 Hello, hello, hello, everyone. This is Nick Gillespie with Reason. Thanks for joining us today for another live stream. My guests today are podcaster, author, and Bon vivant, Coleman Hughes, as well as Cato, policy analyst, and legal beagle, Walter Olsen. Thank you, Coleman, for joining Reason. My pleasure. And Wally, thanks for talking to us this afternoon. We're gonna talk primarily about the two recent Supreme Court rulings, the one about affirmative action in college admissions that involve the University of New North Carolina, Chapel Hill and Harvard, and also the 303 Creative LLC versus Alinas case that had to do about providing web services for gay weddings. We'll get to both of those in a second. But first, what I want to do, and let me just see if I can find them. Okay, first I wanna talk about the legitimacy of the court, the Supreme Court as an institution. Interestingly, while responding to questions about the affirmative action ruling, President Biden was asked, has, you know, that the Congressional Black Caucus said the Supreme Court by virtue of its affirmative action ruling has thrown into question its own legitimacy. President Biden was asked, is this a rogue court? And the president answered, this is not a normal court. And I just wanna point out, also at the same time, the Supreme Court job approval, this is from last year at Gallup. It's the most recent that I could find, but it has seen a fairly precipitous drop over the past couple of years, down to 40% of people saying that they approve it. If you go to other Gallup records, just to give a sense of this, 25% of people say they have a great deal or quite a lot of confidence in the Supreme Court. And that's down from 45% in 1973. Wally, if I can go to you first, you know, is this a normal court? Is this a legitimate court? Are these questions we should be seriously considering? That's three different questions. And I'll say- Pick the one you like the least and answer that one. Okay. Is it a normal court? Yes, it's a normal court, both Rob Lube, are we getting interference? It's a police iron I live in New York City, this happened. What the court did, in particular in these two cases, was telegraphed, I would argue, 20 or 25 years ago in earlier cases. And in fact, of all the things the court has done this year, the results in these two cases were among the most predictable and would have happened had there been some president other than Trump, for example, they were not considered close cases by the majority and so forth. Now, is the court legitimate? Interesting question in which you have seen, I would argue, a number of forces attacking the court's legitimacy, including both a bunch of people on the left who combine being sore at outcomes of cases. We can all go through the ones there, but with also being sore procedurally at the various confirmation bubbles, which I agree that Congress has disgraced itself or the Senate has disgraced itself at various times in its conduct, but they are sore about particular vacancies that they believe should have gone to democratic appointees. And then on the MAGA side, we all know what Trump thinks of the legitimacy of courts, which is he calls them so-called judges, if they will against him. So you have, as part of the general polarization, you have this and other institutions that are the subject of more demonization and delegitimization campaigns. You could, we could go on all day about the pluses and minuses of that. There are libertarians who would say, good, no confidence in government institutions. I am the other kind of Costco liberal who thinks, no, we're courting dangers if we undercut institutions that we may only do rely on. Yeah, and just to put the court decline from 45% people having a great deal or quite a lot of confidence and trust in the institution of the Supreme Court, down 45% or down to 25% from 45% in 1973, Congress in 1973 had a confidence rating of 42%. That's down to 7%. And the presidency is down from 52% in 75, which was the first year that Gallup asked it down to 23%. So in a way, the court is mirroring the same kind of decline we see in the other branches of government. Coleman, what about you? What do you think? I mean, should we be worried about these kind of broad-based attacks on the legitimacy of the court? Is this something to be worried about? Well, yeah, I mean, I think the truth is Biden is attacking the legitimacy of the court because he doesn't like the particular verdicts. That's all there is to it. There's nothing in the jurisprudence of these decisions that calls into question the soundness of mind of Supreme Court justices. And Biden and Democrats and liberals in general have had no qualms with the legitimacy of the court on the voting rights cases that have come out in the past month, two of which have gone towards what would be characterized usually as sort of the liberal position, one in Alabama and one with federal oversight of state legislatures in general. So obviously this is just, this is a political attack. This should not actually be taken seriously. I think the court is legitimate and it's important from a separation of powers perspective that it continued to be seen as such. Yeah, well, let's move on to the ruling itself in the Harvard and UNC case. Common, let's start with you. You know, do you think this is a good decision? Yes, I do, I do. So, I mean, I've heard many people on the left sort of hyperventilating and about the consequences of this decision for black Americans and for racism. I mean, this is, I mean, that's a very uninformed fear to push, I think. There's two things to say just right off the bat. One is nine states had already banned affirmative action before this ruling. And I did not recall anyone, you know, when I was applying to college in 2013 saying, hey Coleman, you know, you're a bright black and Hispanic kid, just make sure you don't apply, don't bother applying to California or Washington or all of these other states, Michigan, because it's a hellscape there for black kids. No one said that because no one even had that fear. And now there are people trying to sort of uncover all the ways in which it's been terrible to be a black California student for the past 25 years as a way of sort of justifying that take. You have also pointed out in, you have a phenomenal article that you wrote at your sub-stack about this that is in our show notes and whatnot, but that we're also talking here about a very elite phenomenon. Can you discuss that a little bit and, you know, just what does that mean in the context of college admissions? Yeah, so