand in great on the way that say Madison, you know, Madison and Jefferson and Adams, they got to see it. They got to see Madison like 50 years after the Constitution, right? That's an incredible stretch of time. He got to watch these theories play out. And interestingly,

Madison starts coming more to Wilson's view of things over those decades when he when he sees

“the country in practice. He says, oh, right, majority rule really is the only way to run a republic.”

Yeah. This is something that Jefferson comes around to also, right? It's not that they haven't thought of it at all before, but they were more wary of it than Wilson was. Wilson was there from the beginning and he had no question about it. You know, it's interesting. I'm glad you brought up the Supreme Court in the 1960s because Wilson had been essentially ignored by the court. I think I note in the book that a hundred years after he died, he was cited more in Supreme Court opinions

for the cases in which he was involved, the land ownership cases in which he was involved as a plaintiff or a defendant. And then for his own contributions as a Supreme Court justice,

you know, he sat on the, he was appointed to the first Supreme Court by George Washington. He's

the greatest lawyer in the land. He gives law lectures that define American law for generations. And yet he kind of disappears except in this kind of pathetic and, you know, in his financial entanglement, but then in the 1960s, the court, in its, in its decisions in the one person one vote cases, which, to be clear, these transformed American society, right, and government, by requiring that all legislative districts and all congressional districts be of equal size.

That, that is Wilson's central idea is that people need to be treated the same for political purposes no matter where they live. And it's not fair to give 10,000 people in one state the same amount of power as 40,000 people in another, right, or in a district. So when the court did that, they cite Wilson, right, Wilson is their primary source, their primary authority for the argument that all people everywhere need to be treated equal. That's an amazing vindication

nearly 200 years after he first started making that argument. And so it's kind of exciting to see it in the Supreme Court cases of, of the early 1960s. I just, I wish he could have experienced the

little more of the country, but he dies so, so soon after the founding that we just, we never

get to see that. And his death is the opening of the book, like much of the book is a flashback

“in many ways, but he dies in, I think, really problematic circumstances. So he is on the run”

from creditors. He dies in the back room of a North Carolina tavern on the run and a fugitive from those to whom he owes money. What do you make of that? Like, I mean, like, so land speculation was a big part of his American journey, maybe not surprisingly, like a country that is, like, an expanse of land and the opportunity to completely remake yourself as the son of heart scrabble Scottish farmers into a member of the elite. I think one way which he could characterize it is that

he falls prey to the worst excesses of America, even as he is the architect of some of its greatest virtues. It's, it's absolutely true. He's a classic tragic figure in that sense, and that his, everything is tangled up together, the, you know, the best and the worst of him. And some historians have, I think, very smartly tied it all back to his training in the Scottish Enlightenment.

as being inextricable from each other, right? And whereas many other thinkers of the era saw virtue as something that was in opposition to commerce. Commerce reflected the baser parts of our personality, right? The, the, the, the, the market side of things. Wilson comes to America. I think filled with that notion that it's all part of the same energy. And he ends up becoming this land speculator with a recklessness that none of the other founders approached. They're all

“land speculators, right? Because that's what wealthy men did then and do now. And this is another”

way in which he reflects some modernity and beyond that of his, his fellow founders. But he gets so

entangled in the land selling and buying and flipping business that he owns four million acres

near the end of his life in the, in the early 1790s. This is at a time when he is a sitting justice of the Supreme Court. And he is arguing before Congress, he's writing memos to Congress as a sitting justice about the importance of how they, you know, policies that they enact regarding land ownership and land sales. You know, I mean, say what you will about the ethics of some of the current justices, this is breathtaking to see. And I think it was sort of mortifying

to some of his colleagues on the court. Wilson was the leading lawyer in America. He had, you know, he had been appointed to the court based on that reputation. But he did not get the job he wanted,

which is chief justice. He had written a letter. He had written a personal appeal to George Washington

“before he even took office saying, Mr. President, please, you know, I think I think I, I'm”

sure, deserve this seat. And, you know, he had just created, he had created the office just a few years earlier. And now it's like it's my, it's my seat. Obviously, I'm the only person for it. Washington refuses to appoint him. And I think it's pretty clear from letters between some of the other founders that I quote in the book that one of the reasons, if not the reason that Washington declined is because of Wilson's financial situation. So six years later, seven years later,

after he's appointed to the court, as you say, he is on the run. He gets thrown in jail not once, but twice he gets thrown in debtors prison because he has gone bankrupt and he can't pay back his creditors. We're talking about the equivalent of millions of dollars of debt today. So these are not small amounts of money. And Wilson is in major trouble. He's the only justice ever to date, ever to have seen the inside of a jail cell. And today he, he, he gets bailed out by his son from his

second stint in jail. And he goes on the run. He goes down to coastal North Carolina to this town

Edenton, where one of the other Supreme Court justices James Iardell had a home. And he goes to this tavern by the harbor and he hides in the backroom of a tavern. He basically lives there in the backroom for almost a year. And he eventually contracts malaria, which was something that was endemic to the region at the time. And late summer and fall, the mosquitoes would just, would, would, would descend. And it's a, it's a horrible way to die. And he gets malaria in the summer

and dies in late August of 1798. This is even, you know, he predices even George Washington. So he dies very early in the American experiment. I mean, not even barely a decade after the Constitution is ratified. And he's been on the Supreme Court for about nine years at that point. And he's suddenly he's gone, right? He's the one of the leading founders. He's the most respected legal mind in America. He's one of the wealthiest lawyers in America. And he dies in like

rags in the backroom of this tavern. So his fall from grace is so shocking and so kind of bracing when you think about what he had contributed to the country. Nobody wants to even, there's no funeral, there's no obituary, there's no, there's no public recognition of his death.

