NYTimes lets awful Harvard Law prof lie his ass off for some reason

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:10 Clip: Hello, hello. How's it going? Hey, I'm Thomas. This is Opening Arguments Video Response Wednesday number two. Twice as complicated in the video setup. Read them and weep. I'm Thomas. That's Matt Cameron, real-life lawyer. How are you doing, Matt? All right, all right. I'm ready to talk about some more bad faith nonsense from a Harvard law professor, just like we did last week. Do lawyers need to keep an eye on the countries? How are the continents doing? You don't have law books. Also, look at the camera. Reminder for all of us to look at the camera yeah matt you should have like a pin that you move each week and then like someone has to chime in with like a fun fact about wherever you moved it to and then maybe they'll be wrong half the time because they don't know geography an immigration attorney does need a map more than a lot really good to have a big wall size map we'd actually we talked about doing pins for every case that we won from where they're from but there's so many of them from the same place we need like breakout maps of different countries yeah just a lot of yeah yeah that makes sense and of course joining us is producer Lydia Smith. How are you doing, Lydia? Hello. I am doing well. Thanks for having me back and not kicking me off. Yeah. Yeah. Truth be told, I couldn't find the right button. So that's well figured out eventually. No. If you're not familiar with the show, it's a podcast. It's a law podcast. It's law and politics. And now we're doing videos on Wednesdays. And this format is what happens is I do just nothing but AV tech support for 48 straight hours. And then they, Matt and Lydia, media prepare content, I'm told. And I will see it for the first time today. I can't wait. Cannot wait. And this is the bare bones stuff I was able to do. We'll get fancier as we go. We'll iterate. But I'm really excited. Last week was so much fun. And we have even, Matt, we have Even More planned, I feel like. This is like, we probably have too much today, honestly.

0:01:54 Matt: We're going deep. We got some good stuff. But we got some fun stuff. We've got some serious stuff, but it's all Because, you know, as you know the format here, we're looking at bad faith idiots, and we've got plenty of them.

0:02:04 Thomas: Love bad faith idiots.

0:02:06 Matt: That's what we're here for.

0:02:07 Thomas: Yeah, where do we want to start today?

0:02:09 Matt: So I've got a little amusing doozy for you from, as I like to call it. I've been thinking of these episodes like a little meal. And it's nice to start off with something tasty and simple because we're going to be going deep, eating our vegetables, and having a main course on, as I mentioned before, of course, we talked about Alan Dershowitz, famous Harvard law professor, last week in the Wall Street Journal. We'll be looking at another completely different Harvard law professor in the New York Times. So it's obviously a different thing.

0:02:12 Lydia: Okay. That's perfect. Yeah.

0:02:34 Thomas: They don't bring their best. I've

0:02:36 Matt: They do not.

0:02:36 Thomas: Said it. I've set it

0:02:37 Matt: This is terrible.

0:02:37 Thomas: For several, what, eight years, nine years? Harvard is not sending their best, or they are. I don't know.

0:02:40 Matt: Terrible. Yeah.

0:02:40 Lydia: Well, I mean, well, here's the thing. I mean they're definitely the loudest, these people. They're definitely the loudEST. So who knows? There might be some like really good ones hidden in there that are being quiet.

0:02:53 Thomas: That are quietly doing work. Yeah, that's true.

0:02:54 Lydia: Except for like like Lessig, you know, like we like Lessag for the most part.

0:02:57 Thomas: That's true, I do like Lessig. He's great, but yeah, it's true I

0:03:01 Matt: But we're really going to see Adrian Vermeule's true colors on this one. And just in case you ever thought he was smart, we're going to completely rip that apart.

0:03:07 Thomas: Don' t know who that is, so.

0:03:08 Matt: Yeah well now you'll know after by the end of this one, you'll now who he is for sure.

0:03:10 Lydia: I didn't know before for this so yeah yep

0:03:10 Thomas: Great.

0:03:12 Matt: Somebody I've been keeping my eye on. And And we've got a quick follow -up, actually, to make his exact point, or make our point about his point. I've got to follow up, which I won't spoil it for you yet. And then for, I think for Patriots only, we've Got a Fun Dershowitz Follow -Up. So we've GOT plenty to do here for dessert.

0:03:26 Thomas: I don't want you to be socially ostracized for being the only one who doesn't look at the camera, Matt. You got to look at The Lens. No, you're looking down. Ah, there.

0:03:31 Lydia: Put

0:03:31 Matt: I'm, oh yeah, I should look at the camera. That's right. See, I don't like eye contact in real life. This really does translate.

0:03:36 Thomas: Yeah, yeah. Well, the camera – if we draw some eyes below the camera. Yeah, but the eyes where you're not supposed to – everywhere. It'll be like a – what's the other sci -fi author?

0:03:41 Lydia: Like googly eyes right there yeah listen I have a lot of googly eyes because of

0:03:48 Thomas: It'll just be eyes. Eyes everywhere except the camera lens. And that'll be where Matt will then look.

0:03:48 Lydia: The kids yeah no

0:03:54 Matt: Yeah, I'm working on it. Just got to reorient myself here.

0:03:56 Thomas: It is really awkward I'm killing myself trying to look at the camera because you want I want to look at lydia on a jump I'm being honest I just want to look it look at her a lot and matt and matt and you know and matt too you know no

0:04:02 Lydia: I want to look at Matt I'm just kidding hairs

0:04:08 Matt: We're all looking pretty good today. You know, can't go wrong.

0:04:11 Lydia: Looking looking sharp. Yeah.

0:04:12 Matt: Yeah.

0:04:10 Thomas: You look great your map's popping you look awesome um what's the uh first thing we're gonna do do we are we going to a video are we gonna what what are we doing?

0:04:18 Matt: So, yeah, we've got a quick video just for fun here. Now, we could spend entire episodes on the remnants of the sovereign citizen movement, and that is an endless well, obviously. It's a well full of fish that we can just shoot. I guess a fish in a well? Is that a thing?

0:04:30 Thomas: Oh man. Somebody, I should have someday. I want to get buttons. Yeah. For when you say that, but also someone make a sovereign citizen intro. Cause oh my God, I could push a button and we're playing a video of best of sovereign citizens. This could be a recurring bit because they are, they are so much fun.

0:04:40 Matt: So good.

0:04:47 Thomas: They are so many fun.

0:04:46 Lydia: I honestly want like a theme song. Maybe someone out there will like write a little ditty that like we could play before this.

0:04:49 Matt: And could write a...

0:04:52 Thomas: I don't know.

0:04:54 Lydia: No, it's not you. It's not you.

0:04:55 Matt: And to be clear, we're not responding to sovereign citizens to prove why they're wrong, because obviously they're right. But for those who don't know, sovereign citizens believe that the United States is a corporation and they don't actually live in like the same laws that we do. And if they do special things and, you know, like use the special code, it never works. It never works ever.

0:05:12 Thomas: It's the best it's a series of rule they have insane theories about rules but they also and they think that you know it's all it gets various levels of anti -semitic always there's always that but you know but it's it's just the international jews control everything or whatever but they also might the my favorite thing about it is they also think that if you say the right magical combination of words then the bad people like he got us damn it give him all the gold that is It's a sign to his name. Yeah.

0:05:17 Matt: But of course. Yeah, you found the secrets. That's right that's right yeah no and so there's been a bit of a schism in the movement I hadn't been paying attention it's very hard to keep track of all these people but

0:05:45 Thomas: Thought leaders are divided in the movement.

0:05:47 Matt: They really are and so we're gonna have this is a little window into the insanity of what's going on right now and this is from one Kelby Smith I believe you got some some details on Mr. Smith I think they

0:05:58 Lydia: Yes I do. So before we dive into the video itself just a little bit of background about kelby smith so um he with uh the president of their little sovereign citizen group his name is tim turner uh they used to be affiliated with um with a different sovereign citizen group uh ended up leaving it and they were with restore america and then the two of them like broke off and started their own group that initially they called restored america And then they changed it.

0:06:31 Lydia: Yeah. Then they changed it to Republic for the United States of America. Now United, it's

0:06:30 Matt: Fixed it very

0:06:37 Thomas: Public for the United States. That just sounds like someone fucked up the Pledge of Allegiance. And to the Republic, United States of America, for which it stands under the international Jews, one nation.

0:06:39 Lydia: Rusa. Yeah So but key here is that United is lowercase So it's capital R lowercase U capital S capital A.

0:06:53 Matt: Important

0:06:53 Thomas: So it's just a purely just an adjective. We're just, we're just you tend to be united. We tend. Okay.

0:06:59 Lydia: Exactly And so for a sovereign citizen I was pretty surprised about this He has a LinkedIn. And so I spent some time looking at his LinkedIn. He's been a volunteer to, quote, start the official re -inhabitation of the vacated Republic for the lowercase United States of America since March 2008. eight he's been working on this I

0:07:20 Thomas: So wait, I already love that insanity. So they thinking like someone left the land behind and they get to take it over. What did you say there? Oh, you don't even know.

0:07:27 Lydia: I don't yeah to start the official re -inhabitation of the vacated it's

0:07:31 Thomas: We're not even to the claims anyone looked at. We'RE just still in like LinkedIn.

0:07:33 Lydia: This is just linkedin and what he decided to put as his volunteer you know experience

0:07:39 Thomas: This is the equivalent of like two to four years upper management at a sizzler. This Is like that equivalent.

0:07:44 Lydia: Yeah yeah um but he's also not getting paid for it so uh he's just doing it for funsies

0:07:51 Thomas: Weird that that's not paying.

0:07:52 Lydia: Yeah um also for someone who's a sovereign citizen who really doesn't like like you know control and regulations and all these things about the laws, he's a real estate agent and broker in California. And he's licensed. I looked this up. His licenses for real estate and his broker's license are both active. He started doing real estate in 2003, and then he got his broker's license in 2010. So I just thought that was pretty interesting.

0:08:19 Lydia: He's in an industry that has a heck of a lot of regulation, especially in a place like California. So yeah,

0:08:24 Thomas: I love how they're always forced to like, okay, but I'm going to go to the DMV and get this, you know, license, but like, but I don't, I'm mad about it, but I'm a traveler on the land. Yeah I'm not actually, uh, yeah.

0:08:29 Lydia: But I don't think I should have to.

0:08:29 Matt: It turns out real estate commissions are something and you can do pretty well with. So just, well, we'll be bound by that code, I guess, for the illegal sale ban.

0:08:42 Lydia: And then just one other little quick thing. So I had mentioned Tim Turner, who is the president of this group. He was actually arrested for, you know, tax evasion like they all are.

0:08:54 Matt: I was going to say, you'll never guess what.

0:08:56 Thomas: All right. He was being detained?

0:08:57 Matt: Yeah, he was detained, in fact.

0:08:58 Lydia: He was detained and I think continues to be detained.

0:09:01 Thomas: One time I want the cop to be, yes, yes. You're being detained. Yes. What do you think we're doing. Yes, you're being detained.

0:09:08 Matt: And remember, the entire purpose of this movement is not to pay your taxes, right? That's mostly what they don't want to be doing. So, you know, and there are a lot of people who've tried to do this, including the president of the republic.

0:09:16 Thomas: And often to try to get out of like different other crimes, right? Like, I think this is pretty popular among, you know, like inmates, I think. Like often they'll kind of spread like this, you know, maybe they find it plausible and then like, hey, try this at your next, yeah, parole hearing. It's like, it's kind of a bummer. Like, honestly, that's where it's the most of a but I was going to say earlier, for the most part, this is so delightful because it's usually the most like privileged pieces of crap that I wouldn't care about it's usually libertarians it's people that I don't feel bad laughing about uh it's just a good time all around I just love sovereign citizen stuff it's so much fun oh

0:09:21 Matt: Yeah, mm -hmm, yep, yeah, it is.