I am a half black, half Hispanic elite. So when I make these comments, I come from a place of knowledge and love, not of denigration, but the policy we call affirmative action is not a policy that has anything to do with addressing the problems of what used to be called the black underclass, the problems of black poverty, the legacy of racism and so forth. It's a policy that affects, according to Princeton sociologist, Thomas Espenshade, about 1% of black and Hispanic 18 year olds any given year. The other 99% either don't graduate high school to begin with or graduate high school, but go to colleges with higher acceptance rates that don't practice affirmative action. So this, some people want to frame this as a decision about quote unquote, access to higher education has nothing to do with access to higher education per se. It has to do with the ease of entrance to a very select set of Ivy League and elite schools in general, which have a somewhat inflated sense of self-importance to begin with. For instance, if you look, and again, I speak as someone who went to Columbia. And so- And Juilliard as well. Yeah. Which is a totally different case. But if you look at the colleges attended by the Fortune 500 CEOs in this country, you see very few elite colleges there. By and large, you see schools with like above 60% acceptance rates that wouldn't be affected by this ruling. And they all somehow got good educations there. So I think we have to keep in proportion what this case is really about. And can we, here is a slide that this is Joe Biden speaking saying affirmative action is so misunderstood. I want to be clear, make sure everybody is clear about what the law has been and what it's not been. Many people wrongly believe that affirmative action allows unqualified students to be admitted ahead of qualified students. This is not how college admissions work. And then just this is admin rates at Harvard by race and ethnicity and academic decile. And what this chart shows essentially is that the acceptance rate for an Asian American in the top academic decile. So these are extremely high performing students at Harvard had a slightly lower rate than an African American applicant in the fourth academic decile or the sixth in the Hispanic. So it's not a question of whether or not everybody is qualified or unqualified but it does seem clear. And this certainly came out in the case against Harvard that they were diminishing the possibility of Asian Americans to get in according to the way that they would have kind of test scores and the general profile was there without a racial preference. When you look at something like that, Coleman, what's your response to that? You just said you're Hispanic and African American. You obviously have been killing it. But like when you look at that, what's your response to that? First of all, people have long defended affirmative action by saying it's really just a thumb on the scale. It's used only as a tiebreaker between otherwise identical candidates. I've always known that that's just a lie or just uninformed by the people who say it. But it does betray a sense that even defenders of the policy are a little bit uncomfortable defending the reality of it. They would wish it to be more of a thumb on the scale thing, but it's not. And we've had research that's shown that for, several decades, actually. Thomas Eshmanseid found it was the equivalent of 450 SAT points for an Asian student relative to a Black student. Everything else held equal. And just one more thing to say about that is, actually sorry, I just forgot the point I was gonna make. Well, yeah, I can jump in. The way Biden put it was a bit of a word trick because he made it hinge on something to which there is no definition, qualified versus unqualified. You can't go and find data that is assorted by those categories in order to sidestep the question of whether better qualified applicants were being turned away in favor of not as well qualified applicants, which is what we can get statistics on when those decil numbers were a good example of many others. So Biden makes an assertion that can't be verified about an undefined concept because he'd rather not talk about all the things that we do know. I think Walter, you took that from my head because that's exactly what I wanted to say. And Wally, you of course are also an elite graduate, right? If I'm not mistaken. I'm afraid so, yeah. I hate to be bringing the average of you bright boys down here. But on another level, is it also the case? I mean, when we talk about this as an elite phenomenon, are the Asian Americans who don't get to go to Harvard, even though on a kind of straight dossier or application, they don't get in because Harvard has clearly capped the number of Asian Americans that they want in a given year. Do they suffer because they kind of, they go on to success anyway, right? Well, you hear this phrase again and again, oh, they'll be fine. And sometimes it's reassuring by people who mean them well. Sometimes it's the defense of the policy that points out that it's not as if their lives are going to go badly. I would still say there's a reason these places are so sought after. They do offer certain advantages. Might not be that everyone benefits from those advantages, but the advantages are there. If you want to go into certain fields, then having that extra boost of being in a world famous department in whatever your major is, we'll put you a little ahead. It's just the way it is. You know, part of it, Colman, when I was looking at the Harvard case and I've been covering this kind of brewing over the past several years really, but part of me is reminded by the idea that this pit cut blacks or African-Americans, especially against Asians. And it seems to me that's almost kind of like a dodge because the power structure isn't really like Asian-Americans versus blacks, right? It's whites. I mean, is there some kind of weird power dynamic diversion going on here that's worth talking about? Well, I think, yeah, somebody made this point, which was that when affirmative action really first started in earnest in the early 70s, this country was by and large white people and black people. It was basically a biracial country with a rounding error of other immigrants. And it was a white population that was aware that of the history of slavery and Jim Crow and white supremacists' legal structure, right? So on a purely reparations compensation-based rationale, it made a lot of sense whether or not all white people agreed. It made a lot of sense to try to compensate the oppressed