Live from Music Row, Monday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed Misrule of Law blog creator and retired attorney Mark Pulliam to the newsmaker line to give a sneak peek of Hillsdale Professor Paul Moreno’s latest book, How the Court Became Supreme.
Leahy: On the newsmaker line right now by a very good friend, our favorite East Tennessee grassroots activist and retired attorney Mark Polio. Mark blogs at Misrule of Law and always has something very interesting to say about our constitutional form of government. Good morning, Mark.
Pulliam: Good morning, Michael.
Leahy: Well, we’ve asked you to take a look at this book that Paul Moreno, the Hillsdale professor of history, has written: How the Court Became Supreme: The Origins of American Juristocracy.
We’re going to talk to him at 7:15, but we want to get a sneak preview from you. Does he make the case that the courts have gone gotten out of control?
Pulliam: He does make the case, and he makes it very effectively. What is unusual is that it takes a history professor at a college rather than a law professor in legal academia to make these points.
One of the peculiar things that have happened in the last 30 years or so is that law schools have been captured by the Left in a way that even higher education generally has not. Law schools have become dominated by liberals more than almost any other academic discipline.
So what passes as constitutional law scholarship coming out of the law schools, reflected in the law reviews, et cetera, is all pretty uniform. And when I read this book and I had a hint that it would be sort of something refreshing from some of his previous work in labor law and labor history, it is a breath of fresh air.
He looks at the state of constitutional law going back to the founding. He tracks every Supreme Court – not every decision – but traces the evolution of constitutional law from John Jay, the first chief justice, to the present, and looks at stuff without the conventions and blinders that are so prevalent in legal scholarship.
And he makes the case that the court has usurped prerogatives that properly belong to either the executive, the legislature, or, in many cases, the states themselves, by undermining the concept of federalism.
This began when the progressives, with the assistance of Franklin Delano Roosevelt, hijacked the Supreme Court during the New Deal. But he makes the case that it really went off the rails under Earl Warren.
And just now, with President Trump’s appointment of three so-called originalists to the Supreme Court, are things returning to center. And we saw just this past term the overruling of Roe versus Wade, which was a good sign, but much needs to be done.
And I hope that this book gets a lot of attention because it makes the case in a way that no legal scholar today does. And in my essay for Law & Liberty, I say that this book is the boldest statement of constitutional law since Robert Bork’s The Tempting of America in 1990.
And that’s sort of a sad commentary that we don’t have scholars like Paul Moreno making this case in law school, which, after all, is where constitutional law is taught and where future constitutional litigators are being trained.
And instead, you see this echo chamber exists. People like Amy Wax at the University of Pennsylvania are being harassed, being stripped of their teaching responsibilities, and even possibly losing their tenure for saying things that were not considered controversial 30 years ago, but have become heretical now.
Leahy: Tell me this. He proposes solutions. What are the solutions?
Pulliam: Given our constitutional system, the only real solution is to appoint good people to the Court and to enforce upon them, through a consensus of the discipline to interpret the Constitution in accordance with the intentions of the Founders.
One of the comments that he makes is in his last chapter, where he surveys recent developments. And he takes Neil Gorsuch to task, who is one of the Trump-appointed originalists and who wrote a controversial opinion in the case of Bostock v. Clayton, which interpreted the Civil Rights Act of 1964, Title VII, the basic employment discrimination statute to prohibit discrimination on the basis of sexual orientation – which was the last thing that Congress had in mind when it passed this law in 1964.
And he ridicules that decision, and properly so. And so there’s only so much that the other branches can do to bring the Court into a more grounded approach. But one of them, and probably the most important technique, is to reinforce good decisions and to criticize poor decisions.
And so that is what he, as an academic, is doing. He is showing how many of the decisions that have been made by the Supreme Court in the last 50 years are simply not grounded in history or in the intention of the Founders.
Leahy: To me, that doesn’t sound very powerful. That’s long-term, isn’t it?
Pulliam: There’s only so much you can do in terms of constraining the Court. The Left has come up with a number of devices that are going to pack the Court. You can propose constitutional amendments, but those are very difficult to implement.