0:09:30 Lydia: It's their get out of jail free card. Yeah Yeah. Yeah yeah. So

0:09:51 Matt: And they're also making a bunch of money. Too like so you have to laugh at them because they're all scammers like this guy too is he's yeah he's big big pyramid scheme yeah I'm sorry good no

0:09:54 Thomas: Like the ones at the top yeah sorry

0:10:00 Lydia: I was just going to say that the Southern Poverty Law Center actually wrote an article about this when Tim Turner was arrested. And they interviewed Kelby Smith. And he said, sorry, they did not interview him. It was a telephone call with his followers, quote unquote. And he said we as a republic, you know, capital R republic, look very, very, very bad with our president sitting in jail. Either the president gets out of jail or the republic is going to be split.

0:10:26 Thomas: What who's in jail what's

0:10:29 Lydia: Tim Turner, the president of the the Republic of the Lower Case United States of America.

0:10:29 Thomas: In who's injured he's the oh okay I thought I wasn't

0:10:34 Lydia: I know.

0:10:34 Thomas: If this was a trump thing I was like were they saying he got arrested you never know like often they think like somebody Somebody got kidnapped and then, you know, there's all this crap.

0:10:35 Lydia: It's not a Trump thing. Yeah. So

0:10:41 Thomas: Okay.

0:10:41 Matt: Not the president of the corporation the president the actual president tim turner

0:10:44 Lydia: Of the actual.

0:10:45 Thomas: The Republic, the capital R Republic of the lowercase united. Okay. Okay. That's a different, whole different, whole different entity, whole different entity.

0:10:49 Matt: The real one and

0:10:49 Lydia: You got it, man. You should run for their president position. You figured it out. So the reason why the SPLC have has an article about this is because the FBI had designated them as domestic terrorists, which as I'm reading through this, Kelby Smith insists that they are nonviolent, that they don't carry guns, things like that.

0:11:10 Thomas: I have mixed feelings about that. Are there instances of violence

0:11:13 Lydia: I don't think so. I don'T think there is anything that can definitively have been tied to them.

0:11:13 Thomas: Or shootings or anything? They should, they should just classify them as dinguses. Can they just be like, all right, we are a press conference. We are classifying the United States government government considers these people dinguses we just want to say that they're dinguses

0:11:28 Lydia: I think that's fair. The dingus watch list.

0:11:30 Thomas: Mostly harmless dinguses occasionally you get a harmful dingus and we'll elevate we'll elevate that that classification but it's dingus dingus level orange right now yeah

0:11:31 Matt: Dingus sanctions yeah

0:11:40 Lydia: So I think what it is is they're painting this broad brush of previous sovereign citizen citizen groups in the past have ended up becoming violent and so now it's like preemptive right

0:11:45 Thomas: There's overlap yeah with like you know once it is weird that it's all a funnel of like right -wing libertarian all that like just hating authority and it just eventually gets to you know know, Tim McVeigh or whatever. Like, oh,

0:12:01 Matt: And no and so I will point out too that's part of the reason for the schism is there's this new generation of people that I've just learned about and I tried to learn a bit last week while I was out, I just kind of went down this, who consider themselves to be American state nationals or American nationals, and they're differentiating themselves from cyber citizens because they don't want anything to do with anything that looks like terrorism, which is pretty reasonable these days. You don't want to be anywhere near something that the FBI might be interested in. So the video here, he's going to be explaining his position. I find it to be extremely confusing. Maybe you can make some sense of it. It's only 90 seconds, but there's a wonderful...

0:12:30 Thomas: Joy. It's like a fun word game. You know, it's just a puzzle.

0:12:33 Matt: It is, yeah. Just try to understand what the man is saying. And it requires, of course, a lot of context that we don't have time for or care about. And there's a funny joke in the middle of it that I just had to play this just for the punchline about 60 seconds in. So let's, ready to take a look?

0:12:36 Thomas: Love it. Cue it up. CUE it up?

0:12:49 Matt: Let's take a look, Kelby.

0:12:53 Clip: What is the difference between american national and american state national first off oh and you don't ever want to be either one of those um american national is a coined phrase by a few um gurus out there there's no definition in the law of american national there's definition in law for american state national uh there is nothing on the declaration of independence for american national american American state, national, national or national of the United States. Those all point to saying,

0:13:00 Thomas: That's the question or so? Why would

0:13:24 Matt: So one sec, very quickly, just because this is good to my expertise, obviously, but of course, in 8 U .S .C. 1101, there was a very clear definition of the term national as someone who owes permanent allegiance to a state. Now, yeah.

0:13:37 Thomas: There? Oh. I love how they just say stuff. There's no definite. Well, there's this this one oh damn

0:13:41 Matt: Now he will mention this.

0:13:41 Lydia: Well well and here's the thing

0:13:42 Matt: He'll mention it later.

0:13:42 Lydia: Yeah he will mention this particular statute yeah yeah he's

0:13:44 Thomas: All right okay uh

0:13:46 Matt: But I just want to say he's differentiating himself from the gurus, like the people who are trying to take your money, not Kelby Smith, to be clear. He's not just a guy trying to make your money.

0:13:53 Lydia: Just a real estate agent you know I don't

0:13:56 Matt: He's a guy who's got the real truth, but he doesn't want you to follow the American state national definition. But the reason why is very funny. This isn't like if we explained why they're wrong. This is like him explaining why theyre wrong.

0:13:57 Thomas: He's trying to take your land I don't I

0:13:59 Lydia: Know yes

0:14:06 Thomas: Just want to check the video is just shit quality right because it's okay because I'm even looking at the source and it's garbage there's no like if you click the gear there's not there was no better version of this he's just filming it on a vhs tape from oh

0:14:14 Matt: Yeah, it's not very high def. No, that's straight from YouTube.

0:14:18 Lydia: And and I I have a feeling he is not in a beautiful library I have feeling that might be fake of

0:14:23 Thomas: You think that might be a backdrop drop. Okay.

0:14:25 Matt: If you watch his other video content, you can see he's in his basement. But yeah, I'm familiar with it now.

0:14:29 Thomas: It's a big basement. It got a lot of books. Looks nice.

0:14:32 Matt: Yeah, not that finished.

0:14:32 Thomas: I wish I had a basement like that. Oh,

0:14:33 Matt: But I will point out, though, that an American national is basically someone who is not a citizen. And unfortunately, it's really unfortunate we do have this category because it's people who live in Guam and the Virgin Islands who don't get to have actual representation but have to pay taxes. So those people shouldn't exist in the way that they do. They should be citizens. He's right. He's not wrong about that. He's just trying to say that there's a special way, a super special way that you can be a state citizen. That's what he wants you to be. He wants to explain why you can't be a state national or an American National. Those things don't exist. So don't think about it too much.

0:14:28 Lydia: Course yeah right okay here

0:15:03 Matt: That's my advice. Keep going.

0:15:04 Lydia: We go yeah

0:15:04 Clip: I want to be under a code within the United States. So I don't address those.

0:15:10 Thomas: Broke out. No.

0:15:12 Clip: And I think people need to understand that they're trying to say, it's just a trick. And there's big names out there trying to trick people. But that american state national uh there's no there's no code for that national is defined under eight usc 1101 a21 it's a person that owes allegiance to a state I'm not a person and I don't know owe my allegiance to a federal territory again

0:15:36 Thomas: He's not a person? Oh, shit.

0:15:38 Matt: There we go.

0:15:39 Thomas: Huge.

0:15:39 Matt: Let's not let that go.

0:15:39 Clip: Go to corner law

0:15:39 Thomas: Huge news. Yeah. Big announcement.

0:15:40 Lydia: I know I'm not a person said yes

0:15:43 Matt: This is the punchline.

0:15:45 Thomas: Uh, I'm not a person.

0:15:46 Matt: It's like, I'm with you on the legal definition. That definitely exists. I'm just not a person.

0:15:48 Thomas: He's a corporation, right? Is that the, is that where he's going with that? You're

0:15:51 Matt: Yeah, he's not he's not buying into any of this code. And of course, this is very funny, too. He doesn't want to live his life under a code. You know, he doesn't recognize the United States code, I guess, except for when it gets some real estate commissions, but all of the stuff necessary to collect his commissions oh yeah sure so yeah he he's not a person no good so

0:16:03 Lydia: Yeah exactly and he's in southern california too so he's probably making bank yeah oh sorry about that

0:16:09 Clip: Click on eight usb 1101 821 8 usc 1101 a 21 click on the word state you're gonna go so why are those gurus teaching about allegiance to a federal territory I

0:16:19 Thomas: Putting me to sleep, dude. I don't know. Are they at least exciting? That's it? That your video?

0:16:28 Clip: Don't know

0:16:29 Lydia: That's that's it

0:16:33 Matt: Yeah that's it that's our taste yeah that says he's he's answering uh yeah he's essentially like the equivalent of a patron question basically he's got people paying a lot of money to to make this stuff so yeah yeah we're missing out not

0:16:35 Thomas: Don't show people our algo. That gets ruined from doing this stuff. Absolutely ruined. Uh, really? Anyway, this content sponsored by Sovereign Citizen, American American lowercase republic for the uppercase United States lowercase. I don't know.

0:16:59 Matt: American nationals let's be clear about that we are not not American nationals. So yeah, there you go.

0:17:03 Thomas: So is he trying, he's trying to say he's a national of the state of California? No, I don'T know.

0:17:07 Matt: No, no, he's a citizen of the state. He's not a citizen Of a country. And he has no allegiance to any state. Or I know.

0:17:09 Thomas: Citizen. What does this do for him? What does it do? Just brass tacks. What is it?

0:17:17 Matt: This gets people to give him money instead of the other gurus. That's that's what it does. He needs to have the true truth, right?

0:17:23 Thomas: But they're, but they're all ultimately trying to do a therefore don't pay your taxes thing or what? What are they?

0:17:27 Matt: Mostly.

0:17:28 Thomas: Okay. But like you get in trouble for that long. Okay maybe not anymore boy now's a great time to be be a sovereign citizen it's never been yeah yeah buy I'm I'm buying stock in sovereign citizen because there's no irs so screw it

0:17:29 Matt: That'S most of it. And just looking through and yeah, better than ever. Sure.

0:17:34 Lydia: Sovereign citizen. Yeah.

0:17:43 Matt: But I should point out, these people are also all Christofascists who think that we should be in a theocracy.

0:17:48 Thomas: I sold my stuff I'm selling that stuff actually

0:17:49 Matt: That's actually the theme for today's episode.

0:17:49 Lydia: Restore America specifically.

0:17:50 Thomas: I should still buy that stock it's doing well

0:17:52 Lydia: Yeah restore America specifically very evangelical crowd and when Tim Turner and Kelby Smith left there Kelby Smith explicitly says you know like you can believe whatever you want but at the end of the day our country was founded under God, blah, blah. But no one's going to, like, give you a hard time if you worship God in whatever way that is for you. Nothing about atheists, but.

0:18:13 Matt: And this is very familiar to me coming from a fundamentalist background of the idea that you have to split your hair and be down the middle. This is what we believe, this is who we are, and everybody else is wrong. So it's interesting to watch that happening in this movement. I wasn't aware that it had gone on to that kind of level of schisms.

0:18:29 Thomas: That's why I say everybody else is right and I'm wrong like everybody everything I say don't listen listen to everybody else but me because I don't want to be them, you know?

0:18:34 Matt: Can't go wrong. That's right. Well, let's move on to somebody who is never wrong. Adrian Vermeule.

0:18:41 Thomas: Okay. Well, I almost think this is a great place for a break in the podcast feed.

0:18:47 Matt: There you go.

0:18:47 Thomas: Let's sit here forever.

0:18:47 Lydia: I think that's a great

0:18:49 Thomas: And then who knows if someday we'll have ads on here. I don't know. But for now, podcasters, it's a break. Okay. Podcasters? No. Well podcast listeners of whom only 80 % are podcassters. It's a brake.

0:18:49 Lydia: Idea.

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0:20:25 Thomas: Okay, what's next?

