What Does Peak Fascism Look Like?

25:55This lawsuit was filed by Sunita Dharamani. It alleges she was fired for her perceived political affiliation beliefs in violation of the First Amendment and the Civil Service Reform Act, among other laws, because she had worked on this prosecution. I want to remind people that both of the ostensibly Democratic senators in Michigan returned a blue slip for the guy who allegedly was involved in facilitating the violation of these various laws by being involved in the firing of this career prosecutor and perhaps others as well. The firing notice itself was issued by Attorney General Todd Blanche under Article 2 because, of course, it was.

26:30But, you know, the prosecutor had worked on prosecutions against those who plotted to kidnap Michigan Governor Gretchen Whitmer. And the complaint lays out, you know, the Trump administration's anti-FACE Act campaign and actions. But it's a super compelling document. And I hope this keeps the retaliation campaign in the news and maybe even prompts your rethinking of returning a blue slip against a guy who may have been involved in all of this. Yeah, it's another heartbreaking story about like public servants being fired for their jobs. Right. We went through this with the January 6th prosecutors.

27:02We went through it with the FBI agents. Right. And this is yet another one. And so I totally agree we should keep it in the news. Second, the motherfucking blue slips. I mean, like, you know, we talk a lot about court reform in our spaces and the low hanging fruit. Right. Term limits. It's the lowest of the low hanging fruits. But we can do it today. We can just stop aiding and abetting fascism by ending this practice today. There's another horrific story out of Illinois about a judge who got a blue slip from Senator Dick Durbin and then went and provided the only win that the administration has had in these cases, trying to get rid of in-state tuition for undocumented kids.

27:39Of course. It's a long story, but they've been basically achieving their policy goals through collusive settlements, right, with like friendly folks on both sides that are illegal in their own right. But in this case, this judge handed them an out and out win on the merits. And it was a blue slipped judge from from our side of the aisle. And I just don't understand how like when we're going to get the message that these these judges are just henchmen for the apocalypse and we need to stop like paving the way for them. Right. And I understand the argument is, well, if I don't return the blue slip, then they're just not going to ask for a blue slip and the practice is going to be gone.

28:19But it's like, OK, but they're just getting your permission to confirm election denying people who are destroying the civil service. And so you're just giving them permission to do that. I just don't understand why you think that's better. Because that'll finally make the scales fall from their eyes and back to an era of bipartisanship. Like, come on. Exactly. Strict Scrutiny is brought to you by Quince. August is the perfect time to hit reset before the autumn rush begins, and Quince is the wardrobe reset you need. Quince is all about fewer, better pieces. Their clothes are made with premium materials, built to last, and designed to become the ones you reach for day after day.

28:59Quince specializes in everyday staples that work harder, as hard as you work, like their ultra-soft organic cotton tees and premium Mongolian cashmere sweaters. They're versatile, timeless, and transition seamlessly from a casual workday to a dinner out. If you're still hanging on to the same worn out basics, Quince makes it easy to upgrade. They have premium denim and tailored chinos from just$60 with the kind of perfect fit, structure, and high-quality fabrics you'd expect from a luxury designer brand. Everything at Quince is priced 50 % to 80 % less than similar brands. They work directly with ethical factories and cut out the middlemen, so you're paying for high-quality, not brand markup.

29:36What are some of the Quince items I wear on repeat? Well, there's a stretch washable silk tank. It's silk and it's washable. So I don't have to go to the dry cleaners, which is so important here in Michigan. A summer hangs on at the beginning of back to school fall. I can wear silk without having to do my laundry at the dry cleaners. I also love their organic cotton tank in white. It stayed fresh and clean after so many washes. I can also use it as under work wear tanks. And it's not just clothing. Quince has become my go-to for everything from hotel quality bedding and bath essentials to premium cookware and travel must-haves.

30:08Upgrade your everyday. Go to quince.com slash strict for free shipping on your order and 365-day returns. Now available in Canada and the UK, too. That's q-u-i-n-c-e dot com slash strict for free shipping and 365-day returns. Quince.com slash strict. Strict Scrutiny is brought to you by Z-Biotics. Between work, family responsibilities, and everyone needing something from you all day, getting together with friends can feel like a form of self-care, which it is. Whether it's a glass of wine, at dinner, or a long overdue girls' night, I make sure to drink Z-Biotics pre-alcohol before alcohol so I can enjoy the evening.

30:47Z-Biotics pre-alcohol probiotic drink is the world's first genetically engineered probiotic. It was invented by PhD scientists to break down acetaldehyde, a byproduct of drinking alcohol. Pre-alcohol produces an enzyme that is designed to break down this byproduct. Make pre-alcohol your first drink of the night, drink responsibly, and enjoy your next day activities. Z-Biotics has sold more than 14 million bottles and earned the trust of thousands, including us. As you all know, I like my sugary drinks. I mean, I just like sugar. So unsurprisingly, I also like sugar in my drinks. But I am also a woman of a certain age, which means sugary drinks don't always hit right.

31:23But when I drink my Z-Biotics before my sugary drinks, I wake up the next morning and can do my early morning swim and make sure I don't lose summer outdoor swim day, which makes me feel so much better. Try for yourself today, and if you are unsatisfied, they will refund your entire order. No questions asked. Head to zbiotics.com slash strict. Code strict for 15 % off your first order.

31:48So since that lawsuit did also speak of DOJ senior leadership doing illegal shit, that's a nice transition into our corruption section. Because good occasion as ever to remind people that now Attorney General Todd Cartblanche offered this assurance when he was pressed about the prospect of him doing illegal shit at the Department of Justice at Donald Trump's direction. can you pledge that the justice department will always act independently of the white house well what that's there's a big difference between saying we will be we will always do our job and investigate any case and act independently of the white house no i'm not going to pledge that and no attorney general should ever pledge that the president i mean if i were to pledge i will be independent of the white house what that means is that if president trump says i want the department of justice to go after every violent criminal in this country, which is what he has said, what you're saying to me is I should say, no, sir, not going to do it.

32:44So I will act with integrity. Our prosecutors will act with integrity. We will prosecute without fear or any sort of favor. And that's exactly what we've been doing. And that's what every Department of Justice should do. Well, I guess big picture of the president asks you to do something that you feel crosses an ethical or legal line. Would you do it? The president will never ask me to do something unethical or illegal. He never has. He never will. I can hear Sam Alito being like, well, he didn't ask me to do anything overtly illegal. But, you know, the lesson we just talked about, the one challenging the firing of the career prosecutor alleges one illegal action, and Blanche couldn't even keep himself from doing more illegal shit during his first week on the job.

33:28Because here is the corruption on top of the fascism, Todd Blanche at a fucking campaign event. We just heard from our great Nassau County executive, Bruce Blakeman, who is doing everything we need him to do to back the blue, to support law enforcement and to make this county and to make this county a safe county that we can all raise our kids in. So, why is this illegal? Why can't the attorney general be going around to campaign events? First of all, it should be illegal because of the utter lack of charisma that Todd Blanche is bringing to that campaign stage. I mean, I don't know if he just cost his boy some votes.

34:11No riz, no aura. None. That's right. Second, OK, so we have this thing called the Hatch Act that bars certain people in the government from campaigning politically. The obvious reason for that is because once you're part of our government, you should be working for everybody and not just one political party. Quaint, I know, but we used to have a government that operated on rules like that. And the nitty gritty of it is that Todd Blanche is almost certainly a further restricted person under that act, which means he can't engage in political activity of any kind, which obviously he was doing there.

34:46And even if he were not in that higher tier of restriction, he couldn't do it when he was on duty. And what we didn't show in that clip was that he was actually announced in his official capacity. This was during work hours in the middle of the day. Maybe they buried him, not in prime time for a reason. But all of that also speaks to the fact that he was he was doing it while on duty. So this is illegal in a million ways. Now, Public Citizen, like one of our fantastic pro-democracy organizations in the United States, if you don't know them, look them up, filed this complaint. They're going to face an uphill battle.

35:21There's just no way around that. the internal HR systems in the government, the Office of Special Counsel and the Merit Systems Protection Board, have been gutted. That's right. They've been gutted in their personnel. They've been gutted in their budget and they're subject to the slaughter case so that if anybody even tries to bring a Hatch Act complaint or substantiate their Hatch Act complaint, they'll be fired anyway. However, does that make it not worthwhile? Not at all. We need to like seed the historical record with all of this illegality, all of this wrongdoing every time it happens, because we're going to get power back one day and we're going to need to not memory hole all this stuff.

35:59And what might seem like a minor appearance at a campaign rally a week from now when the news cycle moves on is not. It was illegal and we need to hold him accountable for it. Yeah. So as ever, the corruption isn't just an article, too. We also had some News E items that kind of tied it to Article 3 as well, and that's the Supreme Court's finances. So some of this isn't exactly new, but I did want to table set. So little game, who, listeners, is the wealthiest Supreme Court justice? Someone you probably know but want to venture a guess? John G. Roberts. Correct. So Forbes has suggested it's the chief with some wealth estimated around$25 million, although that was back in 2024.

