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Senator Ted Cruz On SCOTUS And The Justices He’d Appoint

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Senator Ted Cruz joined me Monday afternoon:




HH: Joined now by United States Senator and candidate for the presidency, Ted Cruz. Senator Cruz, great to see you, and I met your father this weekend.

TC: Fantastic. In Denver, I take it?

HH: In Denver. He told me that he was in the courtroom when you argued Medellin before the United States Supreme Court. Talk about pressure, having your dad at your back.

TC: Well, he was. You know, he has been at my back and standing with me my whole life, so it was pressure, although I’ll tell you, the attacks coming from nine justices on the front were probably more intimidating than my dad seated behind me.

HH: Now Senator Cruz, in the last few days, I did not hear what you said about the aftermath of the Obamacare decision being the darkest 24 hours in our nation’s history. I think your opponents are distorting what you said. I think you said some of the darkest 24 hours in our nation’s history. Is that correct?

TC: That is correct. I said exactly what you put, some of the darkest hours. And in 24 hours, we had two decisions that fundamentally undermined our Constitution, that as Justice Scalia powerfully put it in dissent, that pose a threat to our democracy. On Thursday, a majority of the Court violated the law, rewrote Obamacare to force that failed law on millions of Americans. And on Friday, a majority of the Court violated the Constitution and purported to strike down the marriage laws that had been adopted democratically by state legislatures throughout our nation.

HH: But of course, you were not comparing that day to 9/11 or Pearl Harbor or Sandy Hook or any other dark days involving the death of Americans.

TC: Look, as you know, I have spent most of my life fighting to defend the Constitution, literally going back to when I was a teenager at 13 and 14 traveling the state of Texas speaking about the Constitution. And I believe the 24 hours of the two decisions last week did enormous damage to the Constitution, as Justice Scalia observed. It was five unelected judges declaring they are the ruler of 320 million Americans. I think that is a profound threat to our liberty that is dangerous. Now is it qualitatively different from something involving the death of human beings, whether it’s Pearl Harbor or 9/11, or any other tragedy like that, of course. But our liberties are fragile. One of the blessings of being the child of an immigrant who fled oppression in Cuba, who was tortured and imprisoned is that I have an acute understanding of how fragile liberty is. And to see the checks and balances in the Constitutional system we have undermined, I think, is dangerous to this country in a long-lasting way.

HH: I agree with it, but I wanted people to hear the context into which your words must be understood, because your enemies are distorting them.

TC: Yeah.

HH: I don’t know if you’ve read my new book, The Queen, yet, Senator Cruz.

TC: I have not. I have heard summaries of it, and I’ve heard your advice to Hillary Clinton.

HH: Yes, that she should not debate you. On Page 119, Mrs. Clinton, he “really would take you apart, muscle and joint.” What do you make of my advice to Mrs. Clinton?

TC: Well, I will tell you this. I am very much looking forward to debating Hillary Clinton. And I believe that when she and I stand on the debate stage together that the American people will have a clear choice, and a choice between policies that are not working, that are hurting millions of Americans, that have weakened America’s position in the world and have endangered our allies, or getting back to the principles that made America strong. And I think that contrast will lead to victory. I agree with your assessment, but I also don’t think she would follow through and run away from the debates. And if she did, I think she’d pay a real political price for trying to run away from the debates.

HH: I’ll let you read in The Queen, when you get around to it, what my suggested response to her, to that criticism is. I want to turn to Con Law. With the possible exception of President Taft, you are the most serious Constitutional scholar to seek the presidency since probably Lincoln. Certainly, you’re the only one who’s argued nine cases before the Supreme Court. So my questions that follow are based on that knowledge of yours. And if we leave the audience behind, I beg their pardon. First of all, I want you to appoint yourself as the advocate for Chief Justice Roberts, who is my friend and yours.

TC: Yeah.

HH: What is the best argument for how he decided these two cases? In the latter of them, he said this Court is not a legislature. What, Ted Cruz, is the best argument in defense of both decisions?

TC: Well, look. So I’m trying to understand. You’re asking me to defend Roberts’ position in both cases, or the majorities’?