0:20:26 Matt: All right. So next we've got Harvard Law professor Adrian Vermeule wrote a long piece in the New York Times a few days ago. And my first read through this, I immediately started to see where he was wrong about everything he was writing about. But I want to talk about why he wrote this and why it exists. But let's talk about the man first I think that would he's got some background for for eight old adrian for us it

0:20:45 Lydia: ,I sure do. OK. His name is Adrian Vermeule. He was born Cornelius Adrian Comstock Vermeule, which is a much better name than Adrian Vermeule.

0:20:54 Thomas: That's a good sovereign citizen citizen name he should go oh come on it should be the first segment yeah

0:20:56 Matt: Is cornelius yeah

0:20:57 Lydia: He's also Cornelius Adrian Comstock Vermeul III. And he's kind of a Nepo baby when I was doing some background on him. With a name like Cornelious, you know, who would have thought?

0:21:10 Thomas: Cornelius what's his fuck rich fuck the third is a nepo baby no way map

0:21:15 Lydia: But Matt, like in your neck of the woods, he's like a nepo baby his he comes from a long line of like Bostonian intellectuals um so his mom his mom is uh was Emily Dickinson Townsend Vermeule yes related to that Emily Dickinson um apparently so

0:21:22 Matt: Why

0:21:23 Thomas: Owners well why would she be really oh okay like like a dot like a grand why would a name be the same as it is what

0:21:36 Lydia: Her it it well it specifically says her grandmother was related to emily Dickinson in various articles but no one has said explicitly how it could be like like fifth cousin once removed, you know. But apparently the family is very interested in that. So that is a name that continues to be passed down.

0:21:51 Thomas: We should have named one of our sons like Bill Murray Smith and just been like Like, yeah, related to Bill Murray.

0:21:56 Lydia: Just started a thing.

0:21:57 Thomas: His name is Bill Murray Smith. You don't think he's related to Bill Murray? Idiot.

0:22:01 Matt: Else would we name him then somebody

0:22:05 Lydia: So she was a professor of philology and archaeology at Harvard. And when she died in 2001, the New York Times ran a piece about her. And some interesting, you knows, just a quick little interesting fun fact about her, because this family is super interesting. She discovered an ancient Mycenaean tomb as a student and later conducted excavations in Greece, Cyprus, Turkey, Libya. She's considered like the premier expert of Mycenaean archaeology.

0:22:33 Thomas: How do you stumble on a Mycenaean? I'm picturing a student on the way to class like, oh, what is that? Holy shit.

0:22:34 Lydia: And I think it was like, yeah, it was right place, right time. She just happened to pick a good spot, I guess. I don't know how it all works.

0:22:42 Thomas: Mycenean tomb in the quad. Yeah. Yeah.

0:22:47 Lydia: But But there was actually, exactly, yeah.

0:22:48 Thomas: Well, I've seen Indiana Jones. Like you got first, you burn your hand on a thing that has a pattern for where it goes, but then you you didn't get the rest of it.

0:22:55 Lydia: And then there are some rats that come in,

0:22:57 Thomas: Snakes is a big part of it and famously.

0:22:58 Lydia: And snakes and rats, both of them, both of them.

0:23:00 Thomas: But she went for rats

0:23:01 Lydia: I did because I, well, but I wanted the rats to get involved to make you want to leave. Anyway, so she conducted

0:23:02 Thomas: As the reference that would make less sense. Okay, got it. And then the snakes make you stay. Classic Indiana Jones. Anyway.

0:23:13 Lydia: Excavations in Greece, Cyprus, Turkey, and Libya over her career before she went into her academia scholarship. Ship. And one excavation was actually in the 70s. She was conducting an excavation in Cyprus and then Turkey invaded like while she was there. So they just had to abandon their entire site and leave and just were like, never mind.

0:23:26 Thomas: Shit. That is very Indiana Jones, huh? She's like, here, I'll sneak behind this secret chamber. I hope they had a bunch of those things. You know, I feel like real life. This is not going to be at all as fun as Indiana Jones you know like the darts and all of all the traps like imagine laying a trap that lasts for that long how did they do it it must have been the aliens that built the pyramids they're also had amazing trap laying technology where they're still springing like darts from when two thousand three thousand four thousand years ago those darts are just hanging out yeah

0:23:39 Lydia: I know. I think it's been romanticized for sure in the media. Yeah. Yeah was it's that.

0:24:00 Matt: Goes and resets them every few years obviously like this you have you got a custodian come on sure

0:24:02 Thomas: You know just yeah

0:24:02 Lydia: It's the equivalent to you know the night at the very end and stuff but like the other side has

0:24:08 Thomas: He's got a lot to do. A lot of upkeep that night from the last crusade.

0:24:12 Matt: So yeah what I'm getting here is that adrian vermule's mom is way cooler than him that's

0:24:16 Thomas: That's she sounds great. Did she do anything wrong? OK, good. I'm just and

0:24:18 Lydia: Nothing no no and oh huge Red Sox fan and she would like write op-eds in um like the Boston Globe about the Red Sox and then like equate them to like ancient Greek warriors and like just

0:24:30 Thomas: Matt lives in a place where other people care about that. So that's

0:24:34 Matt: True very much

0:24:34 Lydia: Well who knows who knows um and so then his dad

0:24:37 Thomas: Not a sportsman. Matt, if you had to pick, hold on, gun to your head, math or sports, which you which do you have to do? Someone's like, you either do math, you're going to do sports.

0:24:45 Matt: Sports oh

0:24:41 Lydia: Well wait wait do sports as like participate or spectate

0:24:46 Matt: I will I can uh

0:24:49 Thomas: I would say either. Either. Oh, either. Okay. I mean, watching math is not as exciting as.

0:24:50 Matt: Either yeah no just shoot me instead of making me do calculus but

0:24:57 Lydia: But but what if you got to use a calculator for math that doesn't change it

0:25:01 Matt: Just shoot me no

0:25:01 Thomas: It doesn't. I don't think that helps. I don't, I don't think you understand how bad math is.

0:25:05 Matt: If you're like you have to learn about the Red Sox at least there's people involved I can learn about and it keeps me interested but it's humans

0:25:12 Thomas: Hey, Pythagoras, you know, there's some great people involved.

0:25:14 Lydia: All right so his dad we're gonna come back to adrian don't worry but I just have to share hear these things about his family because it's very interesting. His dad was a curator of classical antiquities for the Museum of Fine Arts in Boston. And when he died in 2008, the New York Times ran a piece about him because kind

0:25:31 Thomas: And they said he belongs in a museum is what they said.

0:25:34 Lydia: Of, I mean, geez, this family. It says in his later years, Dr. Vermeule was part of one of the biggest controversy surrounding museums. What can you guess, right?

0:25:44 Thomas: Fake art.

0:25:44 Lydia: Accusations, no, accusations that they stole art from other countries or failed to check whether it was stolen he acquired

0:25:46 Thomas: Well, yeah. I just assumed that was the backdrop of all museum. I I didn't know that was not. Okay. So they're mad about that now. That's good.

0:25:55 Lydia: Well in 2008 they were mad about it he acquired items so obviously looted that the museum of fine arts like other museums gave some back to italy in 2006 uh and then you know he basically said you know it's a competitive obscure business and it had shifted fundamentally he tried to exercise due diligence um he also had some things in his own you know, private collection or whatever that he gifted to the museum, including what they called a significant Etruscan statue. I don't know what it is, but apparently it is significant.

0:26:03 Thomas: Still the price tags on them. Yeah. It's one of the significant ones. So I'm just rattling off.

0:26:27 Lydia: And when he when he

0:26:29 Thomas: Let's see. Is it this one? Is it?

0:26:30 Lydia: Gifted things to the Museum, he often gave them under pseudonyms because he was, you know affiliated with museum, he didn't necessarily want the credit. But let me tell you his pseudonyms because they're great.

0:26:41 Thomas: Great.

0:26:41 Lydia: Sir Northwold Nuffler. So good.

0:26:48 Thomas: That's like the third try of 20 to come up with a better one. That's nothing.

0:26:52 Lydia: Wentworth Bunsen.

0:26:54 Thomas: That's getting closer. That's closer. Good job. Wentworth. What's his actual name? I don't remember. Indy.

0:26:55 Lydia: And then, no, it's Cornelius.

0:26:59 Thomas: Oh, this is Cornelius. Sorry.

0:27:00 Lydia: This is the second.

0:27:01 Thomas: I thought we were on. Oh, cornea is the second. You're right. Okay.

0:27:02 Lydia: This is Cornelis II. Yeah.

0:27:03 Thomas: My bad. Yeah. Yeah, good job, Cornelius II.

0:27:06 Lydia: And then Esau Sukunabe.

0:27:09 Thomas: Yeah, Esau. Yeah, okay. That's a weird combination.

0:27:12 Lydia: Yep, and then one other member of the Vermeule family that I want to tell you about his sister, Adrienne's sister, so Cornelius III. His sister was born Emily Dickinson Blake Vermeule, but she goes by Blakey. And she is a professor of English at Stanford. And this is important. So is her wife, Terry Castle. This is going to be important as we talk about Adrienne Vermule.

0:27:24 Matt: Of course she was hmm

0:27:36 Thomas: With the amount of emphasis you drew to that, I hope it's important.

0:27:38 Lydia: Her wife. It is because

0:27:39 Thomas: Otherwise, it's like, oh,

0:27:38 Matt: Yeah it is important yeah

0:27:40 Lydia: We're going to talking about the kind of person Adrienne Vermule is. And I don't think they have a relationship anymore. I'm going to tell you that.

0:27:44 Matt: Wonder how they get along yeah yeah interesting but

0:27:46 Thomas: Wow, I don't know what this... I'm in the... Hey, folks, audience. I don'T know what the hell they're talking about. This sounds bad, whatever it is.

0:27:51 Lydia: So So let's get back to Adrian a little bit. He graduated from Harvard with his undergrad work in zero, zero, absolutely zero.

0:27:56 Thomas: What tombs did he find? Did he find any... Zero tombs? Get the fuck out of here, you nepo baby.

0:28:00 Lydia: I know.

0:28:00 Matt: He he's like a he's like a greek statue guy he's a classicist this makes so much sense anytime about his parents he's really into classics

0:28:05 Lydia: Well, East Asian languages and civilizations. So he picked a different area of the world. That's where he did his undergradwork.

0:28:10 Thomas: All right, all right.

0:28:12 Lydia: And maybe his interest changed with what we're going to talk about what happened in 2016. But his undergrad anyway was East Asian Languages and Civilizations. Then he went to Harvard Law, clerked for David Sintel of the D.C. Court of Appeals. And then Antonin Scalia, 94 to 95, was the year that he did that. He is married to a woman named Yeon -Soo, and they had two kids. They actually lost their son last spring in a car accident. He was 20 years old.

0:28:39 Thomas: Don't make me feel bad for the guy if he sucks why why we didn't I'm just kidding that's that's a bummer yeah

0:28:42 Lydia: I just, I'm going to be, you know, comprehensive. Yeah, yeah. He was20 years old going to Notre Dame, and he was a fencer. It was like a single car accident, just I don't know exactly what led up to it or anything. Thing. They didn't really release any investigation results. But so he passed away. Their daughter is also a fencer. Both kids grew up fencing. Pretty accomplished fencers, too.

0:28:44 Thomas: Complete picture oh wow it's kind of cute we should get our kids fencing that would be bad that'd be very bad what

0:29:05 Lydia: And she she ended up fencing out of Harvard and has since graduated. So let's talk a little bit about religion, because I think that's going to inform a lot of what Matt's goingto get into. Adrian Vermeule, or I should just call him Cornelius, honestly. Cornelios grew up Episcopalian, And then he converted to what do you think in 2016? What do you think he converted to?

0:29:30 Matt: The cool thing all the kids are doing now yeah

0:29:32 Lydia: It's what your family all converted to.

0:29:33 Thomas: Why oh this was an actual question I have no idea maga yeah oh okay was that a thing people were doing I don't understand this sorry Sorry.

0:29:36 Lydia: It's an actual question. Catholicism. No Catholicism? Well, it just like a very like, I don't know.

0:29:43 Thomas: Like J .D. Vance -esque thing. But that was after. OK. Anyway.