36:45OK, how about listeners? Who do you think is the second wealthiest justice or likely wealthiest justice, according to Ford? So your organization actually did an analysis of this. So do you want to explain? Yeah, I think it's Sam Alito. And I'll tell you why. So my organization has a sister wing called True North Research, and they do some of the most cutting edge investigative research and reporting, especially on the Supreme Court. If you remember the Clarence Thomas RV stories and the earlier stories about Sam Alito and other corruption on the Supreme Court, that was our folks. Hat tip and shout out to my my peeps.

37:24And they just did yet another like blockbuster investigative piece about Sam Alito's investments in the oil and gas industry, noting that he's probably made up to two point nine million million dollars in oil and gas holdings over his tenure at the Supreme Court. Now, why is this a problem? Obviously, Sam Alito decides cases that impact the oil and gas industry, including a major case coming up this term called Suncor, which will decide whether states and localities, in this case, Colorado, can sue fossil fuel companies for the harms that they're doing to the environment, including in their states.

38:08now it doesn't take a lawyer or an ethics expert to know that sam alito is going to have proclivities toward the industry that made him a multi-millionaire and so um he is at the very best skirting the ethics laws that apply to him uh and refusing to recuse from this case where any person on the Street can see his conflicts of interest here. And I'll also point out that it was Sam Alito in the pages of The Wall Street Journal who said a couple of years ago that the Congress cannot regulate the Supreme Court, period. This is him yet again thumbing his nose at anybody who would dare regulate this oracle of the Supreme Court.

38:56He can make money any way he damn well pleases, and he can decide any cases he damn well pleases. Yeah. And just on big oil at the core, you know, something else that kind of came out this week is that the American Legislative Exchange Council at their annual meeting, they're kind of like a right-wing legislative group. So at the meeting, they were kind of discussing why having a right-wing Supreme Court is crucial for protecting oil companies from, among other things, climate lawsuits. So one of the speakers at the meeting, who's a partner at a firm that's unsurprisingly received millions of dollars from Leonard Leo's network, said, big oil really benefits from having the court in its pocket.

39:30Like, that's a paraphrase, but the quote is supposedly, right? Like, if we had a different Supreme Court, this would be a very different presentation, a good reminder of how close we are to really catastrophic outcomes. And it's like, again, did he just admit it? Right? Like, yeah, we agree, right? Like, big oil does really benefit from having the Supreme Court. Like, what else do we need to say? Yeah. Stringer Bell yet again shakes his motherfucking head. Yeah. I mean, so the justices you mentioned, Roberts, Alito, Gorsuch is way up there on the on the net worth list. All of them have, of course, been huge capos for big oil.

40:13And, you know, it takes me back to like 2016 when the court was deciding the clean power plan. Right. And this is a little bit of a throwback, but but but bear with me. And the New York Times had that blockbuster reporting about how on these secret memos, John Roberts, multimillionaire John Roberts, was saying that the clean power plan had to be emergency stopped because not because the plaintiffs or the big oil had met their burden, not because we had heard anything on the merits, but because it would hurt the oil industry. Literally, he said it out loud, speaking yet again of Stringer Bell. He wrote it down in a memo that he was basically inventing the shadow docket in the winter of 2016 in order to save big oil.

40:59Neil Gorsuch, we know, has been out for big oil his entire life, avenging the wrongs to his mom. Right. And, you know, writing opinions that are actually the predecessor to Suncor, the BP case, which allowed these cases about fossil fuel accountability to be removed to federal court. So all of these guys are so deep in Big Oil's pocket and are actively, at least in Alito's case, making a lot of money off of it. Yeah. Also, the quote from Alec is like the perfect encapsulation of the victimization complex. Like, they're winning. They have shaped an entire docket. And yet they're working themselves into a frenzy about how they're on the verge of a catastrophe.

41:40it's just insane, right? Not the catastrophe, my guys. No, you're up 6 '3", and you're going to be until 2065 if we don't do anything about it. Exactly, exactly. And I agree that is a catastrophe, but not the one you have in mind. So one last question for listeners playing along with the game. This one might be the easiest. And that is, who has received the most grift, I mean gifts, while on the Supreme Court? No points for this one. Fix the court's analysis. has indeed confirmed it is Clarence Thomas who has received over$4 million in gifts while on the Supreme Court. Quite the job perk, I have to say.

42:22Yeah, I'll take the RV. Right, exactly. I'll take the, like, PJ trips or the life-size Hagrid Hut. Or were there also, like, special milkshake machines or something, like malt machines? Those also sounded good. Yeah, he's got to up his grift game. These are like a weird set of things to put in your trophy case. Indeed, indeed. So one final entry in the corruption court complex, and it's kind of an entry that is developing unfolding TBD. And that's we are currently awaiting the Supreme Court's action on the federal government's shadow docket application request to block lower court decisions that had halted the president's continued demolition of the White House and construction of a fucking ballroom.

43:08So one he says is essential both for throwing a good party and for national security. Really, two birds, one stone here. Now, as we had explained on a previous episode, a district court blocked the continued construction. The U.S. Court of Appeals for the D.C. Circuit left that decision in place over a dissent by a Trump appointee, auditioning real hard. And now the federal government has, as always, run off to Daddy Scotus on the shadow docket and asked the Supreme Court to stay the lower court's injunction. The D.C. Circuit had given the administration a temporary stay, so allowing the construction to continue, i.e.

43:42wait for this injunction telling them no more construction to go into place in order to allow the federal government to seek review at the Supreme Court. But that temporary stay expires Friday, the day we are recording. And already the administration is chomping at the bit and sending like warning shots to the court that they're going to do what they're going to do, as you can hear here. So unless the Supreme Court acts today, that stay, that construction injunction will remain in place. We hope that will not be the case. And I don't want to get in front of the president on this. But I do know that other options are, in fact, being considered because the president has committed to the completion of this project.

44:25I mean, like the Supreme Court produced this, you know, like they have enabled this lawlessness and the threats by rewarding the administration's defiance of lower court orders. I know this is always hazardous. I'll share my guess first about what the court is going to do unless you want to share yours. Do you want me to go first or do you want to do? Okay. So I think the court is probably going to grant the government's application and block the lower court orders. I'm not super confident about this. But my guess is they are going to use this case to limit the ability of plaintiffs to challenge government action on environmental grounds.

45:03And specifically, you know, for plaintiffs to argue that, you know, any federal government project is harming neighboring lands or species or whatnot. And so I think that that's probably the direction that they are going to go again because they just they're so fucking thirsty for King Trump and his ballroom. Yeah, that's right. And I'll take your parlay because there's also this totally fake national security element that they've drafted onto it. And this Supreme Court loves nothing more than to bootstrap terrible arguments onto a national security argument and make them good and polish that turn.

45:43Right. And so and the Supreme and the administration has gotten wise to this. Right. Literally everything they're doing can arguably have a national security valence. And the Supreme Court has just given up or, I mean, willfully given up on parsing the real ones from the protectual ones. And so even though this is obviously a vanity project so he can throw himself parties and leave himself a structural legacy in D.C., he'll carve like a little bunker for him and Natalie in the bottom of it, call it national security, and that'll be enough to get him to stay, I think. Fingers crossed, no, but I think.

46:20And, of course, literally as we are talking, the chief justice issued an administrative stay of the lower court orders. That has the effect of allowing the administration to continue the demolition and the construction until the full court says more. And I take it that this administrative stay is a sign about what the full court is going to do. So believe me, Natalie, as they say, don't worry, we're going to get to the Natalie game. But now for the last segment, which, you know, as I kind of suggested, is the healthy dose of Christian nationalism that we are being fed on top of fascism and corruption.

47:01And for this segment, we will start with a pretty horrifying development out of the Ninth Circuit, which is supposed to be some great big liberal bastion. But by a two to one vote, upheld one of the Department of Justice's subpoenas that was directed at hospitals that seems designed to harass the hospitals over their provision of gender affirming care. The subpoenas seek invasive patient information from the hospitals that provide gender-affirming care, seemingly as part of the Department of Justice's request to persecute trans people and try to find ways to persecute and potentially prosecute hospitals and medical providers who support trans people.

47:36So DOJ said that the subpoenas are seeking information in investigation of a federal health care offense. District courts have overwhelmingly blocked these subpoenas, you know, multiple grounds, sometimes because they say these subpoenas have an improper purpose or they're done in bad faith. Other times because the privacy interests outweigh whatever the department's interest in getting the information might be, given that there's only a minimal connection to any seeming federal law enforcement purpose. Somal, what's your take on this Ninth Circuit case greenlighting the subpoena? So I think it's a disaster, but a mitigated one.

