Editor’s note: Below are the video and transcript to John Yoo’s lecture at the David Horowitz Freedom Center’s 2016 West Coast Retreat. The event was held April 8-10 at the Terranea Resort in Palos Verdes, CA.
John Yoo: One last thing before I start the presentation. This really is like a mental vacation for me because people ask what is it like to be a conservative at Berkeley. What are you doing there? So I often say – and this makes no sense to the students, who, if you think about our students, are about 20 years old now, right? They were born in the 1990s. So I say it’s like being in West Berlin during the Cold War. They didn’t really know there was a West Berlin. They don’t really know there was a Cold War. But if you remember during the Cold War, West Berlin was very deep behind the lines, and even though in any war it would be outnumbered, there was always a shining symbol of capitalism, freedom and democracy surrounded by a sea of Marxists, and that’s exactly what it’s like to be a conservative at Berkeley. So I’d be happy to answer any questions about that if you want to know what it’s like, but I do think it’s important for us to have at least one conservative professor at every major university because the students really hunger for a role model. So let’s just have one who they can talk to or to hear the other side of the debate, even though you’re outnumbered. It’s important and that actually will tie in with what I have to say about Justice Scalia.
So just to begin about the Supreme Court. Where are we with the court? For the last, I would say, 40 or 50 years, the Supreme Court has been slowly, gradually, but inexorably seizing many of the most important social issues of our day and pulling them out of the democratic process and putting them to the decision of the court where only five people govern policy of the whole country. And this is something that progressives were very aware of and started in the 1960s; because if you have the vision of the good, if you know the right answer to every issue, why bother going through the messy democratic process? Why bother having to persuade 50 state legislatures or the majority of the Senate and the majority of the House and the President that you have got the right answer to something? If you truly believe you are right, if you are revolutionary in your view, why not just go right to the Supreme Court and get five people to agree with you and then you can impose your answer on the country. And I’m afraid liberals are much better at this than conservatives, who are only slowly coming to the realization that maybe that’s what we ought to do too. Conservatives’ answer to this is that’s not the proper role of the Supreme Court. Please stop doing that. And yet, progressives on the Court and the progressive movement as a whole continue to use the Supreme Court as a tool for social change.
They’re not shy about this. They openly talk about this in journals and in their classes. Think about the issues where this has gone on. Gay marriage. How do we have gay marriage in the country right now? Not through slow-change democratic deliberation, arguments with ourselves and our friends, families, through the political process, through the states. We had it imposed on the country in the decision Obergefell v. Hodges. Think about abortion. At the time of Roe v. Wade, there was a change in the states in our country about whether to have abortion or not. There was a national conversation. Some states were changing the law, some states were not. In Roe v. Wade, the Supreme Court took the issue over and debate on that ceased as a matter of democratic politics. And then in a more recent decision, Casey v. Planned Parenthood, the Supreme Court said even though we know abortion is greatly important to a large number of people, even though we’ve seen it become a great political issue, we’re not changing our minds. This is still our decision. Not yours.
Religion. The place of religion in the public square, in the workplace, off to the Supreme Court now. Free speech, Citizens United, also up to the Supreme Court. This year, could labor unions take the dues of its members unwillingly and spend it on political causes? Whether that’s going to be allowed or not, up to the Supreme Court. Affirmative action, whether governments, universities are allowed to use race in giving out benefits, now only up to the Supreme Court. This goes well beyond – and I’d be happy to talk more about this during questions and answers – this goes well beyond what the framers thought about the role of the Supreme Court, what the Supreme Court thought it would do under the power of judicial review of Marbury v. Madison, and I would say, in fact, well outside the view of the great majority of justices of the Supreme Court for most of our history.
Even through the great fight between FDR and the Supreme Court in the 1930s, no one until the ‘60s thought that the Supreme Court would become this kind of national Oracle for our social values. So that’s where we are now. What’s happened? Why should we care about it today? Well, obviously, this has been provoked by the untimely passing of Justice Scalia, and before I turn to that, let me just talk a little bit about Justice Scalia and his role and why I think he was – you’ve never seen the kind of mourning and discussion about the loss of a justice before in our history. I think when Chief Justice Marshall left, our greatest Chief Justice, I don’t think most of America noticed. I’ve never seen in my lifetime any outpouring for an individual justice as it was for Justice Scalia.
And one thing about Justice Scalia was that he won by losing. He was not the author of many majority opinions. There’s only really one great majority opinion to his name and that’s the case of Heller, which is the case that finally, hard to believe, but finally only in the last decade upheld the Second Amendment as an individual right to bear arms. It took 200 years, over 200 years until the Supreme Court decided that. For most of our history liberals said it’s a collective right that only belongs to a militia and you only get a right to have a gun if the militia gets called up and you are called up to serve. Most of Justice Scalia’s opinions, his greater opinions, were dissents. He was on the losing side. I have the sneaking suspicion he only really liked it when he was on the losing side because he was unwilling – and this is why conservatives admired him – he was unwilling to compromise to be in the majority with five justices. I think he would rather have been on the losing side as long as he was clear and right, and there are other justices appointed by Republican presidents who loved to be on the winning side. Justice Kennedy right now. Justice Sandra Day O’Connor before him.