0:29:47 Lydia: So he converged to call Catholicism and announced it in 2016. He did an interview with a magazine called inside the Vatican at that time. And one of the questions that they asked him was about his conversion, and he implied that there was a mystical element that was involved in there. The interview continued, and they basically wrapped up with this question, on what legal fronts do you find the most hope for influencing the culture away from the culture, quote, culture of death, of materialism and nihilism we seem to be gradually embracing? And he responded, responded I put little stock or hope or faith in law it is a tool that may be put to good uses or bad in the long run it will be no better than the polity and culture in which it is embedded if that culture sours and curdles so will the law indeed that process is well underway and its tempo is accelerating our hope lies elsewhere

0:30:38 Thomas: I mean, I completely agree. But the other way. Yeah.

0:30:41 Matt: For other reasons yeah

0:30:43 Lydia: Um so when uh as he converted to Catholicism, what he started embracing was integralism, which I'm sure, Matt, you know plenty about. And I think you went down that rabbit hole. So eager to hear, you know, your thoughts about that. But just wanted to give some brief like little clips before we get into here.

0:31:01 Thomas: It's your calculus religion doing integrals. Yeah that's. No.

0:31:06 Lydia: Just some brief thoughts from other like law professors and thinkers and stuff about Adrian Vermeule and his integralism arguments. Law professor Randy Barnett said said that the position of Adrian Vermeule is he makes an argument for the temporal power of the state to be subordinated to the spiritual power of the church.

0:31:05 Matt: You'll

0:31:29 Thomas: Oh great.

0:31:29 Lydia: Yeah. Garrett Epps, another law professor, he characterizes Vermeul as an authentic Christian nationalist to whom the a constitution is only an obstacle. Libertarian columnist George Will says, you know, Christian authoritarianism, muscular paternalism with government enforcing social solidarity for religious reasons. This is the constitution minus the framers purpose, a regime respectful of individuals, diverse notions of the life worth living. And then Elliot Kaufman in the National Review described Vermeule as a, quote, reactionary and, quote. Illiberal following in the footsteps of German Nazi thinker Carl Schmitt. White House counsel during the Reagan administration, Peter J. Walson, described Vermuele's book, one of the books that he wrote, as, quote more an embarrassment than a legal masterpiece. And that, quote The political structure he devises is highly authoritarian, perhaps even totalitarian. So that's pretty crazy. And I'm not even getting into where he has been in the last few years with election denial, which maybe we'll get to later.

0:32:36 Thomas: I wonder if we should. We had no one has any idea who we're talking. I don't know if we

0:32:37 Matt: Never guess I think it's important to have this in your mind as you as we're reading it because yeah I cannot emphasize enough how bad faith this is um because he knows better he he's definitely not as stupid as he's coming across in this article I've read a sub stack I've heard his other work I've not read any of his books uh but his Substack is extremely pretentious and even even for a law professor, that's a pretty high standard.

0:32:58 Lydia: As. Yeah. Yeah, yeah.

0:33:02 Thomas: Even for a sub stack.

0:33:04 Matt: Yeah. Even for a sub -stack.

0:33:05 Lydia: Like like just the language choices that he uses. It's like, oh, God, knock it off.

0:33:09 Thomas: Man.

0:33:09 Matt: It's, and you never know what he's actually saying, right? It's incomprehensible.

0:33:11 Thomas: You can tell he's trying to compensate for never finding any tombs. You can do every single flowery word. He's like, if he did just found a tomb, you know,

0:33:20 Matt: But this to me is all you need to know about him is what he writes in New York Times a few days ago, because it just completely obviates, it cancels out all of the pretentious high -minded stuff on his Substack and his other writings. It just cuts through the smoke and it really lets you see who this guy is because one again what as we go through and I tell you about the truth of what he's saying and why he's writing this this is so bad faith this should be disqualifying honestly once people see what this is and why he's rating it he should never have any kind of serious publication again but of course he will that's right that's great and the new york times

0:33:48 Thomas: He should be run right out of sub stack, yeah, yeah. Well, what, what is his thing? Yeah, well, what is he? Is he just, he, there, from time to time, the New York Times is like, hey, Hey, does any privileged fail son have like a really bad take? Oh, you, sir. And then they just grab someone from Harvard. What is he?

0:34:05 Matt: But they want this is this is dangerous because honestly like I always say about the birthright citizenship stuff right I'm not not going to respond to that. It's too stupid. Like to say the 14th Amendment doesn't say what the 14TH Amendment says in the first few words, right? And I've seen a number of people I respect this week saying, I'm not going respond to the Vermeule piece. It is just so obviously wrong. It's obviously wrong to a law scholar, to a professor, but it's not obviously wrong to the average New York Times reader. And as I go through and tell you why it's wrong, you're going to immediately say why it is wrong. I think that Thomas, you already know, you know, I am sure why it was wrong because you follow this stuff. But if you are not closely following, you might read this and think, oh yeah, there is a real problem in the lower courts right now that's where our problems are uh so yeah let's get into it and we can she can show you why what he's actually trying to do here but he is his entire thesis is obviously just stupid and made up um

0:34:49 Lydia: Yeah we can go ahead and share the article and kind of scroll along with it.

0:34:53 Thomas: Should I? Are you going to be able to? Wait, how are we doing this?

0:34:53 Matt: And I

0:34:55 Lydia: I have to close out of this.

0:34:57 Thomas: Do you want to switch back to mirror method there? And then you can like mirror the screens and then you're looking at your screen. Would that work?

0:35:05 Lydia: Because I still have my notes up.

0:35:07 Thomas: Oh, gotcha. Okay. Okay. Sorry. We're working on one last technical thing we didn't figure out. Okay. Are you going to be able to do this from here? Oh, that makes sense. Okay.

0:35:15 Lydia: I'm going to open it up in both.

0:35:13 Matt: Know I'm gonna keep this somewhat targeted we don't have to we can go through some blocks of text without stopping too much now that we've explained a lot about him uh but I got a few places to stop so let's just get it going yes

0:35:28 Thomas: Ooh, here, the title is someone is defying the Supreme Court, but it isn't Trump. Oh, cool.

0:35:33 Matt: Who is it gonna be

0:35:35 Thomas: Do you want to, do you want a zoom? Do you wanna pinch, pinch zoom there?

0:35:38 Lydia: I'm trying to. It won't let me. I'M TRYING.

0:35:39 Thomas: If you just, oh, it's not. Okay. There you go. Nice.

0:35:46 Lydia: All right. Since President Trump returned to the presidency for a second term, legal scholars and political writers have wrestled with a particular preoccupation. What if he defies court orders?

0:35:57 Matt: What if wouldn't that be awful this

0:36:00 Thomas: What was this? Sorry. What year was this because this was the news cycle from, this was 2024, right?

0:36:03 Matt: Is three days four days ago yeah

0:36:05 Lydia: This is very recent. No, this is last week.

0:36:10 Thomas: Yeah, I know. My point is they were writing about this before Trump got into office or like right as he started, like, oh, what if he, what If he defies? And then we're in, it's like he found, like did he write it and then he dropped it somewhere and he found it was like, oh, does this, this is still good, right, this still apply? He's already done this, right.

0:36:16 Matt: Very true right

0:36:28 Thomas: He's a defied quarter order after quarter order.

0:36:27 Matt: Uh let's check the next sentence and see how you feel about after this next sentence

0:36:36 Lydia: When actual examples of the administration violating court orders turned out to be hard to find and contestable in any given case,

0:36:42 Thomas: I don't think that's it's hard to find. You keep reading. I'm just going to Google just for fun. Did Trump defy?

0:36:43 Matt: Those are different that

0:36:47 Lydia: Some commentators broadened the notion of defiance to include so -called malicious compliance or legalistic noncompliance. The idea here is that even if the president or his agents did comply with the terms of court orders, however unreasonable, they might be doing so in bad faith, with the covert motive of actually evading or circumventing the point of the order.

0:37:08 Thomas: That sounds right.

0:37:09 Matt: Is defiance of a court order we've talked about this already but malicious compliance is defiant that's the point of it you don't want to follow it so you pretend that you you are badly. I mean, yeah, no, no.

0:37:18 Thomas: But no, that's fine, Matt. You can do that, I guess.

0:37:21 Matt: That's a different thing than defiance, right? And this is his whole thing. He's like defining his own terms and then telling us why we're wrong about how we use his terms.

0:37:28 Thomas: I found something in

0:37:29 Lydia: God, it's this whole Substack.

0:37:29 Thomas: A publication called the New York Times that says judge accuses government of willful and bad faith stonewalling in deportation case uh the head well that wasn't the the result was trump administration is in the google results I guess that maybe they changed the title but it said trump administration continues to defy judge's orders in a barrio garcia case that's that would be so that was easy that was easily fine I was hey tell them tell them hey if you were better finding things like tombs and articles maybe you're just bad at finding stuff dude you should yeah talk to your was it your mom or grandma I don't know who it was but talk to them talk to mom about how to find things yeah failure of an archaeologist

0:38:01 Lydia: Etruscan statues? Statues? Man. The mom. The mom. Yeah, your mom.

0:38:05 Matt: That's it. Yeah. But just to appreciate what he's doing in this paragraph, because this is what he is going to do through the whole thing, when actual examples turned out to be hard to find, like, again, that is just like a weird passive way to say that, I don't think there are any, right? And contestable in any given case. Okay, so I'm going to argue with you if you think you found some.

0:38:26 Matt: And then he goes on to explain about why defiance doesn't include malicious compliance. I mean, just the whole thing is so bad faith. Let's keep going.

0:38:31 Lydia: The issue of defiant court orders is still with us, but it has taken a twist. Now the defiance is coming from inside the judicial branch itself, in the form of a lower court mutiny against the Supreme Court. District court judges, and in some cases even appellate courts, have either defied orders of the court outright or engaged engaged in malicious compliance and evasion of those orders in transparent bad faith.

0:38:37 Thomas: What I might get into trouble here because I'm rooting for this actually though is actually think the court the supreme court's gotten so bad I'm rootin for this to happen so I don t know I don know if this makes me a hypocrite or something but I want this to hap pen but I don' t know that it is so matt will clear that up I'm sure but anyway oh

0:39:08 Matt: Well, he's writing quite a check in this paragraph. Let'S see if he can cash it. He's going to give some examples where he thinks he's going to show you that there is some sort of massive revolt happening in the lower courts. And I'm gonna tell you, it's not. Unfortunately, none of these things actually do qualify as the thing you want. But let's keep Going.

0:39:12 Thomas: All right sorry

0:39:24 Matt: LetS find find out.

0:39:24 Lydia: All right. In the past decade or so, increasing judicial overreach has caused harm to our constitutional order by limiting the ability of the executive branch to implement the program it was elected by the American people to pursue. It has been a scourge for both recent Republican and Democratic presidents, and it may provoke extreme measures to restore order. Murder. The recent defiance goes even further, threatening to damage the internal integrity of the judiciary, which ultimately relies on lower courts to follow the Supreme Court's direction.

0:39:52 Thomas: Didn't we already get rid of their ability to do injunctions and all that like isn't that gone too but

0:39:57 Matt: He'll talk about that later. He still thinks that's...

0:39:58 Thomas: What but where are we here like he's writing it's like damn I already wrote all this six months ago and I still need to turn it in I don't none of this seems relevant now

0:40:06 Lydia: I, you know, I just want to chime in, too, with like where he was in 2007, because I found some other pieces about him. In the Boston Globe, there was an article titled Supreme Downsizing, and Vermeule said, what I'm suggesting is a kind of arms control agreement, a tacit deal. The court should stay out of controversial matters of politics and law almost entirely highly deferring to the wisdom of elected representatives in Congress. That's where he was in 2007. That is not where he is now at all.