“I think everyone by that point had grown so sick of him. They were so ready for him to be off the stage”

that his erasure is kind of locked in at that point. So it is a stunning end to what had been a brilliant and glittering career. And as you suggest, it might be the case that James Wilson, if he were here today, would not look a scant at the prospect of Supreme Court justices in the private jets of billionaires, like maybe wouldn't care about ethics reform. Do you think he would be interested in other species of court reforms? Like for example, you have made the proposal that

justice should be limited to 18 year terms where they then rotate off in the way that lower federal court appellate judges do. And you know, simply take senior status. And that would be a congressional

opportunity to appoint at least one or two justices in each term. How do you think he would have

regarded the prospect of Supreme Court reform and a reform like that? That's a really interesting question. You know, I feel like it's hard to know based on his writings, what he would have said

“about that specific reform of term limits. What I can say is I think he would have been all in”

on the fact of reform and that people should be able to change their government when they please if it's not. It shouldn't be this hard, right? He was so much of an advocate of the ability of the people to be in charge of their government. The idea that you would have a court that was essentially immune from being changed, a court that was locked in for in many cases as we were watching right now generations and making it almost impossible to like scale back their irrigation of power. I think he

would be all in on the people absolutely have a right to change that immediately if they want to. And whether the solution was term limits or a larger number of justices or whatever it might be, I think Wilson would be a strong advocate that the people can do that and they can do it immediately. What do you think you would think of the current electoral or political moment? The distortion in the House of Representatives through partisan jerrymandering. Do we have majoritarian government

“anymore? And what would he make of the prospect that we might not?”

So Wilson is his fundamental principle is people are equal and a majority of them make the decisions that govern us. He says that again and again at the convention to him the biggest abomination, the biggest violation of those principles is the Senate, right? We look back on the convention and we look at slavery. We look at the dirty deals that allowed slavery to survive and that's absolutely worth all of the condemnation that we bring to it. But for Wilson and also for Madison,

you know the two of them are really hand in hand on this point for a lot of the convention. It's the Senate. The Senate is the biggest blot on the Constitution and Wilson says this. He says he can't believe that they are going to establish a branch of government that treats states as equal, not people. This is what I said earlier. He says, how can you treat 40,000

“people in one state as the same as 10,000 people in another? He says this is magic, not reason, right?”

And at one point when they're debating the Senate and he's realizing he's going to lose this fight, right? Because there's too many people who care about their state power. They've had the state power through the Constitution 1.0. The articles of Confederation, where all the states have an equal vote, that Wilson saw, as many of the other framers did, was the fundamental problem with the articles of Confederation. It was why nothing could get done. And so Wilson is like, wait a minute,

we came here to fix that problem and now you're just going to import it into the new government. He says this would be a fundamental and a perpetual error that will end in disease, convulsions, and death, right? That was how much he hated the Senate. So I think Wilson today would look at the Senate, which by the way, is far more unrepresentative. Now even then it was in 1787, right? At least then the difference between the largest state and the smallest state

was something like what? 10 to 1, 15 to 1, something in that range. Today, it's 80 to 1. If you take

California and California. Yeah, the take the obvious ones. California is 40 million people,

Wyoming's, what, 5, 600,000, 80 to 1. Like that discrepancy, that violation of majority of rule is at the core of so much of our national hills today. And I think Wilson would look at it and say, I told you, so I warned you this was going to happen, right? So, you know, we can talk about the Electoral College until the end of time. We can talk about Gerrymandering and the House, which also obviously is making a house that is in theory based on proportional representation

far less so. But the Senate from the very beginning, the very principle of the Senate is what infuriated him so much. And I think he would say that was where you went wrong. And I think many of us might agree. It's such a gift, Jesse, to have this book in this moment to resurrect James Wilson in all of his contradictions. I mean, because he does seem like someone who is meant for this particular moment, even if he was out of step with the moment that he occupied. The book is absolutely

fantastic. It's really a pleasure to read and you learned so much about the country, its history,

and these two documents that he puts in conversation with each other. And ultimately a promise

that is unrealized, both in his own life and in the life of this country. So, the book is called

is the incomparable Jesse Wegman. Jesse, thanks so much for joining us today.

“Thank you Melissa so much. It's really been a pleasure.”

This episode was also due in large part to the work of Ella Wade, a Brown University student who is

in the class of 2029. Many thanks to Ella for her help with all of this. Thanks again to Jesse Wegman

“for joining and one last thing before we go. We want to hear from you, whether you've been”

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