Does anybody have, off the top of their head, any quotable Kennedy and O’Connor opinions? Even name any great majority opinions they ever wrote? No. But that’s because they were willing to wheel and deal to assemble a coalition of five justices out of the nine to win. Justice Scalia was not good at that. I don’t think he cared about that. He’d rather be right and lose than win and be wrong. And so if you were to ask what other justice in our history could some Americans name, the only other name would be Oliver Wendell Holmes. First, he has a great name: Oliver Wendell Holmes. The only other name most of my students know when they get to law school is Felix Frankfurter, but that’s because they think he’s a hot dog. It’s great that a hot dog was a Supreme Court Justice, right? But the name you will really remember is Oliver Wendell Holmes. Oliver Wendell Holmes was called, his nickname was the Great Dissenter. Like Scalia, Holmes was rarely known for his majority opinions. In fact, the ones he’s written he would like to forget. He was actually a great fan of eugenics. I have to say he was famous for this case called _Buck v. Bell, _which upheld the forced sterilization of people who were thought to be retarded, and his famous phrase was “three generations of imbeciles is enough.”
That was not his finest moment. His finest moments were in dissents when he was losing, and people, even today, we study those dissents in class because eventually he was proved right, and eventually the Court moved to his direction about free speech and so on. I think that’s what Scalia will ultimately be in our history. He will be someone who over time is proven right. And what was his great message? And it goes to the point of the Court today. His great message is that, as I said, the Supreme Court is taking over too much power in our society. What gives the right to five justices, unelected, appointed for life, never accountable to the American people again after their confirmation, to keep deciding all of these issues for the whole country when our original Constitution wanted us to decide as a democracy. And Scalia, just through the force of his intellect and his will, forced this national conversation. Until he showed up, if you remember the Warren and Berger courts, it was hunky-dory for the Supreme Court to decide abortion and busing and affirmative-action. Even today, if you look at the polls, most Americans would rather have the Supreme Court decide these issues than any other branch of government.
But Justice Scalia was the one who said this is not consistent with the text and original understanding of the Constitution. This is not to say he didn’t think judicial review should ever be applied. He’s not someone – and I don’t think any conservatives should say courts must always accept what the democratic process puts out. We do have a Bill of Rights. We have a Constitution. We have to remain faithful to it. But we should do so only consistent with the text of the Constitution and not make up new rights. One of the great liberal cases, the case that upheld the constitutional right to buy contraceptives – just to give you a flavor of the kind of logic that once held before Justice Scalia showed up – that the right to buy contraceptives emanated from the penumbras of the Ninth Amendment. Right? Never said there was any text in the Constitution, never interpreted anything to uphold that right. You and I can disagree. I think as a policy matter it’s good to buy contraceptives legally. I wish some people were forced to buy contraceptives. But that’s something that we should decide by a vote in the political process.
I have to say, Justice Thomas, he has a great pillow that he puts on his couch and it says, “Don’t emanate in my penumbras.” It’s a great, great quote. So what do we have in the aftermath of Justice Scalia’s untimely passing? We have a Court that is split four-to-four. We have a vacancy that will decide whether the Court is going to keep trying to go down slowly and haltingly, but at least in the right direction towards Justice Scalia’s vision of a Constitution that’s read based on original understanding and gives a proper space of democratic process, or whether we’re going to have a shift back to the Warren-Brennan years where the five justices of the Supreme Court believe it’s their right and even duty to make the fundamental decisions for us about our social values. That four-to-four balance is between four Republican-appointed justices and four Democrat-appointed justices. It’s not just Justice Scalia’s seat that’s at issue because several of the other justices are approaching the age where they would normally retire.
So just to give you a quick rundown of who – I wish I could have done this on PowerPoint, I guess, but it didn’t occur. I don’t use PowerPoint. I’m very old-school although I try to teach like Kingsfield in “The Paper Chase,” but I’m not going to do that here. I’m not going to call on people here and mock them and make fun of them. I only do that if you pay me $50,000.00 a year at school, then I will make fun of you and mock you. Although we don’t do the routine, there’s this routine from “The Paper Chase” where someone gives the wrong answer and we say, “Come up here Mr. So and So. Here’s a dime. Call your mother. You’re never going to pass the Bar.” But we don’t do that anymore. We correct for inflation. ”Here’s $100.00,” and then we say, “Use Facetime. Call your mom up on the video phone and tell her you’re not going to be a member of the Bar.” But anyway, I could put up pictures of each of these people because most Americans have no idea what they look like even though in many ways they are more important, they have more power in our system now, than any senator or member of the House and maybe Cabinet officers.
So Chief Justice John Roberts, appointed by George W. Bush. He’s going to be on the Court a little while longer. He’s 61 years old. I have to say, I have to confess, I’ve been quite disappointed in the Chief Justice. I think he was a stealth candidate promoted based on his record as being a conservative. He has now upheld Obamacare twice. I think one of the acts of Congress that has done the most violence to the fundamental nature of our Constitution was creating a federal government of limited powers. If the federal government can tell you to buy health insurance and tell you what kind of health insurance to buy, what can it not do? And this is the problem with the Obamacare case and with Chief Justice Roberts’ opinion. What is the limit to federal power if it can tell you to buy health insurance?