48:14As you said, there are multiple grounds on which you can quash or limit a subpoena. This opinion was about whether there was an improper purpose. I think it's obvious that there is. The president has made clear that he just wants to expel trans people from society. and the irony of using HIPAA, which is about medical privacy, to go after the medical privacy of trans people in states where they're protected is disgusting. And so I think the Ninth Circuit got it wrong. I hope that the plaintiffs go en banc. And if and when they do, they'll also have a chance to argue the burdensome nature of this, the overbreath of this, right?

48:52So there's arguments left, but it's really not a great look. And of course, it once again leaves trans people and their families in limbo about whether they can get medical care without having the boot of the government on their necks. And so it's really, really awful. But I hope that there's a light at the end of the tunnel on this one. Yeah, there was a really great dissent by Judge Paez, because what the majority basically says is like, what's the big deal? Presidents can have policy preferences about how law is enforced. But as the dissent points out, like their preference can't be to ignore the limitations that federal law places on their ability to make these subpoenas.

49:27And yet. Yeah, like, hold my beer. Of course, they're going to take this one to the Supreme Court, too, but we'll see. Right. Yeah. But, you know, I think you're right to kind of situate this case as part of like the broader kind of attack on trans people and trans health care, you know, on that kind of context. I wanted to note that this past week, Keg's breath confirmed the anti-trans animus of this administration. So wanted to play a short clip of him at a campaign event in Iowa. If you do not want to hear an anti-trans slur, just hit fast forward for 30 seconds right now. At the Department of War, we do training, not trannies.

50:10just like disgusting gross hateful rhetoric that again confirms what is actually animating so many of their actions and the same week you know since we were talking about like public service public servants you know in the federal government there was a really moving and i think courageous essay by a trans cia officer julia curley in the atlantic called the wrong kind of American. And it's just astonishing. It documents her time serving Trump during the 1.0 Trump administration and Vice President Pence specifically. And what's astonishing is they knew she was trans. But as she says, they needed her because she's a fucking good CIA officer.

50:53And it seems she was fired when essentially it got out that she was trans and other people found out because someone may have leaked it to Laura Loomer. And it's just a gutting essay about how this woman continued her service, obviously putting country above, you know, her own kind of personal interests, safety and whatnot, and serving people who went out of their way to target trans people, people in same-sex relationships. And it just paints a very stark picture of what is real public service and who has courage in this situation. Exactly. I mean, what a contrast, Right. If you were in a national security information, do you want coped up Pete Hegseth or Julia Curley?

51:33I'll take Julia Curley every day of the week and twice on Sunday. Yeah. One last note on development at the court related to Christian nationalism to watch. And that is the case challenging whether states public schools can display the Ten Commandments is now up at the Supreme Court. So a cert petition has been filed in the case challenging the Texas law that requires Ten Commandments to be displayed at schools. The Fifth Circuit, you know what I'm about to say, it is the Fifth Circuit upheld the law because it is the Fifth Circuit. And everything, including lack of respect for binding Supreme Court precedent, is bigger there.

52:07So there is a directly on point Supreme Court case Stone v. Graham from 1980 that invalidated a Kentucky law requiring the display of the Ten Commandments at public schools. But the Fifth Circuit opinion was written by Stuart Kyle Duncan because Stuart Kyle Duncan, who basically said, like, what's the big deal? This is a poster. Please note that this is a poster that says, I am the Lord thy God, thou shalt have no other gods before me. Also, the opinion by Stuart Kyle Duncan said Stone v. Graham isn't real law because the Supreme Court has abandoned Lemon, the Lemon test about, you know, when something violates establishment of religion.

52:43And Stone had cited that decision in Lemon. That cannot possibly make every case citing Lemon invalid, but whatever. Also, the Fifth Circuit said, like, you plaintiffs challenging this law, you can't rely on the Supreme Court's decision in Mahmoud v. Taylor, the case about opt-out rights for parents during LGBTQ inclusive curriculum. I think the Fifth Circuit was kind of like, well, you plaintiffs challenging the Ten Commandments aren't Christian nationalists. You know, kind of a paraphrase, but you get the point. But their attitudes seem to be like it's coercive for kids to be read storybooks with LGBT characters, but not coercive for them to have to stare at the state's select edited version of scripture.

53:20Like that's called law, you idiots. But now Texas, together with other states, Louisiana, Alabama, Tennessee, are trying to make this happen. And, you know, as a proud graduate of public schools in a community where I was not part of the majority faith, it's just so deeply sad and gutting to watch this happen. But the case is now up at the Supreme Court. And I guess my guess is they'll probably take it. But I guess we will see. Yeah, I mean, seconding your point about public school, also a minority religious attendee of public schools in the Midwest and South. And I can tell you it would have felt coercive and exclusionary for me to have to read that every day, not for lack of trying in the states that I grew up in.

54:06And I think the other dynamic here, we've sort of been around like circling around this, is that oddly, the best way to audition for upcoming Supreme Court seats is actually to thumb your nose at the Supreme Court right now, because even Donald Trump is annoyed with the Supreme Court. So Stuart Kyle, Kyle Duncan is is auditioning. James Ho is auditioning. Reed O 'Connor down below is auditioning. Right. And they are all they're all issuing opinions in outright defined. of current Supreme Court precedent, because that is actually how you get yourself on the Supreme Court right now to show your fealty to Donald Trump and the extreme right wing and not even Supreme Court precedent.

54:46So this is just one more example of that. I actually think that the Supreme Court will take this to shoot it down, to show their independence, right? That whole game and song and dance that they've been playing. I think so. I think they will take it to rule against the Fifth Circuit. They have been decently good at shooting down the worst Fifth Circuit cases, but that's only one more feather in the cap of the Fifth Circuit judges trying to take over. And so that's I think that's what's happening sort of one step under the radar here. OK, so I guess. No transition can ever really take us to favorite things, but that is where we are.

55:20Yeah, right. In a catering cart. And that is going to be part of my favorite thing. So my real favorite things. Well, the last is going to be a real favorite thing, too. But phoebe bridger's album last weekend love that just watch five-star weekend terrific recommend to everyone the new york times piece on third country removals as well as the segment kate did last week on uncourage but my new favorite thing john fucking ossoff let's play that clip and while the sailors on the lincoln fight his war for While he fruitlessly drains our munitions and oil reserves, the president sleeps through his meetings.

56:02He golfs and trades stocks. See, he doesn't want to do the job. He wants to build his ballroom and travel with Natalie on their apparently defenseless flying palace gifted by the Emir of Qatar. OK, so I have to say, like, I'm extremely online. I did not know who the fuck Natalie was when this clip came out. But John Ossoff knew because he set off this insane media firestorm where we all learned so much about Natalie Harp, the president's personal aide. So now do we play the weirdest facts about Natalie Harp game where we go back and forth? Okay. You're the guest. You can go first. So I will start.

56:54So the little bit of background that you need to know is Natalie Harp is dangerously obsessed with Donald Trump. To the point where other staffers will like try to get rid of her on trips and she just couldn't be gotten rid of. And so one time in order to be close to the president, she hid in the trunk of a car. Another time to be close to the president while he was golfing, she slept in the women's locker room. I've taken two off the board. I apologize. But that's totally fine. That's the level of stalkering and single white femaling we have going on here. Yeah, she reportedly ran behind his golf cart so she could remain available to him.

57:32And she's written super personal letters to Trump that reportedly concern the Secret Service because they say things like, you are all that matters to me. And they thank him for being her, quote, guardian and protector in this life. And it's just so fucking weird. So fucking weird. Yeah. And like the the fake outrage machine on the right has kicked into overdrive. Right. And of two minds here, because like, yes, in some ways, Natalie Harp is like a deeply damaged person to be like hero worshiping Donald Trump. And ultimately, this is Donald Trump's fault for allowing this kind of relationship to fester, etc.

58:19Right. So like, put that on the table. But she is a highly paid, highly powerful adult human being in the federal government who's like inches from the nuclear codes all day. So she gets treated as such. So this like this like claim that we're attacking a vulnerable young female staffer with our innuendo about what she's doing with Donald Trump in the catering cart. Like, miss me with that. She spends 24 hours a day with the most powerful human alive, often has to wake him up as he's asleep in meetings. She has a lot of power over our lives and she should be scrutinized as such. Yeah. She's also reportedly declined a security clearance, which is not something you can decline, but is apparently what she does.

59:05And, you know, also on the like spare me, the accusations of sexism, like your secretary of defense literally fires officers because they're women and blocks women from promotions because they're women like get over it. Also, I don't really take all of this innuendo to be about like they're in some sort of like sexual or romantic relationship. She kind of seems to be like his nanny or nurse, like his comfort pet, which is also weird and creepy as fuck. And like it's just a weird situation. And it's just I'm over it. It obviously bothers them way more that he needs a nanny than has a concubine.

