The work that remains

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LINDSAY MAST, HOST: It’s Wednesday the 1st of July.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Lindsay Mast.

NICK EICHER, HOST: And I’m Nick Eicher.

First up, a blockbuster finish at the Supreme Court—but not a simple left-right one. The court settled disputes over women’s sports, political parties, independent agencies, the Federal Reserve, birthright citizenship, and mail-in ballots.

MAST: So today, three big questions.

One: Have Christian conservatives won the culture war—or at least that part of the culture war fought at the Supreme Court?

Two: The court has strengthened the presidency, but what happens when that presidency changes hands?

And three: Disappointing rulings on birthright citizenship and mail-in ballots. So what’s next?

EICHER: Well, what’s next is Hunter Baker. He joins us now. Hunter is a senior fellow at the Center for Religion, Culture, and Democracy.

Good morning, Hunter.

HUNTER BAKER: Good morning.

EICHER: Well, congratulations on the new post. I think the immediate listener question has got to be, “Wait, are we losing Hunter?” So I’ll ask: Are we losing you?

BAKER: No. I’ve enjoyed doing the podcast so much that I think it intensified my interest in doing more work of this type, including the research and writing. So I took a job that goes along with these interests.

EICHER: I can go with that. Good news.

MAST: Well, Hunter, here’s proposition number one.

The Supreme Court has been delivering on major culture questions, many of these cases shepherded by the conservative legal movement, Alliance Defending Freedom, and other groups. Roe v. Wade overturned by Dobbs. The Coach Kennedy case on praying on the football field. Religious schools. Religious accommodation at work. Jack Phillips finally winning a long battle. And now women’s sports protected from the transgender revolution.

So, Hunter, has the court and the broader legal movement settled most of the major fights Christian conservatives took into court?

BAKER: I don’t know if I would say settled. Maybe we’ll have a time of equilibrium.

I think that Roe v. Wade taught the American people to believe fairly strongly in abortion rights, and that belief is going to be with us for quite some time. I look forward to the day when, under Democratic consideration with Dobbs, we’re able to make a U-turn on abortion. But for now, we have a pretty powerful status quo that we’re dealing with.

I think that Obergefell has radically upset the way Americans think about marriage. My hope is that, before it’s too late, we can begin to rethink and reconsider. I’m not sure that they’re going to go back and reverse that ruling, but that’s something that is still wide open, and I think that Americans need to think about it a lot.

On religious liberty, yes, it’s true that we had a victory on the Masterpiece Cakeshop case, but that was kind of an attenuated victory. There’s more to come on that.

On the trans students in sports issue, I think that we probably are going to get to a point of settlement on that. I think that’s really great from the court. It’s just so scientifically obvious that you should not have boys playing in women’s sports, and I think that that issue is probably settled.

EICHER: Well, Hunter, now a purely political case on campaign finance. The court saying that political parties may spend freely in coordination with their own candidates.

Does this one quietly strengthen the traditional political parties, or do parties now just become bigger versions of the outside interest groups that we already have?

BAKER: I think this takes us away from this weird asymmetrical situation where the super PACs can do things that the parties can’t.

I think it’s just realistic. Not only is there the fundamental free speech issue, but there’s also this issue of: Can’t we just have disclosure? Can’t we just know who’s giving how much money? Doesn’t that really deal with the corruption concerns that we have?

Basically, sunlight is the best disinfectant. I think that we can have a lot more success with good laws regarding disclosure instead of these highly artificial spending caps and rules about coordination.

EICHER: Do you think that stronger parties will mean more accountability, or is it just going to be more money with maybe better branding? I don’t know.

BAKER: It’s a good question.

We’re in the era of the super-wealthy politician who does not necessarily rely on the party. We saw Donald Trump come out of nowhere and establish himself that way. Sometimes it works, and sometimes it doesn’t, but I think we’re going to see more of it in the future.

MAST: Hunter, moving to other cases. The court says the president has greater authority to remove heads of independent agencies, although it does treat the Federal Reserve differently, and conservatives like this outcome.

Then there’s the immigration ruling on TPS and the asylum claims that we’ve covered here.

But, of course, these moves strengthen the presidency generally. The rules do not expire after one administration. So when the White House changes hands, are conservatives going to be just as comfortable with this much presidential power?