0:40:33 Matt: Now he's all executive. Yeah. He's all about the authoritarian executive. And also the idea that the lower court should, in every possible respect, all the way down the chain, always comply with everything he thinks the Supreme Court is saying. And I just want to point out before we go on, this is a very important point. All the examples he's going to give are shadow docket cases in which the Supreme court did not actually provide, they either didn't give an opinion, just like in it a couple of sentences, or they gave like maybe a sentence about why they were doing it. So the lower courts have good reason to be confused about what the Supreme Court is even doing if they don't know why it is. But the examples, you're going to see how bad this is going to get with these.

0:41:08 Matt: But his idea of law, as you said before, is very flexible. He's one of these people who thinks we're kind of in a post -constitutional era. And he's proposed something called common good constitutionalism, which is basically doing everything that Catholics want to do. And when he talks about Catholic integralism, he means let's get our people in the right places.

0:41:08 Thomas: Great oh the common Catholic good.

0:41:23 Matt: Is basically, yes, it's good if it's Catholic, basically. But I just want to make the point, I meant to read this before from the Atlantic when he wrote this. Somebody actually wrote a piece responding to this called, can somebody check on Adrian Vermeule and see if he's doing okay, basically, was that bad? But the court's jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common good constitutionalism, the thing he's advocating for. So just keep that in mind. Let's keep going then, we gotta we got more to get through yes

0:41:48 Lydia: Right. Consider Judge Brian Murphy of the Federal District Court in Massachusetts. Judge Murphy issued a preliminary injunction against the transfer of removable aliens to third countries in cases in which the transfer was expressly permitted by federal law. So far, this was just an ordinary example of judicial overreach.

0:41:52 Matt: Please this

0:42:06 Thomas: Wait, is that ever permitted?

0:42:07 Matt: Is such a weasley way this

0:42:09 Thomas: But wait, removable ends to third countries.

0:42:10 Matt: Is such a Weasley thing to say so

0:42:13 Thomas: Isn't, when is that permitted by federal law?

0:42:16 Matt: He's talking about DVD and it is permitted by federal law we talked about this a little bit it is from it in some cases in certain situations but what he didn't find was that like flat -out they couldn't transfer them what he found was you have to give them rights before you do that to make sure that they don't get deported to a place where they were gonna be tortured and so this is this is like it and he knows that I know he knows that. He can't be this stupid. He's acting as dumb as possible.

0:42:21 Thomas: Gotcha. Yeah. That's kind of important.

0:42:43 Matt: No, he's also super into migrant rights and he told J.D. Vance to his face that he was wrong about a number of things. And I think you'd tell Vermeule he's wrong about this too. But again, though, look at how weaselly this is to say in cases in which the transfer is expressly permitted. Yeah, the transfer's permitted, but what the judge found was that you have rights before you do that and you're running over them.

0:42:39 Lydia: But after

0:43:02 Thomas: That is the whole, that is kind of a way of bypassing the whole due process thing. If it is like, well, we are allowed to search your house. Yeah if you have a warrant, if you come it's it's oh we're sorry are we not allowed to search houses you know like yeah okay so that's what you're saying yeah so it can be permitted with the right due process I guess but in those cases it was not there's no that right wasn't that the issue that okay

0:43:10 Matt: Expressly permitted by federal law. Right? Exactly. Yeah. Right, right. Very limited circumstances. Right yeah. Yeah and now he's just calling this an ordinary example of judicial overreach but what it is of course is that not only that remember in DVD the case we're talking about that he's talking about as Sotomayor reminds us in the dissent there were multiple multiple multiple violations of his orders and of the law and you know that he then the Supreme Court rewarded them let's keep going though how they were wouldn't thank

0:43:43 Lydia: The Supreme Court issued an order to stay, that is, to stop, the preliminary injunction while litigation proceeded over a dissent by Justice Sonia Sotomayor, Judge Murphy went beyond overreach. He decided that his order enforcing the injunction that the court had stayed nonetheless remained in effect, a proposition for which his only cited authority was the dissent from Justice SotomAYOR. This seemed to be malicious, whether or not it counts as, quote, compliance at all. This.

0:44:10 Thomas: Wait I thought before it only counts as compliant is he now yeah now it's defiance if it's not it counts if it'S okay

0:44:15 Matt: It's defiance and yeah yeah right

0:44:15 Lydia: Well, yeah, only that side can be. The Supreme Court, with the notable concurrence of Justice Alana Kagan, then had to stay the second order and explain that Judge Murphy's renewed effort was also illicit. Mm

0:44:30 Matt: So we did talk about this in a way I just remind everybody that judge Murphy total badass the same night the Supreme court issued this order and which again was not explained no explanation no explanation at all attached just saying that this disorder order stayed. And then Sotomayor wrote a beautiful, typical 18-page dissent that explains why it was disgusting. I mean, it's really bad, especially given, as she points out, the number of violations of court orders that had led up to this point. But he decided that same night, once he got the order from the Supreme Court, that they had not addressed his follow -up remedial order that he issued a month later on May 20th. The original thing was April 18th. And that seems to be true. And Sotomaior said that in dissent. The reason he cited the dissent is because there's no majority to cite. They didn't do anything. There's no actual...

0:45:11 Thomas: That's right because they so just in in case we have any non, you know, 08 veterans listening, the whole shadow docket thing is they get to just say, you now, fuck off, or, yeah, like, they do the, you not that thing, and then they do not explain themselves. We often do not, correct me if I am wrong, Matt, we do not necessarily always even know who is on what side of that, right? If they do, if no one signs an opinion or or whatever yeah

0:45:23 Lydia: Or nay. Yep.

0:45:35 Matt: If they don't have a... Right. They'll often say that whichever justice wouldn't join or dissent or whatever doesn't explain themselves. But yeah, no, just to read the actual majority opinion, the application for stay presented to Justice Jackson by her referred to the court is granted. And then they just have the details about what they're going to do with it.

0:45:51 Matt: But no, no. And there's no explanation. And this is the one in which Sotomayor's dissent began. Again, in matters of life and death, it is best to proceed with caution. That's the dissent, everybody. Okay. All right. So

0:45:50 Thomas: Not much to cite there yeah well show's brought to you by Fireflies. Are you buried under nonstop meetings and struggling to remember what was discussed or agreed next steps? Yeah, me too. I'm Thomas, representative of Being Overwhelmed. And I'm here to tell you, if you want some help with that, try Fireflies. Fireflies is the number one AI teammate that transcribes, summarizes, and analyzes your conversations so you can get the most out of every meeting. Reading. Know, true story, I was at thing thing the other day, and the doctors now are doing the like, hey, do you mind if I have AI do take notes for me so I can be more in the moment and like not have to be like writing stuff. I was like, well, that's awesome. Yes, that's great. I don't mind. A good thing. AI is not good at everything. It's good at this thing. Fireflies is the smarter way to work, helping you understand what was said, notes, find information, take action on next steps, and develop workflows to create internal efficiencies. And seamlessly integrates with all the tools you already use. It's got your Zooms, your Google Googles Meet, Slacks, your Asana, I don't know why I'm doing that, Asana. That stuff. Integrates With that. Fireflies integrates with it all. What are you waiting for? Join ,000 companies already using Fireflies and turning your meetings into action. And right now, when you sign up for a yearly Fireflies subscription, you get your first two months free. Just go to fireflies .ai slash opening. Right. Two months free when you go to Fireflies .AI slash opening one more time. That's fireflies .ai opening this

0:47:40 Matt: So then she talks about how, so this is not malicious compliance. This is him saying, I issued this second follow -up order because DHS was wildly overriding what I said. Like they just ignored my order completely. So to my own details, all the different ways that they did this, flooding the orders, you know, in violation of an unambiguous US TRO. They flew them out to Guantanamo Bay, deported them to El Salvador. And then another violation with the South Sudan thing, with less than 16 hours notice and no actual opportunity to be heard. The government thus openly flooded two court orders, including the one from which it now seeks relief. So the government filed a motion to clarify saying, didn't it also cover this thing, which was basically a remedial order to try to make sure that they actually did the thing that he told them to do in the first place. But it was actually because it was in contemplation of a contempt, technically speaking, it was a separate thing, which is what Sotomayor said in her dissent and which the judge decided was correct. And that's a perfectly reasonable thing to do, again, considering he's got no guidance whatsoever from the top. So the way he's characterizing this obviously is bad faith. And it's the closest of these examples. It's the closest I think maybe to a good point, but it's still not a good one.

0:48:49 Matt: And then not just because Because I agree.

0:48:49 Thomas: Let's look at the worst points

0:48:51 Matt: Yeah. But it's not a good point. All right. Let's keep going.

0:48:56 Lydia: In a similar episode a federal district court judge in Oregon held that the Department of Homeland Security could not engage in mass terminations of parole status for a class of migrants and in doing so cited earlier lower court decisions that had blocked similar executive action but somehow omitted that the Supreme Court court had already stayed those other lower court decisions.

0:49:15 Matt: Okay. This is like the smoothest baby brain way to explain what happened, obviously. But I don't want to do a whole 45 -minute explainer on this. But basically, the Oregon decision that he's citing is a completely different set of facts, different circumstances. It actually involves somebody from Mexico. The Noam v. DHS case that he's talking about this day was when the Supreme Court upheld the vacature, basically upheld the termination of a certain Biden -era parole program that brought in people from Cuba, Haiti, Venezuela, and Nicaragua.

0:49:21 Thomas: Well help us smooth baby brains out what the fuck is he talking about

0:49:53 Matt: This guy's from Mexico, different circumstances. And the court's point was that this was not a categorical parole termination, the way that the Supreme Courts was looking at categorical things. It was actually an individualized thing. And actually, the reason that he was paroled in was to attend removal proceedings, deportation proceedings. And because by its terms, they actually, his removal proceedings hadn't completed. This is a habeas case in which they were reviewing as one of the circumstances where they unlawfully terminated his case so they could come in and arrest him in court, which we'll be talking about more, of course, but completely different set of facts, circumstances. But he's saying that it is a similar episode and that the Supreme Court had already stayed those those other lower court decisions. No, there's a lot of room between what the Supreme Court, the stuff the Supreme was, was saying. I mean, again, I could go on, but this is again, disingenuous, bad faith.

0:50:43 Thomas: It sounds yeah it sounds technical I think I get it but just as a lawyer I mean are other lawyers like you you met I mean it's so hard with in this day and age with the polarized whatever but like your average lawyer are they going to read that assuming they're familiar with with all that and be like what the fuck is this guy talking about or is this like a lefty interpretation of what's going you know like give us a barometer of this yeah

0:51:05 Matt: I think he's purposely picking something that's extremely complicated that not very many of us frankly know about. And I happen to, and yeah, I've got my own opinions about the parole and how it, I think it was completely unlawful. It was terminated, but I can also, as a lawyer distinguish between one habeas case in Oregon, in which it's a very very different plaintiff in a very different circumstance with a completely different set of facts from a different country. I can distinguish that from the CHNV parole program and other categorical parole programs. But he's making it, and he's going to do this again in his next examples, but he's make it seem like the Supreme Court's one shadow docket decision in this one thing should be controlling, and anything that even closely resembles that. And it doesn't.

0:51:42 Lydia: Isn't this also like like more aligned with the other dumb decision that the Supreme Court made about like how you have to do individual.

0:51:49 Thomas: You don't have to clarify oh okay oh

0:51:50 Lydia: Yeah, I know. But the individual like habeas petitions, you know, you have to take it on like a person by person basis because they didn't want to do the class actions. Like doesn't this then line up in the way that the supreme court would wanted to have been interpreted like like that piece anyway.

0:51:57 Thomas: When they got rid of the oh the complete relief stuff and all that separate

0:52:07 Matt: His... No, there's a separate thing with habeas. Yeah, it can't be class actions. But, And this is primarily a habeas case as well. They found incidentally that they thought that the termination of parole was also illegal under his circumstance because it wasn't a categorical and because he was still there in the US under the purpose he was brought in, unlike the other parole programs. But again, I could go on about this one for quite a while, but I don't want to hijack.

0:52:10 Thomas: Everything oh okay hmm all

0:52:30 Matt: We should keep going.

0:52:29 Thomas: Right yeah

0:52:32 Lydia: These examples are hardly isolated in.