59:40Like they would love the story that he was having sex with a 35 year old. He obviously isn't and can't most likely. And this is way, way worse. Yeah. Yeah. Okay. So that was my set of favorite things. So what would you like to add? Yeah. So seconding Phoebe Bridgers. I also, I declined to go backstage and meet Phoebe Bridgers the last time I saw her. I declined that. Yeah. No, I didn't. Of course. I get it. I get it. I was like, I was first so florey. Like, what the fuck? But staying on. Staying on the movie. You're never going to be invited back to the podcast. No, that's right. No, no, no. No, Phoebe, I'm available to come backstage anytime.

1:00:16Staying on the music front and staying in your home state of Michigan, I've been wearing through Jack White's new album. Please go check it out. It's not exactly recent, came out last month, but it resurfaced this week because he's in a beef with some no-name country singer because the country singer, his name is Charlie Crockett, dropped one of his opening acts because they were too satanic. This is like, you know, some MAGA attention play. and Jack White nicely scooped them up and said, you can open for me instead. And now this country singer is trying to get his 15 minutes of fame by going after the American hero, Jack White.

1:00:48So all to say that it's re-upped my love for the man and I'm listening to his own new album. You should check it out. And I'll close with where we opened today, which is the kids are going back to school next week. And I love my children. We all love our children, but it is time for them to go back and free me of my mornings and afternoons. And so to all the parents out there, like making it through, back to school week, good luck and Godspeed. All right. Well, thank you so much to you, Somal, for joining this episode. Again, Somal is at Court Accountability. Please check out their work, which we were discussing in this episode, as well as the work of their partner, True North.

1:01:25And we hope to have you back sometime soon. Absolutely. Thanks for having me. And listeners, now stay tuned for a great conversation that Melissa had with Jesse Wegman about the lost founder, James Wilson, and the forgotten fight for a people's constitution.

1:01:41Strict Scrutiny is brought to you by Sundays for Dogs. Is your dog a picky eater? It's surprisingly stressful. You've tried mixing things in the food. You've tried different brands. You've even sat next to them to make them feel calm or try hand feeding them everything. You tell yourself they'll eat when they're hungry, right? Or maybe, just maybe, your dog has a taste for the finer things in life. I know, Stevie does. And those finer things include Sundays for Dogs. Founded by Dr. Tori Waxman, Sundaes was created to meet her high standards as a veterinarian and as a dog parent. Sundaes starts with 80 % plus all natural meats and then adds superfoods such as kale, ginger, and blueberries.

1:02:19No fillers, no nutritional blends, no chemicals, just simple, complete nutrition. Sundaes is gently air-dried instead of using high heat so it doesn't look or smell like dog food. It looks like high-quality, human-grade jerky. And the best part? Sundaes requires no fridge, no freezer, no prep, no mess. You get the quality of a home-cooked meal with a scoop and serve, ease of a kibble. It's what dog food should have been all along. And Sunday's just launched a brand new fish recipe. It's made with 80 % whole and minced fish, including eco-friendly, invasive carp sourced from American rivers, for a naturally rich flavor.

1:02:50In fact, did you know that many dogs naturally prefer fish flavors? So Sunday's fish recipe is especially great for picky eaters. Plus, it's packed with omega-3 fatty acids that help support healthy skin, shiny coats, joints, and brain function. It's complete and balanced nutrition for all life stages. Stevie is still enjoying her Sundays for Dogs. She's also enjoying being better able to see her Sundays for Dogs in her kibble toys, given that she's been having less eye goobers, probably because she's eating better. Make the switch to Sundays. Go right now to Sundaysfordogs.com slash strict and get 50 % off your first order.

1:03:23Or you can use code strict at checkout. That's 50 % off your first order at Sundaysfordogs.com slash strict. Sundaysfordogs.com slash strict or use code strict at checkout. Strict Scrutiny is brought to you by OneSkin. A lot of skincare makes big promises but can't deliver. OneSkin's different, and I've been loving their products. They never set out to become a skincare company. Founded by four PhD longevity scientists, they focused on one thing, skin aging. Quick fixes or marketing trends were never the point. They tested the best-selling anti-aging products on the market and found the same hard truth over and over.

1:03:55None of them were working on the actual cause of aging. They were all just working on the surface signs of aging, and it turns out some didn't really work at all. After years of research and testing, they developed OS1, their proprietary peptide, proven to address a leading driver of visible skin aging. It's the foundation of every product they make. So over time, you'll see smoother skin, more even tone and radiance, and visibly fewer fine lines. Skin that both looks and acts younger. I'm a swimmer and thankfully get to swim outdoors in the summer. But that also means I need to take additional protections for my skin.

1:04:24So I've been using OS1 Body SPF and Face SPF. It protects my skin, but without making me feel oily or making the pool feel dirty. I've also introduced some of the other swimmers to OS1 because it's easier to sell people on this stuff that isn't cloppy or goopy or oily. Who wants that? And this isn't just my experience. OneSkin's results are backed by four peer-reviewed clinical studies, over 10 ,000 five-star reviews, and they've been recognized by Bloomberg and Fast Company as a leader in skin longevity. Born from over 10 years of longevity research, OneSkin is helping you unlock your healthiest skin now and as you age.

1:04:57For a limited time, try OneSkin with 15 % off using code STRICT at oneskin.co slash STRICT. That's 15 % off oneskin.co with code STRICT. After you purchase, they'll ask you where you heard about them. Please support our show and tell them we sent you.

1:05:20Stricties, this summer marks the 250th anniversary of the founding of the United States. And obviously, we here at Strict Scrutiny wanted to commemorate the semi-quincentennial of the nation. And there were so many options available to us. So we thought about having a cage fight on Leah's lawn, couldn't get the permits for that. Then we thought about maybe doing a tall ships parade. We don't have any ships, though, so that was obviously a problem. We thought about maybe creating a fair on the grounds of one of our law schools. Couldn't get permits for that either. And so when all of those options were exhausted, we realized we actually had the perfect commemorative event right here at our fingertips because we had been given advanced copies of Jesse Wegman's recent book, The Lost Founder, James Wilson and the Forgotten Fight for a People's Constitution.

1:06:12And we realized that maybe an interview with Jesse Wegman about the lost promise of a populist constitution would be the perfect way to commemorate America's 250th birthday. So with that, let me bring in our guest, Jesse Wegman. Welcome to Struck Scrutiny, Jesse. Thank you so much for having me. I'm thrilled to be here. I'm sorry that you're getting short shrift relative to the cage fight and the tall ships. I think we all are second fiddle to such events. But what a backup you are. Like, this is absolutely fantastic. And we're so excited to have you on the show. Listeners, Jesse really needs no introduction, but I'm going to give him one anyway.

1:06:55He is a graduate of NYU School of Law, where only the best lawyers go. And he was for many years a member of the New York Times editorial board. He is now a senior fellow at the Brennan Center. Much of Jesse's journalistic career has been spent covering the court, legal affairs, and politics, and ultimately culminated in his 2020 book, Let the People Pick the President, the case for abolishing the Electoral College. His most recent book, The Lost Founder, focuses on James Wilson, the founder that you may never have known you needed to know. But that's where we'll start today. Who is James Wilson, and why should we know this forgotten founder?

1:07:36Well, I have the exact same question, who is James Wilson? And this was something I discovered him while I was working on that Electoral College book. I was in the basement, the sub-basement of the NYU Law Library, actually. This is probably 2018, 2019, so I'm utilizing my alumni privileges. and I'm reading Madison's notes of the convention to find out where it is that the founders adopt the electoral college. I was like, how did they do, how did they actually settle on this weird method of choosing the president? And while I'm reading the notes, I keep running into this guy, this long-winded guy from Scotland who keeps talking about political equality and popular sovereignty and the importance of people being directly involved in the choosing of their leaders and represented equally.

1:08:27I mean, all of these things that we talk about today is sort of second nature. This guy is talking about 250 years ago in a room that's pretty hostile to those ideas, largely hostile to those ideas. And I see it's James Wilson. I'm like, I think I've heard of him. I don't know if I've heard of him. Either way, how could I be, you know, unaware, you know, so unaware of someone who seems so central to the whole story? He then proposes electing the president directly, right? This is his first, one of the first things he says at the convention is, you know, when they're talking about how to choose this new executive of the country, he says, well, it's the people, the people should choose the president directly.

1:09:05And obviously, as we all, you know, grew up learning that the founders were not people who had a lot of trust in the public at large, they were building a government that was in many ways meant to deflect or, you know, limit the participation of the regular person. So to read about this guy, Wilson, saying the opposite was just a shock to me. And then as I dug into him more and his history, I couldn't believe that I didn't know who he was. And this is what the who is James Wilson part comes in. I was like, I can't believe I can't believe I don't know him. I went to law school. I went, you know, I write for the New York Times about the Supreme Court.

