WEBVTT - Judge Napolitano 

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<v Speaker 1>KRC, the talk station. 831 and 55 KRC, the talk station.

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<v Speaker 1>It's Wednesday and a very happy Wednesday to you. Always

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<v Speaker 1>extra special Wednesday because we get to hear from Judge

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<v Speaker 1>Ed Napolitano at this time. Judge Napolitano, welcome back to

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<v Speaker 1>the 55 KRC Morning Show. Did you watch the game?

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<v Speaker 2>No, I went to sleep at 8 o'clock. I don't

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<v Speaker 2>live very far from the stadium. In New York City.

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<v Speaker 2>But like you, you know, I get up before the

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<v Speaker 2>birds do. But the first thing I did when I

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<v Speaker 2>got up this morning was to go right to my

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<v Speaker 2>computer and find out the result. I couldn't believe it.

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<v Speaker 2>Two kids from Boston, Cam Schlitter, the pitcher, and Ben Rice,

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<v Speaker 2>who hit two home runs, one of which was a

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<v Speaker 2>grand slam, were the heroes of this game for the Yankees.

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<v Speaker 2>They both grew up in Boston as Red Sox fans.

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<v Speaker 1>How about that? Doing well for New York. Pivoting over.

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<v Speaker 2>Just remember, Babe Ruth was traded to the Yankees from

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<v Speaker 2>the Red Sox.

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<v Speaker 1>How about that? Can't unring that bell, can you?

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<v Speaker 2>No.

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<v Speaker 1>The October term of the Supreme Court, and I did

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<v Speaker 1>get your column, and I love it. And again, you're

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<v Speaker 1>obviously constitutional-based criticism of Donald Trump and the war waging,

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<v Speaker 1>and I get that all day long. But I was

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<v Speaker 1>wildly curious to get your reaction about some of the

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<v Speaker 1>cases they've announced that they'll be hearing this October, one

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<v Speaker 1>of which, and I find this particularly troubling, and it

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<v Speaker 1>sort of dovetails quite nicely with a parental rights case,

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<v Speaker 1>but it's this climate change, Suncor Energy versus County Commissioners

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<v Speaker 1>of Boulder, Colorado. Now, this involves cities and governmental entities

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<v Speaker 1>suing oil companies on the basis that they knowingly contributed

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<v Speaker 1>to climate change and misleaded the public about its impacts.

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<v Speaker 1>So Colorado Supreme Court ruled for the city, let them

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<v Speaker 1>go forward. Now it's up in front of the Supreme

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<v Speaker 1>Court on whether this type of litigation and others of

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<v Speaker 1>its ilk can go forward. I struggle with this, sir, because,

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<v Speaker 1>you know, in terms of climate change, maybe the tobacco companies,

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<v Speaker 1>for example, did know their products caused cancer and they

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<v Speaker 1>sat on it. But in terms of climate change, the

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<v Speaker 1>quote-unquote scientific evidence has been wildly across the board. We

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<v Speaker 1>were going to go into a new ice age back

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<v Speaker 1>in the 70s. Then it was going to be global

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<v Speaker 1>warming and we were going to be underwater. Then that

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<v Speaker 1>didn't happen, and Gore's predictions didn't manifest themselves. Now it's

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<v Speaker 1>just climate change, so every single adverse weather incident we

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<v Speaker 1>face now is attributed to us exhaling. How can you

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<v Speaker 1>hold just oil companies and some subset of all of

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<v Speaker 1>the oil companies, because it's usually just the big ones,

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<v Speaker 1>how can you hold them accountable, and how can you

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<v Speaker 1>possibly attribute knowledge when the scientists don't even know, And

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<v Speaker 1>then also, how could you attribute whatever dollar liability, and

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<v Speaker 1>that would have to be a concocted figure in and

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<v Speaker 1>of itself, because multiple industries out in the world belt

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<v Speaker 1>out carbon dioxide and pollutants. So they're just one small sliver.

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<v Speaker 1>This has to be rejected as a theory of liability.

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<v Speaker 1>Where do you come down on that one, sir?

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<v Speaker 2>Well, I agree with you 110% on everything you just said, Brian.

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<v Speaker 2>I mean, I go all the way back to the

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<v Speaker 2>tobacco litigation and now to the big tech litigation. These

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<v Speaker 2>are just shakedowns by state attorneys general, all of whom

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<v Speaker 2>want to become the governors of their states and all

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<v Speaker 2>of whom want to say, look at the free money

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<v Speaker 2>that I brought you. But I must tell you, Brian,

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<v Speaker 2>this is worse than you think. This is the case

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<v Speaker 2>on which my Princeton classmate and former debate partner, Justice

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<v Speaker 2>Sam Alito, has recused himself. because he and his wife

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<v Speaker 2>are shareholders in some of these very, very small shareholders.

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<v Speaker 2>I don't want to be critical of Justice Alito. He's

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<v Speaker 2>doing what he believes is intellectually honest and ethically compelled.