0:52:35 Matt: They're also not examples. I'm sorry. You haven't prided one yet. Keep going.

0:52:37 Thomas: Hold

0:52:38 Lydia: In Trump v. Wilcox, the Supreme Court state orders from the federal district court in Washington that would have blocked the president's removal of members from two important federal agencies, the National Labor Relations Board and the Merit Systems Protection Board. The court emphasized that the government was likely to prevail because these agencies exercised substantial executive power. Hence, under existing law, the president's removal power could not be limited. Nonetheless, a panel of the Fourth Circuit recently declined to stay a district order in joining presidential removal of members from the Consumer Product Safety Commission, a legally indistinguishable agency.

0:53:12 Matt: What he's doing here is so evil. Like, it is so—using—no, it's

0:53:14 Thomas: On just right off the the yeah is is that an indistinguishable I thought the no yeah okay isn't that a different kind of agency it's always a good sign oh hold on fuck we're doing okay there's laws and uh yeah

0:53:30 Lydia: Where to start?

0:53:21 Matt: Not—it's—the thing with—I mean, okay, all right. This is so much more complicated. And I will say, I'm glad—this is all stuff we have covered on OA, too, so it's fun to be able to call back to it, but we did talk about this.

0:53:36 Thomas: I feel like I'm failing the test. So remind us, give us a little teacher's aid here.

0:53:40 Matt: This all comes down to, though, the thing that he's not mentioning for some reason, and the Supreme Court didn't want to mention in its orders, is that there is a Supreme Supreme Court case, 90 years old, called Humphrey's Executor, that directly contradicts what the Supreme Court did here. So it's extremely confusing because the Supreme Court, essentially in its application in this case, the government acknowledged in their briefing that they were arguing that Humphreys should be overruled, but they acknowledged it was the law.

0:54:04 Matt: But in this case, this is a case where Trump fired the two Democratic members of the National Labor Relations Board. When you have to fire them for cause, you can't just fire them, right? That's the whole point right

0:54:14 Lydia: And then it also failed for them to have quorum. So then they couldn't even do any work.

0:54:18 Matt: Which was the point then to cut their knees yes this was another

0:54:20 Thomas: Was this another shadow docket thing or no? So, okay, here's my question. How was the shadow docket? How does that work? Because like, like you say, there's no, there'S nothing to cite to. I thought, correct me if I'm wrong. Maybe I'm just a dingus like the other. But when it's a the shadow docket thing, I thought that really only applied to like that one case for the very reason that like, they're not doing a whole ruling. They're not giving a big opinion. They are not doing oral arguments, I think. And so is this asshole saying, Cornelius asshole, the third, is he saying like, well, because the Supreme Court did a bunch of fascisms on the shadow docket, you should like comply in advance and figure out that, hey, they are doing fascisms. You should lower courts you should preemptively do fascisms for them along like before they even really do the real thing because is that what they're doing

0:55:15 Matt: That is exactly what they are saying you're

0:55:17 Thomas: I get it yay all right woohoo ending video done no oh yeah

0:55:18 Lydia: Passed.

0:55:18 Matt: Cutting through the smoke once again yes because what he's saying is they've they've as good as overruled this 90 year old supreme court case so it might as well have been done already so why are we doing

0:55:26 Thomas: Your honor they've as good as overruled the law against against stealing from banks. Like it's, it's practical. It's barely.

0:55:34 Matt: So let's my client was just getting ahead of the trend right he just yeah uh the panel of the fourth circuit recently just declining like when when they're looking at consumer product safety commission they're following humphrey's executor the supreme court's controlling precedent which has not yet been overruled it probably will be

0:55:39 Lydia: Past.

0:55:50 Thomas: This crap didn't used to happen. Right, Matt. I mean, this is, this fucking crazy that like so many agencies, people arguing are like, well, we don't know if this law still exists because the Supreme Court has just done a shadow docket where they, it seems like they're just getting rid of it. You know, we had this with abortion before they got rid of Roe, right? We had the, they did the thing with the, with the bounty hunter thing in Texas.

0:56:10 Thomas: And they're like, Like, well, I think this means Roe is dead, but they haven't done it, which I mean, it's not better that they did it, but it's still, this isn't the way the court used to operate. Is it? Like, this is crazy.

0:56:18 Matt: And right and just remind everybody the shadow docket as you said before it's not the merits of the case we're not actually arguing about whether or not we're going to win or lose the case working about whether a thing should stay in place or not. And he's, all these examples, that's what these are.

0:56:27 Lydia: And just I want to cite that Supreme downsizing article one more time from 2007 from the same article, quote, Judicial modesty is a proclaimed ideal of Chief Justice John Roberts.

0:56:41 Matt: Yes, modesty.

0:56:42 Thomas: Sure. I mean in compared to like a few of the other ones maybe, but that's about it compared to Gorsuch.

0:56:46 Matt: So he's going to get into why we're wrong on the next paragraph. Let's keep going.

0:56:52 Lydia: The Supreme Court then granted the stay explaining that the case was, quote squarely controlled by Trump v. Wilcox and that the court's orders on the emergency docket should inform how a lower court, quote, should exercise its equitable discretion in like cases. Some commentators have complained that the court is not providing enough reasoning with its orders. But as this case illustrates, even when the lower

0:57:11 Matt: That's me. Yeah.

0:57:12 Thomas: Do we count as that? I don't think he knows about us, but I'm going to count us among that. Yeah.

0:57:14 Matt: We are some commentators indeed.

0:57:16 Thomas: We are some commentators. I say that all the time.

0:57:15 Lydia: Courts have plenty of notice of the Supreme Court's view, some have simply chosen to ignore it.

0:57:27 Matt: Again, Adrian.

0:57:28 Thomas: It's been like two weeks since we did a fascism on the shadow docket okay you should get it what more notice do you need we did asylum fascism

0:57:34 Lydia: You get notice on other things. Why do you need to have it on all the things.

0:57:38 Matt: The lower courts have chosen to believe that Humphrey's executor is still good law, which it is. That is still the actual controlling precedent about whether or not the president can fire members of an independent executive agency. Literally, that was the holding, and it was FDR.

0:57:51 Thomas: Call me crazy matt when it comes to something like a law being overturned or overruled by the court that's sort of like they need to do it they need a pull the trigger on that you know I'm not going to anticipate well it's practically guns I don't need to follow this thing like no you gotta wait until they're done.

0:58:01 Matt: Actually. Right. Right? I mean, just because the government said in its briefing that we are openly arguing that Humphrey's executor should be overruled, and the Supreme Court is like, great, well, the thing that Trump just did is fine. So I guess that's plenty of of notice. That's officially now plenty of notice that it really truly is.

0:58:18 Thomas: That's insane. That is really dumb. Okay.

0:58:21 Matt: This is bad. And again, all shadow docket examples. So let's keep going.

0:58:26 Lydia: So, too, in United States v. Schilling, the Supreme Court had to issue a stay against a district court order that blocked the Defense Department's policy disqualifying transgender individuals from military service. The district court's order hovered between outright defiance and bad faith evasion because in 2019, during the first Trump administration, the supreme court had already cleared the way for a material indistinguishable policy to go into effect yeah

0:58:50 Matt: No, it didn't. Again, we don't have time for all this, but he's just, again, totally ignorant or totally disingenuous. I'm going to go with disingenious, different policy, different circumstances. That policy that he's talking about was arrived after, again... I don't even know if I want to have... I think we have time to get into exactly why this is all wrong, but completely different thing. And to just say that it was the same thing and the district court should have known because of what they did in 2019 because in a similar I can't even talk anymore yeah

0:59:16 Thomas: Well, plus what is even his fucking theory of the case? Like it's a, it's weird thing to be like, Hey, you know, the courts all over the country, they're in on it. You know, it is a weird conspiracy to be like all these different lower courts are defying court orders. Like just in terms of like, you know, uh, simplicity, parsimony of, of conspiracy theory.

0:59:36 Thomas: I can understand that Donald Trump Trump fascist is defying court orders because he wants to defy court orders. He's, he's one administration and we hear all the time out. He's the everything. He's The Executive Branch, but it's a little weirder to be like, yeah, all these lower courts, just random pick them here and there. Like they're all defying corridor. It's like, that seems a little harder to like, I, it's going to be harder for me to believe that they're doing something wrong together across. Am I crazy? Does that make sense, Matt? Like, yeah.

0:59:59 Lydia: Coordinating

0:59:55 Matt: You're also gonna have to give me one example of them doing something wrong so let's start there but no of course no but he's just trying to make a thing it's like it's a yeah he's trying to get make some guys get meta

1:00:04 Thomas: Good point. Yeah. Like give me the first example. Yeah. That would help. Yeah. Yeah. Yeah. I guess I'm just talking about like as a non -lawyer, just thinking through like the prior probability of your argument. If your argument is all these different lower court judges happen to be doing this thing wrong. I mean, it's even one thing if you can be like, look, the Ninth Circuit is fucking around with liberal, like at least like, okay, like maybe a super liberal circuit, but isn't he bringing up all kinds of different examples from different places? Anyway, that's

1:00:31 Matt: Well let's actually let's skip ahead because we can't do the whole thing here I did plan to lop off some of this. Let's skip ahead to this year because that answers that question.

1:00:35 Lydia: Where's

1:00:38 Thomas: Let's get to this here. Here we go. There's no accent at the bottom on the page there can

1:00:40 Lydia: That where's this year oh

1:00:40 Matt: A couple of paragraphs down.

1:00:42 Lydia: This year I see I thought you meant like like actually this year uh this year it is no accident that the incidents of lower court defiance have taken place in a few areas of the country

1:00:45 Matt: Weird how

1:00:51 Thomas: You scroll down we're losing it

1:00:52 Lydia: Sorry the federal district courts in the district of Columbia, Massachusetts, Northern California, Maryland, and other blue areas. Under President Biden, Texas and other red states serve the same purpose. District court judges

1:01:05 Matt: That works, that the places that were appointed full of Trump appointees and the places full of Obama and Biden appointees oppose the different administrations. Yeah, let's keep going.

1:01:15 Lydia: Have almost no accountability. They are like feudal lords who lay down the law in their local courts. If they are reversed, at least they will have stymied for some time the implementation of presidential policies they find objectionable.

1:01:28 Matt: Objectionable. No, they are the accountability. That's the purpose. They are the check.

1:01:31 Thomas: As as opposed to the supreme court that's got emperor kings that they can just decide everything for everybody like they're just judge their judges at different levels of judge am I crazy like what this is stupid feudal lords all

1:01:43 Matt: And cases are distinguishable. There are lots of differences between the things you're talking about. Let's keep going.

1:01:47 Lydia: There is a standing temptation for individual lower lower court judges to play to the galleries, even if doing so undermines the credibility of the judiciary as a whole. Any judge who breaks ground in limiting core presidential powers, as when Judge Charles Breyer in Northern California attempted to assert control over the president's deployment of the National Guard, a decision that was so, okay, how do I, I don't know. God, so freaking annoying.

1:01:53 Thomas: How do you pronounce that again oh yeah yeah how would his is substack pronounce it yeah

1:02:09 Matt: Outre? I don't know. Outree? Yeah, probably.

1:02:15 Lydia: Yeah. It'd be in some like Latin turn of phrase that it was immediately stayed by the appellate court becomes a hero among legal commentators and academics, depending on the ideological direction of the ruling.

1:02:18 Matt: It'd be Latin. Yeah. Again, as some commentator, he was a hero to us in that episode. We did talk about Charles Breyer's decision. Charles Breyers correctly pointed out that this was done over the objection of the governor under a completely new justification that had never been used to call it the National Guard before. And yes, it was immediately stayed. It's immediately stayed because that's always how it works when they're basically because what the Ninth Circuit had to to say was, this is the president using the military. We don't have a lot of, we can't say necessarily that we can uphold this while it's on appeal, this decision. We have to give him the benefit of the doubt, the president of the benefit of doubt. But I do think that Charles Burroughs is a hero for that decision. It's a very good decision and it's correct. I think it will be vindicated in the end, but we'll see.