population at the expense, frankly, of the oppressor population to use crude terms, right? As the country has become more diverse, the borders opened up after 65 and we've gotten influx of immigration from, you know, of quote-unquote people of color from the Asian world and also from West Africa. It makes less and less sense to penalize those people who are not even here for the offenses of Jim Crow and slavery to penalize them based on the logic of paying back black people. It makes increasingly no sense. And then add to that the fact that one study found 41% of black kids at elite colleges are actually first or second generation immigrants, meaning their parents were not even here for Jim Crow. They're just, you're penalizing one immigrant at the expense of another immigrant for their racial identities, which, you know, up till recently we had concluded as one of the most inherently unjust immoral things that you can do, right? So none of it makes sense now. If I may, let's look, I wanna look at this something that Joe Biden talks about because the ruling itself actually does say that race can play or, you know, a consideration of race may play some part in a kind of totality of, you know, when you're considering people for admissions, which has kind of been found in other groups. But Joe Biden says what I propose for consideration is a new standard where colleges take into account the adversity a student has overcome when selecting among qualified applicants. And, you know, I mean, sometimes people talk about that as a class-based affirmative action. Wally, does that, you know, does that make sense to you or is, you know, is affirmative action fundamentally about race relations? And is this kind of preferential, you know, admissions policy stuff just something we shouldn't be engaging in? Well, what Biden says on the one hand is totally unexceptionable because for ages, universities have in fact taken adversity into account. They look at someone who has done well in high school despite various setbacks in their family or their community. And yes, they work more points. So Biden is uncontroversially, you know, on the one hand saying fine, to go ahead and do these things. Once you try to quantify it or allow them to pretend that they can quantify it and use or use discretion, the question arises, you know, are we heading off into some completely new direction in which they are just going to introduce class-based affirmative action which will have its own problems because it will include its own problems of the students not doing as well if the reason they had the low SAT scores that they just came out of the poor background not as well-prepared. But it will also raise the question. And as Coleman said, and he's using this topic, we're not coming to this situation new because California, Michigan, Washington and a bunch of other states already did this. And so we know the range of reactions which includes sometimes using language like this and meaning it and other times using language like this and trying to smuggle in the old racial preference. Yeah, you know, Coleman, what happened in places like California and Michigan? Was there a substantial and persistent decline in the number of blacks and Hispanics who were admitted to the UC system or the Cal State system, things like that? And if so, is that a problem? And just to add so that I give you more questions that you could possibly remember much less answer in a single bound, if that is, if it does result in lower acceptance rates or lower attendance rates among blacks and Hispanics, is it college where that kind of thing should be addressed? You know, that kind of disparity? So what happened in California is that, UC, as you know, is not a college, it's a whole set of colleges as Cal State system. Some of those colleges, after affirmative action was banned, black and Hispanic attendance went down. At other of those colleges, it went up so that the overall change in attendance was nothing. Yeah, which is kind of great, right? And kind of exactly what you'd expect. And there's a paper called Did the Sky Fall? The Consequences of Prop 209, which found that the graduation rate among the post-affirmative action class was actually somewhat higher, presumably because people were better matched, their incoming credentials and preparedness were better matched with the schools they were attending. One of the side effects of affirmative action has been that you are effectively sending that those black and Hispanic kids to be at the bottom of those better schools, which for some of them, I think some of them will rise to the occasion and find out that they really can hold a candle to all their prepared peers, but some of them can't. There is an interesting, in terms of graduation rates, and this goes into the mismatch there and whatnot, private colleges tend to have, particularly elite colleges, have extremely high four-year graduation rates. Public colleges, even really good public colleges, tend not to have as good. And that's partly because private colleges go out of their way to make sure that people graduate because the graduation rate is really important, but it's slightly different. Wally, is there a lot of the attention in this case has been given to Harvard because Harvard is Harvard and people love to talk about Harvard, even though most of us will barely be able to wave to it from a train pulling through Boston or something. Is there a meaningful distinction here between private universities and public universities because from a libertarian perspective, like libertarians are like, oh, you should be, and we'll get into this with the next case, private businesses should be able to discriminate if they want to. This was something that was missing from the 200 pages or whatever of Supreme Court opinions in a remarkable way because, again, I, like many libertarians, looked at the two cases and said, in principle, they might come out in very different ways as a citizen of a state, I want the state not to do any racial discrimination and the Constitution says so. The Constitution does not say that about private institutions. Now, legally, what the court hung its hat on is that earlier court decisions have said that Title VI of the Civil Rights Act follows the same principles as the Equal Protection Clause of the 14th Amendment. So we're going to treat them as if private and public universities were under the same regime. And Justice Gorsuch's concurrence is the only place where, first he lands one blow on this, which is if you go back, that isn't actually something the court has