 This is Mises Weekends with your host Jeff Deist. That was pretty well trained. That was like a sitcom audience right there. But anyway, it is the weekend of our supporter summit. And as you can see, we're doing filming Mises Weekends live. Our topic this week is the Supreme Court. We just couldn't avoid it with everything that's been going on with Kavanaugh and this really horrible politicization of everything we've seen. So our guest is a friend of mine, Alan Mendenhall. Some of you have seen him on the show before talking about recent Supreme Court nominees. He's an associate dean of a law school here in Alabama Faulkner University in Montgomery. He is of course a lawyer himself. He's also a PhD in addition to that. So he shares that with Neil Gorsuch who's the most recent person to be appointed to the court. He's both a JD and a PhD. He went to obtain his PhD in English across the street right here at Auburn. He's a big Auburn guy. But he's also somebody who knows a lot about the ins and outs of the Supreme Court. So with that said, Alan, great to see you. Well, it's good to be here. I want to tell you a very quick funny story. I don't know if you realize this, but the last two years you've had me on the show the weekend before Mises University. And I've always thought this was a good thing for me because the week before the students get there, they get to see Mises weekends and maybe know who I am and I get to meet them while I'm there. Well, this year, shortly after I arrived in the building, this young girl came up and said, oh, hey, I just want to introduce myself. I follow your work. It's so great to meet you. And I kind of felt proud. I was like, oh, this is great. And she came back about 15 minutes later, she said, I'm sorry, I want to apologize for earlier. And I said, apologize, apologize for what she said. Oh, I thought you were Guido Holtzman. So I sort of deflated after that. Well, you know, with everything going on with Kavanaugh, I mean, the big picture first is that we've got these nine monarchs and these black robes. And at this point, the American public sees them as a form of super legislature. They see them as Republicans and Democrats left and right. They see them as spoils of a presidential candidate to wins. I mean, this is a horrible situation. There's no longer a pretense that this is some sort of impartial arbiter. Well, right now in the particular confirmation hearings were under two, the stakes are about as high as they've ever been for Supreme Court nominations. When when Justice Scalia died and the Republicans didn't didn't put forth any votes on Merrick Garland. But then when Gorsuch was nominated, there was this idea that you are exchanging sort of a Scalia for a Scalia with a Gorsuch. He was not, you know, he was an originalist. He adhered to natural law actually in ways that Justice Scalia himself did not. But the stakes weren't as high because you were you were replacing one conservative with another. Now that this is Kennedy's retirement and Kennedy is known as sort of the swing vote. And so the stakes are very high and the left wants to oppose oppose this nomination with whatever. And it's interesting because of the four or five people that Trump had narrowed his list down to, Kavanaugh was the most moderate of them all. And he was my least favorite choice of them all by far. And the least likely of the four or five to draw this kind of hysteria, but hysteria we have. For those who don't know today, the Senate Judiciary Committee consists of 21 people, 11 Republicans, 10 Democrats, did did vote Kavanaugh out of committee so that he can go before a full Senate. That was done on condition by Senator Jeff Flake that an FBI investigation go forward. So some other senators like Lisa Markowski and Joe Manchin in West Virginia said, yeah, this is a good idea. What's going to happen is Trump Trump has recently within the past hour and a half ordered this FBI investigation. It will take place over the course of next week. And that will all take place before the full Senate vote on confirmation. It is a very strange moment. I never thought that we would be sitting there in a Supreme Court confirmation hearing going through high school yearbooks, asking about drinking games, flatulence jokes. I mean, this is this is the strangest. This is the strangest confirmation hearing that's ever, ever been that I that I can think of. I mean, obviously Bork was a was a wild thing. But this one, the level of sort of petty detail is unprecedented. Right. But from our perspective, the American people aren't going to accept this. In other words, you got to hand it to the left. There's going to be an if this guy gets on the court, there's going to be an asker by by every case that he's the swing vote on. Well, I think that's right. I mean, I think that's the left tactic in general. There's this idea floating around out there on the left that Donald Trump's presidency is an illegitimate presidency. And for anything goes for the cause that you can do anything. You can violate the law. You can be violent. You can go into restaurants and run people out. You can break windows. You can vandalize. You can destroy private property, whatever it takes to get this illegitimate president out of office. And I see this as sort of a spillover of that attitude. We're seeing strange, crazy things going on politically that should not really be taking place in Supreme Court confirmation hearings. I mean, to get to where we've gotten in Supreme Court confirmation hearings is amazing. It used to be, I think when George Washington under the vicing consent and the sentence, I think his the first time he was seeking advice and he said, I intend to nominate blah, blah, blah. And the Senate said, sit back. We advise