1:02:43 Thomas: It seems reasonable but you never call it defying court orders or whatever like it doesn't it's just part of the process right I mean

1:03:12 Matt: He's saying that because it was immediately stayed, which again is routine in these kinds of appeals, but breaking ground and limiting core presidential powers as in like trying to stop the fascist like great breaking ground and anti -fascism

1:03:21 Thomas: I love that that's incredible breaking ground as if that's what's happening now like there's new new ground being broken in limiting the fucking power of the president right now that's that's what the direction things are going new ground in limiting it yeah we're making new discoveries he's all all day about how we can limit trump's power that's what's happening right fucking now boy he can't do anything he's actually oh he's a mime in a class but I can't even do nothing there's no power anymore because we're so innovative stupid at

1:03:41 Lydia: Yeah, it's working. Yeah. What is significant about these episodes is not merely that the lower court judges are showboating, but that they are doing so at the expense of the Supreme Court. Overall, the federal judiciary suffers from a kind of collective action problem. The whole institution bears the costs of disruption and diminished credibility from such lower court defiance, while individual judges reap ideological acclaim and self -indulgence.

1:04:00 Thomas: The expense I forgot who charles breyer was five seconds after we talked what are you talking about does charles does Breyer have a talk show now? Does he have a book deal? Like, come the fuck on, dude.

1:04:28 Matt: It's ridiculous and and like the idea too that this is why the supreme court has no credibility right now it's because individual lower court judges are striking back

1:04:36 Thomas: The meme where he shot the guy. Why did you do this, Supreme Court?

1:04:40 Matt: We all want to yeah exactly yeah

1:04:41 Thomas: Or no, it would be, why did you doing this, lower courts or whatever?

1:04:44 Matt: Exactly so let's skip the next couple paragraphs we don't have time to talk about there's a lot there but But, oh yeah, yeah, let's keep going.

1:04:46 Lydia: All right. I know. Keep

1:04:48 Thomas: We're long. Yeah, shoot.

1:04:50 Matt: The final recourse. Oh, actually, you know what? I'm going to summarize this final part because it is too long. He talks about something called departmentalism, which, and he completely mischaracterizes something written by Jack Goldsmith, also at Harvard, completely misrepresents it. But, and also I will read the sentence about Alexander Hamilton. If you scroll down to the Alexander Hamilton part, Hamilton writing in the Federalist Papers described that possibility as the possibility of departmentalist, I'm just talking about a minute, as one of the main checks in the judiciary created by the constitutional system of divided powers. Notice what he doesn't do here. He doesn't cite which Federalist paper. He does not provide a

1:04:50 Lydia: Going. Yes. Yeah,

1:05:21 Matt: Quote from Alexander Hamilton.

1:05:21 Lydia: There's no quotes.

1:05:23 Matt: And Evan Berniquet generally trusts on this stuff.

1:05:24 Thomas: Well, that's a genius move because I will never read those fucking things as long as I live. I will not. I will, oh, it's in one of them. Okay.

1:05:28 Matt: Well, I did, Thomas. He made me go to Federalist 78 and 79.

1:05:32 Thomas: You didn't, Matt. No.

1:05:33 Matt: I read them both. I know.

1:05:33 Thomas: I'm so sorry,

1:05:32 Lydia: I only know whatever ends up getting quoted in Hamilton the musical, so that's the most that I'll know.

1:05:34 Thomas: Matt. I'm really interested in the concept of the Federalist Papers. I bet they're brilliant, but holy shit. Trying to read those things is like, yeah.

1:05:43 Matt: They're very well written. And I will say one of the things, and one quote I picked up from Federalist 68 is that the complete independence of the court of justice is peculiarly essential in a limited constitution. He had a lot to say about the independence of history. But my point is, he's, again, you're just going to have to trust me because we're running out of time, but he is completely misstating what Goldsmith said. And he's twisting it around to this idea of what he thinks he wants to say departmentalism is. The thing he's saying has never been done before. Andrew Jackson defied the court with the Indian removal cases because he wanted to. He didn't cite any particular theories.

1:05:44 Lydia: And he wrote almost all of them. Yeah. Right.

1:05:47 Thomas: Lin -Manuel Miranda or no. Yeah.

1:06:12 Matt: He's like, yeah, I just don't want to do this, right? I don't want to, you know, let him, it's the famous quote about let him enforce it, right.

1:06:12 Lydia: Because he's racist. Yeah, I

1:06:11 Thomas: I don't want to as a time honored way to defy corridors.

1:06:19 Lydia: Don't want to.

1:06:20 Matt: Exactly. And And that's, that's it was his legal theory was I don't want to, but it's this, this thing he's saying has never been done before. And it's extremely fringe, like a lot of the stuff that Vermeule actually believes in.

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1:08:00 Matt: Okay. And let's go back to, you, but whatever its usual merits, we'll finish this off.

1:08:04 Lydia: Right. But whatever its usual merits, the case for it here is different and unusually strong. When a lower court's order attempting to limit the executive is also an act of mutiny against the Supreme Court, the issue is not conflict between branches, but the legitimate hierarchy of authority within the judicial branch. By ignoring such an order, the president, far from defying the judiciary as such, would be supporting the authority of the Supreme Court, the only court created by the Constitution itself.

1:08:32 Thomas: Holy crap. Crap, just

1:08:34 Matt: This is fascist. This is just straight up fascist that not only should we obey the imperial presidency, but the imperial court and in every, we should strive to make sure that we do not deviate from anything we think the court might've been imagining.

1:08:44 Thomas: To, yeah, just to make sure that's clear, so he's saying by the way, when he started off and he said Trump wasn't defying orders, he was like he's not defying orders by the end we're at, well he has to defy the orders, cause he knows that someday the Supreme Court of Fascists will be okay with his fascism so he has ahead of time, he's gotta defy court orders, because those ones aren't fascist enough, and he knows they're gonna do fascism later am I wrong? That's what he's saying, right?

1:08:53 Matt: He should right yep

1:09:07 Lydia: It's not actually defying. Yeah.

1:09:08 Matt: Yep yeah that's what he's saying and that's what he believes I mean he really is a fascist he really he's an authoritarian and don't get like the the suspect all of his academic writing it's all smoke this is what he beliefs this last this last sentence

1:09:16 Thomas: What an asshole hole which is weird because usually you save the crazy stuff for your sub stack and put the more sane stuff on new york times but I guess if new yorg times is shopping for fucking bullshit I guess shouldn't they run this by I get that you know oh an opinion it's an opinion this is just an opinion like when we published the one where the I was the republican was like saying climate change doesn't exist or something or there's been a couple crazy ones with republicans in the last few years uh shouldn't you interview I get it it's one thing was a politician when it's this like Like, this is complicated. It takes listening to Opening Arguments podcast, hosted by Matt Cameron, which you should definitely listen to. It takes that to understand this. So maybe they should have other experts they run this by first who can be like, oh, no, this is stupid. This is horseshit. And then they can be Like, oh. We shouldn't publish that then. I don't care how many the thirds Cornelius is. I don't care. I don't care how much tombs his mom discovered. We'

1:09:25 Matt: Says

1:09:28 Lydia: Well, yeah, I mean, yeah. Yeah.

1:10:15 Thomas: Re not publishing this.

1:10:16 Lydia: Cornelius Line is dead, too, by the way, because he named his son Spencer. So it wasn't Cornelious. I do want to kind of address a little bit on the sub stack piece because there is also some batshit stuff there, too. Like it's I got sucked into this hole. It is freaking weird in there. And and I want to call out something in particular. Well, two things in particular, the first one is a recent letter, open letter that the Harvard Law faculty wrote to their students. And I'm just going to quote one little piece from it. They said, while reasonable people can disagree about the characterization of particular incidents, we are all acutely concerned that severe challenges to the rule of law are taking place and we strongly condemn any effort to undermine the basic norms we have described. So this is about, you know, Trump and kind of bribing like all or blackmailing, I guess, all of these law firms and

1:10:18 Thomas: Good. Oh, okay. Oh,

1:11:08 Lydia: Kindof destroying everything when it comes to the law.

1:11:10 Matt: I thought I just assumed they're writing about the lower courts the real problem in our country okay yeah

1:11:14 Lydia: Yes, exactly. The real problem. And and it had people sign on that we've talked about on where there's woke, like some kind of anti -woke law professors, Jeannie Sue Gerson, her husband Jacob Gerson. Janet Halley. These are people who like believe that Title IX went too far and, you know, these ridiculous things. But ever the contrarian, Adrienne Vermeule, Cornelius, Cornelious Adrienne Comstock Vermeula, the third. And I'm a mom, so that matters.

1:11:40 Thomas: Cornelius! Get over here right now I can't even remember John Jacob Jingleheimer Cornelious What is it? Cornelous what? I already forgot Adrian Comstock Rameel, that is a great name Cornelios, I can' t do it What's the number of lists you can remember? I think it's three, that's four I can''t do it

1:11:45 Lydia: I'll never forget this name yeah Cornelius Adrian Comstock Vermule the third it is great no it's it's uh seven plus or minus two yeah

1:12:02 Thomas: Jesus, I'm way short then, I need to have my brain looked at Cornelias Blank.

1:12:03 Lydia: You gotta work on that oh no

1:12:08 Thomas: I already forget. Adrian? Adrian! I'll do a mimic to be able to do this joke someday. I'll get it. I'll give it some... No, go ahead. What are you saying?

1:12:09 Lydia: Yes anyway so he he had to share his dissent on his sub stack from from this very reasonable open open letter basically saying, like, we as law professors believe in the rule of law and we're concerned about some of the things we're seeing. And so he wrote a very, very long piece. And honestly, I might link it in case people want to check it out. Or maybe I'll do a PDF so you're not giving clicks to his sub stack. All that said, however, to limit myself to procedural objections would duck the real issue. The real issue is that the collective letter, although no doubt offered in good faith by its signatories, is shot through with selective ideological blindness. It is, I am sorry to say, a sectarian document cast as an appeal to high principle. Let us here ignore all other political controversies in recent years and confine ourselves to those directly involving lawyers, judges, and legal representation.

1:13:00 Thomas: What?

1:13:01 Lydia: Where were the letter signatories when federal prosecutors took the unprecedented step of bringing dozens of criminal charges against a former president who also happened to be the leading electoral opponent of the then -incumbent president.

1:13:01 Thomas: What does that even mean? Here we go. I don't

1:13:13 Lydia: Where were the signatories when Jeff Clark, Rudy Giuliani, John Eastman and other lawyers were disbarred or threatened with disbarment?

1:13:13 Thomas: Even... I can't even get through this. I'm sorry. I'm cutting you. All right. And that's our show. This is too boring

1:13:20 Lydia: I'm going to keep going. And indeed prosecuted for the representation of President Trump. Was this not a threat to the rule of law? Where were the signatories when radical activists menaced Supreme Court justices in their homes or when a mob hammered on the doors of the Supreme Court itself?

1:13:20 Thomas: Of fascism. Yeah. No!

1:13:34 Lydia: Self anyway he goes on um about that and it's

1:13:33 Thomas: Where was Gondor? When they I

1:13:39 Matt: He sure does go on right

1:13:41 Thomas: Love that's the the the it's a very common mode of bullshit fascism oh they didn't complain when this happened unrelated thing that has nothing to do and why would they complain which was fine yeah okay these hypocrites what's

1:13:50 Matt: Which was fine when it happened because it was crimes crimes. Yeah.

1:13:50 Lydia: So I the catholicism conversion there was something going on there like where these kind of like little piecemeal things and like this evolution of someone who

1:14:03 Thomas: Bonking is that matt oh sorry I'm hearing lots of noise wait

1:14:05 Matt: Sorry, there's me. Yeah, he

1:14:05 Lydia: This evolution of of um sort of someone who was like he was writing pieces with people on the other side of the aisle for a while like Like they could they were talking about like the I don't remember, like the economics of like various legal theories and stuff. It was like very like dry run of the mill. Then you have this.