HH: Yes, Roberts’ position in both cases. That means to be with the majority in upholding Obamacare by inferring statutory construction the way he did, and to be with the dissent on the Constitutional issue in the marriage cases?

TC: Listen, with regard to the marriage case, I think Chief Justice Roberts’ dissent was spot on. He’s exactly right, that what the Court did is it put its own policy judgments ahead of the policy judgments of the elected legislatures. From the beginning of our country, the Constitutional has left questions of marriage to the states. If you want to change the marriage laws in your state, the way to do is convince your fellow citizens to do so. And so on that, I think he was spot on. On the Obamacare decision, both this decision and then the decision three years ago, Chief Justice Roberts in both instances wrote very careful, lawyerly decisions. But both you and I have known Chief Justice Roberts for decades. He is a friend, he was widely considered the finest Supreme Court advocate of his generation. In both instances, what the Court did was it rewrote the statute. Now let’s talk about the decision three years ago. Three years ago, there are some good aspects of the Supreme Court’s opinion. Number one, with regard to the Commerce Clause, the Supreme Court concluded that the individual mandate was unconstitutional under the Commerce Clause. That was important, jurisprudentially. Number two, the Supreme Court, three years ago, struck down a portion of Obamacare, which was the forced expansion of Medicaid under the Spending Clause. That was a major positive, conservative jurisprudential ruling. Now it has been publicly reported, and I have no reason to doubt, that Roberts initially voted to strike the entirety of the statute down three years ago, and then he flipped his vote somewhere midway through the opinion writing process. And what he did was one simple sleight of hand, one bit of ledger domain, which is he transferred a penalty into a tax. And the individual mandate repeatedly in the statute is described as a penalty. If it’s a penalty, it was unconstitutional, illegal, and would be struck down. And he simply said we’re going to make it a tax. And he deliberately went around the fact that Congress repeatedly didn’t use the word tax, because there are political consequences to raising taxes, and he went around the fact that President Obama explicitly told the American people this is not a tax. Once he used the sleight of hand to transform it into a tax, then under the tax case law, it was fairly straightforward to uphold it. But he’s a good enough lawyer, he knew exactly what he was doing.

HH And what’s the best argument that can be made for what he did?

TC: So I believe the reason Chief Justice Roberts did that is that he was trying to preserve the independence of the Court. He was trying to keep the Court out of a political mess. I think he believed he was behaving like John Marshall, and wisely extricating the Court. I think he also justified it that the jurisprudential rulings on the Commerce Clause and Spending Clause were positive. But I think he was profoundly mistaken, and I think the irony is both that decision and last week’s decision, which he basically did the same thing all over again, will go down as some of the most political decisions in the Court’s history. And sadly, John Roberts at his confirmation hearing, he correctly analogized the role of a justice to that of an umpire calling balls and strikes. Well, he stopped serving as an umpire, and he instead suited up and became a player on one of the teams. And he put on an Obama jersey. And that is disappointing for an individual and a judge I respect so much to see him acting contrary to his judicial role.

HH: And the best argument in his favor would be that he actually put on a John Marshall jersey.

TC: Well, yes, although Marshall, and if you look at Marbury, didn’t rewrite the statute. He did invent judicial review, but it was a different, that would be, I suspect, if Chief Justice Roberts were speaking candidly, that would be his justification.

HH: Now let me, this is the hardest question of all. I love talking to Ted Cruz about the Constitution, because it is an elected official speaking about his area of greatest expertise. You know both the Chief Justice, and you know Judge Luttig, as I do.

TC: Yes.

HH: Judge Luttig was the 4th Circuit justice judge who was in the room, and you know, the other one.

TC: Right.

HH: George Bush decided between Luttig and Roberts. If Luttig had been the Chief Justice and not Roberts, does Ted Cruz think that Michael Luttig would have decided the Obamacare decisions and the marriage decisions differently?

TC: Absolutely. There is no doubt in my mind that if J. Michael Luttig were the chief justice that Obamacare would have been struck down three years ago.

HH: So that brings me to this. Anthony Kennedy is on the Court because Ronald Reagan blinked over Doug Ginsberg’s use of dope. He was a third candidate.

