What’s driving the New York City mayoral race, and how might ranked-choice voting, crime, and policy backlash shape the outcome?

In this episode, City Journal’s Charles Fain Lehman is joined by John Ketcham, Renu Mukherjee, and Jesse Arm to break down the latest from the NYC mayoral primary. They also weigh in on the Supreme Court’s ruling in U.S. v. Skrmetti, what it means for free speech and state regulation, and how New Yorkers are navigating the heat and headlines.

Audio Transcript

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John Ketcham: But yeah, the Brad Lander cross-endorsement to me was a bit baffling because Comptroller Lander has spent the better part of this whole campaign trying to convince voters that he is the responsible, capable administrator. He’s moderated on his positions, like defunding the police. And yet he’s given a nod to Zohran Mamdani, the furthest left, radically left socialist candidate here.

Charles Fain Lehman: Welcome back to the City Journal Podcast. I’m your host Charles Fain Lehman, a fellow at the Manhattan Institute and contributing editor of City Journal reporting to you live from a slightly different location, but I promise with all the same fun content. Joining me on the panel today are John Ketcham, my go-to resource for Italian food in Queens. Renu Mukherjee, my go-to resource for Indian food in the greater DMV area. She’s on the hunt. And Jesse Arm, who will someday tell me if there’s a single good kosher restaurant in D.C. I’m not holding my breath. Thanks everyone for joining us. I want to take us right into the news of the day. City Journal Podcast listeners, I’m sure are aware already that tomorrow is New York City Democratic mayoral primary, technically also the Republican primary, but we don’t I’m not holding my breath on that one. I think I think we know how it’s going to shake out. And just this morning, we had a shocking poll from Emerson, which shows that at the end of ranked choice voting in their estimate, Zohran Mamdani is leading and wins 52 to 48 against Andrew Cuomo. So Jesse, I’m going to start with you. What do you make of the new poll? What’s the shape of the race? The prediction markets are going crazy. Could Mamdani pull it out?

Jesse Arm: Yeah, well look, primary day is finally here and New York’s Democratic contest for mayor is kind of turning into a national stress test of whether a hollowed out political center can still fend off the loudest and most menacing ideological fringes. So we had our Manhattan Institute poll that was released last week and we had Cuomo up by double digits in the ranked choice final round. An Emerson survey released right around the same time showed a similar edge. But this new Emerson poll, this fresh one that came out this morning flips that script. Mamdani trails Cuomo on the first choice ballots, yet squeaks past him in the later rounds as progressive voters who initially back Brad Lander or some of the other candidates consolidate behind the millennial socialist Mamdani. So whether that swing is noise, an outlier, or a genuine late surge, it should inject a dose of humility into, I think, everyone’s forecast for this election. The cross currents are strong here. Mamdani’s support is big online but thin on the ground, overwhelmingly young, college educated, and clustered along the East River. It’s a politics of sort of vibes and grievance, not the multiracial working-class coalition I think a lot of his online boosters imagine themselves to be.

Cuomo, baggage and all, dominates among older voters, women anxious about crime, and black and Latino Democrats who live with the fallout of far left policy experiments. Among Democrats who name public safety as their top issue, our poll put Quomo at 71 percent and Mamdani at just six.

And turnout data, think, backs this up. Early in-person voting plus mail ballots look to land around, I think 450,000, which is up from like 320,000 or something like that in 2021. That’s actually a pretty modest 10 percent bump driven largely by convenience than some massive revolution. Remember, it was also COVID four years ago. So I would say the Mamdani wave so breathlessly kind of hyped on social media has yet to materialize in the numbers. Plus historically older voters, Cuomo people, are, were the most likely to vote early.

I don’t think any of this ends on Tuesday. Cuomo already has his independent Fight and Deliver line, which can run on through November, and Mamdani can pivot to the Working Families party if he doesn’t come on top in the primary. You add in mayor Eric Adams, Republican Curtis Sliwa, and a lesser-known independent candidate and Jim Walden and New York could face its first truly competitive multi-candidate general election since the late sixties. history says public-order moderates, not socialist firebrands fare better once independence Republicans and outer borough voters of all party denominations, orientations get their say. But I do think there’s a darker undertow here that’s impossible to ignore. Like just look at the scenes from the Bernie Sanders rally the other night. You see a crowd of these young, mostly white socialists.

