Donald Trump

Donald Trump and the Judiciary: Damon Root Visits The Fifth Column

Sorting through Neil Gorsuch, the travel ban cases and more, with Reason's resident court watcher


This has relevance. ||| Metallix

On Friday night, when you people were heading out for your libertine revelries, Reason Senior Editor Damon Root, author of the terrific Overruled: The Long War for Control of the U.S. Supreme Court, was spending nearly two hours dissecting an amazingly busy week on the SCOTUS/judiciary beat for The Fifth Column podcast. With co-host Michael Moynihan making a rare-of-late appearance (along with medium-rare impersonations of Judge Andrew Napolitano), Kmele Foster and I cross-examined barrister Root on the 9th Circuit's travel ban ruling, the shoddiness of the government's arguments, Judge Napolitano's theory of the case, SCOTUS nominee Neil Gorsuch's criticism of Trump's "so-called judge" remark, how Trump's court-bashing compares with Barack Obama's, what Gorsuch's record tells us, why media coverage of the Supreme Court is so awful, plus much more. Non-judiciary issues include the ongoing attacks against Yemen, Rand Paul's vote for Jeff Sessions, and The Decline of Western Civilization: Part II.

You can listen to the whole show here:

For more Fifth Column possibilities, check out iTunes, Stitcher, Google Play,, @wethefifth, and Facebook.

NEXT: Short Circuit: A roundup of recent federal court decisions

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. So many links…..

    1. Yeah, I really can’t even.

      1. WHAT do you mean, “you people…..”?

  2. Would’ve.

    80s music nostalgia aside (poor Kmele) I really enjoyed this one. It was very informative, and Kmele and Hollywood killed it in the last ten minutes.

  3. I’m going to define a new term – Moynihaning: the act of asking a guest an interesting question and then interrupting them so that you can make a tangential point

    Or maybe we should just call it drunk podcasting.

    1. It would have been a far more interesting episode last week if Hollywood had been on with Williams.

      1. I very much like Moynihan, and he absolutely makes it interesting. Hell, I very much like all three of them. But it is funny when the guests get ignored for long stretches and Kmele has to remind Welch and Moynihan that there is a fourth person in the room.

        1. I think they bring out the worst in each other. Which is fine but I think it really puts a hard ceiling on their listening audience.

          1. I assumed they hit their ceiling after the first episode. There aren’t *that* many of us here.

          2. I disagree. I think there is an audience for their style of ranting. I don’t know how big it is, but it exists.

            1. Theres an audience for piss porn as well. I dont how big it is but it exists

              1. What’s the population of Germany? I think it’s about 80 million.

                1. I thought the Germans were more into scat porn than piss fetishes. Maybe they’re into both?

                  1. The Germans are into everything weird or kinky.

              2. I don’t piss all over your fetishes.

                1. I shit on your piss porn fetish

        2. Moynihan’s impression of Jesse Jackson is one of my favorite things ever.

  4. I hadn’t realized that Paul voted for Sessions. Dissapointing.

    1. I can only hope that it was in exchange for something.

      1. I have yet to see any horse trading that benefits liberty.

        1. Sessions was going to be confirmed anyway. A no vote would have probably frozen Rand out of dealings with the administration for a while, so a bargain was probably the best option (assuming there was one).

          1. I guess. But Rand has made for himself by taking more principled stands than his colleagues. Seems like that would be *easier* to do when it is inconsequential. Is he going to take a tough stand when it matters if he is worried about being frozen out?

            He is still one of the best in Congress, don’t get me wrong. But you compromise enough and before long, you’ll find that there is nothing left that made you special.

            1. If Rand was the deciding vote then I would criticize him for voting to confirm but Sessions was going to be confirmed anyway. No need to piss off the Trumpster for no gain and maybe get conSessions later.

      2. Rand said that he voted to confirm because Sessions stated he was against drone bombings on US soil and Rand thought that that was the best he could hope to get out of an AG at this point in time. Basically Rand was worried about who the next nominee might be (and he was also probably trying to save his capital for some other fight).

        1. against drone bombings on US soil and Rand thought that that was the best he could hope to get out of an AG at this point in time

          That’s one of the most depressing sentences I’ve read in a while.