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<v Speaker 2>Very small shareholders. But as a result of that recusal,

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<v Speaker 2>the court watchers are predicting a 4-4 tie, meaning the

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<v Speaker 2>Colorado Supreme Court will be upheld, meaning these litigations will proceed,

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<v Speaker 2>meaning the price of everybody's gasoline is going to go up.

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<v Speaker 1>Thank you. And how far will it go up if

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<v Speaker 1>they succeed in any one of these cases?

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<v Speaker 2>Because we're talking- Watch for New Jersey and Connecticut and

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<v Speaker 2>California and New York, these states that have liberal democratic

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<v Speaker 2>government and liberal, ambitious attorneys general to pile on and

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<v Speaker 2>do the same thing. Like I said, it's the tobacco

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<v Speaker 2>scam repeated, the big tech scam repeated. Now it's big oil.

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<v Speaker 2>I don't know how Justice Alito would rule. I would

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<v Speaker 2>think he would probably rule this as a case of

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<v Speaker 2>federal preemption, and the states can't get involved. But Colorado.

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<v Speaker 1>The.

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<v Speaker 2>Colorado Supreme Court found that it's utterly lawful under Colorado

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<v Speaker 2>law and the Colorado Constitution. I don't know what the

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<v Speaker 2>breakdown of the four would be. I'm thinking that Justice

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<v Speaker 2>Barrett would join her liberal female colleagues, and that will

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<v Speaker 2>be the four to four. I don't know.

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<v Speaker 1>Frightening prospect if it comes down that way. That's why

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<v Speaker 1>we're looking forward to seeing what happens in these important cases. Now,

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<v Speaker 1>I drew a parallel with that. and the St. Mary

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<v Speaker 1>Catholic parish versus Roy where the 10th circuit upheld a

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<v Speaker 1>Colorado provision requiring all preschools to agree not to discriminate

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<v Speaker 1>on the quote, race, religious affiliation, sexual orientation, gender identity, income,

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<v Speaker 1>or disability. Close quote. Catholic court says, whoa, this requires

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<v Speaker 1>the Catholic church to violate our religious principles as a

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<v Speaker 1>condition of participating in the preschool program of funding. Well, um, what,

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<v Speaker 1>This is a conflict here we got. I mean, the

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<v Speaker 1>free exercise of religion, the Catholics believe in certain things,

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<v Speaker 1>and this trods upon the free exercise of religion, doesn't it?

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<v Speaker 1>And doesn't it also compel speech?

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<v Speaker 2>This is a no-brainer. This will be a six to

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<v Speaker 2>three reversal, not because the six of them are Catholic,

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<v Speaker 2>but because they have consistently upheld that the free exercise

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<v Speaker 2>of religion trumps just about all other rights. Here's a

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<v Speaker 2>cocktail party question for you. Which freedom is the first

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<v Speaker 2>freedom protected in the First Amendment? Everybody will say speech.

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<v Speaker 1>Free exercise.

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<v Speaker 2>Correct. Correct. Madison intentionally put that first and under a

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<v Speaker 2>structural interpretation of the Constitution. That which is first is

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<v Speaker 2>more important than that which is second. There's your answer.

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<v Speaker 1>Amen. I learned that from Professor... Andrew Napolitano here on

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<v Speaker 1>the 55 KRC Morning. I was reminded of it. I've

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<v Speaker 1>read the Constitution before.

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<v Speaker 2>You know, I ran into a judge the other day.

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<v Speaker 2>I didn't recognize her. I didn't even know she was

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<v Speaker 2>a judge. We're at the dry cleaners. And she says

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<v Speaker 2>to me, good morning, professor. And nobody calls me professor.

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<v Speaker 2>I said, have we met before? She said, you taught

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<v Speaker 2>me constitutional law 20 years ago. I'm now a superior

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<v Speaker 2>court judge. Oh, I hugged and kissed her.

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<v Speaker 1>That's awesome. All right. Actually, the one I was saying

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<v Speaker 1>is a parallel to the Exxon or the gas case,

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<v Speaker 1>the climate change case. Parental rights. Ethical care versus Ferguson.

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<v Speaker 1>Washington state amended its laws to delay shelters in notifying

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<v Speaker 1>parents of a runaway child who has, quote, gender affirming treatment.

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<v Speaker 1>In other words, a gender affirming treatment child runs into

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<v Speaker 1>a runaway shelter. They are told not to notify the

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<v Speaker 1>parents but actually call the Department of Children, Youth, and

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<v Speaker 1>Family Services because it is an abusive home that threatens

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<v Speaker 1>a child who is not supported for gender-affirming care. Now,

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<v Speaker 1>my question is, since even entire countries have determined that

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<v Speaker 1>this gender-affirming care is, in fact, abusive and not helpful

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<v Speaker 1>and is not the state of medical procedures, or should

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<v Speaker 1>it be, that this is another one where, you know,

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<v Speaker 1>come on, the science at minimum is out on this.

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<v Speaker 1>How can they not notify parents?