that that would be a suitable nomination. And that was it. You know, and now we've got these spectacle hearings and, you know, they're just televised chaos. And there's a lot of grandstanding and the senators don't know this, but they actually just make fools out of themselves up there and reveal how much they don't know, which is entertaining. But it's also depressing. The thing is, from our perspective, the Supreme Court has wildly exceeded its constitutional bounds. Yeah, it operates wildly in excess of its actual jurisdiction. But that being said, even though it has failed to constrain itself, it also hasn't really constrained the executive or legislative branches either it lets Congress run run over Article one section eight and it lets. Obviously, we've seen the 20th century imperial executive so it rubber stamps all three branches. Well, and the I mean, the most frightening thing is what I would even call the fourth branch was the administrative states. You have all these executive agencies that are creatures of legislation, yet they exist within the executive branch. They promulgate rules and regulations that are essentially law. So the exercise lawmaking functions, they have their own courts. So they interpret their own rules and, you know, they have executive head there. They're like many governments that sort of float outside the accountability of the normal political processes because none of the none of the congressmen and senators and they don't want to touch some of these things because they, you know, if they if they go after those and there's there's it's, you know, it's controversial. So they don't want to touch it. And they're not regulating themselves. And the court, the judiciary hasn't hasn't been intervening in those decisions often agency decisions. You hear a lot about Chevron deference and all this kind of stuff. But yeah, I mean, we've got a vast administrative state that's out of control and it's got to get rained in. I'd prefer that Congress go out there and do its job and start raining it in. But I don't have a lot of hope for that. Well, it's interesting, you know, you've probably seen these these man on the street things that Jay Leno show used to have where people couldn't name three branches of governments. I wonder how many Americans can name a single justice first and foremost. But more importantly, don't you think kids are taught that the Supreme Court is supreme over other branches of government, not just over lower federal courts, but it's the supreme arbiter over what? Congress and the president. Yeah. So rather than the Constitution being the supreme law of the land, you have nine lawyers who together operate as the supreme law of the land, which in effect is how it operates because, you know, under under different Cooper v air and in different sort of Supreme Court presidents, the Supreme Court is irrigated to itself, the powers to be the final arbiter of what the Constitution says or doesn't say. So you've got the Supreme Court opining on all kinds of issues that aren't actually in the Constitution anywhere. They've just developed out of layers and layers and layers of case precedent. And and that to me means that you've got the judicial branch legislating. But of course, if we look at Article three of the Constitution, there's no a textual support for the idea of judicial review. Right. So so a lot of a lot of people argue that Marbury versus Madison was kind of made up judicial activism and that we're living under this rubric whereby the Supreme Court is deciding what's constitutional and what isn't. And that's wildly extra constitutional. Yeah, I mean, I think judicial review is best implicit in the Constitution. Now, it also raises a question about what you mean by judicial review. So if you mean that the courts are obligated to strike down laws that conflict with the Constitution, I would agree with that. But if you're saying that the Supreme Court can rule in areas about which the Constitution is silent and thereby create new rules and create new laws where otherwise they should be silent. That's a totally different thing. That's not judicial review. That is a that's a separate legislative process. Then you have in the case of federal judges in the US Supreme Court, you have judges making laws without any accountability whatsoever to the voters because they're, you know, they're appointed to life. They enjoy tenure for good behavior, which has been interpreted to be a lifetime appointment. And so they essentially rule without any any threat of being voted out of office the way a legislator would. Well, what do you think of Bader Ginsburg being as openly partisan? We've never seen a Supreme Court justice who basically says, well, I'm not going to retire because Trump's president or or who says things. She just said something at I think I want to say maybe Georgetown Law School a couple of days ago where she was talking about the Me Too movement. And she was she was being just overtly political and almost kind of daring anyone to challenge her or do anything about it. Yeah, I guess the kind thing to say would be that maybe she's I don't want to use the word senile. I'm trying not to avoid that. I was trying to be nice and not use that word. But I think she's letting down her guard and she's she doesn't quite have the faculties that maybe she once had. And I think that that could be verified through, you know, firsthand accounts of people that know her and interact with her. But yeah, I mean, it's a matter of she's now just showing her true colors rather than keeping them to herself. So what's to stop that after a lifetime appointment? That's the issue. Well, I mean, and that's the other thing. I mean, the Constitution, you know, if Ginsburg were to be in some