Justice Kennedy, who was appointed by President Reagan, was about the same age as Justice Scalia. He’s 79 years old. The average age of retirement of justices since the Warren years overall in the 20th century is about 70. He’s already 79. I think the average age of retirement since justices started treating their jobs like a pension system with Social Security and great benefits and refuse to retire is about 80; 78 to 80. So you would think under the next president, probably Justice Kennedy will retire.
Justice Clarence Thomas, my justice, thank God he’s 67. He was appointed when he was 43 years old. And then Justice Alito, the fourth justice in the conservative bloc, who was appointed as a young man under President Bush, is now 66. He’s the youngest justice on the conservative wing of the Court.
On the liberal wing of the Court, Justice Ruth Bader Ginsburg, appointed by President Clinton, is 83 years old. So you would think – I wish you the best of health, but if she were to serve out two terms of the next president, I don’t think she’s going to be 91 years old, that would be close to record-setting territory for justices. You would think she would retire. So already we are at two likely seats to open in addition to Justice Scalia’s in the next presidency. Steve Breyer appointed by Justice Clinton, 77 years old. You think he might well retire in the next four years. And then the two justices appointed by President Obama, Sonia Sotomayor, 61, Elena Kagan is 55, they’re both going to be on the bench for a long time. I will say these coalitions are not set in stone when it comes to the conservatives. The liberals on the bench vote like a block on all these major issues. They conservatives, however, have a hard time being unified. As many of you probably know, Justice Kennedy in particular often boats with the liberal wing of the Court on issues like abortion, gay marriage and many people might think affirmative action now.
So the Court, though, was finally balanced. You can look at the term right this year with the Court, because it’s split four-to-four, cannot come to a decision or is actually leaning to the liberal side. But we just had a decision, the California Teachers Association v. Friedrichs, where a schoolteacher did not want to pay dues to the California Teachers Association to use for political lobbying and donations. That looked, I think, like it was going to get overturned by the Supreme Court on First Amendment grounds. That case was just recently sent back to the lower courts because the Court was divided four-to-four. If a liberal were to take Justice Scalia’s spot, you would think that the Second Amendment case would be overruled, and nd the other case, McDonald. Those were five-to-four cases where Justice Scalia was in the majority. Merrick Garland, who is President Obama’s nominee, actually in the lower courts voted for the idea that the Second Amendment was not an individual right to bear arms, and so you would think that the State’s ability to engage in gun control would be almost unlimited under a bench where a Democratic president got to replace Justice Scalia.
Citizens United, five-to-four case, another one where Justice Scalia was in that five-justice majority, I think would be overturned by a liberal five-justice majority. I have to say, by the way, Citizens United, I do not understand why liberals get their panties in such a twist over Citizens United. The idea that individuals, corporations, can give money for political speech purposes seems to me the core of the First Amendment. But liberals will say the First Amendment is about the actual speaking, not about money. But in law school, this is a silly argument because you would say, “Well, you can’t take away the ability to exercise the right in the first place.” That would mean that the government could ban bullets and let you have the gun and say you still have the right to bear arms. Right? That doesn’t make any sense. We would say of course that’s a silly argument. It’s a similarly silly argument to say you can speak if you yourself want to go down on your street corner, but we’re not going to let you use money to engage in speech. This seems to me a similarly silly argument.
But I think it’s some kind of strange rallying cry for the left because they have this theory that the whole country is run by corporations. I don’t want to depress you and go through all the other cases that will switch if a liberal president, a Democratic president, appoints a successor to Justice Scalia, but take my word for it. On issues from immigration to the size of the federal government to the rights of the police in criminal prosecutions, I think a lot of those would shift dramatically to the liberal side, more back to the Warren Court, Berger Court years, should Justice Scalia’s seat be filled by a liberal.
Okay, so let’s talk about the future and then I will close and open it up for questions. What should we do about this seat? I have to say President Obama did something I did not expect him to do. I thought President Obama would actually nominate someone for the Scalia seat on the assumption that that person would not be confirmed, but would be useful for political campaign purposes. I fully expected President Obama to appoint someone because of their race or ethnicity, a Black woman, Hispanic woman, who would not get confirmed and then just would be used as a club to beat up the Republican nominee during the elections. I think President Obama actually nominated someone he hoped and thought might get confirmed by the Senate. Merrick Garland, if he were to be confirmed, he’s no conservative, but he’s probably the most moderate nominee from any Democratic president for the Supreme Court since 1962, since John F. Kennedy nominated and got appointed Byron White.