1:09:43This is neither a failing of NYU law nor the New York Times. Like, I don't think many people know much about James Wilson. And part of that is Wilson doesn't leave behind a lot of archival material. So, you know, one question for you is, how'd you find him? I mean, like, he's hiding, but there's not a lot of written material. He's not a guy who keeps a diary. He's not like Jefferson, who not only writes voluminously, but has a machine of his own making that makes copies of every letter that he writes. So, you know, Jefferson leaves behind an archive of his own. Wilson doesn't seem to be that self-conscious about his legacy, yet his legacy is outsized.

1:10:22So how did you find him here? This is a great question. And you really raise a critical point, which is that so many of the American founders saw themselves in that outsized way, right? They understood themselves as world historical figures, even at the time, which is an enormous amount of - Which should be a signal to us that maybe something was going on. Well, there's a lot of hubris in that. And yet at the same time, they were right. Thank God that they were so full of themselves. We call that a Neil Gorsuch problem. Stock clocks are right at least once a day. Fair enough. But for biographers of those founders, the ones we know, the Jeffersons and the Hamiltons and the Washingtons and the Madisons, it's a mixed blessing.

1:11:08They have so much to work from that it's hard to know what to cut. Whereas with Wilson, I had the opposite problem. Wilson, like you say, is somebody who kind of was, although very ambitious and very interested in his own political and legal and financial advancement, he didn't quite understand how to preserve his own legacy, how to build a legacy and preserve it. He cared very much about the principles, the ones that I mentioned of popular sovereignty, the idea that all people, you know, that people are at the foundation of government, people are the ultimate authority in government. But, you know, he didn't save his letters.

1:11:45He didn't save his speeches. You know, that was left to other people. His son, after his early death, his son had to had to scramble just to collect what was left. And then, you know, almost a century later, one of his granddaughters delivers this like mess of papers to the Historical Society of Pennsylvania. and says, you know, do what you will with these. I don't know what's in there. What happened to be in there was, among other things, the first draft of the United States Constitution, which Wilson wrote. So he actually, he is this repository, this incredible repository of American history, and yet he did his best to kind of disappear himself from our founding narrative.

1:12:25So this book was really as much of a resurrection project, it was an excavation project. That's a great way to put it. So as you're excavating him, as you implied earlier, he's something of an anomaly, right? He's kind of a radical populist at a time where most of the people around him are elitist, which is not to say he doesn't have elitist tendencies. He does, and he ultimately becomes quite wealthy. But nonetheless, he maintains the staunch belief in the people and their ability to govern themselves. What made him stand out in this way and what made him so committed to this idea of popular sovereignty?

1:13:04Was it his hardscrabble upbringing in Scotland where he attended a Presbyterian church, like far less hierarchical than the Anglican church and the Catholic church? He also attends a Scottish common school. So this is sort of the precursor of what we would know as public education. But that kind of education that was intended to educate everyone in Scotland was unknown in either the rest of Great Britain and certainly in the Americas. So was that the genesis of his populism, the fact that he was just in these very democratic circles in his early life? Yes. What you just described is the essence of it.

1:13:43This upbringing, he was born into a poor farming family in the lowlands of Scotland. So that's outside of Edinburgh in the south. And he was raised in, as you described, these very democratic environments, right? And I mean that just in the most general sense, not politically democratic, but democratic in terms of their conception of peoples being treated as equals. So he went to a school where everyone gets educated the same, right? The Scottish schools are famous at this time for educating all the Scottish children, no matter what station in life they come from. and that was in order to teach them scripture but of course the effect of it is they make a nation of readers.

1:14:25Scotland is the most literate country or the country with the highest literacy in Europe at the time and it had only recently been a fairly backwards nation. So you have that training. You have the Presbyterian Church which as you say is much more democratically structured than the Anglican or the Catholic churches. The congregation has votes to elect the presbyters, the leaders. And that's another way in which he's just being imbued from very, very early with these notions that everybody is equal and everybody should have a say in how they are governed. The third element that I would add to that is Wilson's unique training in what we now call the Scottish Enlightenment.

1:15:08He went to St. Andrew's University, which was down the road from his farm in Scotland. And he also went to the University of Glasgow. And there he's studying with the great minds of the Scottish Enlightenment. This is Thomas Reed, Adam Smith, you know, this earlier, a generation earlier was David Hume and Francis Hutchison. These are the people who in many ways defined a lot of modern thought in the West with, you know, ideas about democracy and self-governance and philosophy and society. And Wilson is, you know, all the founders read these guys, but Wilson alone among them, he literally studies with them.

1:15:49He comes to America as a 23-year-old in 1765, completely filled with these ideas that I think really set him apart from the other founders who are much more, you know, they're warier of the public, they're warier of the rabble. And Wilson is just kind of enamored of them. And he brings that spirit into the new country and he starts to spread it. He has a kind of Horatio Alger story. I mean, like he has these opportunities that are created by mass education that's available to him. So he gets a great education. He's able to harness a little bit of privilege. Like he has a cousin who's able to help him buy some land and he uses that to like afford his passage to the United States.

1:16:34He gets to the United States and he marries up. I mean, part of this, I thought, was an interesting story about the upward mobility of marriage for a guy who's, you know, born, you know, pretty lowly. And he marries the daughter of someone who's actually quite wealthy. She survives her father and she's a huge heiress. And he jumps on that, literally. and like your your discussion of their courtship is so just so interesting because he's kind of a stalker right he's just like oh totally that was the word that came to my mind i didn't put it in the book because it felt a little bit anachronistic but absolutely he had stopped there was there it was today he would be uh canceled for that behavior today she would have a restraining order Back then, she had a marriage license.

1:17:23Right, right. Well, so she, right. And she says to him, this is this young woman, Rachel Bird is her name. And I'm glad you focus on her because, I mean, she does open vistas to him and opportunities to him that are both extremely important to his acceptance into the Philadelphia elite, which is part of what helps him become the major figure in the founding that he is, but also to buying and selling land, right? That's the dark side of all this. which becomes his downfall, right? I'm not blaming Rachel for either of these things, but definitely her wealth, right? She's the daughter of an ironworks, a guy who owns an ironworks.

1:17:59And it's the equivalent of millions of dollars today that her estate is when her father dies. Wilson pursues her with just incredible tenacity. She says, no, I'm not the marrying kind. She rejects him again and again and again. And he just keeps writing her letters. And then he writes his best friend, Billy, letters, and he says, Billy, I'm so, I'm just basically so, I mean, it is kind of like, it's a little creepy, right? But he finally, in a way that we don't have a record of, sadly, or that I wasn't able to locate a record of, he wins her over. And part of me thinks like that's - I would say wears her down, but okay.

1:18:35Yeah, fine. Wears her down is, it may be a fair description, but it also, there's a troubling element to that, which is, I would expect, the lesson he takes from that is, if I just push hard enough, I can overcome reality. I can overcome opposition. If I just am persistent and dogged enough and refuse to take no for an answer. And you see that play out in his political life too. You see that play out in how he attempts to convince other founders of the principles that he believes in, sometimes, often, not successfully. So it's a really interesting, that relationship is a really interesting proxy in a way for all the other relationships of his life.

1:19:15It's a really uniquely American story. You know, someone who is imbued with all of these talents and then really does meet opportunity. This heiress that he marries whose wealth underwrites his ambitions. And then he finds himself in the center of a revolutionary generation that is poised to do the unimaginable. And it's actually his logic that fuels the American experiment. So you note in the book that he writes an essay that is actually radical for the time. So at the moment, the colonists are struggling with their relationship with the British crown and parliament. Parliament has taxed them relentlessly and they are chafing at it, but they still understand themselves to be subjects of the British crown and British authority.

1:20:10They just don't think they should be subjects for the purposes of taxation. So they are trying to kind of have it both ways, like we are subjects, but not for this purpose. And he writes an essay that's like, wait a minute, Parliament can't check me. Like Parliament can't check us. Like we are the people and government proceeds from the consent of the people. And that's radical. I mean, it's part of the Scottish Enlightenment, but no one else is talking about it. And he writes it. I think he realizes at the time that this is too much for this moment. And so he puts it in a drawer and then it surfaces again.

1:20:45It is attributed first to Ben Franklin. And he's like, no, no, no, this is not Ben Franklin. This is James Wilson. And suddenly he finds himself like primed for this moment of revolution. Yeah, that's exactly right, is that he writes this essay when he's 26 years old, which I've been pointing out to people is the same age that Bruce Springsteen was when he wrote Born to Run. So it's in a similar way, it's a kind of summational statement of principle that will carry through his life, right? And it is the argument that Parliament, the British Parliament, has no authority at all over the colonies.

1:21:20And that, as you say, is an incredibly unorthodox, bold thing to say at the time. 1768, yes, people are getting upset. We've had the Stamp Act crisis, right that there's all kinds of uh burbling up of independence energy but uh no one is prepared yet to go that far Wilson writes it it's actually his mentor who kind of nudges him and says James this is too much don't don't publish this right now it's going to destroy your career it's way too bold um he puts he puts it in a drawer six years later he publishes it and yes it does get attributed to Benjamin Franklin Wilson and Franklin have this very funny kind of throughout their lives.