Charles Fain Lehman: When Sanders endorsed Mamdani.

Jesse Arm: Yes, exactly. Bernie Sanders, who’s a power player in this political movement, who’s playing a role in this race, you’re seeing scenes from his rallies, right, of crowds of these young white socialist types who are showing up for Mamdani in big numbers, booing the news of like successful American military operations against some of the great, the world’s leading state sponsor of terrorism. So I think, yeah, it’s a really interesting time in our politics. Parts of the right are breaking with President Trump and now flirting with their own nihilism, but the progressive version that we’re seeing here in New York is obviously louder and further along. If the exhausted middle doesn’t reassert itself, both here in New York and around the country, if we don’t push back against the sort of anti-growth, anti-achievement, grievance-obsessed factions in both parties, I think the politics of collapse will just keep gaining ground.

Renu Mukherjee: I think a wrinkle here to what Jesse is saying. And, you know, I’ll… I will carry the banner for focusing a great deal on various Asian ethnic groups in American politics, particularly in cities and what that’s going to mean nationally. In the cross tabs of the first Emerson poll that Jesse referenced that came out exactly a month ago on May 28, an interesting wrinkle in the story was that the Asian vote in New York City was split pretty evenly between about 50-50 between Cuomo and Mamdani. What the cross tabs of the poll released today by Emerson show is that Mamdani is now winning 79 percent of the Asian vote. He’s increased his vote share by almost 30 percentage points. And what we spoke about on this on a podcast episode, you know, looking at the May 28th Emerson poll was I had said back then, you know, if Mamdani runs a strategy, where, because it’s so obvious that Cuomo, like Jesse was explaining, is winning Black and Latino voters, if he expands a small bit amongst those demographics, but really he seizes the Asian vote, that could tip him over the edge. It seems as though that campaign has been successful.

And what I wrote about on this for City Journal about a week and a half ago was Mamdani is running this, in my opinion, very intelligent Asian strategy where he already has a lot of South Asian support because of both the fact that there’s an identity politics factor here, he himself is Indian, but he’s also engaged in heavy South Asian outreach back from when he first ran for the assembly in 2020. He’s continued that, but he’s also secured the endorsement of State Senator John Liu, who is a major figure in the East Asian community in New York City and, interestingly enough, Michael Lang, who writes on New York politics, has an excellent substack. About 20 minutes ago, he released his predictions by Assembly District in New York City. What that showed, from my quick sort of scan before we began recording, is that the Asian strategy appears to be working. Mumdani is winning South Asian enclaves throughout Queens and Brooklyn. Cuomo is sort of winning East Asian enclaves, but Mamdani is really gaining ground also in those East Asian enclaves, and he has a lot of first-time South Asian voters that appear to be in his camp. So an interesting wrinkle in this is, Mamdani, if he wins the primary, his winning coalition could be constituted of whites and Asians, and that’s sort of a regression of what we’ve seen over the last several elections, where Asians have moved more to the right.

Charles Fain Lehman: I do want to just underline, very briefly, I want to underline this sort of, what seems to be the dynamic in this Emerson poll. I think this, I’m curious that you take on this in addition to what you’re saying, what Renu was saying. But it does seem like there’s, you know, the common theme here is progressivism, right? Which is like, what happened, if you look at what happened, is basically the third, the third ranked consistent person coming in third in the race was Adrienne Adams, Council Speaker Adrienne Adams. She’s now dropped to fourth and Brad Lander, the city comptroller, has moved into third place, thanks largely to the New York Times all but endorsing Lander, I suspect. They’ve like nodded and winked at endorsing Lander without actually doing it in like three different articles. And then Lander and Mamdani announcing an alliance where they cross-rank each other. And so one suspects that basically the elevation of Lander plus that alliance between him and Mamdani is what has put Mamdani, was previously 10 points back, in play.

I wanted to get that context out there because I do think that there’s the young Asian vote, there’s whites and Asians, but there’s also that ideological angle to it. John, I didn’t mean to cut you off, so I want to let you jump in.

John Ketcham: No, I think that’s right. The effects of the cross endorsement and the New York Times articles are now being brought to bear in the latest polling.