What he points out is that one of the things that kept the Court grounded is the other branches pushing back, sometimes vocally so, like Abraham Lincoln taking on Dred Scott. And as a result of that, the Court was never able to let this go to its head. The problem that we’ve had in recent decades is that the Court has become grandiose.
Leahy: Yes, absolutely.
Pulliam: And the concept of judicial supremacy in Cooper v. Aaron in 1958, where they said – and this is something that you could look through the Federalist Papers and not find any indication of this – but the Court said that our decisions, our interpretation of the Constitution, is supreme, just like the Constitution itself is supreme.
They put themselves on a pedestal. And he makes the point – it’s really the thesis of this book, is that this notion of judicial supremacy is completely unsupported by history, is a grandiose concept, a usurpation of power, and the way that you get them to go off of that is, you basically ridicule it and you point out that it’s unfounded.
Listen to today’s show highlights, including this interview:
– – –
Tune in weekdays from 5:00 – 8:00 a.m. to The Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Photo “Mark Pulliam” by American Institute for Economic Research. Photo “Paul Moreno” by Hillsdale College. Background Photo “U.S. Capitol” by David Maiolo. CC BY-SA 3.0. Background Photo “American Flag” by Noah Wulf. CC BY-SA 4.0.
Live from Music Row Tuesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed Co-Founder and CEO Daniel Grant of 2nd Vote Advisers to the studio to discuss their alternative for Fortune 500 corporations who want stay out of the politically correct ideology promoted by left-wing asset management firms.
Leahy: I’m just so excited about our guest today because you’re going to learn something about how to fix America right now. And one of the problems with America is embodied by a guy you’ve never heard of folks.
Listen to this guy’s name. He’s aptly named. His name is Larry Fink. F-I-N-K. And he’s very aptly named. He’s a very powerful guy, really powerful guy. He’s ahead of a group, the biggest money manager in the country, BlackRock. They manage, what, $9 trillion?
Grant: $9 trillion.
Leahy: $9 trillion. And he’s pushing all this leftist claptrap. There’s a claptrap that he’s pushing. And he wants in his mind, there are good sources of virtuous energy. And then there’s evil. And so in his mind, natural gas, oil, coal, that’s evil.
But solar wind, that’s virtuous. And he’s created all sorts of incentives for CEOs who just want to keep their jobs and get paid $10 million, $20 million a year to kind of be figureheads, moving along with the left.
There are all sorts of pressures with his regular messages to them about what he wants to see. This guy is running the policy of many Fortune 500 companies today, and it is, in my view, Dan Grant, a disgrace. What do you think?
Grant: I think, Larry, he’s a representative of the asset management industry as a whole. BlackRock is the largest. But if you look at all of the leading banks, all of the leading asset managers, investment managers, they’re following this philosophy. And if you went to the BlackRock website, you would find what they call their stewardship team. And that sounds great.
Leahy: Well, there’s a biblical concept, stewardship.
Grant: Sure. They adopted the term. And what they will brag about on the website is last quarter, the stewardship team from BlackRock visited 482 companies and their boards, their management teams, and said, hey, listen, guys, we’re owners were big owners of your company. And if you don’t start making acceptable progress towards hitting these ESG metrics that we have laid out,
Leahy: ESG. Environmental social governance. And some of these metrics are ridiculous, right? They basically, take bad leftist policies, they are the metrics.
Grant: So they’re the largest asset manager in the world. They go to these management teams and say, you need to start doing more to implement our definition of good. You need to start forcing that definition on your suppliers, your vendors, and ultimately, your customers. And if you don’t, we will start voting you out. And they are doing it.
Leahy: They’re voting them out. And basically, you got to accept their version of diversity, equity, and inclusion. You got to embrace Critical Race Theory in the workplace which is perhaps one of the most divisive things that are out there.
Now, people listening to us, you work for a large company, they’ve got diversity, equity, and inclusion. And if you go in, you’re forced to sit through the training. They’re telling you stuff that you know is wrong.
But what are you going to do? Are you going to say you’re violating my rights and lose your job? That’s what’s going on.
Grant: My company from a practical perspective, 2nd Vote Advisers, we’re looking at what they’re doing and we’re saying, what is the cost to these companies at the end of the day?