1:21:59Their lives kind of intersect multiple times in amusing ways. But this is one of the first where Franklin gets the credit for this argument. And somebody, maybe even Franklin himself, is like, you know, there's a letter to the editor of the newspaper that published it and attributed it to Franklin saying, this isn't by Ben Franklin. This is by the Scottish guy, James Wilson. Right. And that helped make his name. And this is 1774 when it published it. So now, six years on, there is a lot more energy and a lot more openness to arguments for independence, arguments to push back against British sovereignty.

1:22:35And Wilson is the man who's made this argument most clearly. Two years later, less than two years later, actually a year and a half later, Thomas Jefferson is drafting the Declaration of Independence. And he has Wilson's essay, this essay about British Parliament, on his desk. And we know this because he has copied huge passages of it into his commonplace book where he keeps quotes that he likes. The essay is 11 ,000 words long, right? It's not a brief, like, sort of polemic. You know, it's not a common sense or a summary view like Jefferson. It is a legal, it's a legal argument. It's heavily footnoted.

1:23:12It's incredibly learned. It dips into history and, you know, philosophy and all these various things. It's a law review article. It's a law review article and Wilson is showing off, right? He knows he's smarter than everybody else. So he's showing off a bit. He's very, he's always prolix. He's always like says more than he needs to say. But Jefferson derives, I think we can, historians going back now a century have really credited Wilson with inspiring the key lines for us of the Declaration of Independence. We hold these truths to be self-evident. Can I read just briefly that passage from the essay?

1:23:48So Wilson says in the beginning, in the first installment of this essay, he writes, all men are by nature equal and free. No one has a right to any authority over another without his consent. All lawful government is founded on the consent of those who are subject to it. Such consent was given with a view to ensure and to increase the happiness of the governed, and so on and so forth. It's not that he came up with all these ideas, but he was putting them together in a way that nobody had to that point. And you really hear their echo in the Declaration of Independence, the preamble to the Declaration two years later.

1:24:22So Wilson is right there at his, you know, the youngest, you know, 26 years old coming up with these principles that become, you know, central to the American experiment. It's almost like we hold these truths to be self-evident. Apparently the greatest sentence ever to be written, according to Walter Isaacson, was a heap heat in some ways. You know, so Jefferson is profoundly influenced by Wilson. Wilson, in turn, is one of the signatories of the Declaration of Independence. And then 11 years later, he is a signatory to the Constitution. He is one of only six framers to have signed both documents.

1:24:58And he, I think, maybe among all of the framers, is the only one who really seems to grasp the relationship of each of those documents to each other and to a greater American project that is about to be launched. How does he put the Declaration and the Constitution into conversation with each other? And what is he able to discern about this country and its government and its values that his peers don't quite grasp at that moment and maybe will not grasp for generations? I love that you bring this up because it was one of the most fascinating things I learned in writing the book, and I credit the scholar at University of Pennsylvania, Bill Ewald, who's one of the leading Wilson scholars in the world for making this connection.

1:25:49But Wilson, unlike any other founder, saw that the Declaration of Independence was the ultimate expression of the idea of popular sovereignty, right? This idea that the people are in charge, and they may change their government whenever and however they please. This is Wilson's guiding light throughout his life. It is what embodies his essay that he writes in 1768. It's all the way through to his law lectures in 1790, and then to the most important Supreme Court decision he wrote a few years after that, Chisholm v. Georgia. But where he connects it is, you know, that document for most of the founders was primarily important for its list of grievances, right?

1:26:32That is a document where it is explaining why we are separating from Britain. And so what matters is the reasons for separation, not this other part that says people are equal. That's something that we hold to today quite fiercely, at least in theory. But it was not something that came up among the founders. Professor Ewald goes through all of their records, their speeches, their letters, all the documents pertaining to their lives. And there's no mention of self-evident. All men are created equal. You know, all the quotes that are central to us today, they didn't cite. They didn't seem interested in that.

1:27:11Wilson alone has that. He sees the connection. And when he is at the Constitutional Convention 11 years later, he insists that the Declaration is the foundation for everything. He pulls it out on the floor of the convention and starts reading from it, right? From the beginning, from the preamble, right? The part that he inspired. And he's reading to his fellow framers and saying, this is what we are doing here. This is a people's document. So he says, he puts the words, we the people, at the beginning of the Constitution. And that is importing the spirit of the Declaration of Independence, that popular sovereignty spirit into the very beginning, the very opening of the Constitution to say the people ordained and established this document and it is the people's document front to back.

1:27:59Strict Scrutiny is brought to you by Three Day Blinds. I've got a little princess and the pea in me. Specifically, I can only sleep in places that are quiet, cold, and dark, which means at home I need blinds. But I also need blinds that are easy to open and close because during the day I crave the sunlight. And that's where Three Day Blinds comes in. 3-Day Blinds is the leading manufacturer of high-quality custom window treatments in the U.S. And right now, if you use my URL, 3dayblinds.com slash strict, they are running a buy one get one 50 % off deal. And as that URL suggests, you can shop for them from the comfort of your own home without having to interact with strangers.

1:28:34But if you do want to interact with strangers, 3-Day Blinds has local professionally trained design consultants who have an average of more than 10 years experience that provide expert guidance on the right blinds for you in the comfort of your home. Just set up an appointment and you'll get a free, no obligation quote the same day. Now, if you're as good with home repairs and set up as, say, Brett Kavanaugh is at the law, sorry, I tried, don't worry. The expert team at 3-Day Blinds handles all the heavy lifting. They design, measure, and install, so you can sit back, relax, and leave it to the pros.

1:29:04I like that 3-Day Blinds allows you to search along several different criteria, some designs, but also some functional criteria, like blackout blinds, if you, like me, basically like sleeping in a cave. With 3-Day Blinds, you choose from thousands of options that fit any budget or style. Plus, from light filtering and blackout blinds to motorization and smart blinds that work with Alexa, 3-Day Blinds is a real upgrade to your home, not just a replacement. 3-Day Blinds has been in business for over 45 years, and they have helped over 2 million people get the window treatments of their dreams. So, they are a brand you can trust.

1:29:36Right now, get quality window treatments that fit your budget with 3-Day Blinds. head to 3dayblinds.com slash strict for their buy one, get one 50 % off deal on custom blinds, shades, and drapery. For a free, no charge, no obligation consultation, just head to 3dayblinds.com slash strict. One last time, that's buy one, get one 50 % off when you head to the number three, D-A-Y, blinds.com slash strict. Keep it listeners, Louis Fertel here. I have something I've been dying to get off my chest. Dr. Robbie is the real villain of the pit. There, I said it. Okay, but that's not actually the big news.

1:30:10Here's the big news. Emmy-nominated television host Nina Parker is officially the new co-host of Keep It. That's the confession. The Dr. Robbie thing was just, you know, me needing to say it somewhat out loud. Okay, shots fired, and I hear you're Dr. Robbie, and I raise you. Sex in the City wasn't really a show about finding love. It was a humiliation ritual on bad friendships. The clothes were cute, though. Oh, yeah, the tutu in the opening credits? Yeah, it's really cute. Every week, Nina and I will bring you an inside look at all the pop culture drama, the hottest takes you can handle, and honestly, maybe some you can't.

1:30:38Plus, celebrity guests galore. We're going to guide you through a gorgeous wreckage of pop culture. We are unpacking the biggest stories in TV, film, entertainment news. We're going to go all the way to Gen Z, from YouTube taking over the horror genre to Olivia Rodrigo, redefining pop music. And then we're going to also talk about maybe you partying with Madonna a little bit. Oh, yeah, that one time at the Abbey. It was sweaty. But in a good way. New episodes drop every Wednesday on YouTube and wherever you listen to podcasts. kitchen and bathroom professionals know what goes behind the tile matters that's why trade pros trust fiber cement hardy backer board to keep tile firmly in place resist cracking and help block moisture chosen in over 40 million kitchens and bathrooms hardy backer board what the best build on shop now at participating home depot lowe's and floor and decor stores for more information visit jameshardy.com slash hardy backer

1:31:39There's this tension that he's constantly surfacing at the Constitutional Convention because there are those among the framers who understand the relevant unit of governance to be the state, right? The states, all 13 of them. And he's like, it's not about the states. It's about the people, right? And so he is pushing for popular representation in Congress. He is successful in one chamber of Congress. The House of Representatives is popularly elected. He is not successful in getting the Senate to be popularly elected. Like this becomes sort of state based representation where the smallest states that are least populous have the same power as the most populous states.

1:32:20And this really chafes at him. But he's very much like the people. That's the unit. That's what we should be thinking of. But there are these other moments in the Constitutional Convention where Wilson is really confounding and almost mired in his own contradiction. So he's totally committed to popular sovereignty, even after almost being killed by an angry mob. So you write about the siege on Fort Wilson, his home in Philadelphia. And even after he's almost killed by this angry mob, he's still like, I'm all for the people. So he's deeply committed to popular sovereignty. He believes in equality, and yet he becomes the person who proposes what becomes the electoral college system for presidential elections.