    2. I would imagine it would have something to do with the “collegiality” aspect of his colleague.

  5. What’s with the photo? Trump going to make 17 year olds legal?

    1. Yeah, I thought Root was a fan of metal. Maybe that’s a point they make during the podcast, haven’t listened to it yet.

  6. I think I’ve discovered a great strategy for libertarians. It could be yuuuuuge!

    It seems we have a lot of Canadians here in this chat room. I’ve pondered on this and have come to the conclusion that nothing is better at making people libertarian than Canada. So the plan is, we make a deal with Zoolander. We send all our progs up there. They already want to go to escape the Trumpallo, right? It’s a WIN/WIN. We send all our progs to Canada and they become libertarians. Then Zoolander deports them back to the USA. This idea is a sure winner.

    1. We send all our progs up there.


      1. You’ll ruin the plan!

        1. Because it’s a stupid plan. We elected freaking Zoolander and you think Canada makes people less progressive? Unless ‘send all our progs up there’ is code for ‘put them on ice flows in the north’.

          1. Honestly, it would be more humane to just nuke all of Canada’s cities than it would be to send them all of our Progs. I find Canadians to be annoying, but there is not a country in the world, not even Saudi Arabia or Iran much less Canada, that deserves being inflicted with American Progressives. Sending American Progs to another country would be a crime against humanity of the highest order.

            1. But what about our luminaries and sexpots like Lena Dunham and Ashley Judd?

              1. Lena Dunham is neither a luminary or a sexpot. Ashley Judd is at least batting .500.

                1. She’s pretty psycho though

                  1. Judd is so crazy that an Indy car driver found her crazy sexy to be just a bit too crazy for his taste. We all love crazy, but there are limits.

            2. Non-issues in Canada are the biggest, dumbest issues to American progressives. Requiring ID to vote? Standard practice in Canada, despite apparently being the most racisty racist thing ever. Even Canadian progressives don’t give a shit about voter ID laws.

              Points based immigration system? So racist.

          2. “Unless ‘send all our progs up there’ is code for ‘put them on ice flows in the north”

            I could get behind that. Maybe they can save a polar bear or two.

    2. Canada doesn’t take kindly to immigration.

      1. Nuh uh, that’s not what I heard, I heard they’re taking all the poor frozen refugees that walk in. Stop lying, bagger!

    3. Well I think one of the big problems libertarians have is to reveal the true costs of socialism and authoritarianism. Socialism “looks great” if you are the one being redistributed to; you never see the costs associated with the stuff taken from people. So to the extent that Canada is “socialism lite”, maybe there is some hope to reveal the costs and to make people less likely to want redistributed stuff? I don’t know.

      1. So to the extent that Canada is “socialism lite”

        We’re ranked higher on the economic freedom index that you are.

        Bloody Zoolander’s driving us down though.

        1. Well, that is sad for us. But, good for you.

  7. Moynihan with a Phd would be insufferable. Especially if it was in German fascism, although how someone should just give him an honorary degree in commie fringe groups of south america. I’m pretty sure the only time that skill would be useful is when Alan Richman calls LA police department after taking over Nakatomi Plaza.

    1. He is insufferable anyway. I can’t see how even a PHD would make him any worse. it would make him more of a clown, but he is pretty much a clown right now.

  8. Welch uses the word “draconian” more than once. You know what’s draconian? This haphazard schedule. Is this a weekly podcast? No one knows, as it just seems to be released on a whim! This won’t stand once the content goes behind the paywall.

    1. The schedule seems to be set by booze deliveries.

    2. FAKE NEWS. We have broadcast each and every week, except for one (maybe two). What DAY in the week is another question entirely.