What is the cost of a diversity and inclusion program? I mean, it sounds great. But JP Morgan, for example, a couple of months ago announced a 30 billion dollar capital commitment to diversity and inclusion and closing the racial gap.
Leahy: (i.e. dividing people). That’s what those programs do.
Grant: You read the press release and you look at it and it’s like, okay, their funding, additional mortgages, small business loans, and that all sounds great. And the top 10 banks all have very similar programs, multi-billion dollar programs.
But nowhere in that press release is the actual cost. They’re not talking about the underwriting criteria for these types of loans and for these types of mortgages? A friend of mine was seriously being considered to be the CEO of Fannie Mae back in the Great Recession.
Leahy: Tell people what Fannie Mae is and why it matters.
Grant: It’s one of the government-sponsored entities that will essentially buy up mortgages.
Leahy: It’s the Federal National Mortgage Associations Administration. It’s a quasi-public organization.
Grant: Back in the Great Recession, both of the GSEs were about to fail. And the reason they were about to fail is they allocated 10 percent of their capital to subprime loans. But that 10 percent represented about well over 50 percent of at-risk.
Leahy: Why did they allocate those 10 percent of subprime loans?
Grant: Because they wanted to do something for the social good.
Leahy: Because it would be good.
Grant: It would be good.
Leahy: Virtue signaling.
Grant: So to bring it back to JP Morgan and this 30 billion and the top 10 banks, what they’re doing, what is the actual cost? Nobody knows. Third Bank just announced a $2.8 billion program, and they’re investing in a bank in Detroit, which doesn’t have the best background.
And yet they’re going to allocate a lot of capital to this bank in Detroit. And that bank in Detroit is going to be putting that money to work. Well, how successful is that going to be?
Leahy: I guess we’ll find out.
Leahy: But let me come back and say, okay, so these big money managers like Larry Fink. F-I-N-K. Big Larry Fink, that guy. They’re forcing companies to do all this politically correct stuff that’s costing a lot of money.
Let’s say you have some assets that are currently under management. What can 2nd Vote Advisers do to help out?
Grant: The first thing I would tell you is we are not going to do what BlackRock is doing. We are not going to be visiting companies and their boards and saying, hey, guys, we want you to implement our definition of good.
Leahy: Threatening them basically, you must do our version of lacking good or we’re going to whack you and we’re going to get rid of you.
Grant: That’s right. So what we’re doing is we are actually voting our shares with our beliefs. Companies should not be into social justice engineering. So we are telling CEOs to do that.
And I feel like we’re actually giving CEOs a reason to say no to Larry. Larry, right now, and all the big banks, all the asset managers, as I mentioned, are behind it.
Leahy: He’s kind of a tyrant when it comes to dealing with CEOs who are just quivering when his stewardship team walks in, they start to wonder, what can we do? What can we do? How can we not make them upset? How can I keep my job?
Grant: So what I hope to do is give these CEOs a reason to say no to Larry. I want them to say, Larry, listen, I hear what you want, but I got Dan Grant from 2nd Vote Advisers, and he wants us to do something completely different.
We’ve gone to our board, and we’ve decided to just stay out of the whole thing altogether and focus on our company and profits and let the individual decide where they want to put their philanthropy and charity.
Leahy: This Larry Fink guy at BlackRock manages 9 trillion dollars of money. Where does that money come from, by the way?
Grant: It comes from you and me.
Leahy: Private individuals.
Grant: Private individuals. If you’re in a pension plan if you’re a teacher if you’re a policeman if you’re an individual investor. These guys have hundreds upon hundreds of exchange-traded funds and mutual funds.
Leahy: So they’ve got 9 trillion under management. So 2nd Vote Advisers, what do you have under management?
Grant: Well, we started only a few months ago, and unfortunately, it takes a company like ours, a startup, to do what we’re doing. So I mentioned we started in 2000.
Leahy: You started with zero.
Grant: We started with zero. We now have two publicly traded exchange-traded funds.
Leahy: Tell us what an exchange-traded fund is.