TC: Right, right.

HH: Blackmun was on the Court because Haynsworth and then the horrible Carswell, the third choice turned out not to be reliable. If you’re the president of the United States, I’d like some names of people who you would actually think right now could fill the three or two or four vacancies that are coming in the next presidency.

TC: Well, I’m not going to give you specific names today, but what I will say is that I have spent literally my entire life fighting to combat judicial activism, fighting to defend the Constitution. Tomorrow, I’ve got a new book coming out, A Time For Truth, and in that book, I describe in great detail the year I clerked at the U.S. Supreme Court for Chief Justice Williams Rehnquist. I bring people behind the scenes to what happens at the Court. I describe litigating before the U.S. Supreme Court for over a decade, both representing the state of Texas and representing private clients. And I also describe what happens behind closed doors in the United States Senate. And so I would encourage folks, if you want to know what’s really going on with what I call the Washington cartel, career politicians in both parties who join with lobbyists and special interests against the American people and the taxpayers. I would encourage folks to go and read A Time For Truth, my new book, which lays out these principles in great detail. And what I would say on judges is there is no question I would focus with greater seriousness that ensuring that any U.S. Supreme Court justice would follow the law and the Constitution, and demonstrate fidelity to the law. I think activism is a profound threat to our democracy, and I do think that’s one of the sharp differences between me and the other candidates in the race, is that you don’t have other candidates who have the background or experience to make those judgments or a proven record of fighting over and over again, defending the Constitution.

HH: Well, you’ll be back on Wednesday after I have had a chance to read your book, and we’ll talk at length. But I have two more questions which are so important, and they come to you first from me. Number one, the Bob Jones case in 1983 includes this statement from Chief Justice Burger.

TC: Yeah.

HH: “There can be no longer any doubt that racial discrimination and education violates deeply and wide-accepted views of elementary justice.” Will that same jurisprudential standard, in your opinion, be held against all not for profits, not just churches, but educational institutions, parachurches, World Vision, to strip them of their tax-exempt status if they hold to their traditional views of sexual morality after the marriage decision?

TC: Hugh, if Hillary Clinton is elected president, then the answer is unequivocally, yes. As you know, at the oral argument of the marriage case, Justice Alito asked Don Verrilli, the Obama Justice Department’s Solicitor General that very question, that if the Obama administration prevails in its position to strike down the marriage laws of the 50 states, is the next step that Christian universities, that Christian schools, that Christian charities, or for that matter, Jewish schools or Mormon schools, or any faith that follows a teaching that marriage is a union of one man and one woman, would all of them potentially lose their tax-exempt status? And the Obama administration solicitor general said yes, that’s a very real possibility. That’s a key reason I believe 2016 is going to be a religious liberty election. I’ve spent two decades fighting for religious liberty, and I can tell you if I’m elected president, that will not happen in my administration. Instead of the federal government violating the religious liberty of Americans, the federal government will defend the religious liberty and the Bill of Rights, and the Constitutional rights of every American.

HH: And that brings me to the second issue of Obamacare. I have asked Jeb Bush and Scott Walker and Rick Santorum, though Rick was not on the record. He was off the record in a green room. If it came down to breaking the Senate filibuster in order to uproot, root and branch, Obamacare, would Ted Cruz support breaking the filibuster to do that?

TC: I believe ending the legislative filibuster would ultimately undermine conservative principles, because if you look historically, there have been three major periods where you have had Democratic supermajorities. The first produced the New Deal. The second produced The Great Society. And the third produced Obamacare and Dodd-Frank. I think the legislative filibuster, the supermajority requirement in the Senate, more often than not slows bad liberal, radical ideas that I think as the framers described it, the Senate serves as a saucer to cool the heat of the House. And so I think we would regret it if we got rid of the supermajority requirement in the Senate for legislation. So what does that mean for Obamacare? As I’ve said in the wake of the Supreme Court’s decision, the consequence of this decision is it makes 2016 a referendum on repealing Obamacare. And any Republican candidate who’s not prepared to lead that fight to repeal every word should step aside. I intend to make it a referendum. And let me note something, Hugh.