vegetative state, there's there's no. There's no mechanism for removing her from office besides impeachment. And, you know, it's adding insult to injury to impeach someone that does become just mentally incompetent. Now, she's got extremely intelligent clerks and staff, you know, and her opinions come out and they're cogent and intelligent, even though I disagree with every single one. But, you know, it raises a good question about, you know, putting an age limit. And here in Alabama, we have an age limit of 70. I actually think that's way too young. There's discussion in the legislature about raising it to 75, which is better. I know plenty of people that are in their 80s that would be excellent judges. So, you know, numbers can be pretty arbitrary. But, you know, I actually like voting for judges. I like the way we vote for judges here in Alabama. I think that's great. I think it holds them accountable. I don't think it puts partisan pressures on them the way that people accuse the system of doing. And they say, well, you know, you're going to have cases come before these judges and they will involve parties that are tied into different kinds of money and special interests. And the judges will vote the way they vote just to get the results and stay in office. And I haven't ever seen that personally. I would say that maybe there are instances in which the justices decide to affirm a case with no opinion or to deny a writ of certiorarii without an opinion in order to avoid those kinds of political dances. But I, you know, but I don't ever see judges just going out and at least in this state, I haven't seen that happen. So maybe there are instances from other states, but I'm just not familiar with them. Well, of course, what we're really talking about, what a lot of the acrimony this week is about is the culture wars. Right. That these nine justices have become the de facto deciders of some of these contentious issues. And I think chief among them are abortion and guns, which are deeply divisive issues in America. You know, I would argue, I mean, Republicans have rolled over on this. They've accepted this. They're no better. In other words, they've just they've decided that, well, we got to get our guy or gal in there. Yeah. And that they're culpable in this. Well, and yeah, I mean, that's that's what politics is the Republicans and the Democrats going back and forth, trying to figure out who's going to get the reins of power so that they can assert it over the other party. And every time they do it, they set an even more dangerous precedent that the other side gets to then use. And it's just a it's a vicious snowballing cycle. And it just gets worse and worse. And we're at a we're at a stage now. I mean, I'm not sure politics has been this bad since I mean, since probably the 60s. And then before that, maybe the 1860s. I mean, maybe it's time that we start considering peaceful partitions and and, you know, peaceful separations and decentralization. Right. Well, we were talking about this last night. If you can talk to someone on the other side of the aisle and they'll say, you know, that that other 40% of the country are the worst people on earth. They're absolute scum. They watch Fox News all day. I want them dead. Okay, well, let's have a session. What are you a neo Confederate? In other words, we're avoiding the obvious and humane way to to ratchet down some of this hatred is to is to have some degree of federalism where things are are decided, you know, not in this top down manner by these nine people. But I would just wonder in the audience, you know, how many people in this room would really object if let's say a Bible Belt state had wanted to have, you know, fairly restrictive abortion laws and a progressive state like a Massachusetts or California wanted to have fairly, I guess we'd call liberal abortion laws that permitted abortion. I mean, would anyone in this room object to that kind of system to saying that we could have that, you know, that the gun laws that in your in Manhattan might not be the same as in Barrow, Alaska. I mean, what, you know, the side this, this idea of centralization of things being determined in Washington is the for 320 million people, you know, both parties are part of that. Yeah, I mean, I think more ahead of heterogeneity is constructive you put ideas into constructive competition with each other, you do them at the local level. You let communities self regulate and retain their sovereignty according to their own cultural mores and standards. And, and you do it as peacefully, I mean, it's to the extent you can it's the non aggression principle writ large and you try to institute that as much as you can. And that's very difficult to do in the sort of nationalized system we have where everybody's competing over the mechanisms of coercion and who can which political party can can take a hold of those and throw lightning bolts at the other one. And how can we nationalize our project before the other side nationalizes its project. And, and that's something that I wish conservatives would, in particular, rethink. Why, why do we always have to try to nationalize everything whether it's, you know, DOMA or something else why why why would we why would we turn something into a federal issue. If we don't have because once you turn it into a federal issue you've lost if you're, you know, right. I mean, somebody else is going to take the reins of power and, and, right. But there's the savior complex, especially on the left. In other words, if you told left you could have far more of what you want here and now. If you were just willing to accept it in certain parts of the country and willing to accept totally different rules. In certain countries, I think a lot of a lot of people