To Renu’s point about the Asian community, East Asians are much more likely than average to register as an independent party or as an unaffiliated voter. That means that Cuomo’s general election base would be different from the Democratic primary base. Of course, would be Republicans and unaffiliated voters eligible to participate in the general election as well, which would, all things equal, help Cuomo and Mayor Adams and probably hurt Mamdani. Mamdani is probably in the as good a position as he will be in in the Democratic Party primary, right? So for argument’s sake, if the Emerson poll turned out to show where the winds were blowing and Mamdani comes from behind to win this thing tomorrow, he still faces a very formidable general election challenge, even with a D next to his name.

But yeah, the Brad Lander cross-endorsement to me was a bit baffling because Comptroller Lander has spent the better part of this whole campaign trying to convince voters that he is the responsible, capable administrator. He’s moderated on his positions, like defunding the police. And yet he’s given a nod to Zohran Mamdani, the furthest left, radically left socialist candidate here. It tells me that either Lander is not genuine in his newfound moderation or...

Jesse Arm: No, you don’t say!

Charles Fain Lehman: He took an idea from us!

John Ketcham: Or he’s got bad judgement. Yeah, he took an idea from us. So my sense is, yeah, he’s a true believer.

Jesse Arm: Yet he said the words “Manhattan Institute” on stage at one of the debate without a curse word following it or preceding it. So he gets, you know, half a point for that.

Charles Fain Lehman: Half credit.

Jesse Arm: You know, I want to point out, I saw one thing actually, literally as we’re recording here, someone made the point, someone made the astute point on Twitter that this latest Emerson poll is actually a very similar sample to our poll from last week. think that’s probably, and just because I was heavily involved in crafting our poll, think that’s evidence maybe that this could be potentially a real genuine late swing rather than just another outlier or that there’s something methodically wrong with this poll.

Yeah, I mean, it’s concerning. It’s like I said previously, right? I think it’s an omen of what is happening with our politics nationally, that somebody like this can catch steam. That really few lessons have been learned. I mean, look around the country right now. The current mayor of New York is obviously a very different story, but in the three biggest cities, Chicago, Los Angeles, you’ve got these mayors who have approval ratings all below, like 30, 25 percent. In Brandon Johnson’s case in Chicago, it’s hovering in single digits almost. So these progressive policy experiments have been tried, but it feels like they need to continue to be tried and failed in places before you get the regression back to sanity like you’re seeing now in San Francisco. Like maybe New York has to go the way of San Francisco or Detroit or some of these cities that have just really seen horrible policy, horrible circumstances that come as a result of horrific policy decisions before you can enter the reform stage. I kind of always thought New York would be immune to that just by virtue of the fact that there are so many power players here, there’s so many moneyed interests here, there’s so much, this is just such an important city for so many reasons. You thought maybe, and maybe some of the diversity that exists here would insulate it from actually…

Charles Fain Lehman: Maybe not.

Jesse Arm: There are some healthy experiments which are not pushed by diverse factions of the Democratic primary electorate, as we learned, but it’s disconcerting for sure.

Renu Mukherjee: I think it’s also…

John Ketcham: The Pundit interests are definitely showing up though. So they’ve raised 25 million dollars for Cuomo’s Fix the City PAC and that’s far and away the biggest single PAC in primary history. Last time there was about 32 million dollars in total independent expenditures and this time just Cuomo’s has 25 million.

Jesse Arm: Yeah, but John, let me push back on you there. So the moneyed interests are showing up for Cuomo, but were the moneyed interests there in the beginning, right? Were the moneyed interests there thinking about who the best candidate would be who could potentially be recruited? I mean, it seems like they were largely scared away from doing anything because Cuomo was so perceived to be the dominant front runner in this race that, I don’t know, I mean, the moneyed interests also, where were they when Alvin Bragg became the Manhattan DA, right? I mean, I do think there’s something to be said about the fact that political dollars might, can be spent more wisely in the city. I mean, I don’t actually know what Mike Bloomberg’s existing approval rating is in New York, but I want to believe, based on our policy polling, I tend to believe that there still exists demand from voters for Bloomberg-style governance. I think that era is still remembered fondly.

