Ep. 570 - The Biggest Move In A Generation

Episode Summary

Executive Summary: The episode centers on Justice Anthony Kennedy’s retirement and its political and constitutional consequences. Shapiro argues Kennedy likely stepped down to protect his gay-rights legacy while avoiding a future liberal Court on free speech and religious liberty. He frames the vacancy as a major conservative opportunity, criticizes the Supreme Court’s outsized role in politics, and urges a strongly originalist nominee.

Main Topics: Kennedy’s retirement and likely motives (Priority: 5/5): Shapiro speculates Kennedy retired under a Republican president to preserve his legacy on same-sex marriage while avoiding a future liberal majority that could undermine free-speech and religious-liberty rulings. Supreme Court power and political polarization (Priority: 5/5): He argues the Court has become far too powerful, serving as a substitute legislature for both left and right, which is why each vacancy now triggers national panic and celebration. Originalism vs. living constitutionalism (Priority: 5/5): A major theme is that judges should interpret the Constitution as written, not as they wish it were. Shapiro repeatedly attacks liberal judicial activism and defends textualism and originalism as the proper judicial philosophy. Trump’s nominee shortlist and judicial vetting (Priority: 4/5): Shapiro reviews the reported top five candidates—Kavanaugh, Thapar, Barrett, Hardiman, and Kethledge—ranking them by how reliably originalist they appear and recommending a hard vetting process. Democratic tactics and the filibuster (Priority: 4/5): He blames Democrats, especially Harry Reid’s 2013 nuclear option, for eliminating the judicial filibuster and says they should not now complain about Republicans using the same power dynamics. Media and left-wing overreaction (Priority: 3/5): The transcript highlights emotional responses from Democrats and media figures, which Shapiro mocks as apocalyptic, inconsistent, and driven by fear of losing court-made policy wins. Trump’s luck and political opportunity (Priority: 3/5): Shapiro praises Trump’s political fortune in securing multiple Supreme Court picks early in his term, while also noting Trump’s populist style and combative rhetoric.

Key Arguments: Kennedy likely retired strategically to preserve his legacy on same-sex marriage while avoiding a future liberal majority that would expand speech restrictions and compel religious dissenters. The Supreme Court has become too politically central because left and right increasingly use it to impose policy outcomes that legislatures failed to enact. Judges should be restrained originalists/textualists who interpret law as written rather than as instruments of social change. The Constitution is not a 'living document' to be updated by judges; changing it properly requires legislation or constitutional amendment. Republicans should aggressively vet nominees and demand explicit originalist commitments to avoid repeating the mistakes of Roberts, Souter, O'Connor, Kennedy, and Stevens. Harry Reid’s elimination of the judicial filibuster justified McConnell’s willingness to confirm nominees by simple majority. Democrats’ panic proves they relied on the judiciary to achieve policy goals they could not win democratically. Shapiro’s preferred nominees are those with the clearest records of textualism, especially Amy Barrett and, among the political options, Mike Lee.

Data Points: Kennedy age: 81 - Shapiro notes Kennedy is stepping down at age 81. Trump Supreme Court picks: 2 - Shapiro says Trump gets to replace two justices in the first year and a half of his term. Bush Supreme Court picks in 8 years: 2 - Compared with Trump, Bush replaced two justices over two full terms. Obama Supreme Court picks in 8 years: 2 - Compared with Trump, Obama replaced two justices over two full terms. Potential nominee list size: 25 - Trump reportedly had a list of 25 possible Supreme Court nominees. Reported top five candidates: 5 - Fred Barnes/White House shortlist: Kavanaugh, Thapar, Barrett, Hardiman, Kethledge. Age of Amy Barrett: 46 - Barrett is described as the youngest of the shortlist. Age of Brett Kavanaugh: 53 - Kavanaugh is one of the older frontrunners on the list. Age of Amul Thapar: 49 - Thapar is discussed as a relatively new appellate judge. Age of Thomas Hardiman: 52 - Hardiman is one of the candidates with a longer record. Age of Raymond Kethledge: 51 - Kethledge is also framed as a relatively young long-term pick. Support for union case on the Court: 5-4 - Shapiro references the Court’s recent narrow free-speech/union decision. Free-speech/ First Amendment cases: 3 major cases in recent weeks - He says three major cases in the prior weeks were decided 5-4 in favor of free speech. Senate Republicans: 51 - Shapiro notes Republicans have 51 Senate seats, so no 60-vote hurdle is needed. Daily Wire live stream date: Monday, July 2nd, 7 p.m. Eastern - Promotional announcement for the Jordan Peterson live stream.

Pivotal Quotes: "I don't want my legacy to be the radical left of the court. I'd rather that my legacy be the gay rights legacy." — Ben Shapiro: His speculation about why Justice Kennedy retired when he did. "The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump's nominee to fill this vacancy. We will vote to confirm Justice Kennedy's successor this fall." — Mitch McConnell: Shapiro cites McConnell’s reaction to the vacancy as proof Republicans will act quickly. "Its constitutional role is not to implement stuff that I like or stuff that you like. Its constitutional role is to read the Constitution and apply the words of the Constitution clearly." — Ben Shapiro: Core argument for originalism and judicial restraint.

Implications: The vacancy could lock in a more conservative Court for decades, especially on speech, religion, and administrative power. It also heightens the stakes of judicial nominations and shows how much modern politics now depends on Supreme Court appointments.