1:14:20 Matt: Wrote a book with Cass Sunstein, who they think is like the most leftist left professor.

1:14:22 Thomas: Sorry I I think my is he a professor or something I missed it oh oh he's a professor I thought he was just an alum or something.

1:14:25 Lydia: At Harvard. No, no.

1:14:28 Thomas: Oh, my God.

1:14:29 Lydia: He is a current.

1:14:29 Thomas: Well, let's fuck this guy.

1:14:30 Lydia: So, OK, and I'm going to get there. So then so then you have that conversion to Catholicism. Then you get this like really intense love and infatuation of Trump for some reason. And he became an election denier, of course. His blogging and tweeting and public statements that he was putting out were so bad that Harvard students like a ton of different groups of law students at Harvard all got together, issued an incredible statement. I'll link this in the show notes, too. You should all check it out. And they basically were like, this guy is is not is not OK. Like and it's not it's not even like.

1:15:08 Thomas: That's not a collection of wokists, the Harvard Law student body, right? I mean, that's not.

1:15:12 Lydia: And it was like it was everybody was coming together.

1:15:13 Thomas: They're the future of this fucking guy,

1:15:14 Lydia: And notably, they weren't saying he should lose his job. He should lose His tenure.

1:15:19 Thomas: Well, he should, but yeah.

1:15:20 Lydia: He should do. But they weren'T even calling for that. Basically, their demands were that the Harvard Law School release a statement, release a statement condemning his spread of inaccurate conspiracy theories about the election, violent rhetoric, and intolerant statements. And then he cited Stanford did something similar. So this is, you know, you're not going out on a limb being the first school to ever do this. Conduct an investigation into whether he was spreading misinformation or discriminatory content in his classes and or discriminating against students on the basis of characteristics protected by their policy against discrimination and take appropriate action. If so, create at least two sections of administrative law per semester so that no student is forced to take a class with Professor Vermeule because

1:15:25 Thomas: Shut the fuck up. Oh, wow. Wow.

1:16:03 Lydia: He is the administrative law guy.

1:16:03 Thomas: Well, at that point, just get the fuck rid of him. Like, come on.

1:16:06 Matt: Good.

1:16:06 Lydia: But I mean, like, I think I think that's reasonable.

1:16:08 Thomas: I get that it's hard

1:16:08 Lydia: And then commit that going forward, one else will not be required to take the class with Professor Vermuele. So if he's your administrative law guide at Harvard and.

1:16:09 Thomas: To do. Yeah. Give him his own little classroom that has nobody in it that he just sits in

1:16:18 Lydia: And if weirdo students want to participate in this class then fine um but it is very very dangerous I mean this is not someone like this is not a you know uh like a you know lower tier law school or anything like that this freaking Harvard law Harvard law these are you know future justices future politicians future um uh yeah future Dershowitz's you know um so it's just it's remarkable to me I don't know know how that worked out I'm guessing not very well um but maybe they did offer uh another section of admin law so

1:16:23 Thomas: Man this guy sucks well I've heard of harvard yeah future Dershowitz's future future ted's cruise well I hate him and he sucks all right we're so far out of time yeah good oh

1:16:52 Matt: Good for them good for them and this is we are yeah we gotta go into overtime I

1:16:57 Thomas: We're gonna go into what we're going to say I didn't want to sorry I just want to what's

1:17:00 Matt: Was gonna say I mean that's just to wrap this is exactly why what you just said is why I wanted to pick Adrian Vermeule for this week as soon as I saw this piece because people should know who he is but also I think I think there's this general thought from the New York Times, obviously, that they should feature the leading minds of the other side, right? And I think that, you know, I'm just a lawyer. I'm not, I mean, I do teach graduate students, but I'm Not anybody, really. And I just knocked this thing down. I think that it didn't take very long just going through this, because I happen to have been following what the Supreme Court is doing very closely, you And it just, both of my jobs, actually, I get to file what the Supreme Court is doing. And it's just, it's not that hard to take the stuff up on and just say, you're an idiot. This is stupid. You're being an idiot on purpose. I'm not even saying he's an idiot because I think he can be pretty smart.

1:17:29 Thomas: Your job that's a weird job I'm great at that. You're an idiot. You

1:17:44 Matt: Yeah.

1:17:45 Thomas: Fucking suck.

1:17:45 Matt: That's what we're here for.

1:17:46 Thomas: Cornelius Adrian Comstock Vermeule.

1:17:49 Matt: But I mean, I want to send this just in case they missed it.

1:17:50 Thomas: Did I get it? The

1:17:53 Matt: I want this op-ed to the Dean of Harvard Law School and be like, you guys know what he's publishing in the New York Times?

1:17:51 Lydia: You did the third yeah

1:17:53 Thomas: Third. Yeah.

1:17:59 Matt: This is it makes

1:17:59 Lydia: Well that's the thing it's that student statement from a few years ago they had an appendix where they had screenshots of his tweets his blog posts like all these things he was saying about transgender folks about um gay people this This is why I called out that his sister is a lesbian. I do not think they have a relationship anymore. If they do, I'd be very, very surprised because he has said some horrific things.

1:18:05 Thomas: They put work in for that.

1:18:00 Matt: You look bad sure sure right no he doesn't want her to be married so yeah no obviously and that's the good faith stuff he believes that's just stuff he sincerely believes right this is bad faith like this is and I'm again the good the good stuff is bad enough like I'm sure he sincerely beliefs that his sister shouldn't be married uh I don't I mean he sucks for it but I'm sure he believes that but this he knows better like this is so bad right

1:18:27 Thomas: You don't even think he believes this. It's like that stupid. Yeah. Yeah. Yeah. Yeah.

1:18:38 Lydia: It's this dissent too, right? Like you see kind of like the beginnings of like, okay, like that's something we can debate perhaps, et cetera, et cetera. And then it just snowballs.

1:18:45 Thomas: Well, the fascist mind enjoys gaslighting us. They enjoy doing this. They enjoy saying things that aren't true because they can. They can make these arguments. And I'll be honest, Matt, close your ears. A lot of lawyers are like this with everything. Like it's if they can make an argument plausibly, they're like, that's the same as having a good argument. And it's like, no, there's some.

1:18:58 Matt: We all have to do it sometimes but yeah

1:19:05 Thomas: Yeah. Yeah. Sometimes you and sometimes you're doing in service of a client who needs help, you know, whatever. But like, yeah, this is it's a very fascist thing to be like, oh, well, if you look at it this way and then really they don't actually believe it. I think that's such a huge thing. That's one thing that, many things that make me feel like a space alien in today's world. And I think the three of us are very similar on this. I just like say what I believe. Because I think you should just say the things you can believe. And if they're bad, then other people are going to be like, ah, that sucks. And then you can either stick to it and be like yeah, I have an opinion. Look, I hated the comic book movies for a while. That's what I thought. I'm sorry they grew on me a little.

1:19:29 Matt: That's radical I

1:19:39 Thomas: But you know, now they think there's way too much. Everyone hated me for that.

1:19:43 Lydia: Yeah, they did.

1:19:44 Thomas: Justifiably. And it's like, alright, fine. That's the end of transaction. Action I don't need to flip out and like it's whatever you know people should just say what they believe yeah it's like say what you believe I there's no point in saying things you don't believe that's just fascism like for the sake of of of advancing fascism or for the sake of gaslighting all of us it's it's despicable I hate it I'm

1:19:47 Matt: Mean they ruined hollywood that's legit that's a legitimate opinion yes well and

1:20:02 Lydia: To sneak into the fascism. If you're going to go into fascism, just like do it full throated. Right. Like just say what you're saying.

1:20:04 Matt: I have to and I write it because I I have to say this. His subsect response to the immunity decision last year is incomprehensible. He doesn't say whether it's good or bad. He clearly thinks it's fine. And that's kind of his conclusion. But he's being so weaselly about it and being like so high minded. He's talking about the whole time he's talking about Thomas Hobbes and the Leviathan. And I have no idea. I mean, he's obviously saying he thinks Leviathans are great, but, you know, and they should be running the country. But it's, yeah, right.

1:20:28 Thomas: Sorry should the present be immune or not like what the fuck are you talking about with this

1:20:32 Matt: Is this good or bad, Adrian? Like, and that's the the difference I think with the kind of moral clarity that the left has had for quite a while it should have at its best when we're when we put our best people out there the people that can just say this sucks this is bad don't do it and

1:20:32 Thomas: Leviathan yeah all right you You know, what's great about an unedited format like this, I don't have to sit here and be like counting the minutes of, you know, cause roughly every minute we record is like 4X the work to edit it. So when we go long, I'm like fucking hurry on another five minutes. That's another 20 minutes of work that I have to do in 14 minutes. So that's awesome. Like now I'm just like, Oh, we went long. Cool. Push it out.

1:21:04 Matt: This is just more time to listen to yeah

1:21:08 Thomas: Yeah. I'm worried about Matt. Like I'm sure Matt has like important lawyer things to do um that

1:21:08 Lydia: Let's keep chatting. Yeah

1:21:09 Matt: I know I gotta I got band practice pretty soon here but I'm happy to keep talking and for the patrons yeah that's true we

1:21:14 Thomas: See every lawyer has important band practice matt is an incredible musician we haven't gotten to future that uh like we should have in the show but matt do you have time before tell your bandmates uh do we have time for the little bonus extra we want to do for the for the patrons only okay well we should give a teaser can we uh oh hon can you pull something up and I can I can uh show everyone what we're going to be looking at This is a follow-up from, just pull it up and we'll just show a little bit of it, because this is a follow - up from last Wednesday. Excellent.

1:21:29 Matt: Do let's do it yeah

1:21:31 Lydia: I'm so excited for this. Do you want do you want like a teaser pull up or the actual video? All right. All right,

1:21:43 Matt: Shut the title down completely different harvard law professor for

1:21:49 Thomas: Well, yeah, exactly. It's the one we covered last week, but yeah. This is, no, it's not there yet. Okay. Oh, here we go. We can't open my, yeah. All right. We'll have to find a better way to do that. But anyway, this is the subject of last last week's rapid response, vapid response. What's the heading of that? It's, oh, well, the other quote I did, the other one I did. It's Alan Dershowitz being told by Martha's Vineyard Police to stop harassing vendors or be charged with trespassing after three different sellers refused him service.

1:22:30 Thomas: You know, and this is very sovereign citizen -esque, like we're bookending because he, he turned, he knows the law, but like he's, he turns into a sovereign citizen talking about like, how dare you, sir? You, you have to, the constitution demands that you sell me a pierogi or whatever.

1:22:29 Matt: Pierogies no pierogies for you yes and

1:22:30 Lydia: That's the thing. Yeah, it's over pierogies, folks. It's so funny. In his shorts and crew socks and like, God.

1:22:46 Matt: For once for the first time ever I think I haven't seen the thing we're about to watch so even better my first response you

1:22:52 Lydia: Man. Super fun.

1:22:52 Thomas: This'll be fun. Well, we're going to do this for patrons only on patreon .com slash law, But thank you everyone on YouTube and listening. Uh, we love you so much. This has been a lot of fun. I'm really liking this format. We'll keep getting better at it. Uh each each time we're iterating and uh eventually we'll get matt looking just slowly more and more at the camera like we'll just just a little bit we'll measure the angle and then all

1:23:13 Matt: Come on let's take our time here let's not rush into anything

1:23:16 Thomas: Well for uh matt uh our real lawyer and uh lydia our real amazing producer I'm thomas and this was vapid response number two in the books good job everyone we'll see you next week week. What?

1:23:27 Lydia: Cornelius II. I don't know.

1:23:30 Matt: See you next time all

1:23:32 Lydia: Oh

1:23:34 Thomas: I can't, I can't cut it. All right. We're on, we're on for patrons only right now. This is the, this is the behind the scenes patron stuff.

1:23:35 Lydia: I broke you okay uh

1:23:42 Thomas: And I'm excited. Okay. So we got to find a way to share that. That's not like sharing.

1:23:45 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.