HH: But Senator Cruz, let me interrupt. You understand that sometimes justices come in at your weakest point in the argument. Scott Walker on Saturday night declared to me in front of 4,000 people he would urge the ending of the legislative filibuster if that was necessary. So I’m saying to you if you’ve got 56,57, 58 Republican Senators, and they’re voting for repeal and replacement, and 42 Democrats are stopping that, will you go then to the leader, Mitch McConnell, and say we need to invoke the Reid Rule and break this, because Obamacare is that bad for our country, we have to do away with this extraconstitutional protection in order to get rid of Obamacare?

TC: I believe we can repeal Obamacare without doing that. For one thing, the Democrats…

HH: But that’s not, but that’s, if you can’t, Senator, if you can’t, this matters, because
Scott Walker was unequivocal. He said absolutely, he would advocate that. And I’m hearing you say…

TC: But you know what’s interesting, Hugh, it’s easy. Talk is cheap. I mean, I would note that when Mike Lee and I were fighting tooth and nail to stop Obamacare, that a number of politicians, including Governor Walker, were publicly criticizing us for doing that. So when you’re campaigning for president, it’s easy to talk about what you’d do against Obamacare. But I think every one of the candidates should be asked not what would you do but what have you done.

HH: But I’m asking, because the filibuster, I know you’re attached to it. I know the good reasons that you’re attached to it. I just want to know the priority of Ted Cruz, and I think this is going to matter a lot. Would you throw it overboard if that’s what it took to get rid of Obamacare?

TC: There is nobody in this race who has fought harder, who has fought longer, who has invested more blood, sweat and tears, who has endured more vilification, standing up to Obamacare, than I have. And there is nobody who is campaigning harder every single day. Let me encourage you to do something, Hugh. Go back and listen to the announcement speeches of the other 2016 candidates. A whole bunch of them don’t even mention the word Obamacare. Now we don’t need to override the filibuster to defeat Obamacare. Reid didn’t do that to pass Obamacare. He used reconciliation. What you can pass with reconciliation, you can repeal with reconciliation. The key to get it done is it’s got to be a grassroots movement. It’s got to be a mandate from November, 2016, like the Reagan revolution. And I will say this. In the three months since we launched our campaign, we’ve seen over 100,000 people come online to,, make financial contributions, sign up to volunteer. And I want to mention to your listeners, tomorrow at Midnight, June 30th at Midnight is the end of our fundraising quarter. I would ask every listener if you support courageous conservatives across this country getting back to the Constitution and free market principles, please, please, please come to Make a contribution online, and stand up to turn the country around.

HH: Okay, Senator, I encourage them to do that, because I think you, I want you in this race, and I want you making these arguments. But I’m going to try a third time. If it came down to you’ve got to break the legislative filibuster to repeal root and branch, I understand what you and Rick Santorum say, reconciliation passed it. But there are parts of it that will not be gotten rid of in reconciliation. Will you break the filibuster? Or will you let those parts of Obamacare stay in place?

TC: There is no one in this race who has fought harder to repeal…

HH: That’s not…(laughing)

TC: You know, the nice thing is, listen, when you’re in a court of law, you’re told not to fight the hypo.

HH: Yeah.

TC: In politics, you can fight the hypo. And I’m not accepting the hypo.

HH: Okay, I’m going to come back at you in front of 900 million people, or whoever, how many are asking the presidential debate, because this matters to me, because I think the answer is absolutely yes, you’ve got to break the filibuster to get rid of this cancer. I really do.

TC: And if we had followed your advice, we would have cap and trade, we would have some of the most egregious left wing legislation. Under majority leader Elizabeth Warren, Hugh Hewitt would be looking back going why on Earth did I remove our ability to stop radical socialist policies that are destroying this country?

HH: It’ll be too late by then.

TC: I don’t want to let that happen.

HH: It’ll be too late, Senator. More on that this week. I look forward to reading your book and talking to you about it on Wednesday, Senator.

TC: Thank you, my friend. God bless.

HH: Thank you, and you, too. I’ll be right back.

End of interview.


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