John Ketcham: Andrew Cuomo can do what Andrew Cuomo wants to do pretty much. He’s not like a traditional politician where the voter is going to necessarily hold him to his policy platforms. He does have this shape shifting quality. And I think that the real estate industry, other important interest groups, the unions, which have really backed Cuomo as well, they know that they can work with him as a transactional politician. They know that he’s going to do what is advantageous to him. And if they put things in his interest, then he will do it for them. So it’s the kind of thing where we’re better the devil you know than the devil you don’t. Sure he’s not going to represent an ideal policy mix but he’s going to be someone tried and true they have worked with him before and they’ll put their money behind him rather than the radical dangerous untested alternative of a 33-year-old Mamdani.

Charles Fain Lehman: Renu, want to give you the last thought, because you were going to jump in earlier and then we’ll walk out.

Renu Mukherjee: Very briefly to Jesse’s comment about various diverse interests in New York City and perhaps elsewhere and what the mobilization of those interests have done to those cities’ local politics. I mean, here it’s South Asian, Bangladeshis, for example, Pakistanis are mobilized in a way that we necessarily haven’t seen before. I think that in a way that East Asian voters, Chinese Americans, not just here, but we saw what happened several years ago in San Francisco, the mobilization of Chinese-American voters, again, in a way that hadn’t necessarily existed to the same high degree prior, allowed for the recall of Chesa Boudin. It allowed for the recall of school board members that were hostile to Lowell High School, the specialized high school. And this demographic became a formidable force in American politics. And you saw similar in New York’s elections, know, to helping deliver the wins in various districts around New York City. So I think, you know, what is the mobilization of much of Mamdani’s base of Bangladeshis, Pakistanis, some very progressive Indians going to mean nationally? I think it could mean that this is, to Jesse’s point, causing more of a rise again in the sort of progressivism that has led to the decline of Detroit, San Francisco, and other cities. It’s a bit ominous, but that’s kind of what I feel right now.

Charles Fain Lehman: All right, all right, I want to take us out, so I’m going to ask everybody, I asked the last panel this too, but I’m going to ask you guys for your takes as we approach. And we won’t know for a couple of days, as I think John has talked about, Jesse talked about this, but it’ll take a while to tally everything up. But, so we can revisit this on Thursday maybe. But what is your prediction for tomorrow’s primary? Who’s going to be first, who’s going to be second, what’s going to be the margin between the two of them? Jesse, I’ll put you on the spot.

Jesse Arm: I think if turnout follows historical patterns, expect Cuomo to win by single digits after the rank choice rounds. If young progressive turnout truly surges and we don’t see ballot exhaustion, meaning people really do fill their ballots out until the end, including folks who might rank Zohran later further down, we could be in territory with Mamdani nudging ahead. Either way, primary day won’t settle the fight. New York’s exhausted majority will get a say this fall, and any of them who aren’t registered Democrats don’t get a say in tomorrow’s race. It’s important to remember that.

Charles Fain Lehman: John, what’s your prediction? Where do you think it’s going to fall?

John Ketcham: I’m going go with Cuomo winning against Mamdani 55-45. I think that exhausted ballots will be a significant factor in this. That there is a substantial number of voters who will prefer one of the other candidates other than those two and not rank Mamdani. Cuomo gets more first round, first rank of ballots, so that helps him out in that regard. And yeah, we won’t know until probably more than a week after. Last time, it was about two weeks after the primary that we found out, that Mayor Eric Adams announced that he won. So we’re going to have to sit tight.

Charles Fain Lehman: Okay, Renu, what are you projecting? Do you also think it’s going to be Cuomo on top?

Renu Mukherjee: I think do agree. I think Cuomo is going to be on top and as for the margin, I’ll say Cuomo 52 or sorry, 52, Mamdani 48. We’ll see something like or… yeah.

Charles Fain Lehman: Alright, fine. I’m obliged to be the pessimist during the crew. I think he could pull it out. I think we could see, you Mamdani with a one point margin. I think that... I’m going to predict that purely based on that being by far the most insane outcome based on the trajectory of the race this far, and that’s what governs American politics today, is like insane things happening that we don’t predict. So that’s my bet going into this, but I think it’ll be tight pretty much regardless.