That’s not saying a lot, but he probably would be the most moderate nominee compared to the people that President Obama already put on and compared to who President Clinton put on. Nonetheless, I would think he would vote down the line with the other liberals on the Court on issues like abortion, affirmative action, free speech and gun rights. I don’t think anyone should have any illusions. When people say he’s moderate, it’s more because he’s like John Roberts. He writes very careful, technical opinions. I don’t really have a lot of doubts about where his values are. So I think it’s wholly appropriate in that circumstance, and here’s where I’ll close, for Republicans to refuse to fill the Scalia seat until after the November elections. And let me tell you why, so when you go back home, like I will go back to Berkeley soon and you’ll be surrounded by the sea of Marxists amongst which you live, and they argue about why the seat should be filled. Here’s the things you should say. First, practice. As a matter of practice, when the presidency and the Senate have been controlled by separate parties and a Supreme Court seat has opened up during an election year, generally the Senate does not confirm justices. The last time that a divided government confirmed a justice in a presidential election year was I think in the early 19th century.
It’s been a long time. The last most recent famous case, Lyndon Johnson tried to nominate and appoint his good friend Abe Fortas, elevate him to the Chief Justiceship in 1968, and even though the Senate was controlled by his own party, they left the seat open. Generally, the Senate does not confirm people during election years. Democrats will say, “What about Anthony Kennedy?“ He was confirmed in 1988, but the vacancy arose in 1987, and you may remember the only reason it got to 1988 is because the Senate Democrats I think unjustly spent a long time attacking Robert Bork. It’s like the claims you hear from death row inmates who say, “I’ve been on death row too long. It’s unconstitutional. Execute me.“ When the reason for the delay is that they have been appealing for 20 years to prevent their execution.
Second point: what does the Constitution actually say? Let’s start with that for once. What does the Constitution actually say about appointed Supreme Court justices? It says the president nominates with the advice and consent of the Senate, then can appoint. That does not say the Senate has to give its advice and consent. It doesn’t put a deadline on the Senate. All it makes clear is that the president can’t finish the appointment without the Senate’s advice and consent. It’s been the case throughout our history from the very beginning, from the case of Marbury v. Madison,which created judicial review. The Supreme Court itself has recognized the Senate need never give its advice and consent to a nominee. Actually, even after the Senate gives advice and consent, the president can change his mind too. There’s no timeline. There’s no date. There’s no schedule. Unlike passing legislation where the Constitution sets out clear deadlines in which order must be followed to pass a law.
Nothing like that with appointments. There have been many judges nominated to the federal courts who have never gotten a vote on the floor of the Senate and had to withdraw. The other thing, as just a side note, we have the same exact provision for cabinet secretaries and making treaties. If the Democrats were right, it would mean that there had to be a schedule, that the Senate had to vote up or down on every treaty the president makes. Never been the case where the Senate must give an up or down vote for every presidential nomination. Never been the case. And in fact, if you wanted to be mean-spirited, you could raise a point of hypocrisy, which I personally find never works when I argue with Democrats and liberals. But nonetheless, you could say if you remember under the Bush administration when Democrats in the Senate filibustered dozens, dozens of Republican nominees to the lower courts, refused to give them a vote. What happened to their claim then that the Senate has to give its advice and consent? And what about the fact that President Obama himself voted to fillibuster Chief Justice Roberts and Justice Alito to say they should never get a vote to the Supreme Court.
Is it hypocritical now for President Obama, not Senator Obama, to demand that the Senate vote on Merrick Garland? I would think that would be hypocrisy myself, but that doesn’t seem to slow people down on the other side. One other argument that you often hear these days is it’s a disaster if the Supreme Court is split 4 to 4. How will the nation’s work be done? The law will collapse. Dogs and cats will live together. All of the heavens will fall, right. The Supreme Court has eight people. It doesn’t need to have any specific number. Again, the Constitution doesn’t set out any number for how many people have to be on the Supreme Court. Originally, the Supreme Court had five people. It’s gone up to as much as I think 12. The numbers have changed. It’s up to Congress, actually, to decide how many people sit on the Supreme Court. And we have a whole bunch of lower federal courts. If the Supreme Court is split four-to-four, the country’s judicial work goes on. This often actually happens when a justice has to recuse himself or herself from a case. The justices, if they are split four-to-four on a case, they just wait a year. They get a new justice. The case can come back. The issue will certainly come back. In fact, it might not be such a bad thing if the Court delayed itself for a little while, maybe even just a year, in its wanton rush to decide every issue it can lay its hands on.
So last point and here I’ll stop. Why is it, then, that the Senate I think is right to leave that seat open? And it goes back to my original point. If the big change over the last 30-40 years has been the progressive theory that the courts should be used to seize issues from democracy and use it to engineer social change, then the only way for our democracy to make policy on things like abortion, affirmative action, religion, gun rights, all these issues, free speech; the only way you and I can have any effect on those policies is not by who we elect to Congress or even president, it’s how we influence who gets nominated and appointed to the Supreme Court. So it seems to me at least a small victory, tiny victory, for democracy is at least whether we’re conscious and have a right to pick a president and have in mind that that president is probably going to pick not one Justice Scalia successor, but probably three Supreme Court justices. So let me stop there. I would love to hear what you all think about who would be picked for the Supreme Court by Clinton or Sanders versus Trump or Cruz. I can tell you, despite – I love Michael Finch – but I don’t think I’m going to be on any one of those lists of any four of them, but I think it would be a great thing to talk about what differences there would be between the different nominees because I think that’s one of the most important issues that our democracy is going to decide this November: The long-term future of the Supreme Court and our constitutional law. So thank you very much. So about 20 minutes I think for questions.