      1. Isn’t broadcasting on random days of the week, haphazard?

        1. You want a libertarian podcast to follow a schedule? Next you’ll want them to insure that the trains run on time.

          1. Look at how everyone freaks out when links are late. It’s like Rain Man central here. 3 minutes to Wapner!

    3. I listened to this podcast last week. How about that, smartypants?

  9. This episode is the Madonna “American Pie” cover

  10. Sounds interesting. I will have to check out this podcast tonight.

  11. I’ve been wondering for a few months now how Kmele would react to the Baldwin documentary. It is pretty low to make a film and claim it is ‘written’ by Baldwin, when it is mixing in old interviews and trying to comment on contemporary issues. It doesn’t work as a documentary about the man, because you don’t get much background or insight into his very unique position in the civil rights movement. Nor does it work as appropriating his work for today’s problems, because Baldwin’s actual words in old interviews (unquestionably the best stuff in the movie) tend to clash with Sam Jackson’s narration. And that narration is meant to document the deaths of Malcolm X, Medgar Evers and MLK, but the film doesn’t follow that thread very far either. So I’m not sure what the movie is, other than a stringout of old footage with some pretty prose.

  12. Also, Root’s a sweetie and he should be a recurring guest.


    I would encourage people to watch this guy’s video. Anyone who has spent any time in Iraq and interacted with the locals much and paid any attention is not surprised by this. They really do hate us. And letting them in the country is not a good idea and will not end well for anyone involved.

    1. That PJ media guy is an alt-right wing nutter. They’re like Breitbart with the same comments.

      1. I don’t care. The video speaks for itself. Watch it.

          1. Try again: I would hate to live in a country where a person’s life was threatened after he posted something online.

    2. Wait, so one person’s anecdotes should form the basis of immigration policy?

      And do you think every single Iraqi hates us? Every single one?

      For those that don’t hate us, do you think they should at least have the opportunity to plead their case on whether they ought to be allowed to just visit, instead of just being told “tough shit, you were born in the wrong country, screw you”?

      1. Its not one person’s anecdote. It is a lot of people’s anecdotes including my own. Go spend a year there and come back and talk to me. Otherwise shut the fuck up. You as usual have nothing to add to this conversation beyond wishful thinking and ignorance.

        1. More emotive temper-tantrums from our resident Trumpkin. Guess I should not have expected anything else.

          Way to dodge the question as usual.

    1. Posting that link and baiting people into clicking it is a crime against humanity.

      1. Do you think it’s a real mammoth?

        1. At first I thought they had shaved it down and was pretty appalled by the animal cruelty. Then the appalling truth became apparent.

          1. There was no Asian chick with owl glasses either.

        2. God damn you to hell, you stone-cold bastard.

    2. *projectile vomits*


    3. Good thing the headline was so big I didn’t see any pictures (and I had too much of a sense of self-preservation to scroll down)

      1. But if you don’t scroll down, you won’t see the wooly mammoth. You have to scroll all the way to the bottom.

        1. I’m afraid I yielded to temptation and looked…sorry, Ms. Dunham, you really shouldn’t have a career as an exhibitionist.

    4. Always hover over links before clicking, y’all.

      1. His description got me hot and bothered. Who can resist a good cryptid story?

    5. So now her character’s with Riz Ahmed? She may be more shameless than Denis Leary in writing sex scenes for herself.

    6. On the morrow I set sail with Ahab to attempt to kill this mighty white beast.

  14. I didn’t listen to the podcast and the only link I clicked was to Napolitano’s article.

    The Judge points out how the 9th circuit is usurping the powers of the policymaking branches of the federal government.

    The one point where I wouldn’t agree is where Judge Nap (for once accepting dubious precedents instead of denouncing them) talks about the President’s foreign affairs powers as if that is linked to the power of excluding people from the country. I believe that who gets in and who is kept out is a matter for Congress (subject to the rights of green card holders). It happens that Congress delegated much of this responsibility to the Pres in 1952 (and arguably may have taken back some of what it gave with the nondiscrimination provision re immigrants in 1965).

    Generally the states aren’t supposed to sue the feds on behalf of the state’s residents – they may be able to sue for harms caused by federal violation of the immigration laws – eg, if they let lots of illegals pour in and then demanded the states pay for their schooling, to take a hypothetical example – and so maybe the states may be able to sue if, say, a prof or student at a state university has immigration hassles, interfering with the contract between the state and the student or prof. But generally, I don’t see the states having a lot of standing.

    1. But standing in this case simply means, to me, the right to lose on the merits rather than lose on procedural grounds.

    2. I can simplify this easily: President Trump has not hired just the best lawyers

Please to post comments

Comments are closed.