decided upon proper consideration, it's just something that a few justices have assumed and that a few, and there's no particular reason to assume that Title VI is always gonna work the same way as the Equal Protection Clause. The second thing is, even if they're right, and even if it does, Congress could go back and revisit Title VI anytime it wanted in order to allow private affirmative action. Now, it's interesting politically whether it will or not, but if we want to allow private institutions freedom to experiment with this sort of thing that we would not allow of a state institution, all that it's gonna take is go to Congress, ask to change that law. Coleman, if let me pull up, excuse me, I'm sorry, I'm being a little less than facile here, I wanted to pull up slides again. I wanna get to, yeah, here we are, a slide that shows about half of US adults disapprove of selective colleges. And you brought this up and passing Coleman, there's something like 4,500 four-year colleges and universities in the country, about 400 of them have any real admissions kind of cut. Most four-year colleges accept anybody who applies, assuming they've graduated high school and taken the proper prerequisites. So we're talking about small number of colleges here, but half of US adults disapprove of selective colleges considering race and ethnicity. A third approve, it changes a little bit. Blacks are more likely to approve, but it's still under half of blacks say that should happen. Interestingly, people who are Democrats, identify as Democrats and lean Democrat, 54% of them approve of using race and ethnicity. On a certain level, is this the Supreme Court catching up to where the country seems to be going? Well, yeah, I mean, I think either every or almost every time affirmative action has been put to a state referendum, including in states liberal as California, it's lost. So it has long been a fairly unpopular policy, worth noting that before 2020, Pew and Gallup asked these questions in 2019. And back then, even a majority of black adults said that they disapprove of the use of race in college admissions. And perhaps the kind of culture of the past three years has changed that for black Americans. But nevertheless, people, and what's really interesting here to me is that back in 2019, when you asked the question, do you support affirmative action? Lots of people would say yes, majorities would say yes, but if you ask the same group of people, do you support the use of race in college admissions? They'd say no. So it's clear the framing of using that euphemism affirmative action, which if you didn't know what it meant already would never tell you what it meant. Lent the policy, kind of an air of credibility that the actual substance didn't have. And I can say as someone who was wrong back then that in the early years when this was being introduced, a lot of people took the meaning of affirmative action to be things like going out and going to more job fairs, you're trying a little harder on recruitment rather than altering the standard for acceptance for a job. And still people will often assume an affirmative action program might be no different than that. Before we move into the website case, I guess, Wally, you and I are old enough to remember what Coleman talked about before, a country that was kind of white and black and whiteness is constantly under construction and it's constantly falling apart. My grandparents were all immigrants from Ireland and Italy. When they showed up in the 19 teens, they were not so white after World War II, they and their children were white in a way that was kind of striking. Coleman, I guess my question is, do you feel as, and I hate to say like as a black person and as a Hispanic American, I know that you've talked with people like John Wood Jr. and Thomas Chatterton-Williams and Camille Foster and others who are also black or, you know, are part black. You know, the country that you seem to be living in and growing up in and you're still under 30, but you know, you're being told or everybody's being told that things are getting worse for minorities, for racial and ethnic minorities. That has not been your experience. Can you talk about like, what's the mismatch and how do we get to, you know, this isn't about court cases or anything, but how do we get to a better conversation about these questions, which isn't tribal or political or ideological? Yeah, I mean, the source of the mismatch in my view comes mainly from social media and smartphone culture. Like back when I was, I don't know, say, let's say 12 or something in like 2008, most people aren't on Facebook, most people aren't on Twitter. People are judging the state of society by like their conversations with their neighbors and their coworkers and the local newspaper. Then what happens in 2013-14 is say, if something happened in like a sleepy town in Indiana. Or Ferguson, Missouri. Or Ferguson, Missouri. Yeah. Really anywhere. You know, prior to social media that would have been reported the next day in the local newspaper where it gets, you know, the journalist talks to the police, talks to everyone, gives a fact checked kind of gate kept version of what happened. And that's all that happens. Post 2013, that same event is filmed by someone on their smartphone who probably films the second half of it without filming the lead up. It circulates, it gets millions of views within a few days out of context of any sort of fact checking or journalism. And that's how people get their impression of what's going on in the country. And then it gets algorithmically boosted so that it's preferentially shown precisely to the people that would be upset most by it. And that's how the entire information landscape changed radically without anyone in big tech meaning to. They fundamentally changed the perceptions of people in the country. And it's consistent with Eric Kaufman, the political scientist has done research finding that black people who are on social media report experiencing much more racism in their personal lives compared to black people who are off social media. Now that's a correlation. So it doesn't necessarily imply causation, but it is consistent with the story that people's sense of reality is being warped by the algorithmically boosted content on social media and pervasiveness of smartphones. I wonder if that also works. I spend a lot of time with white people who are very much on social media and they believe the worst of all that we're living in a hellscape where every subway ride you are going to be accosted by an endless parade of homeless