The Judicial Politics of the Supreme Court. Tim Sandefur Talks to A&G

Published Jul 16, 2021, 10:37 PM

"Tim the Lawyer" Sandefur joins Jack & Joe to talk about the Supreme Court's caseload this year, as well as some cases that he and his firm (The Goldwater Institute) have recently won!

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Hanging out. Want to ask Tim the lawyer is uh, he tweets a lot? How does he? How does he keep up on all this? Or? I find all the stuff on Twitter? So how much time does it take to peruse the Twitter? And I want to be one of those people, but I just I just can't seem to fit into my life. Well, this job is a bit of a time suck too, but I'd imagine Tim's is as well. Tim sander Firs, the Vice President for Litigation for the Goldwater Institute, is the author of a number of fine, fine books, including The Ascent to Jacob Bronowski, Frederick Douglass, Self Made Man, which should be read by every man, woman and child in America, and a bunch of books about liberty, particularly economic liberty. Um, you ought to look it up and read to or three of them. Uh, Tim Sanderford joins us, Tim, how are you, sir? I'm great. Thanks for having me back. It's been a while. I can I ask one just general question that we'll get into some of the nitty gritty. Uh, Supreme Court just wrapped up their year. Are more or less happy with the direction at the Supreme Court's going? Are more or less not happy. I'm more or less happy. But you know, the big story to me that is that is not covered enough. Is how frustrating it is that the Supreme Court hears fewer and fewer cases every year. It's as if they're trying to put themselves out of business, and they'll they'll take these cases that on a highly technical legal issues that maybe a few people care about, and then totally ignore major legal controversies that have to be resolved. And of course when they don't take the case, that just means that the lower courts get to be the final say, and that just increases the confusion. It's very frustrating how few cases they take. You have a couple of examples of lower cases you think they should have taken up big, big issues. Well, Justice Thomas has actually been writing some decisions saying, hey, we should take these cases cases about whether, for instance, it's legal. What the status is a federal regulation of marijuana now that it is is legal in more states than not, and yet the federal law hasn't changed. Does that mean that it violates due process to arrest somebody on federal charges in a state where it's legal. Things like that, and the court just shrugs and moves on. I know Justice Roberts. Chief Justice Roberts is concerned with the court's image and and that it not be seen as political. The rest of it is he just overcautious. Is he leading to court in a hypercautious direction in terms of the cases they take on. I think that is part of it. It's a kind of a politics, but it's not the kind of politics were accustomed to. It's judicial politics. And what's frustrating about that is that it tends to come out as very arbitrary and it tends to increase the power of judges. My favorite example of this is a case several years ago called Bond versus the United States, where there was a chemical weapons treaty that prohibited any kind of poisonous substance and this woman tried to poison her husband's girlfriend with a poisonous substance. Was brought up on charges under of all things, the chemical weapons treaty, which is crazy, but that is what the law said. And what Justice Roberts did was he said, well, that's not what they really meant by chemical poisons. What they really it was stuff like mustard gas. Well, okay, maybe, but that's not what they said in the law. So what he's doing is essentially rewriting the law to suit what he thinks would have been a more reasonable law, except that's not what was actually enacted. That's very frustrating. Yeah, interesting, interesting indeed. So I know, and I absolutely want to get to the so called anti trust stuff that the administration put out the other day. I saw you had some really strong tweets on it, but I know you've got a couple of victories recently and a couple of different circuit courts. Right, what was that that all about? That's right, we had three big wins in this issue that we at the Goldwater Institute of and litigating about state laws that forced lawyers to join bar associations to practice law. Now, the bar association is not the same thing as the bar exam. Everybody has to take the bar exam. But once you pass that, then I am forced in some states, including Arizona, I'm forced to join this organization, which is really just a trade association, and to pay them three four five hundred dollars a year, which they then go and spend on lobbying the government and publishing editorials that take a political position that I myself might disagree with. And this happens in states across the country, and the Supreme Court has said you can't do that when it comes to labor unions. You can't force somebody to join a union and then force them to pay for the lobbying that that union does. And yet it's okay for lawyers. So we've taken this issue on and we want a series of cases, most recently in the Fifth Circuit Court of Appeals where the court said, yes, you cannot. It is unconstitutional to force this on lawyers. And now when people hear about this, a lot of times they're like, why why should I care about lawyers? But state bars have a very powerful influence with state legislatures, and a lot of legislatures they just assumed that the state bars speaks for all lawyers and they defer to them, and a lot of the time the state bar funds political campaigns that are that are on the opposite side. I did a case a few years ago where my client was in favor of a ballot and he was a lawyer. He's