Grant: It’s very much like a mutual fund. So you can go on, you can put the ticker symbol in. And one of our tickers is EGIS and it’s a Second Amendment fund.
Leahy: Which ticker do I go to?
Grant: If you are with a Morgan Stanley or any broker and you want to buy a stock, you put the ticker symbol in and you hit buy. So it is a liquid stock.
Leahy: Can I do it online myself?
Leahy: Where would you go?
Grant: I have an E-Trade account.
Leahy: Put in EGIS I could do it right now if I wanted to buy. And what’s the fund do? Investing in gun companies?
Grant: Well, no. So what we’ve done is we have rated the S&P 1500. And we have different issues that Conservatives care about. One of the issues that Conservatives care about is the Second Amendment.
Listen to the third hour here:
– – –
Tune in weekdays from 5:00 – 8:00 a.m. to the Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Live from Music Row Tuesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed all-star panelist Clint Brewer and Maury County Mayor Andy Ogles in studio to ponder how the left and right are beginning to find similarities as liberal policies prove too radical.
Leahy: In studio, Clint Brewer, the original all-star panelist, and Andy Ogles mayor of Maury County. That’s an interesting interview we just had with Naomi Wolf.
Ogles: I’ve never met her. And I’m sure Clint, we were talking offline that she was an advisor to Gore.
Leahy: In 2000.
Ogles: She was banned by Twitter. I’d love to meet her and shake her hand. It’s like a badge of honor. (Leahy laughs) Like, holy cow. We may not agree on a lot of issues, but kudos to her for having an opinion that kind of cuts across the grain.
Now, I will say trying to be objective is that I look at my friends on the left and how fervently they will defend the Constitution when it fits their narrative, and when they want to change policy, they’re more than willing to attack the Constitution and to label a breathing document and to throw it out the freaking window.
Brewer: The Bill of Rights is not an a la cart menu. You don’t get to pick and choose what you like.
Leahy: I think I’ll cite the Constitution on this argument and forget it on the other argument.
Brewer: Well, honestly, whenever I hear somebody in a public debate or to say I’m a strict Constitutionalist, I’m immediately suspicious of that person because I’m sure there’s something in there that they don’t want to uphold.
And that happens on both sides of the aisle. But the mayor’s point is well taken. These issues do cut across the grain. You look at her past stance on abortion and now talking about medical freedom, they don’t entirely reconcile.
Ogles: It’s like a game show. I’ll take the Second Amendment for 100, please. (Leahy laughs) It doesn’t work that way. It’s all one document. And, you know, and I would argue that there is no First Amendment without the Second Amendment. They go together, they go hand in hand.
Leahy: That’s interesting because, you know, during my week off, I did some reading on English kings, the Plantagenets after William the Conqueror, and then the Tutors and The War of Roses.
Brewer: Some light vacation reading, Mike?
Leahy: Well, for me, it’s light reading. It’s fun.
But what’s interesting about that is back to your point, you don’t have a First Amendment without a Second Amendment, you know, the right to bear arms. And throughout history, it’s always been about who has the power. Who has the military force?
And if the person wielding that military force is evil or corrupt, it’s bad news if they have superior forces. And if you look at that 500 year period of English history, sometimes the winner was a good King and sometimes not a good King. It’s what we have here right now in the world today.
Brewer: I don’t know that you can preserve democracy like what America attempts to do. You’re in and you’re out without having an armed citizenry.
Leahy: You’ve got to have an armed citizenry. No question about it.
Brewer: The government, whether it’s a party on the left or the party on the right, it has to know that people have the right to defend their homes and defend themselves. And I think it changes the way they do things over the decades.
Ogles: Our government operates at the consent of the governed, but there are folks on the left, especially that have forgotten that notion. I love the Constitution. I love our republic will defend the republic.
But at the same token, for those that are trying to divide this country, they need to understand something and that is the majority of the Fortune 500 corporations are now in the South and the Midwest.
The South and the Midwest don’t need the Northeast. We don’t need California. They can go to hell. We can do this without them. Now, I’m not advocating for any kind of sedition or anything like that.
But what I’m saying is we have an economic might here, and it’s time for the conservative state to stand together.