people, et cetera. Or that you can't walk down a street in New York without having a young African-American man punching an Asian-American woman in the face. You know, that's fascinating. And I guess as long as we're talking about the web or smartphones and social media, we might as well move into the next case, 303 Creative, limited liability corporation versus Alinas. Wally, I'm gonna go to you first because among many other things, you are a gay man. This is a case that is about a woman who ran a website service who said she would refuse to make websites for gay weddings or gay married couples and that she shouldn't have to in the Colorado law, anti-discrimination law, was compelling her to make speech she didn't believe in. You know, how does this ruling, how do you respond to this ruling? Is it good legal ruling? Is it a good social ruling? How do you kind of incorporate this into your world? Well, let me respond to it as legal ruling because that's what I get paid to do is legal ponder free. And I will say, first, as I mentioned at the very beginning of the program, you could see this coming a long, long away. On the racial preferences at universities case, we all remember 25 years ago, some of the justices that were in the middle and had the deciding votes on those cases said, it's okay for now, but it's going to have to be phased out. Senator De O'Connor and others said, we can't go on having this 25 years from now. So that's why that one was telegraphed. In this one, not just Masterpiece Cake Shop, which is five years ago, in which the court came up to and then refused to decide a closely related issue, you could tell from the way the court justices were writing that there was going to be a majority for something like this when the speech was framed up in the correct way. In other words, more clearly speech than cake decorating, which is a very gray area kind of thing, that when a case came along in which it clearly was speech that the complainant would win, I would go back to 1995 and the court's unanimous ruling in the Boston Irish Parade case. This was one where a gay rights Irish group wanted to march in the Boston Irish Parade. Management of the parade said, no, we are staunch believers in Catholic teachings. This would be at variance with, and the court took it and ruled nine to zero, including all the big liberals and written by Justice Souter, who was not anti-gay, that they had the right to turn them away. The one thing that is a little different that needed clarification is that this applies in commercial situations as opposed to the parade thing, which was a purely nonprofit volunteer type thing. And we can get to that. But I want to emphasize two other things that are easy to miss about the 303 creative case. One of them is it did not go to the court based on her rights of free exercise of religion. They deliberately did not take the religious liberty angle and made it a free speech one. Now that has important implications. Because she won on free speech rather than on religious liberty, it means that everyone else in who objects to being forced to create some piece of speech or a song or whatever it is, is going to be able to rely on her case. In fact, if you want to take a provocative fact situation, the next time that a gay website designer wants to turn down someone who wants to cite honoring their confirmation in a religion that they've just changed to whatever, this law will protect that secular gay person who says, I'm sorry, but I just can't bring myself to recite the things that you would need as part of a proper site celebrating your religious conversion. So it's not in that sense really a gay rights case. It's an everyone rights case. Is it, I guess, does it matter that it's come out that the customer that was kind of referenced in the brief didn't exist or apparently doesn't exist? So this was hypothetical. Does that matter at all? The shorter answer is no, but let me back up a little bit because it's worth catching up on the procedural background, which especially in First Amendment cases is different from other legal controversies that reached the Supreme Court or other courts. The general background rule is that you can't get a court ruling unless you have an actual injury from the law, which means mostly that they've enforced it against you. So she wouldn't get in until some Colorado agency had fined her or done whatever the penalty is. And that's how it usually works. But especially for First Amendment law and also for some other constitutional rights that are considered important ones, the courts have for a long time developed procedure under which you can do a so-called pre-enforcement challenge. And you can go in saying I have a reasonable fear that the law will be enforced against me. So even though I haven't sold a copy of the censored book or whatever the thing is, I deserve a ruling on that. Now, in her case, she tried a number of theories. The theory that she won on in the 10th Circuit Federal Appeals Court was not the theory that she had actually tried to do any business. It was a pure pre-enforcement challenge in which the premise was, we're gonna decide this case for you based on the track record of First Amendment pre-enforcement challenges, whether or not you have ever tried to do business. And the Supreme Court took the case as it founded, said, it's up to us on a classic challenge of this type. We don't care any more than the 10th Circuit cared whether she had any live clients. So that's the short answer as to why that whole thing is irrelevant for purposes of how the court ruled. It might possibly be relevant if they believed that someone was trying to put one over by generating false evidence, then there could be some sort of legal discipline case. But no one has put forward a plausible theory as to who did that. Let me just find the slide that I was hoping to go to. I'm sorry, excuse me while I scatter through this. Okay, so this is from Justice Sotomayor's dissent. She said, today the court for the first time in its history grants a business open to the public a constitutional right to refuse to serve members of a protected class. Coleman, how do you respond to that? Like, does that issue right? Does that concern you? Or do you feel that the way Wally was talking about this actually is the better way to view it? It seems like a category error to me because this business presumably, if I were wanting to set up a website for my gay friend but I was really the customer and I was paying for it for whatever reason, they would have refused me just the same and I'm not