in favor of a ballot initiative. That was like, it was like, no, fault um custody for children in the case of divorce right, so that there's no presumption for one or side at one parent or the other. And it turned out that his mandatory bar dues were funding the no campaign even though he was in favor of it. In fact, the bar was the was the largest contributor to the no campaign, So he's being forced to fund his own opposition. Does the state bar head tend to have a consistent ish political view. Oh, they tend to be on the far left in most states most of the time, taking positions on you know, against in Louisiana for instance. In another case we did in Louisiana, the state bar spent money to oppose free enterprise education in the schools because I guess we can't teach kids about free interpret Wow. Wow wow. You've mentioned before that the law schools of America way left these days. What happened? Do you suppose you know, people who are not lawyers have no idea how bad the situation is. The the bar is overwhelmingly left, and not just left, but like very far ultra left, and I think a large part of it is romanticism from the sixties. A lot of the legal community still has this idea about the civil rights days and they think that they're crusading pioneers for freedom, and you know those are that is a glorious history. Unfortunately today, that's not what they're advocating today. With they're advocating is taking more of your earnings away and giving it to other people, Opposing rational sentencing policies, opposing restrictions on government's power to take away your private property, things like that. It's a it's really unfortunate situation. Hey, I have one more question and then maybe next segment we can get to the whole so called antitrust stuff. But uh, and this is this is kind of like the opposite of the Supreme Court. This is dumb guy court. I'm gonna I'm gonna set up the case dumbly and then we're gonna have to be dumb down the answer. Probably. But it's it's a First Amendment thing. Um. It's it's the big tech uh, censoring of so called misinformation, etcetera. Deep platforming people, banning people. And the question is if Facebook says we just ban you if you violate the government's regulations on what is COVID misinformation, and we are actively consulting with the government on what should be banned, and the government has regulatory power over us and regularly threatens our business model. Does that bother you, tim as a libertarian. Well, I'll whip out the classic lawyer answer and say it depends. It depends on how much government influence you're talking about. If it's a situation where Facebook is basically having its arm twisted by the government in order to silence, yeah, of course that raises a serious constitutional problem. Government can't just come in and and basically take over a newspaper and tell them what kind of articles they can and cannot run. But that's not been what we normally see. What we normally see situations where the business is authentically independently saying we're not going to run this kind of article or that kind of article, and maybe the government encourages them one way or the other, and that doesn't raise a First Amendment violation. Well, in this case, the people from Facebook said they are in uh in in constant consultation with the government agencies about what should be allowed and what shouldn't be that that seems to me just farming out First Amendment violations. Once removed Yeah, I mean it depends on what exactly they're meaning by consultation. If it's just consultation, that would be one thing. Or but if they're using that as a euphemism for obeying government's mandates, then that would be a serious problem I'm thinking about. So you mentioned law schools have gone way left, and um, you know, there's all kinds of examples out there. Facebook is like, what is that law or theorem or axiom or whatever is that everything ends up liberal over time? Yeah, right, there is. Oh, I can't remember the name of it now, but I look it up. But there's there's a rule that says that any organization that is not expressly conservative will become liberal over time. And and my experience is that that is absolutely true. It definitely seems to be the case, doesn't Well. I think it's because liberals tend to be much more committed to their ideological vision, whereas conservatives tend to want to let people live their own line. Yeah, if you're if you're, if your ideology is I want to be completely left alone to do what I want, and I want to want to leave you other people alone. Of course you're not quite as into trying to change things. So our beloved ancient President unleashed a gigantic, sprawling executive order on Friday. It contains seventy two separate initiatives, each of which contains several sub initiatives allegedly challenging the face of competition in America or something or other. What is it? What do you make of it? Oh? Yeah, well, a lot of it is is like with the most executive orders, it's lots of fireworks with not much fire. So most of it is stuff that either is just you know, we encourage agencies to do the following that sort of thing, or it's stuff that actually they can't do to begin with. And it you're right. It concludes seventy two different sections. It's very long and complicated, and it includes some really good stuff. Let's start out with the good stuff. It's it includes some things that reduce anti free market things that the federal government does. For instance, it says the FDA has to allow more drug imports from Canada that currently are not allowed by government restriction. It requires the Department of Health and Services to allow the sale of hearing aids over the counter instead of through the complicated process that regulations currently require. Those sorts of