Audience Member: Thank you very much for your great presentation. I think the 14th Amendment to the Constitution was an act that was a result of the Civil War and was to give blacks freedom, and also the right to citizenship and the right to vote. And even the main writer of the 14th Amendment said that this was not to apply to foreigners coming in and dropping babies and having them become citizens. Yet after a certain period of time, the Democrats figuring that they would get a lot more votes that way and decided that anybody who comes over can have a baby and they’re automatically citizens and their parents become citizens. And their whole family, probably going back through generations, become citizens depending on who was the president at the time. Would you please comment on this and how do we get back to the original meaning of the 14th Amendment?
John Yoo: Yes, so that’s a really complicated question. I’ve got to correct you. I don’t think the sponsors of the 14th Amendment used the phrase “dropping babies,” but other than that I think this is – I’m just teasing you. This is what I do when I teach law, is I love to make fun of my students. They deserve it so much, though. So, yeah, and they do need it. They need as much of it as they can get. So, this is the question of birthright citizenship you’re raising. Does the 14th Amendment automatically make a citizen anyone born on the territory of the United States, which is one view, which I think is the view that we’ve had for quite some time, or does the 14th Amendment make you a citizen because you’re born to parents who are citizens or maybe it could be one of two of the parents are citizens. So these are two different views. I have to say, without having really studied that closely, I err on the side of the former view, not the latter, but it’s a really close question. I think it’s much harder than many people think. It actually has to do with this exact phrasing of the 14th Amendment which means are you a citizen if you’re born or naturalized in the United States and then there’s a phrase, or subject to the jurisdiction thereof. And so people wonder: what does that phrase mean? Does it give Congress some kind of discretion to enlarge or narrow who are considered citizens? What does this phrase “born on the territory” mean? So I think that, without getting into it too deeply, I think one of the major faults of the Dred Scott decision, which is what the 14th Amendment was overruling, was the idea that slaves were not citizens of the United States even though they were born on the territory of our country, and the 14th Amendment, as you described, was primarily written to overrule Dred Scott and all it represented. And so, to me, I think the idea of the 14th Amendment was actually to take that issue out of politics to which it had been subject to before the Civil War, and to make clear everyone born on the territory of the United States is a citizen. Now, to my mind, this is where the constitutional issue has become a symbol for the debate over immigration, and, to me, actually these “anchor babies,” they’re called, there aren’t that many of them. I mean the real problem is preventing crossing of the border by people who are not legally entitled to. Those numbers are much, much larger than the number of anchor babies that are born in the United States to illegal alien parents. So, to me, I think the constitutional question has become a symbol for where people stand on that latter question.
Audience Member: The Supreme Court can only legislate if Congress delegates that authority to them. So how did we get there and what’s the way back if there is one?
John Yoo: So really it’s the agencies that legislate not the Supreme Court I think you mean. So, if most of you come into contact with federal law at all, it’s probably not because of an act passed by Congress. It’s because you are confronting a regulation that’s been made by a federal agency, and so the big question is how far can it go, and I would say that’s a great cancer on our original form of government which does not really talk about this. There were some agencies. There were only four agencies in the beginning; Treasury. I think in the good old days we used to call it “War,” not ”Defense.” Treasury, War, State and then there actually was just the Attorney General, were the four camps of the secretary, and now we have hundreds. We have, I think – I actually did a book on this – we have so many federal agencies that the government doesn’t even know how many federal agencies there are. They tried to count them all and then gave up. But we know there’s more than at least 8,000 of them. All right? And as you probably also know, President Obama is setting all kinds of records on how many regulations they are issuing, and he’s trying to get even more out in the last few months he has in office.
So, how far? Here’s two problems. One is Congress itself has claimed enormous powers to regulate everything in the country under federal power, Obamacare just being the pinnacle of that claim, but you see it in all kinds of areas like the environment, for example, where the Endangered Species Act prevents people from making changes on their land that might hurt frogs and toads, which themselves cannot cross state borders. Or there was a case in the Supreme Court they had to hear the other day where the EPA and Army Corps of Engineers claimed that a temporary puddle in someone’s backyard was a navigable water of the United States and fell under federal jurisdiction. Only a bureaucrat could make that kind of stuff up, right? So that’s the one problem. It’s just the expansion of federal powers. Then the second problem is Congress has basically said to the EPA or the Department of the Interior or to all these agencies, you can make any regulation you want in this area as long as it’s in the public interest. And the courts have refused to place any limit on how far those agencies can go. And, in fact, they have created doctrine called the Chevron Doctrine where they actually defer to the choices made by the agencies about reading their own powers and their scope.