gay, right? So it seems like the logic of the case is not that it's refusing to serve members of a protected class, but it's refusing to execute services related to speech and writing that it doesn't, where it doesn't wanna say those words and express those beliefs. I think that's the better way to conceive of this issue and I'm curious just as a matter of, for people who feel Sotomayor's position is right, how their intuitions might change if it were instead a Muslim rather than a Christian and you were asking a Muslim website designer to make a website depicting the Prophet Muhammad or something, I mean, that's an extreme example but to do anything, I'm curious if people would have the same intuition that really what's important is that we force that website maker to say something here she doesn't wanna say or whether the important thing is to be on the opposite side. Yeah, Wally, how does this case fit into questions of public accommodations? I know Coleman, I am not smearing you with the label libertarian, I know that you are libertarian adjacent or maybe moving in that direction, you have unnatural libertarian tendencies or whatever, but Wally, you are a self-defined libertarian and one of the odd things about libertarians is that they'll always say racism is the most vile form of collectivism and they believe people should be able to free, live freely and do whatever is consensual among adults and all of that kind of stuff and libertarians take a dark view at anti-discrimination laws and public accommodation laws that say if you open your business to the public you've gotta serve everybody. Does this case fundamentally challenge or engage that kind of issue? Well, it brushes past it and I'll say by way of background that exactly half the states currently have public accommodation laws in which sexual orientation or gender identity are one of the protected categories. So by that definition, half of America was already a hellscape, I'll go along with your term for gay people or else you may not notice it because in fact in those other 25 states very hard to find any actual instances in which other than with wedding services and a couple of very narrowly defined controversies very difficult to find any difference in treatment. Libertarians, you're right, you're absolutely right, have a I think justified suspicion of the attempt to use public accommodation laws to override the independent judgment of businesses of how to serve. And I say brushed against it because both the majority and the minority in the 303 creative case did turn to history. There were questions which may shed light on whether public accommodation laws were a fairly rare and exceptional thing or were something that were completely accepted even in the grand old libertarian classical liberal period. It was certainly accepted that some businesses like inns to stay the night in a country when you might freeze to death if they wouldn't take you in were under a public accommodation obligation. We do know that about Anglo-American history and some others closely related in the hospitality business. What about someone who would fix your shoes? What about someone who would bake you a cake? Well, the majority brushes by theory that if you look at old instances where classical liberal society has accepted the public accommodation idea, the idea that businesses undertook a particular accommodation that aside from the hospitality on the road cases they were very often monopoly cases. If you're going to give a company a monopoly over something you darn well are going to give them an obligation to serve every single customer. And then the dissent by Sotomayor said, oh, no, no, no. By the time she was done talking about it you would really would think that every single person who ever offered any services or products was under a public accommodations obligation which I think is not actually true. Go back to the old law books. So they both found it worth engaging and yet on one level what they said does not change the sweep of these laws. It does admit the opportunity to say as a libertarian that the stakes of social division go down if you don't define every single florist and calligrapher as a public accommodation. If you take a reasonable view that some things are big and public enough like theaters that there is some sort of public stigma in not being allowed. But if you try to extend it to every little one person business you are going to have more social division. You just are. Can I ask Wally as a gay man who I believe is married? Correct? Well, Steve thinks so. Okay. Maybe married in multiple states. I don't know. It's like, but you know, when you read about somebody who is like, you know what? Like I'll make you a website but like I'll be damned if I'm gonna write, here's our gift registry for a wedding or you can buy a cake I baked but I'll be damned if I'm gonna write best wishes, you know, et cetera. I mean, like, how do you respond to that on an individual level? Well, there's a great line from Zora Neale Hurston about being discriminated against. I can't imagine she said why people would want to deprive themselves of the delight of my company. And that is a confident person's response to being discriminated against. Obviously she lived in bad circumstances in the South and she knew perfectly well that there was more and worse to be had from discrimination. But I love the attitude because especially when the discrimination is just symbolic and is not actually causing you to not be able to get the job or the home or whatever, you just brush it off as people who haven't learned what they need to know about the world. And here we get to the series of cases involving Masterpiece Cake Shop and the Flowers case and now the Website case which is it's very hard to find any of those cases in which gay people getting married or these date back to the point where you couldn't get married and it was just solemnizing a relationship. Very hard to find any of these instances in which the people didn't have lots of other good choices of people who would gladly observe their business. And so again, it gets me thinking about Zora Neale Hurston. Are you just trying to say in order to make a point? Yeah, Zora Neale Hurston is somebody who we can all do. We can all benefit from thinking about a lot more and looking at her life, certainly her literary output. But there's a real sense of tragedy there and Coleman, I know that you're familiar with Zora Neale Hurston who was also a Columbia student back in the day and studied with Franz Boas in the anthropology department and