1:33:07He does that as a compromise when it's clear that he will be unsuccessful in persuading his colleagues to popularly elect the president. He's also the person who endorses and proposes the three-fifths clause, which, you know, the idea of enslaved persons counting as three-fifths is not new. But he is the one who offers it up as a compromise to the southern states when they're trying to figure out the representation arithmetic of the country and how to deal with the problem of slavery. And in doing so, he kind of entrenches minority rule, at least in presidential elections, and certainly slavery in the Constitution itself.

1:33:44It's one of the great ironies of his life that he is in at least indirectly but significantly responsible for two of the provisions of the Constitution that we look back on today as the most anti-majoritarian, the most anti-egalitarian. right? And obviously the most morally profane in the case of slavery. Just to very briefly touch on each of those, the idea for the Electoral College originates with him, and it's the day after he had proposed popular election for presidents, and there's crickets in the room, right? Everybody's looking around. They're all feeling pretty uncomfortable. They're like, why are we talking about this?

1:34:21George Washington's sitting right there. You know, Washington is the president of the convention, and he says almost not a word for the whole summer, but his very presence, it just, it pervades the room and influences the way the delegates are thinking about forming this new government. They knew that if they had a leader, an executive, it was going to be him. So they're very uncomfortable with talking about how he's going to get chosen. Wilson gets virtually no buy-in on a popular election. So he says, say, James, go home, come up with something better. He comes back the next day and he proposes this idea of these electors who are sort of an intermediary step between the people and the executive.

1:34:59And it's four months later that they actually adopt what we today refer to as the Electoral College. But it was almost identical to the idea Wilson had proposed in early June. So that's that irony. And then, of course, as you say, three-fifths. I was trying to address this in so many ways in the book, and I eventually had to pull it out and make it a whole separate chapter because there's just no way to grapple with Wilson's inconsistencies here, his willingness to countenance human bondage, you know, when everything else about his life seems to auger against that. So, you know, I've had people say to me, well, don't be presentist.

1:35:41Don't don't don't apply your 21st century values to this guy in the 18th century. And I say, I'm not applying my values. I'm applying his values. Like he he at the time was so clear about the importance of consent and people being in control of their own destiny and human equality. Like those were his values. And he very well could have spoken up more aggressively about the evil of slavery, as many of his peers did. And among those peers are slaveholders themselves, right? I quote in the book from Thomas Jefferson and from George Mason and from Luther Martin, people who, you know, Madison, people who hold slaves, in some cases, hundreds of people in bondage, and who are very clear-eyed about the evil that they are perpetrating.

1:36:26Wilson could never bring himself to speak so clearly. And I found that to be a real moral and political failing on his part. I don't harbor any illusions that he could have single-handedly kept slavery, ended slavery. But you're right. By introducing the Three-Fifths Clause, as he did in the middle of the summer, to placate the Southerners who were threatening to walk away from the convention if they didn't get credit for their slaves, he was placing the Union and the establishment and the cohesion of the Union, the American Union, above the human rights and the equality of what would become millions of enslaved Africans brought to America.

1:37:08It was just it was a deal that many of them made, some of them more explicitly than others. He wasn't a slaveholder, of course. He you know, he did have one man he kept named Thomas Purcell. It's unclear exactly what the relationship was, but he was certainly at the least an indentured servant. And yet he couldn't bring himself to speak out against it. And I was I was really upset at him for this. I was that's why I did a whole chapter. And I was like, James, what why can't you speak out more? What are we doing? Yeah. Yeah, what are we doing here if we're not arguing to end this nefarious practice as the other founders described it?

1:37:46So, you know, in the end, I think it really was that. It was that he, in his hierarchy of sort of urgency, creating the union, having a stable and cohesive union was more important than ending slavery. He says, hey, I don't like slavery. We did the best we could in the convention. He tells this, you know, he says this at the ratifying convention in Philadelphia a few months later. He says, but we did the best we could. It wasn't enough. But, you know, I hope we've laid the groundwork for the eventual end of slavery. But, you know, that's that's kind of cold comfort, you know, at the time. I mean, it's kind of a slavery apologia, like many of them engage in it.

1:38:25And to be fair and generous to James Wilson, there is something of a modernity about him that is, I don't think, glimpsed in the other founding fathers, notwithstanding his very complicated and maybe cowardly stance on slavery. But he is much more forward thinking about these questions of popular sovereignty, about who should be included than any of the other founders. I mean, like, these are people who are elitist. And he, too, is an elitist, but not quite in the same way. And he's much less wary of the common man than some of his contemporaries. He didn't succeed in persuading his contemporaries of the value of popular sovereignty, but he does lay the foundation for what comes later, generations later.

1:39:19So Wilson's thinking is cited by the Supreme Court in cases like Reynolds versus Sims, which espouses the principle of one person, one vote. His views also underwrite the Electoral College reforms of the 1960s and the unsuccessful attempt to abolish the Electoral College, which is actually interesting. Like, you know, he is the architect of the dismantling of the thing that he is the architect of. It's true. I mean, you're right. He really is a person of incredible contradiction, but also a person who seems ill-suited for his own time. Oh, my God. Absolutely. And I wonder if he had lived longer, if we could have seen his reaction to some of the development of the country that he had had such a central hand in creating.

1:40:04The way that, say, Madison, you know, Madison and Jefferson and Adams, they got to see it. They got to see Madison lived 50 years after the Constitution, right? That's an incredible stretch of time. He got to watch these theories play out. And interestingly, Madison starts coming more to Wilson's view of things over those decades. When he sees the country in practice, he says, oh, right, majority rule really is the only way to run a republic. This is something that Jefferson comes around to also, right? It's not that they hadn't thought of it at all before, but they were more wary of it than Wilson was.

1:40:38Wilson was there from the beginning, and he had no question about it. You know, it's interesting. I'm glad you brought up the Supreme Court in the 1960s because Wilson had been essentially ignored by the court. I think I note in the book that 100 years after he died, he was cited more in Supreme Court opinions for the cases in which he was involved, the land ownership cases in which he was involved as a plaintiff or a defendant than for his own contributions as a Supreme Court justice. You know, he sat on, he was appointed to the first Supreme Court by George Washington. He's the greatest lawyer in the land.

1:41:13He gives law lectures that define American law for generations. And yet he kind of disappears, except in this kind of pathetic and, you know, in his financial entanglements. But then in the 1960s, the court in its decisions in the one person, one vote cases, which to be clear, these transformed American society and government by requiring that all legislative districts and all congressional districts be of equal size. That is Wilson's central idea, is that people need to be treated the same for political purposes no matter where they live. And it's not fair to give 10 ,000 people in one state the same amount of power as 40 ,000 people in another, right, or in a district.

1:41:56So when the court did that, they cite Wilson, right? Wilson is their primary source, their primary authority for the argument that all people everywhere need to be treated equal. That's an amazing vindication nearly 200 years after he first started making that argument. And so it's kind of exciting to see it in the Supreme Court cases of the early 1960s. 1960s. I wish he could have experienced a little more of the country, but he dies so soon after the founding that we never get to see that. And his death is the opening of the book. Much of the book is a flashback in many ways, but he dies in, I think, really problematic circumstances.

1:42:38So he is on the run from creditors. He dies in the back room of a North Carolina tavern on the run and a fugitive from those to whom he owes money. What do you make of that? I mean, so land speculation was a big part of his American journey, maybe not surprisingly, like a country that is like an expanse of land and the opportunity to completely remake yourself as the son of hardscrabble Scottish farmers into a member of the elite. I think one way in which you could characterize it is that he falls prey to the worst excesses of America, even as he is the architect of some of its greatest virtues.

1:43:23It's absolutely true. He's a classic tragic figure in that sense, in that everything is tangled up together, the best and the worst of him. And some historians have, I think, very smartly tied it all back to his training in the Scottish Enlightenment. You know, Scotland connected virtue and commerce. The Scottish thinkers saw virtue and commerce as being inextricable from each other, right? And whereas many other thinkers of the era saw virtue as something that was in opposition to commerce. Commerce reflected the baser parts of our personality, right? The market side of things. Wilson comes to America, I think, filled with that notion that it's all part of the same energy.

1:44:05And he ends up becoming this land speculator with a recklessness that none of the other founders approached. They're all land speculators, right? Because that's what wealthy men did then and do now. And this is another way in which he reflects some modernity beyond that of his fellow founders. But he gets so entangled in the land selling and buying and flipping business that he owns four million acres near the end of his life in the early 1790s. This is at a time when he is a sitting justice of the Supreme Court. And he is arguing before Congress. He's writing memos to Congress as a sitting justice about the importance of how they, you know, policies that they enact regarding land ownership and land sales.