Alright, I want to move us along. Last week, literally as we were recording the podcast last week, this is what happens when we do a Wednesday show. This is what happens when we take a vacation at the City Journal Podcast. Literally last week, as we were recording the podcast, the Supreme Court released its opinion in a United States v. Skrmetti, which was the case asking whether or not the state of Tennessee could regulate or ban certain features of youth gender medicine, including surgery, including ex-hormones. The Supreme Court says yes, it can. The variety of concurrences, variety of dissents, it was 6-3 in the majority. It was on the one hand notable to me because it came out relatively early, and often the justices sort of save these like high-salience social issues cases for later in the term so they can go on vacation and not worry about the fallout. But on the other hand, it was sort of a complicated decision. John, you’re the lawyer on the panel. I want you to try to dumb it down for me. Help me understand what went on in the opinion.

John Ketcham: Well, you don’t need that treatment, but it is a little complicated. States have broad police power to regulate health safety and welfare. They regulate medicine. But they’re subject to the Constitution and laws. Now, this case was about Tennessee and whether it could pass a law banning medical providers from delivering puberty blockers, cross-sex hormones, and surgeries to youths for the purpose of enabling those youths to identify with a gender other than their biological sex or to treat a purported discomfort from the incongruence of their purported gender identity and their biological sex.

Now, the plaintiffs in Skrmetti asserted that the 14th Amendment’s Equal Protection Clause prohibits states from discriminating against transgender children on the basis of sex.  Also, alternatively, on the basis of transgender status. Now the equal protection clause operates in a very particular way. The court’s jurisprudence has elaborated a set of protected classes, right, based on characteristics like race, national origin, religion, sex, etc. So when a law targets people because of those characteristics, or on the basis of those characteristics, the court is more likely to strike down those laws. The government has a higher burden in those cases because the court applies what’s known as “heightened scrutiny.” “Intermediate scrutiny” on the basis of sex, for example, or “strict scrutiny” on the basis of race. The bottom line on that is that the government has a very hard time to prevail if it is decided to be a strict scrutiny case and has an uphill battle, but still a winnable one if it is an “intermediate scrutiny” case.

So the plaintiffs are trying to get the court to say that this law, the Tennessee SB1, discriminates on the basis of sex, not on medical use or age. Sex is a protected class, so it would trigger intermediate scrutiny, whereas age and medical use are not protected classes. the government would get the very deferential rational basis review, which means that basically everything would be fine. As you say, in the 6-3 decision, the court rejected the plaintiff’s claims, held that the prohibitions on medical treatments for minors does not violate the Equal Protection Clause because those prohibitions don’t classify on the basis of sex. They classify on the basis of age and medical use, again, not protected classes, so this sails through under rational basis review.

And the court also declined to make transgender status a new protected class, which it could have done, the plaintiffs wanted, which would have meant that this case could have been decided on intermediate scrutiny, not simply rational basis review.

Charles Fain Lehman: Yeah, so you know, and thank you for that extremely helpful summary. I want to sort throw it out to the broader panel because I think to me, the interesting question is basically, how impactful is this, both at a law level and also at politics level? In some senses, I think everyone kind of thought this was the foregone conclusion that the court, there was a great piece in the long read in the Times from Nick Confessore basically making the implicit argument that they really, advocates of youth gender transition really overstepped here. They shouldn’t have brought this case at all. It was an error. And in some senses, you can read this as a consolidation.

On the other hand, I was talking about this before the call, and we’ll talk about this a little bit. The majority is not as strong as, for example, Amy Coney Barrett’s concurrence. And you look at something like the Bostock ruling, Bostock v. Clayton County, in which Neil Gorsuch led a majority to say transgender status is relevant to… employment decisions on the basis of transgender status are discriminatory under… in federal statute. You know, there’s clearly… The court has some wiggle room here in what it’s willing to do. It’s not sort of hardcore culture war. So anyway with that framing, I’m going to throw it to the panel. What do you what do you make of this decision? How do you this impacts this broader debate?

Jesse Arm: Yeah, mean, my read is that the Supreme Court made the obvious but still important call to, in Skrmetti, upholding Tennessee’s ban on puberty blockers and cross-sex hormones for minors. When Roberts wrote for the majority, I thought he made it plain that this isn’t really about sex discrimination. It’s a neutral policy about age and medical diagnosis. Again, not a lawyer, but the court kind of rightly refused to treat controversial experimental interventions for gender dysphoria as some kind of constitutional right, especially for kids. And it pushed back finally on the activist misuse that you recognize from Bostock, which was about employment law, not medical ethics. So I think this is a big win for common sense and for the states that have taken the lead in reining in what the Cass Review called remarkably weak evidence behind pediatric transition.