BAKER: If the president has more authority over agency heads and the bureaucracy, that’s a pure win for conservatives or Republicans.

The reason I say that is that the bureaucracy has, for decades and decades, essentially been a fourth branch of government and heavily tilted toward the Democrats and the left, very often frustrating the agendas of Republican presidents.

So the degree to which the president will be able to exert more authority and fire those people who are not responsive, I think it’s actually going to make government work much better.

MAST: So then where does Congress fit? Has Congress outsourced so much power that these fights are really symptoms of legislative weakness?

BAKER: Well, Congress needs to be making the laws, and the president needs to be enforcing the laws.

But I would argue that the bureaucracy is not only unresponsive to presidents, I think it’s probably somewhat unresponsive to Congress as well.

I think that the bureaucracy has been highly independent, highly obstructionist, and it lobbies Congress. It shapes what Congress does.

So I think that it needs to be brought to heel, and a decision like this is just the beginning of that.

EICHER: Well, Hunter, Chief Justice Roberts had the majority opinion in issue three, the birthright citizenship issue.

He says that children who are born here, even to parents in the country unlawfully or temporarily, are automatically citizens under the 14th Amendment.

Now, I think this opinion could be a disaster for the country, as we have discussed over the last month, since we started thinking that the decision was near. You think that the court basically got it right. Why?

BAKER: Well, we really get into questions of law versus policy.

When I look at the text of the Constitution, and we’re talking about those people born in the United States and subject to the jurisdiction thereof, I think that the only people who were not subject to the jurisdiction were families of diplomats, people who are in Indian tribes, and individuals who are part of an invading army. I think that’s who that refers to.

Now, if that is the correct interpretation of the text, then this ruling is the correct ruling.

Now, I said law and policy. Policy is a separate question.

Some people are saying this can’t be right regardless of what the text says. It’s a national suicide pact. It means that we can have all these potential sleeper citizens and birthright tourism and all kinds of problems.

All I can say to that is that is not the Supreme Court’s problem. We do not need to have the Supreme Court ruling in that fashion. We have to honor our own Constitution, which has lasted longer than any other.

If it is as bad as we say it is, then we need to amend the Constitution.

But I’ll say something else. One thing that I agree with Warren Buffett about—I disagree with him about a lot of things—but one thing that I agree with him about is, don’t ever bet against America.

I think that I am bullish on America, and I am bullish on the impact that America will have on the people who come to this country.

EICHER: Yeah, so I heard some of the things that we have talked about as you were dismissing those.

Let me tell you my difficulty here.

I have so much respect, Hunter, for Justices Alito and Thomas—more than anybody at the Supreme Court. I think of them as principled conservatives, and I outsource a lot of my thinking to them because they are both so brilliant.

So I don’t think I’m making just a special pleading here. I am persuaded that the 14th Amendment is not a suicide pact, and I’m very concerned about this ruling.

The justices spent pages reconstructing what people understood in 1868. Meanwhile, the country they’re governing looks nothing like it.

We’ve got the birth tourism industry, for one thing, and we’ve got enemy nations taking advantage of that, for another thing.

Is there room, Hunter, in constitutional interpretation for changed circumstances, or are we just stuck with the text?

BAKER: I think that our Constitution is made to be amended when we think it is wrong.

I think that we have lost patience with amending the Constitution.

I have been upset over and over again when the left amends the Constitution with a vote of five justices, and I think that we should exercise the discipline of amending the Constitution in the normal fashion.

MAST: So, Hunter, one more.

Justice Barrett wrote that Mississippi may count absentee ballots that are postmarked by Election Day but arrive several days later.

Is the larger lesson here simply this: Don’t put too much stock in the courts? There are three branches of government, and the separation of powers is a reasonable obstacle.

BAKER: So this Election Day issue—Congress can act.

Congress definitely has the ability to regulate a federal election, and they could say ballots are not going to come in after Election Day. Full stop.

They could do that.

This is another one of those places where, okay, the court is not going to answer the question for us, but Congress can, and they should.

EICHER: Hunter Baker is a senior fellow at the Center for Religion, Culture, and Democracy and our regular analyst here on Washington Wednesday.

Hunter, thanks so much.

BAKER: Thank you.

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