suffered real massive indignities. Is that on the account of both her gender and her race? But I mean, is it that we are in a stage now and it's always, we're always declaring victory way too soon in all kinds of wars, right? But like, is it the world that she lived in and that level of anger and hate and contempt for sexual minorities, for racial minorities, for ethnic minorities, is that mostly behind us and is that something that we need to incorporate into our contemporary discussions of things? It's interesting, I'm of two minds on this. On the one hand, I think we have made massive progress in people's attitudes towards minorities, racial minorities, sexual minorities, et cetera. On the other hand, I don't think that these bigger trees will ever be gone fully and permanently. I think human nature has a bigoted element to it that is reducible but not eradicable. And at some level, we're going to be living with some amount of racism, some amount of homophobia until the end of time and we should, while combating it, we should understand that. Yeah. Wally, can I ask from, and again, this is going back into the kind of libertarian subculture. People like Milton Friedman talked about this as well as a wide variety of other people whose motivations may not have been as clear or as pure, I think, as Friedman's. But there is an argument and I guess Gary Becker also made this another Nobel Prize-winning economist saying that businesses that discriminate in a stupid and foolish way will actually be punished by markets operating. So that 303 creative probably isn't that good of website anyway or will lose enough business that companies that refuse to hire women or blacks or Latinos who were good workers end up paying higher wages for shittier workers and things like that. Is it more than theoretical to say that markets, relatively free markets actually punish discriminatory behavior? It's a big topic Nick and I can offer particular examples that back up Milton Friedman's suggestions. It's well known, I think that in the South during Jim Crow railroads and others who needed a lot of skilled labor were constantly seeing if they could undermine Jim Crow because it was denying them access to a lot of workers who would have done very well. And it gets complicated because as Coleman said sometimes you've got a background of real social prejudice that has not been eradicated and markets can sometimes transmit that in that if bigoted customers won't visit your restaurant or whatever. So I don't want to make sweeping assertions. I think that courts by and large decide and should decide the cases on other bases where these things come in again is every one of those state and local anti-assumination in public accommodations laws was passed through a legislative process in which people could waive some of these things. And I urge people again as someone who not just from my libertarian standpoint but as someone who doesn't want to see social divisiveness, that's the time to go in and say, are you legislating just to demonstrate your virtue or is there really some social problem that is solved by extending it from old style public accommodations to every single little one person operation? But you would agree that public accommodation laws which do restrict the right of businesses to operate however they see fit are actually beneficial in certain cases. Well, I would say from a libertarian standpoint, I'd follow, I think this is the Richard Epstein analysis. I'd like to confine them to the cases where there is a practical monopoly. Ironically, ends to stay for the night which were effectively a practical if not a royally granted monopoly centuries ago. With Airbnb, not at all. But I don't mind for utilities and I can see at least their point if someone is going to freeze the doubt of saying the end is freighted with a special public interest. But I would make it a demanding test that wouldn't result in very many public accommodations laws. I want to go to a slide. We were talking about this in the context of affirmative action. And let me just see if, where did it go? Sorry, there we go. I am just not very good at this. I apologize for where did, there we go. US support for gay marriage on a certain level. And this is pretty stunning. In 1996 Gallup started asking this question 27% of Americans thought that same-sex couples should be recognized by the law as valid with same rights as traditional marriages. It's now at 71%. I guess I'll start with you, Wally. What do you think accounts for that pretty straight line, massive increase in acceptance of same-sex marriage? It is the great social revolution, great successful social revolution of the last generation. And if I had a one sentence explanation of why it happened, I'd write a book and some million copies. I think in that particular instance, when people got to meet their neighbors, by and large, they realized that this was something that was not only good for the people involved, good for the moms and dads who could see their kids get married who thought they would never have grandchildren and also good for the water society in many ways. It is judged by its outcomes and its outcomes have been overwhelmingly beneficial. Some polls recently showed a drop and there's a lot of discussion of whether the public is having second thoughts about the whole area because of more recent controversies we haven't talked about having to do with, transgender teams on sports teams or whatever the thing may be. That's for another show, I think. But in this case, I think that Gorsuch as so often comes closest to the libertarian center of the court in that he handed down the huge victory for gay rights a couple of years ago and then came right around and clearly as part of what he sees to be the proper settlement of these things says this is not going to affect conscience rights. People who want to live as dissenters from the consensus and lead a more faith-based life, that's such an awkward phrase, is they will retain all the freedoms they always have. Yeah, Coleman, you know, and equally I'd actually even more simultaneously more disturbing but also more triumphant. A chart is one of people who find interracial couples moral. Gallup and other polls when, I remember this came up a lot during Barack Obama's presidency when he was born in the very early 60s of his, you know, just a few percent or something of Americans who believe that interracial marriage was moral. You know, now it's in the 80s or 90s. You know, what do you think drives acceptance of one's unthinkable kind of marriage scenarios? That's a