things are good and actually, Joe, I know you'll particular like this. It tells the FTC to take action against unnecessary occupational licensing laws. Right, These are laws that say, if you want to braid somebody's hair, you have to get a barber license and things like that. So it those things are really good. Reducing government's restrictions on free competition is always a good thing. Now here's the problem. The FTC doesn't really have any power over occupation of licensing. I mean, that's mostly done by state law, and the FTC can't come in and there and tell states what to do. It can sue states, but most of the time the law allows states to do this, so the FTC couldn't really even sue them in most cases. So a lot of that is, you know, it sends a nice message, but it doesn't really do anything. So my sink is clogged and I ordered my dog to do something about it. Well, right, it's that sort of thing, yeah, now, And and it also includes some bad things. And the bad things are um really sort of doubling down on the problems of all antitrust law. The problem with antitrust law is that it takes what is a good idea, which is that that there should be a free market with lots of competition, and then it turns it turns it completely upside down and says government should be in charge of deciding what kind of competition occurs, when, where and how. And of course that's the opposite of competition, to have the government in charge of deciding what kind of competition is allowed, and so the way. For example, this order says that the FTC should promulgate rules that restrict unfair competition. Well, what is unfair competition? It's whatever a politician says it is. If I'm selling less than the guy next door, he thinks that's unfair, so he's going to run off to the politician to complain about it. Right. The order tells the FTC to to engage in greater scrutiny of mergers between the multiple companies. Well, companies merge when it's in there, when it's profitable to do so. Why is it profitable to do so? These consumers willingly buy the goods and services that these companies provide. And if a company gets big and powerful because it's providing me with goods and services that I want at prices I'm willing to pay. That's a good thing. They shouldn't be punished for it. The idea that government should go in there and punish big companies for being big means punishing success, and that's a large part of what the Biden administration's antitrust policy is about. So you're all about freedom and that sort of stuff. Now that we're almost able to say we're on the other side of this freaking pandemic. Were you as shocked as us and how much freedom was taken away? And how easily people uh just said okay to it, whether it was schools or businesses or churches or whatever. I was shocked. I never thought that could happen, And how willingly people were to go along with Well, you know, part of it is this was a complicated problem for those of us who believe in freedom, because we agree that government has some role to play in protecting people from disasters of this kind. And so it's not the sort of thing like you often hear, where the government's doing something that it should absolutely never do at all. This was a thing where there were some things that were okay and some things that were and that made it harder to draw lines. But I think the real answer to your question why did people go along with it is because they have been trained for a century now in the States to look to government to be their nurturer and their protector and their supplier and their provider. That it's there's this psychology that has developed around the regulatory welfare state that says government is here to protect me, and that's what government exists to do. Now you're, yeah, exactly, that's what scared me. For instance, you know, they had the dust up in l A County where they're making you they said no outdoor dining and and and somebody said, hey, so show us any proof that we can't eat outdoors. What you've got to back that up? People just people just took, you know, the local county health commissioner's word for these things and then did things like build a tent outside that then they closed all the sides of it, which means it's not even really an outdoor. What's the difference? You know, A lot of it was really insane, and I think a large part of it is because we have really, especially in California, I think, drilled into people this idea that government is is your your protector and your provider, and that's it's it's deprived people of the imagination to bl wow them to understand what liberty is. Yeah, that's what That's what troubles me the most is we were so trained for so long that people just said, I guess the school should be closed, even though I haven't heard any good reason for it. Maybe that would they say, well, how if government didn't do it, who would And it's they're incapable of thinking, well, maybe private industry could come up with a better solution to these problems. Well, that's it reminds me of back in when the illegal immigration was in the even hotter topic and people said who was going to pick the lettuce? And our answer was, all ways, somebody or nobody or a machine, let's find out anyway, Perhaps now is a good time to I'm sorry, Tim, We're we're like completely out of time. Um No, that's okay. Maybe now's a good time to plug the Permission Society. Tim's book that was inspired by conversations on this show. It's very good and it's all about liberty and how we've kind of lost our sense of it. Tim Sander for the Goldwater Foundation. Thanks a million, Tim, Thank you guys. You still have your beard, uh going on ten years now, ten years you've had your bed. That's a good old beer, Armstrong and Getty

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