This is something that started in the ‘30s, but it’s a bipartisan thing. This really accelerated under Johnson and Nixon, and, in fact, President Reagan himself appointed judges who were quite friendly to the idea that courts should not review whatever agency. In fact, Justice Scalia himself was the primary thinker behind the idea that courts should not review agency decisions. I think that’s something that a new conservative majority should change because I think the power has gotten out of control to the point where Congress itself doesn’t even know what decisions are being made by these bureaucrats who are exercising the powers that Congress gave them. Yes?
Audience Member: John –
John Yoo: Uh oh. I’ve just been attacking Congress over and over again. There’s a Congressman in the audience and a former judge.
Audience Member: You’ve never come anywhere close to criticizing Congress as much as I have.
John Yoo: That’s true.
Audience Member: But you and I do share something and that is that often the mainstream media takes things that you’ve said, totally misquotes in headlines, like the headline “John Yoo: Bush Ordered Torture” as a quote, and of course most people know you wrote a terrific memo about waterboarding, and yet we’ll see there’s this line – it’s no secret that Yoo is an ardent torture enthusiast.
John Yoo: Only small animals.
Audience Member: You know, Yoo is all for killing puppies and anything we love and care about. I mean, it’s really gotten – sorry, but I don’t think you’ve touched on it. But would you just set the record straight here on how you see waterboarding and whether or not it’s torture? And I can quote Eric Holder in the first hearing we had before our judiciary committee when he answered Dan Lundgren by saying, when Dan said, “Well, what about when our trainers use waterboarding on our potential agents?“ And he said, ”No, it’s now an issue of intent.” Well, obviously it’s not an issue of intent. It’s an issue of consent. The trainees have expressly consented, but I’ve seen enough of those headlines. I’d love to hear from your mouth your position on torture.
John Yoo: Thank you. Thank you very much for that question. So let me just start describing how we had to make this decision and why I got involved. So you will remember that the Bush administration, when it came into office in 2001, was going to be focused on domestic policy. Remember Condoleezza Rice and President Bush had said the 82nd Airborne is not going to be escorting kids to kindergarten anymore, right? And they’re talking about Bosnia. But still there were some of us who were hired into the administration to focus on national security, and so before I went into the administration, my scholarly career was on the powers of the president in wartime. That’s an issue I had read about all these problems associated with. I’d have to say, the one place where these issues had come up before us in the United States after 9/11 and where I studied very hard what they did was, of course, Israel. Israel, of course, had confronted every single one of these issues before, and it has a legal culture like our own and had engaged in full, robust debates about all of these issues. And our policy on interrogation, surveillance, use of drones, targeted killings, where if you look at it, are very similar to how the Israelis came out on every single issue, because they have an open democracy. They have a legal system like ours and they have an existential terrorist threat, and they have to balance things just like the way we do.
So after 9⁄11, we’re attacked. I’m in my office on 9⁄11. I’m actually one of the few people who did not get to go home in the mother of all evacuations. Washington, DC, if you remember, was ordered to evacuate, which meant a six-hour traffic jam getting out of the city, so I didn’t get to participate in that. And so we worked on these issues non-stop for two years. Just three months after the 9⁄11 attacks, I think, our amazing intelligence agencies scored a coup. They start capturing the No. 2, 3 and 4 people in Al Qaeda. This is incredible if you think about it. It’s as if Al Qaeda captured Donald Rumsfeld and George Tenet and Condoleezza Rice, which I bet some Democrats wish had happened, actually. And as Attorney General Mukasey said last night, they’d all been trained to resist our normal interrogation methods because we had put publicly on the web what we do in interrogations? And so the question became, as the CIA put it, what can we do legally, but what is the line to try to pressure these guys to give up information about pending and terrorist attacks. And I think most of you, if you remember, thought there would be another terrorist attack well soon after 9⁄11.
Al Qaeda actually has a history of going back at the same targets over and over again. I think, actually, the reason we haven’t had a terrorist attack of that kind since then was because of the measures we took right afterwards. If we hadn’t, I think they easily would have carried out another 9⁄11-style attack. And so the question was, how far can you go? So the obvious question we asked is what do we do to our own soldiers when we’re training them? Because if we’re doing it to our own soldiers, we’re not torturing them by definition. And so most of the things we approved would not trouble most people. Waterboarding was the closest and hardest question, and the question was whether it violated the torture statute. I think on this reasonable minds can differ, but my mind was made up when I discovered that we had waterboarded 20,000 American soldiers and officers to train them. And so in my mind, that was not torture because we would not torture our own soldiers. And we looked to see what happened to all those 20,000 and none of them ever reported any kind of psychological or physical harm from it afterwards. So to me, that was, that answered the question. But you’re right. Afterwards I’ve been the subject of lots and lots of attacks, but as we were saying before, I’m a professor at Berkeley. I’m kind of used to it already. So this was nothing new to me, and I clerked for Clarence Thomas. I’d seen the whole liberal circus before about how to attack conservatives, and I’ve read Alinsky’s stuff, and I’ve read David Horowitz’s stuff, so I sort of knew what to expect, and I have tenure, so I could say whatever the hell I want and they can’t do anything to me. So, actually, to tell you the truth, only conservatives are the ones who benefit from tenure these days in the university. It’s true. Because if you’re a liberal, you have no fear of ever being removed by the administrators, who are all themselves way to the left. It’s only the few conservatives who need lifetime protection to be able to say what they think, and if you think about it, that’s the case. So thank you for giving me the chance to explain. You can’t control what’s on Wikipedia or the headlines, but it gets you in the media more than you would normally be, so it got me on Jon Stuart. And I got to be the only conservative who kicked his butt on national TV, according to his own admission, so it can’t be all bad I suppose. Yes. Another ringer! Beware: We have a plaintiff’s trial lawyer in our midst.