Leahy: I will tell you many California refugees who have arrived here in Tennessee will tell you California already is hell. (Laughter) That’s why they’re leaving, right?
Brewer: Yeah, of course, but now they’re going into all the hot chicken places and asking for gluten-free hot chicken. (Laughter)
Leahy: Did you just make that up or is that a thing?
Brewer: I imagine it’s happening somewhere.
Leahy: It probably is because this is one of the challenges, right? Tennessee is thriving because it is a bastion of freedom or aspires to be a bastion of freedom. We’ve got no state income tax.
And now one of the challenges is as all of these Californians come in, and it’s mostly Californians, at least here in Middle Tennessee, there are some from Illinois and New York and Connecticut you hear this complaint? Well, that’s not how we do it in California. (Whispers) Go back to California.
Brewer: I know I was in contact with a family through other circumstances, not related to work or professional pursuits, but they said, well, we haven’t left our home since March. I mean, the guidelines there.
I just think it’s open some people’s eyes up to the fact that there is a different way to live and you can come to states like Tennessee and enjoy it. Speaking of opening people’s eyes up. It’s very interesting to have a conversation with Naomi.
I never thought that Naomi Wolf would be a frequent guest on The Tennessee Star Report because, of course, she was, you know, Al Gore, whatever advisor. I don’t know what she advised him on. Maybe on how to dress or something like that.
Ogles: Did she also help invent the Internet?
Brewer: I was hoping to get a play-by-play on how the Internet was created. I do think it’s fascinating. I think it just shows that the pandemic has created some issues socially and from a governance standpoint that I think the mayor used the phrase off the air that they sort of cut across the grain. It’s like the streams are crossing.
Leahy: I think that’s right. It is. And when we have Naomi Wolf on, you see, that happening to a degree but not fully because there are some elements of I don’t know what you might call it. Left-wing theology that she finds hard to abandon, perhaps.
Brewer: I think ideology. I wouldn’t call it theology. You wouldn’t call theology?
Brewer: No. It suggests maybe it involves the divine.
Leahy: I think it’s their view. I use the word theology to describe their adherence to it. The fact to the contrary, that’s sort of funny and obviously reasoning.
Ogles: They’re very polarized right now. You have those on the left and those on the right. And I think most people would peg me on the right and she’s probably somewhere on the left. But this whole idea of medical freedom and the liberties and the shutdown, etcetera, those people that are, in the ‘middle’, those people that self identify as independence, they’re shifting right I think.
And this is just my personal opinion for this next cycle. And so you see, in Texas, we’re winning a county. A Republican Mayor in a blue county on the border of Texas.
Leahy: McAllen, Texas.
Ogles: Hidalgo County. Hillary won it by 40 points. And suddenly they now have a GOP Mayor. What? And so I think that’s the canary in the coal mine that some of these issues, whether it’s immigration reform or medical freedom or shutdowns, you could see not just in Tennessee, in Texas, but in Pennsylvania and across the country this red wave hit the country. I think you could see a sweep in the U.S. House.
Brewer: No, I think you’re right, mayor. The midterms are always dangerous for the party that just won the presidency. So already, historically, you’ve got a pretty big risk involved.
And President Biden came out I think it was last week and said, everybody wants us to move so fast on this progressive agenda, but our margins are pretty thin in both Houses. For his faults, he’s a realist when it comes to legislation. And I think he understands the challenges he’s up against.
Leahy: When he’s couchant.
Brewer: Yes, when he’s couchant. I think they’re doing a really good job of that White House of staying on message at least and having a lot of message discipline, which Biden is not known for.
Leahy: Apparently, part of that message discipline was not acknowledging D-Day.
Brewer: That wasn’t particularly good.
Leahy: So they missed that one. That is their message, though I suppose.
Ogles: Sometimes it’s not what you say, it’s what you don’t say. That’s deafening. When you see this administration not honoring those who served in such a monumental moment in history, not just for the U.S., but for Europe and the Pacific, that says a lot about this administration.
Leahy: Yes. And none of it good.
Listen to the full third hour here:
– – –
Tune in weekdays from 5:00 – 8:00 a.m. to the Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.