on the left would say, well, yes, but we have to save the women of Alabama from those benighted southerners who would take away their right to abortion. There's this kind of thinking. I am completely baffled by the left today because I don't understand what the in game is. I don't understand what the in state. You can look at a religion and say, okay, there's an eschatology here, or you can look at an ideology like Marxism that sort of got its own secular eschatology and say, okay, well, this is the end goal. This is what we're working towards. I'm not sure the left has any idea what it's doing. I don't think it has any sense of purpose any sense of history, other than just to tear everything down. And in it's an issue by issue basis. There's an out of control identity politics that is very strange and that contrary to some allegations like in Patrick Deneen's failure of liberalism, which just has a totally wrong genealogy of liberalism, but you know, he, you know, he treats all this identity politics as some product of locks thinking. And to me this identity politics is actually all about collectivism is about people saying, okay, there's a group here, group here, group here, I'm going to choose to be part of this group and choose to be part of this group. And because, you know, gender and identity and all these things are socially constructed, I'm going to conform myself to these standards and these standards and I get to pick and choose and it's a very collectivist project it's not an collectivist project at all. But I don't know what the left wants. I have no idea. You know, if you could say, for example, if you pose this question to a leftist, if you said, In what society, would you be conservative? What is the society that you would like to see in which you've actually achieved everything you want and you would want it to stay that way? Is there such a thing? Are you just constantly about blowing everything up? We have to progress. That's what progressivism means. It means the past is bad. Yeah, it's better. And that's this idea that there's, you know, you're on the wrong side of history or the right side as if, you know, the history were some geometric thing that had sides and that there was a right side. And I never mind that history is populated of innumerable people, you know, people living and breathing flesh and blood with their own ideas, their own values, their own priorities who are trying to wrestle with whatever space they live in at that moment and, and, you know, trying to eat, raise families, and then to just dismiss an entire period of history as if they as if it weren't populated by real people with real struggles and conflicts is is incredibly intellectually lazy. It's also dehumanizing. It's dehumanizing. It is dehumanizing. And I think that the left is is really become the movement of dehumanizing. I think that's what they try to do. I think they try to to caricature their enemies. And I mean, that's what they've done with Kavanaugh. And like I say, I wasn't a big rock rock Kavanaugh person, but I'm certainly not buying into the caricature of him that they want to construct so that they can just tear it down and cause rioting in the streets and violence. Well, here's something that that I think we'll find irritating since since something else we'll find something since Renquist died. And correct me if I'm wrong, all or virtually every Supreme Court justice has been a graduate of Harvard or Yale Law School. That's correct. Okay, so we have these two schools in the Northeast. There's a corridor between them. Boston, what is it New Haven, Connecticut. And you think about diversity. I mean, can we get somebody from Rutgers or Arizona? Or how about how about somebody from Notre Dame like Joseph Poltano on the Supreme Court? Yeah, he's got I mean this these, you know, I know Tom Woods was was emailing earlier about he's on a discussion group from his own Harvard class and sort of the insularity of that is pretty remarkable. And this just this assumption and this presumption that we're going to be the next set of leader, you know, where's this coming from? Why do how did we get here? Wow, well, there I guess there's so many factors. I'm not even sure I could be prepared to answer that question. But Harriet Meyers was not your typical Ivy League pedigree pedigree. I believe she was Southern Methodist for law school, but at any rate, you know, we all saw what happened with her. Her nomination was withdrawn, but she didn't have support of a lot of the elites, the people that sort of populate the Republican establishment. And not all those people are Ivy League educated either. But that's what they prefer to see in their judges. And I think it's not good. I don't think the Supreme Court in any way is representative of the people of the United States. And I don't necessarily believe that just having those Ivy League degrees makes them any smarter than judges that come from. I mean, a Notre Dame. I mean, you're telling me that just because you went to Harvard or Yale, you're not as you're going to be a smarter lawyer than someone from Notre Dame or someone from Georgetown or someone from Texas or Alabama, right here in the state, I'm not I'm about to say something kind of good about Alabama, which has an Auburn fan stuff to do. But they're top 30 law school, you know, that even even Trump came out with this sessions as a country lawyer thing tried to, you know, portray him as some hick. And, you know, you can disagree with sessions about a lot of things and I definitely do. But he's not this country bumpkin, he's not an idiot, he knows what he's doing. Even when it's bad, maybe especially when it's bad. Well, so let's look at the Supreme Court from the perspective of individual personal