Audience Member: I’m always, always on the side of liberty. So I really enjoyed your presentation. That’s a brilliant answer to a probing question. I have sort of a minor quibble, so I’m kind of de-scaling, but you made the comment. I totally agree with your applause for the contribution that Justice Scalia made, a champion, a giant. You also suggested that he may have preferred being in the minority and not in the majority, and I think in many ways we could say that. There’s one little quibble I have and I want to ask you about the decision, the California medical marijuana litigation, the Raich case, where Justice Thomas filed a concurrent opinion in the majority where he basically upheld a very broad region of the Commerce Clause, which was not helpful for the John Roberts approach to this broad interpretation. So it seems to me that, as much as Justice Scalia deserves massive accolades, I don’t think the accolades nearly should be as ringing as the accolades we give to Clarence Thomas, who got it totally right in my view –
John Yoo: I agree with you.
Audience Member: — in his dissent in the medical marijuana case, in Raich, and I just wanted to see how you felt about those issues.
John Yoo: Manny, I totally agree with you. To say he was a great giant in the law that had this transformative effect doesn’t mean he was perfect, of course. And I think the one area where Scalia was not quite right was he was in his career an administrative lawyer, and so he actually was not a very tough critic of the growth of the administrative state that we’re living with now that is an unseen tax increase, not just in terms of finance, but on spirit and entrepreneurship. I think people don’t realize the effect it’s having on our country sometimes. Scalia could never really bring himself to question the foundations of it because that was his field, and so as you rightly point out, he was not really a big voice for limiting the powers of the federal government versus the states very often.
He kind of made up for it, I think – so the case about medical marijuana. This is a great case. This is a case where two people wanted to challenge the federal law making it a crime to possess marijuana – not sell it, but possess it – so one person grew the marijuana in their backyard and gave it to another person. Where do you think this happened? Berkeley, of course. It’s right down the street from my house, actually, where they concocted the facts for this case, but they were still prosecuted. It’s a test case, and Justice Scalia wrote a concurring opinion in that case approving the scope of federal power reaching so far that it could regulate the transfer of one plant that you grew in your backyard to your neighbor. And again, if the federal government can regulate your growing plants, what can it not regulate? In fact, Justice O’Connor, although I disagree with her on a lot of things, she did write an opinion on that case and other cases where I think she was right. She said under this theory the federal government can tell you what to grow in your window boxes in apartments, your plants. I think I think O’Connor is right. Justice Thomas, I think, had the better view, which is that this is just simply outside the power of the federal government as our framers understood it. And even though, as you said, the 14th Amendment was passed to change the powers of the federal government to protect the freed slaves and minorities, and we can argue about what those rights should be and their scope, there’s no doubt it expanded the powers of the federal government, but not that far.
So I think, yeah, my hope is in the end Justice Thomas will be seen as even the greater intellect. I think there’s this canard that the liberal media used that Scalia was the deep thinker and Thomas just sort of echoed what Scalia was thinking. I think you’re going to see what a lot of, I think lawyers who really study the Court closely knows that Thomas in some ways was the deeper thinker because he goes beyond the law. Yes, we should clap for that. Yeah, I think that Scalia is more, was a great lawyer, but I think Thomas is the greater political thinker, and I think sometimes you need more of that to know the right thing to do on the Court, not just to know what the cases say. But for example I think the argument I pointed out here of what progressives have been doing with the Supreme Court, to use it as a vehicle for social change, that’s the kind of thing which Thomas knows right away. That’s not the kind of thing that Scalia would really think deeply. Yes.
Audience Member: John, we’re talking about the Supreme Court, and when you go to the Constitution, its Article 3, so it’s the third last and least of the branches, and it’s a very short article that gives the Supreme Court primary jurisdiction in the very limited number of instances in that appellate jurisdiction. And then it says that the federal judiciary is up to Congress to create as it wishes to, so that it’s really under the control of Congress, and yet Congress has ceded to the Supreme Court over the years. And as David pointed out earlier, really from the ‘60s on, the left has seen the Court as a kind of super legislature. So we’re now almost in the position where whatever Anthony Kennedy thinks is actually now the law of the land. What can be done to reverse, to restore the Court back to its constitutional essence because hasn’t it now become a kind of threat to democracy at this point?