But even I think as the legal ground shifts, don’t expect the politics to follow. Democrats are kind of increasingly fluid in the language of moderation. Gavin Newsom says it’s deeply unfair for biological males to compete in girls sports. John Fetterman talks like a blue-collar truth-teller on some of this stuff. But none of it translates into action. When the Senate had the opportunity to vote on a bill restricting male participation in women’s athletics when that came up for a bill just a few weeks ago, every Democrat voted no, not a single one broke ranks. And I don’t think that’s hypocrisy alone. It’s a structural feature of the modern Democratic Party. The activist class that sets the party’s agenda, progressive NGOs, donor networks, and even some medical interest groups have zero interest in compromise here. And elected Democrats who depend on these groups for organizing muscle and campaign cash. They aren’t in any position to defy those groups. So the result is a familiar structure, a familiar cycle, if you will. Democrats signal discomfort with fringe positions, but vote in lockstep to protect them. In Newsom’s case, he governs that way. They try to sound moderate without governing that way. That disconnect goes beyond, I think, traditional cowardice. It’s about incentives. As long as Democratic voters disagree with the activists, but don’t punish their party for following in line, nothing’s going to change.

So Republicans, I think especially in a second Trump term, will have to do more than point out these absurdities. They’ll need to demonstrate competence in governing, hold the line on gender ideology and show voters that there’s an alternative to activist capture. Skrmetti, I think, gives them the legal cover to do so, but there’s a bigger political fight around this issue that is really still just in its infancy.

Renu Mukherjee: I actually, I will say that I don’t think that the GOP, of course they still have to reveal the horrors and just the lack of scientific research behind these transition surgeries for minors and just pediatric gender medicine generally. I will say though that this case was a massive political miscalculation. At the end of the day, just as the court’s opinion matters a great deal in terms, of course, how the law is read and policies that are pursued, the court of public opinion matters a great deal as well. Even prior to this decision, super majorities of Americans were uncomfortable with involving children with respect to medical procedures, puberty blockers, and even polling that has been done in the immediate aftermath of the decision shows that most Americans think that the court reached the right conclusion.

I think where the, both the transgender lobby and the ACLU as the organization, the sort of the vessel for the transgender lobby now, really misstepped is that they brought a case that was based around minors. The thought of having children that, know, their brains aren’t even fully developed, that oftentimes, you know, when you go to CVS, if you’re a minor, you can’t buy Advil, but you can consent to having gender reassignment surgery that you can, you know, pause puberty, that that’s something worth fighting for. I think this represents both the transgender movement’s and the ACLU’s extreme hubris in what they thought that they were going to win. And I think that most Americans are are frankly disgusted by a lot of the facts of the case and what’s going to happen. So I do think, of course, the GOP will continue to, will continue to have to fight on this, especially as the Democrats, you know, make it seem as though these procedures and this lobby is not as extreme as it in fact, it in fact is. But I also think that a lot was revealed with this case that perhaps disgusted and shocked the American public and it was a huge error on the transgender lobby’s part.

Charles Fain Lehman: I do think just very briefly there’s an emergent framing and the Times has been instrumental in this of saying well there’s sort of, the left got out over its skis on this, to be sure the right is also very bad. There’s this new podcast, the Times put out, The Protocol, about the development of gender medicine. Our Leor Sapir wrote a great piece for us at City Journal about this, and his argument was basically, they’re unable to get over this boogeymaning of the Republicans, even though the Republicans were often quite sensible in his, Leor’s, experience on this topic. I think that that may be the new rhetorical road at the very least.

Sorry, John, you were going to say something.

John Ketcham: The court declined to nationalize an issue that really is best left to the states. I think they did learn the lesson of Roe and Dobbs. And now you’re going to see political battles wage between blue states and red states on this issue. I think the blue states have the worst of the argument in terms of the science, in terms of the medical evidence, but also on the politics, as Renu was saying. They really did make a fundamental political miscalculation.

And now it’s up to blue states to say, well, how permissive are we going to be when it comes to some of these procedures? And I think that that will bode badly for many of the blue state political leaders who continue along the path of pediatric gender medicine, gender affirming care, which is very much an outlier in the global area of treatment in this space.

Renu Mukherjee: I think I’ll...