1:44:53You know, I mean, say what you will about the ethics of some of the current justices. This is breathtaking to see. And I think it was sort of mortifying to some of his colleagues on the court. Wilson was the leading lawyer in America. He had been appointed to the court based on that reputation, but he did not get the job he wanted, which is chief justice. He had written a letter, he had written a personal appeal to George Washington before he even took office saying, Mr. President, you know, I think I deserve this seat. And, you know, he had just created the office just a few years earlier. And now it's like, it's my seat.

1:45:33Obviously, I'm the only person for it. Washington refuses to appoint him. And I think it's pretty clear from letters between some of the other founders that I quote in the book that one of the reasons, if not the reason, that Washington declines is because of Wilson's financial situation. So six years later, seven years later, after he's appointed to the court, as you say, he is on the run. He gets thrown in jail not once, but twice. He gets thrown in debtor's prison because he has gone bankrupt and he can't pay back his creditors. We're talking about the equivalent of millions of dollars of debt today.

1:46:10So these are not small amounts of money. And Wilson is in major trouble. He's the only justice ever to date ever to have seen the inside of a jail cell. And he gets bailed out by his son from his second stint in jail. And he goes on the run. He goes down to coastal North Carolina to this town, Edenton, where one of the other Supreme Court Justices, James Iredell, had a home. And he goes to this tavern by the harbor, and he hides in the back room of a tavern. He basically lives there in the back room for almost a year. And he eventually contracts malaria, which was something that was endemic to the region at the time.

1:46:50And late summer and fall, the mosquitoes would descend. And it's a horrible way to die. And he gets malaria in the summer and dies in late August of 1798. This is even, you know, he predeceases even George Washington. So he dies very early in the American experiment. I mean, not even barely a decade after the Constitution is ratified. And he's been on the Supreme Court for about nine years at that point. And suddenly he's gone, right? He's the one of the leading founders. He's the most respected legal mind in America. He's one of the wealthiest lawyers in America. And he dies in like rags in the back room of this tavern.

1:47:33So his fall from grace is so shocking and so kind of bracing when you think about what he had contributed to the country. Nobody wants to even there's no funeral. There's no obituary. There's no there's no public recognition of his death. I think everyone by that point had grown so sick of him. They were so ready for him to be off the stage that his erasure is kind of locked in at that point. So it is a stunning end to what had been a brilliant and glittering career. And as you suggest, it might be the case that James Wilson, if he were here today, would not look askance at the prospect of Supreme Court justices and the private jets of billionaires, like maybe wouldn't care about ethics reform.

1:48:20Do you think he would be interested in other species of court reforms? Like, for example, you have made the proposal that justices should be limited to 18-year terms where they then rotate off in the way that lower federal court appellate judges do and, you know, simply take senior status. And that would be a congressional fix that would perhaps lower the temperature on judicial appointments and give each president the opportunity to appoint at least one or two justices in each term. How do you think he would have regarded the prospect of Supreme Court reform and a reform like that? That's a really interesting question.

1:48:57You know, I feel like it's hard to know, based on his writings, what he would have said about that specific reform of term limits. What I can say is I think he would have been all in on the fact of reform and that people should be able to change their government when they please, if it's not like it shouldn't be this hard. Right. Right. He was he was so much of an advocate of the ability of the people to be in charge of their government, that the idea that you would have a court that was essentially immune from being changed, a court that was locked in for, in many cases, as we as we're watching right now, generations and making it almost impossible to to like scale back their allegation of power.

1:49:42I think he would be all in on, you know, the people absolutely have a right to change that immediately if they want to. And whether the solution was term limits or a larger number of justices or whatever it might be, I think Wilson would be a strong advocate that the people can do that and they can do it immediately. What do you think you would think of the current electoral or political moment? The distortion in the House of Representatives through partisan gerrymandering? Do we have majoritarian government anymore? And what would he make of the prospect that we might not? So Wilson is, you know, his fundamental principle is people are equal and a majority of them make the decisions that govern us.

1:50:31Right. He says that again and again at the convention. To him, the biggest abomination, the biggest violation of those principles is the Senate. Right. We look back on the convention and we look at slavery. We look at the dirty deals that allowed slavery to survive. And that's absolutely worth all of the condemnation that we bring to it. But for Wilson and also for Madison, the two of them are really hand in hand on this point for a lot of the convention. It's the Senate. The Senate is the biggest blot on the Constitution. And Wilson says this. He says he can't believe that they are going to establish a branch of government that treats states as equal, not people.

1:51:14This is what I said earlier. He says, how can you treat 40 ,000 people in one state as the same as 10 ,000 people in another? He says, this is magic, not reason. Right. And at one point when they're debating the Senate and he's realizing he's going to lose this fight, because there's too many people who care about their state power. They've had the state power through the Constitution 1.0, the Articles of Confederation, where all the states have an equal vote. That, Wilson saw, as many of the other framers did, was the fundamental problem with the Articles of Confederation. It was why nothing could get done.

1:51:49And so Wilson is like, wait a minute, we came here to fix that problem. And now you're just going to import it into the new government. He says this would be a fundamental and a perpetual error that will end in disease, convulsions and death. Right. That was how much he hated the Senate. So I think Wilson today would look at the Senate, which, by the way, is far more unrepresentative now, even than it was in 1787. Right. At least then the difference between the largest state and the smallest state was something like what, 10 to 1, 15 to 1, something in that range. Today, it's 80 to 1. It's like California and Wyoming.

1:52:25Yeah, take the obvious ones. California is 40 million people. Wyoming's what, 500, 600 ,000? 80 to 1. That discrepancy, that violation of majority rule is at the core of so much of our national ills today. And I think Wilson would look at it and say, I told you so. I warned you this was going to happen, right? So, you know, we can talk about the Electoral College until the end of time. We can talk about gerrymandering the House, which also obviously is making a House that is, in theory, based on proportional representation, far less so. But the Senate from the very beginning, the very principle of the Senate, is what infuriated him so much.

1:53:05And I think he would say, that was where you went wrong. And I think many of us might agree. It's such a gift, Jesse, to have this book in this moment, to resurrect James Wilson in all of his contradictions. I mean, because he does seem like someone who is meant for this particular moment, even if he was out of step with the moment that he occupied. The book is absolutely fantastic. It's really a pleasure to read. And you learn so much about the country, its history, and these two documents that he puts in conversation with each other, and ultimately a promise that is unrealized, both in his own life and in the life of this country.

1:53:44So the book is called The Lost Founder, James Wilson and the Forgotten Fight for a People's Constitution. And the author is the incomparable Jesse Wegman. Jesse, thanks so much for joining us today. Thank you, Melissa, so much. It's really been a pleasure. This episode was also due in large part to the work of Ella Wade, a Brown University student who is in the class of 2029. Many thanks to Ella for her help with all of this. Thanks again to Jesse Wegman for joining. And one last thing before we go. We want to hear from you. Whether you've been listening to Strict Scrutiny from the beginning or just recently joined, we want to know what you love about the show and what you'd like to see more of.

1:54:22This short survey will help us better understand what matters most to Strict Scrutiny listeners, including your favorite segments and what new content or experiences you might be curious about. Your feedback will help us think through the future of Strict Scrutiny and make sure anything we build is something you genuinely want. Go to crooked.com slash strict survey. It takes just a few minutes to share your thoughts with us. Kate will be steering the ship next week.

1:54:53Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Goldsmith. Music by Eddie Cooper. Our team includes Matt DeGrope, Ben Hethcote, Johanna Case, Kenny Moffitt, Adam Lippert, and Eric Schutt. Our production staff is proudly unionized with the Writers Guild of America East.

1:55:25Keep It listeners, Louis Fertell here. I have something I've been dying to get off my chest. Dr. Robbie is the real villain of The Pit. There, I said it. Okay, but that's not actually the big news. Here's the big news. Emmy-nominated television host Nina Parker is officially the new co-host of Keep It. That's the confession. The Dr. Robbie thing was just, you know, me needing to say it somewhat out loud. Okay, shots fired, and I hear you're Dr. Robbie, and I raise you. Sex in the City wasn't really a show about finding love. It was a humiliation ritual on bad friendships. The clothes were cute, though.

1:55:54Oh, yeah, the tutu in the opening credits? Yeah, it's really cute. Every week, Nina and I will bring you an inside look at all the pop culture drama, the hottest takes you can handle, and honestly, maybe some you can't. Plus, celebrity guests galore. We're going to guide you through a gorgeous wreckage of pop culture. We are unpacking the biggest stories in TV, film, entertainment, news. We're gonna go all the way to Gen Z from YouTube taking over the horror genre to Olivia Rodrigo redefining pop music and then we're gonna also talk about maybe you partying with Madonna a little bit. Oh yeah that one time at the Abbey it was sweaty but in a good way.

1:56:24New episodes drop every Wednesday on YouTube and wherever you listen to podcasts.