good question. I mean, one, so I mean, it helps to be on the more logical side of the argument, I think, right? Like there was the case against interracial marriage and gay marriage just never made sense in a secular context at least because, you know, as the jokes always used to go in the 2000s, no one is forcing you to get gay married, right, no one is forcing you to get interracial marriage. But just knowing it's happening is ruining my marriage. Right, right. When Newt Gingrich, you know, railed against it and it was like while racking up lives, it was ridiculous. There's that. And in the gay marriage case, there's obviously the long-term secularization of the country in general. It's just, it's very hard to get someone to an anti-gay position if they were never Christian or raised with faith. It's tough to, it'd be tough to just argue a kid into that position without the background of Christianity. So as Christianity declines, I think that's got to have something to do with it. Now on the interracial side, I think the civil rights movement was a major transformation in the psyche of many Americans. And obviously the trend took really 50 years to go from single digit approval to single digit disapproval. Right. But, you know, I think, I'd like to think that that just represents people making the argument, people seeing interracial couples in movies on TV, seeing it as, there's like a snowballing normalcy where the more normal it becomes, the more people think it's normal and then the more people, the more normal it becomes, right? So that the people doing it don't have to be like really the most, the bravest members of society can just be like your average Joe. How old are you, Colvin? 27. Damn it, you know? It's like, yeah, you're peaking too soon, man. I gotta tell you that right now. Take a couple of years off. But, you know, again, different than Wally and me who, you know, roamed with, we had pet dinosaurs and stuff like that. But where has individualism gone? And I realize, you know, that's a strange thing to bring up in these cases. But in a way it isn't, you know, they're about class-based, you know, ethnic or gender or rather sexual orientation. But, you know, they're about lumps of people that are being perceived one way or the other. And, you know, I was raised to believe, and it's not like uniquely, there was a rhetoric of individualism in America that seemed to be important. And, you know, it's kind of gone missing, maybe in somewhere or not. But I'm curious, like, to you, you know, is individualism alive and well with your cohort or in your psyche? You know, and I think of people like Zora Neale Hurston, I think of people, certainly Martin Luther King, you know, a number of other, you know, particular black writers or writers on race talked a lot about individualism. And that part of the problem with racism is that you couldn't be an individual. You were constantly representing this grand abstraction that could lead to you either being exalted or being lynched. You know, what's the status of individualism kind of in your cosmos right now? It's, I mean, I would say it's alive and well, but it's become something quite different. It's become a more, you know, inward-looking, somewhat narcissistic kind of individualism where it's obviously cliche to point out, but, you know, the culture of Gen Z, it's kind of navel-gazing about what is my unique identity, right? And it's not based on something that I've done. It's based on, you know, like, what do I really think my gender identity is? Like, last month I thought it was this, but I'm evolving and it's this, and let's have a long kind of inward-looking conversation about who I am, which really makes little reference to like what I do and what I care about, but is in some way more of like a style and an aesthetic. And I used to like to dress like this, but now I dress like this. And what does that say about how I'm changing? Like this is the kind of, and everyone must be kind of miracle of self-invention on the aesthetic front and the rest. And I definitely saw a lot of that kind of individualism when I was in school, for instance, a few years ago. It's a very different kind, but it does strike me as a kind of individualism in the sense that it's like, I have to stand apart. I have to invent myself from scratch as an identity. And I have to be different from everyone and I have to dress different. And so in a way, it's still very alive. It's just transmutated, I guess. Yeah. Wally, as a take us out with an answer this question, the Supreme Court's positive approval ratings have dipped. As I was saying, 25% of people, according to Gallup, have a great deal or quite a lot of confidence in it. It's down from 45% in 1973, which is what, 50 years ago. And it's in lockstep with other declines, but is there anything that the Supreme Court can do going forward to kind of restore its sense, restore confidence in that it is working through these things in the way that it's supposed to, as opposed to in kind of cheap political ways? Big question. And part of it is how well they explain themselves. Part of it is when justice is dissent, whether they do so in language that undercuts the legitimacy of the majority or vice versa. And part of it is a process that you certainly can see if you look up close at the cases that the court takes and how they decide them, which is that, although they are not swayed by public opinion to do things that they wouldn't do affirmatively, they will sometimes duck cases and rule narrowly for fear of being demonized again by some of the same groups that are just waiting to demonize them. I find that unhealthy. I will say looking back over the last few years, the courts have been one of the few institutions, the federal courts in particular, that actually have done what they needed to during a potential constitutional crisis. They were the ones who turned down all the frivolous election suits. And I worry that sniping at them for short-term gain over various issues that they decide means that the public support will not be there when they need to make a perhaps unpopular decision upholding the right side in an election dispute. All right, we're gonna leave it there. We have been talking with Walter Olson of the Cato Institute. Look him up there in Coleman Hughes of Conversations with Coleman and at Coleman Hughes. Is it Coleman Hughes dot com? Dot org. Dot org. Yeah. You are a nonprofit. Yeah. Okay, fair enough. No, but thank you guys so much for walking through and talking through these cases. Fantastic, we will see you next Thursday at 1 p.m.