Jesse Arm: Yeah, in some ways I almost wonder if the proper analog here is COVID in some ways. It’s like mass establishment failure, communication of wrongdoing. But with COVID, you know, the Republicans pushed in one direction, the Democrats pushed in another, the consensus moved over time because nobody was, I think, as aggressively institutionally like back-ended and forced to take a certain position. This one will be different because there’s more aggressive ideology attached to this that is unshakable. There are so many groups, are so many institutional backers, there are so many money interests who are actually well to the left of even where the median Democratic Party voter is on questions relating to this and are living in a world that is hyper-elite and where it’s more acceptable for a child transition to take place. It’s more normalized.

And those are the people that ultimately control the levers of what’s deemed appropriate policy positions to hold in the Democratic Party. It’s hard to see the Democratic Party correcting course on this. Even some of the, yeah, I mentioned John Fetterman. He voted, the moderating influences in the Democratic Party, right? John Fetterman couldn’t vote for a bill that would have said no men in women’s sports. And Ro Khanna, another.

Charles Fain Lehman: Allegedly moderating.

Jesse Arm: Ro Khanna, another example, someone who’s moderating in different ways, reaching out to some people who are way out on the kind of isolationist faction of the right over foreign policy issues, or somebody who’s extending an olive branch to some of the more national conservative types who believe in a more robust industrial policy to build bridges. Even Ro Khanna is telling Gavin Newsom, don’t bend the knee to the Trump administration on men and women’s sports and pediatric gender medicine. I’m like, listen, if that’s the road you’re going to take, this just is going to remain a badly losing issue for Democrats for the foreseeable future. I don’t see a clear path to moderation for them.

Charles Fain Lehman: Renu, want to take a last thought?

Renu Mukherjee: I was just going to add that when you, as with any high profile case, not just with respect to transgender rights here, but also, for example, affirmative action. If you are invested in the case and you’re bringing the case, you have to be comfortable with the fact that a lot of facts that perhaps before did not see the light of day are going to see the light of day and that the public is going to be engaged in the issue in a way that perhaps was not the case before the question in the case was nationalized. And with respect to affirmative action and Students for Fair Admissions, know, Students for Fair Admissions took that gamble and they succeeded, and we’re seeing them continue to succeed over the last several years. Unfortunately, for the transgender lobby, these people that are interested in this, they took this gamble largely based in hubris. The facts were not in fact on their side, as John mentioned. The research was not on their side. And hubris had them make this sort of unforced error. So I think as with any high profile issue of this sort, you have to be comfortable with the fact that you just might lose and I don’t think this is something that Chase Strangio and the ACLU and all these characters really thought through.

Charles Fain Lehman: Yeah, all right, so I want to take this out and this is obviously not going to be the last time this issue is at the court. I’m sort of curious for a little bit of court watching because again, I think that there’s been sort of this back and forth. You know, do we think that, this is my question of the panel, do we think that the court is going to continue to sort of try to find the middle ground, take this more John Roberts approach, try to keep Neil Gorsuch on sides, or should we start to expect things that are more in the Amy Coney Barrett, Clarence Thomas camp more aggressive rulings where, you know, what are they, where they going, how much are they following public opinion, how moderate do they want to be? John, I’ll let you lead us off.

John Ketcham: Yeah, I see it more on the second side because, know, Skrmetti declined to follow the logic of Bostock, right? So Bostock is getting cabined basically to situations that involve employment discrimination, Title VII of the Civil Rights Act. You know, it means that we’re just not going to see gender ideology spread quite everywhere in the way that many, including myself, have feared, you know, just because Title VII got defined in this way in 2020, right? Maybe the Bostock holding applies to other titles of the Civil Rights Act, but it’s not going to apply to constitutional claims.

Charles Fain Lehman: Jesse, what do you think? Where do see them going?

Jesse Arm: I don’t know. I mean, John is so much better qualified to answer this than I am. I would say closer to the culturally right-wing position just because, I don’t know, it’s ultimately still the John Roberts Court and they seem to care about public opinion. And this is an issue on which both public opinion and the kind of hard right cultural position actually align. So I think that’s a reasonable assessment of where the court will go there.

But it’s, you know, totally vibes based assessment. I’m not a lawyer, so. But I got the same answer as John, just going off vibes.

Charles Fain Lehman: That’s the best kind of assessment.