John Yoo: Can I just say, I think this really encapsulates the hopes of the Horowitz mission is that a screenwriter and writer dressed all in black can get up at a forum and lecture me about what the Constitution says. And he’s right. And he is right. That’s the other thing I should say. And he correctly is correcting me on what the Constitution says because Michael is right. If you look at the third article of our Constitution, which creates the court system, and which Alexander Hamilton said would be the least dangerous branch, right? He said the Supreme Court would be the least dangerous branch. I don’t know if that made it into the raps and the Broadway musical because it doesn’t have a good rhyme to it – “least dangerous” – but I’m sure Michael could come up with a snappier rendition of “least dangerous” branch like “smaller stick” or something. Because if you look at Article 3 there’s nothing that the courts have to force us to obey it. Right? Actually, Alexander Hamilton said the president has the power of the sword. Congress has the power of the purse. He said the Supreme Court only has the power of judgment, and by that he meant the court has to persuade us to follow it, to agree with it. The Court can’t actually force us to do anything, and this has been something that troubled the Court for most of its existence until the 1960s, and then they thought no, actually our job is to lead the people to the better future.
So as Michael said, what can you do under the Article 3 Powers to change that? Congress has the power, two types of powers. One is, as Michael said, the power to control the jurisdiction of the federal courts. So right now we’re in a world where the Congress has said any time someone makes a claim under federal law, it ultimately can get to the Supreme Court. Of course Congress could change that to narrow the powers of the Supreme Court and to divest it more to the State courts if it wanted to, which has been proposed over the years. The only thing the Congress has – and this is something FDR tried – is you can change the membership of the Supreme Court by changing its size. Now FDR, the unfortunate thing – I actually think FDR was wrong because I think the court was actually correct in that time on the law, but I also think President Roosevelt was within his rights to try to pressure the Court but he didn’t do it openly. If you remember, he won the 1936 election. He campaigned against the Supreme Court as being hostile to the New Deal. I think quite rightly hostile. I think the New Deal in some respect was unconstitutional. An then FDR said I’m going to expand the Supreme Court to 15 people because I don’t want us to live in the horse-and-buggy age, he called it, that the Supreme Court justices are. But he didn’t say openly as Michael is, that I’m doing it because I oppose the interpretation of the Supreme Court. This is classic FDR. He said instead, “Oh, those nine justices, they’re so old. I want to appoint Assistant Justices. So for each one that’s over the age of 70, we’ll create a new justice to assist the wise older justice.” If that happened, it’d give him six appointments to the Supreme Court. So the Senate would have none of this and rejected this court packing plan, as it’s called. But Michael’s point is a good one because what happened after that, the Supreme Court under that pressure changed its mind. In constitutional law we call it “the switch in time has saved nine” because the Court decided if we don’t give way, future presidents will do this to us over and over again. But that should not let us forget that the framers put into the Constitution powers for Congress to control a wayward Supreme Court. They had thought about this, they had seen it in some of their states, and they wanted to make sure that the Court never arrogated the kind of powers which today I think it has. And so you’re right, in part it’s up to the people we elect to the presidency and Congress to try to correct it. The justices are not going to correct it. Even some of the conservative ones, I would say Kennedy here, Roberts, they love being the super legislature. What’s better than to get to make all these decisions and you’re there for life, your pay can never be cut and you get to make the most important decisions, why would you willingly give that power up? This almost sounds like a movie. But’s it a problem that the other branches are going to have to correct.
Audience Member: Okay, John, I have a real quick question with 14 parts. Just kidding. Could you explain the doctrine of substantive due process and why it’s important?
John Yoo: I’m laughing because that would take – we give whole courses on that subject and you’re not even paying $50,000.00 and you want me to give you the answer. Well let me give it to you really quick. So the 14th Amendment, which Mr. Hayden’s first question was about, the 14th Amendment says every citizen enjoys the privileges and immunities of citizens – the right to due process, your life, liberty and property cannot be taken without due process and then the right to equal protection of the law. Those are the three great rights we have against States. And we made a mistake, actually. You’re right that we have misinterpreted what the original framers of those amendments meant. They thought the rights would come through the Privileges as Immunities Clause, which it sounds like, right? But strangely, instead, in the beginning of the 20th century, the Supreme Court said most of our rights come from the Due Process Clause, which makes no sense as a matter of text. So this is one of Scalia’s contributions. He says due process sounds like procedures and, in fact, it’s what procedures do you get before the government takes your life, liberty or property away, and being a fan of capital punishment, Scalia really liked the life part being taken away with due process. So life, liberty and property without due process, it sounds like what hearings do you get? What evidence does the government have to put on? However, starting in the 1930s and then really accelerating in the Warren Court years in the ‘50s and ‘60s, the Court actually made that Due Process Clause the source of rights like abortion, gay marriage, contraceptives, on and on. A lot of these rights that the progressives made up, they located there. So how do you reconcile that with the text? So they made up this phrase, “substantive due process.” But I think it does not exist in the Constitution and it’s just a fiction and a lot of liberals, if they’re honest, would say it is a fiction. They would have to admit it because of the text, and if you look at the framers of the original 14th Amendment, they would never have thought the due process clause was a source of substantive rights. They would think it comes from the Privileges and Immunities clause, which would change which rights there were and which rights there were not. So if you want to learn more, then can you enroll as a student, pay the other $48,000.00 you owe me, and come to Berkeley, and we’ll go through this in mind-numbing detail. So thank you very much for bearing with me.