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<v Speaker 2>This violates a very famous case called Wisconsin Against Yoder,

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<v Speaker 2>which stands for the proposition that the right of parents

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<v Speaker 2>to control the destiny of and raise their children as

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<v Speaker 2>they see fit is among the highest rights we have.

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<v Speaker 2>The state would have to have a compelling state interest,

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<v Speaker 2>have to pass strict scrutiny in order to interfere with

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<v Speaker 2>that right. No way can it. and no way will

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<v Speaker 2>it with this, uh, court. I think you'll be pleased, uh,

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<v Speaker 2>with the outcome. Look, I could be wrong on these predictions. Uh, but, but, uh,

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<v Speaker 2>and knowing the way the members of the court think

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<v Speaker 2>and knowing what an outlier this particular ruling is, that

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<v Speaker 2>a child can run to a shelter and the shelter

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<v Speaker 2>doesn't have to call the parents. I mean, I'm surprised

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<v Speaker 2>the court is even waiting for oral argument on this one.

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<v Speaker 1>Well, and, uh, I guess I am, too. Just sort

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<v Speaker 1>of a rhetorical question here, Judge Anapolitano. How do you

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<v Speaker 1>think these decisions would turn out, given your predictions, if

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<v Speaker 1>the Democrats get their way and pack the Supreme Court

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<v Speaker 1>with a bunch of liberal justices?

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<v Speaker 2>Well, I mean, that can't happen until there is a

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<v Speaker 2>Democrat in the White House, because obviously a Republican in

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<v Speaker 2>the White House would veto that. You know, the number

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<v Speaker 2>of justices has fluctuated over the years. Originally, it was five.

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<v Speaker 2>Then it went up to seven. And then it went

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<v Speaker 2>up and down and up and down around the time

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<v Speaker 2>of the Civil War. At one point, it was 10.

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<v Speaker 2>And then when a justice retired, the Republicans who had

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<v Speaker 2>a supermajority reduced it to nine so that Andrew Johnson,

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<v Speaker 2>after Lincoln was killed, couldn't replace the one who retired.

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<v Speaker 2>And then another one retired and they reduced it to eight.

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<v Speaker 2>And then another one retired and they reduced it to seven.

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<v Speaker 2>And then as soon as Ulysses S. Grant became president,

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<v Speaker 2>they raised it to nine. So he had two to

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<v Speaker 2>put in there. This happens all the time. But what

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<v Speaker 2>the Democrats have proposed is what FDR proposed in 1936.

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<v Speaker 2>And it was such a lead balloon that he withdrew

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<v Speaker 2>the proposal. I think the same thing will happen here. But,

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<v Speaker 2>you know, how can I predict? Because who knows who

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<v Speaker 2>will be elected president in 2028? We don't even know

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<v Speaker 2>who's going to win the midterms next month, although it

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<v Speaker 2>looks like the Democrats.

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<v Speaker 1>Yeah. I just put these questions out there because, yeah,

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<v Speaker 1>the midterms are fast approaching. We start early voting here

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<v Speaker 1>in Ohio on Tuesday next week. And just to remind

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<v Speaker 1>folks what the platform is on one side versus the other,

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<v Speaker 1>Republicans aren't running on packing the Supreme Court. At least

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<v Speaker 1>they have a decent makeup right now from my perspective.

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<v Speaker 2>Sherrod Brown actually running on packing the Supreme Court?

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<v Speaker 1>Well, he's wed to the entire DSA agenda from all accounts.

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<v Speaker 1>He's voted with Democrats 98% of the time. So, yeah,

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<v Speaker 1>we can presume that at minimum.

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<v Speaker 2>Wow.

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<v Speaker 1>Wow.

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<v Speaker 2>Yeah. And I understand the governor's race in Ohio is

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<v Speaker 2>now neck and neck.

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<v Speaker 1>Yeah, we've been getting poll after poll after poll with

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<v Speaker 1>Amy lockdown act and being a few points ahead within

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<v Speaker 1>the margin of error. But my listening audience doesn't buy

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<v Speaker 1>into it. She is she's been a tremendous disappointment here

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<v Speaker 1>in the state. And I think that's just a reflection,

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<v Speaker 1>as most people conclude, of frustration over Donald Trump, you know,

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<v Speaker 1>evil orange man gas prices over which the governor of

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<v Speaker 1>the state of Ohio is not going to have any control.

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<v Speaker 1>But got it. We've got a superior candidate in Vivek Ramaswamy.

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<v Speaker 1>He's quite a brilliant man. Anyhow, Judge Napolitano, Judging Freedom

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<v Speaker 1>is a podcast. Find it where you find your podcasts.

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<v Speaker 1>Typical Wednesday lineup, sir. You got somebody special on today?

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<v Speaker 2>Oh, I have my two heaviest hitters today, Colonel Douglas

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<v Speaker 2>McGregor and Scott Ritter. So looking forward to the afternoon.

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<v Speaker 1>Always interesting and informative. Judge Napolitano will do this again

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<v Speaker 1>next Wednesday here on the 55 KRC Morning Show. And

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<v Speaker 1>as always, thank you so much for your time.