Yeah. Renu, what do you think? You’re a court watcher. Yeah.

Renu Mukherjee: Sure, I know, but Charles, I know you hate when there’s consensus on the panel. And unfortunately, I’m going to have to agree with Jesse and John here that I think that Amy Coney Barrett and Clarence Thomas’s, that viewpoint will win the day largely because it’s the position of the liberal justices, the dissent, does not make any sense. You could simply say, you know, to say that transgender individuals are some sort of protected class, well, the status of a protected class is largely based on an immutable characteristic. The whole concept of transgenderism is that, you know, you can change that characteristic. So that’s my, that’s why I think ultimately sanity will prevail here, but unfortunately I’ve been disappointed before.

Charles Fain Lehman: I think they’re going to keep moving slowly. I would not be surprised if we see more Bostocks, in part because that is actually what’s aligned with the majority of the public, which is that the majority of the public does not want these procedures provided to children. They don’t want transgender individuals to participate in sports, but they also say we don’t want employment-based discrimination, housing discrimination, et cetera, on the basis of transgender identity status. That’s what the American public… If you put the word discrimination in a poll, the American public is usually against it. So I do think that there is some, there’s clearly in my mind, some caution coming from the court. And there may be more piecemeal than we’re expecting, but we’ll see.

On that note, I’m curious about how people spent their weekends. I spent my weekend monitoring the situation in the Middle East, which as people may have noticed, got a little interesting on Saturday.

But, you know, so I’m curious what news stories are on your radar coming into this week, or if there are no news stories on your radar, how you spent your weekend. John, you were going fishing?

John Ketcham: Yeah, with my lawyers group. I just stepped down as the president of an 89-year-old lawyers club and we have an annual tradition…

Charles Fain Lehman: You’re 89 years old?

John Ketcham: Yeah, 89, yeah, we’ve got some members whose fathers were a president. It really does go back. And we have an annual tradition of going to an outing. So this year I decided we would do a fishing trip and we had a really great time on Friday catching flukes in the Long Island Sound.

Charles Fain Lehman: And Jesse, assume, I’m guessing you spent the same, the weekend doing what I did, which was like refreshing Twitter about the bombing of Iran.

Jesse Arm: Yeah, I’ve been monitoring the situation pretty hard. I’m loving all the memes about obsessively monitoring the situation. In fact, I’ve been monitoring the situation in the Middle East so hard that I basically ignored the NBA finals this year, more or less missed Game 7, except for occasionally tuning in last night. I think it’s, I don’t know, I mean, I’m a pretty big NBA fan. You see my Detroit Pistons gear in the background here, if you’re watching us on YouTube. But I don’t know, I can’t say it was because it was two small market teams because I’m a massive fan of a very small market NBA… Well not small market, but you know, a Midwestern market NBA team. I don’t know, I just, it didn’t capture my attention the same way this year and yeah, been very dialed into Twitter lately, so, and that’s never good.

Charles Fain Lehman: No, that’s never good. Renu, how about you? Did you do something else this weekend other than look at Twitter like me and Jesse?

Renu Mukherjee: I did. Normally I would have been glued to Twitter, but my best friend who lives in Ohio, I don’t get to see her really all that often, visited me in D.C. for the long weekend. And so I was not on Twitter besides, you know, Saturday evening, of course, really over the last several days, which was a good break. And she hadn’t been to D.C. since 2018. So I was able to take her to Le Diplomat. You know, we walked the monuments despite the heat waves. And so I had a very classic D.C. weekend with my best friend and it was wonderful.

Charles Fain Lehman: I, in between monitoring the situation, I took my older son, my four-year-old, to a baseball game where it was 93 degrees, so we didn’t stay the entire time, but he got frozen ice, shaved ice, so he’s happy. On that note, that is about all the time that we have. Thank you to our panelists, thank you as always to our producer, Isabella Redjai. Listeners, if you’ve enjoyed this episode, or even if you didn’t, please don’t forget to like, subscribe, rate, comment, ring the bell, sound the alarm, do all the other things that you’re supposed to do to learn more about things that are coming up on YouTube and other platforms. Please feel free to leave us comments and questions below. We might even eventually answer some of them if we ever get one. Until next time, you’ve been listening to the City Journal Podcast. We hope you’ll join us again soon.

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