liberties. Got pretty bad track record for the past few decades that are that are fresh in memory. Things like eminent domain with the kilo case, which was quite a famous case, drunk driving checkpoints, a lot of fourth amendment metadata stuff. And to my knowledge, the Supreme Court has not been too too worried about FISA courts, or opining on the legality of FISA courts. So it has been, in a sense, a sort of a silent rubber stamp of that system. Are there any bright spots, maybe guns or anything else where you could say hey there are some there are some areas where the Supreme Court has kind of kept us a little freer than Congress or President would have. Well, yeah, I mean, I think, I think that the case with the unions from from last term, I think. Jacob Hubert, who is a former Mises Institute fellow, won a big case in the Chicago area against the AFSCME, which is a public employee union that was requiring people all to join the union is as a, I guess, as a condition of their employment and, and that was a big deal. And so anyway, I'm sorry for interrupt. No, no, that's fine. I mean, I think they're just areas. I think there are actually some fourth amendment cases that are pretty decent. I think some people that take an originalist approach have found improper searches and seizures, saying that, you know, the police have gone too far. And so you see some of that and that usually cuts across partisan lines. You get some interesting votes where judges that are the justices that are considered on the left and justices that are considered on the right disagree. You had Gorsuch and Thomas writing competing opinions on the issue last term in a kind of interesting way. But, you know, on the whole, I just think where we are as a society is so systemically problematic that, you know, a Supreme Court opinion tipping you one way or the other is just, you know, it may push you a little bit in direction and, you know, it gives you five years of time before it alters it in some other way. You know, I think we've got deeper problems that, you know, a Supreme Court opinion or two can't fix. Well, last question for you, talk about this nostrum, the shibboleth of precedent, starting to size this because on the one hand, we have the left is convinced that the GOP wants to overturn Robi Wade, they're never going to do that. It's the GOP's biggest fundraising issue. They will never, ever, ever touch that. And that sounds cynical, and I'm not saying it to be jokie or cynical. I'm just telling you that as someone who spent some time in Washington that it's a boogeyman they need. Let's just put it that way. So there's this idea that they're going to overturn precedent, but yet these are the same people who tell us the Constitution's a living document and it needs to be constantly reinterpreted to reflect the modern era. So which is it? It's just the standard political hypocrisy. I mean, if you look at, but before, you know, the, the Windsor and Obergefell cases, you didn't hear the left saying, well, we ought to uphold Bowers and follow precedent. That's just not how it, so it's just one of those things people want to uphold the precedents they like and they want to overturn the precedents they don't like the problem with precedent. I mean, so story to size, this is an idea that developed out of the common law and it's this idea that the judges follow the prior opinions of judges as binding and they, and they reason by way of analogy through cases over time. Well, that sort of bottom up kind of system doesn't really fit particularly well in a country that's governed by a written Constitution under which all the laws, you know, from which all the laws imminent. The British common law, you know, is, it's bottom up, it's customary. It's from time out of mind time immemorial, it goes back centuries, and it develops out of the inner everyday interactions of ordinary people and judges and juries and the responses of their decisions to the immediate interactions of their communities. And none of that really plays exactly the same way in a country like the United States where you've got a system of federalism that's different you've got different states in different state constitutions you've got a federal constitution, you've got federal circuits and federal districts, and everyone's trying to figure out how these, you know, how these courts interact with with each other. And there's still so many open questions on our legal system people think that, procedurally, all this stuff is just settled. I mean, there are lots and lots of things out there where their judges just have no idea how things are going to operate and they just rule and let the chips fall where they may and then let some upper, some superior court, figure out whether they did it right or not. And so we don't really operate under system in which stare decisis operates the way it historically operated. So yeah, you can use it. I think, I mean, I think it's, it's a it's a mechanism of restraint, theoretically, so it prevents some Supreme Court justices from just going out there and getting too crazy and vending all the study elites keeps them textually grounded, and narrows the range of acceptable rationale. But at the same time as a political thing, I mean, if a judge or justice wants to reach a particular issue, a rule in a particular way, they're going to find a way to do it. I know that sounds like just stone cold realism, but it's the truth. I mean, if a judge wants a particular outcome, a judge can find a way to make that outcome happen. Well, I think that that about says it's results oriented judges. So who needs a court? So I say abolish these terrible courts. Let's privatize arbitration mediation. Let's thank Allen Mendenhall for his time. Have a great weekend.