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If You Had to Pick: Sam Or Elon?; Commanding the Raid: Adm. McRaven On The 15th Anniversary. Ex-FBI Director James Comey Faces Charges Over "86 47" Post; Supreme Court Limits Voting Rights Act, Use Of Race In Redistricting. Aired 9-10a ET

Aired May 02, 2026 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

VICTOR BLACKWELL, CNN ANCHOR: Casey Musgraves is a success. Hey, if you see something or someone I should see, tell me. I'm on Instagram, TikTok X and Blue Sky. And you can listen to our show as a podcast.

And tonight, tune in for a new episode of "Kara Swisher Wants to Live Forever." That's tonight at 9:00 on CNN and tomorrow on the CNN app. Thank you for joining me today. Smerconish is up next.

[09:00:31]

MICHAEL SMERCONISH, CNN ANCHOR: Hard to know who's wearing the white hat in this one. I'm Michael Smerconish in the Philly burbs.

Two men are facing off in a federal courtroom in Oakland, California. Between them, they've helped build what many consider the most transformative and potentially dangerous technology in human history. Both of them had said so out loud and on the record. Elon Musk testified on Tuesday that AI could, quote, "kill us all." And at the end of his testimony, he managed to slip in some references to the movie "The Terminator," a classic film about AIs nearly destroying humanity.

Sam Altman has said, AI will, quote, "probably, most likely, sort of lead to the end of the world." In the same breath, he added, "But in the meantime, there will be great companies created."

So we have two men who have each stared into the abyss of what artificial intelligence could become and responded and by racing to build it faster than anyone else. And now they're in court arguing their case in front of nine jurors. Musk says that Altman took a charity, OpenAI, which they cofounded on the explicit promise that it would develop AI for humanity's benefit, and turned it into an $85 billion powerhouse that made Altman extraordinarily wealthy. And that wealth could mushroom.

Insiders are telling the New York Times that OpenAI may be preparing for a, quote, "potentially blockbuster initial public offering as soon as this year." And for all his wealth, Altman is a lightning rod. Last year, he was temporarily ousted by his own board for a purported lack of candidness. Just last month, he survived two separate attacks on his home within 48 hours. The first, a Molotov cocktail thrown at his front gate, followed two days later by a drive by shooting. The suspect in the first attack was armed with an anti-AI manifesto. To his supporters, Altman is the visionary bringing us the future. To his critics, he's a con man racing toward an apocalypse.

Altman says that Musk is a sore loser who left the board when he couldn't take control, then launched his own competing for profit firm xAI. Both of those things could be true. It's gotten so testy that even the judge is losing patience. On Thursday, as Musk's lawyer repeated the industry hype warning we could all die, Judge Yvonne Gonzalez Rogers shut it down. She pointed out the ironic contradiction of Musk building his own AI company while complaining the tech is too dangerous to be run for profit.

She noted, I suspect there are plenty of people who don't want to put the future of humanity in Mr. Musk's hands. And reminded both sides this is a case about a charitable trust, not a sci-fi movie.

So what does Musk actually want? He's seeking the disgorgement of ill- gotten gain, potentially $150 billion, not for his own pocket, but to be returned to the nonprofit mission. He wants Altman and Greg Brockman ousted and for the entire for profit structure to be unwound. According to CNN, the jury could begin deliberations as soon as May 12th. That's 10 days from now.

Thus far, the predictive markets are split as to the likely outcome. Polymarket traders currently giving Musk a 35 percent chance of victory. Kalshi traders have it neck and neck with Musk as the slight favor to win this trial at 53 percent. Which brings us to our own poll question today. Who do you want to win the court battle for the future of open AI: Altman or Musk?

And neither is not an option because one or the other has to win this trial. Go to smerconish.com and cast your vote. The stakes for the God machine couldn't be higher.

Joining me now to break down the billionaire subplot, NYU professor Prof. G podcast host, author Scott Galloway.

All right, Scott, great to see you. Pick a side.

SCOTT GALLOWAY, PROFESSOR OF MARKETING, NYU STERN SCHOOL OF BUSINESS: Oh gosh, I'm on the side of evidence and actual legal argument. I will answer the question around Altman versus Musk, but I think the really important question here, the way I would summarize this case, is that I believe this is grievance in a messiah complex cosplaying a legal argument. Let's just do a brief history of this case. Altman tried to raise $500 million for the nonprofit and couldn't do it. And Elon Musk suggested it turned to for profit and that he should control it.

And when the OpenAI board said no, he basically exited the company signing very detailed legal documents, forfeiting his ownership stake and his governance rights. And then six years later when it's worth $800 billion, has all of a sudden decided he's made a mistake.

[09:05:04]

In 1995, I bought a house in Noe Valley for $720,000 which was a lot of money for me. And then two years later, when I moved to New York, I sold it for 950,000, thinking I was a genius. It ended up that house was next to where Mark Zuckerberg lives and is likely worth now $10 million. This is the equivalent of me going back to the current -- his is like me going back to the current owners and suing them because I screwed up and sold it.

Ron Wayne sold 10 percent of Apple for $2,300. He is not suing Apple.

From a legal standpoint, courts like argument and evidence, not regret and indignance. From a legal standpoint, this is Marvis Frazier versus Mike Tyson. This should be over in 30 seconds of the first round. Musk has no leg to stand on here.

SMERCONISH: OK, I noticed you didn't say Joe Frazier. And of course, that would be historically incorrect because those two never fought --

GALLOWAY: Right.

SMERCONISH: -- but that's a battle I would have liked to have seen. I want to -- let me just show you one other bit of evidence and have you just offer a Scott Galloway take. It's an exchange initially from Musk to Altman. It's from 2022, and it culminates -- this -- to give it some context, this is after Microsoft makes a $10 billion investment and drives up the value now of OpenAI. And Musk says to Altman, this is a bait and switch.

And then the response, if we can put that on the screen, the response is, it begins this way, "I agree this feels bad," says Altman back to Elon Musk.

Scott, it's true it was conceived as being a not for profit. And then the mission changes. And that's what those documents speak to.

GALLOWAY: If I donate $100 million painting to a museum and the museum shop is so successful, they turn it into a for profit, there's nothing legally wrong with it. There's no -- there's no law against a nonprofit turning into a for profit. That doesn't mean the people who gave money to the nonprofit have anything resembling a claim. And this is also cynical, Michael, because Musk is trying to portray himself as some sort of drape himself in some sort of purity test, that he's the one to manage this technology. And yet he goes on to start a for profit AI or LLM that most experts would argue is the least safe or has the fewest guardrails.

So again, if we're going to talk about -- if we're going to go to the character argument, which really shouldn't happen here, but let's do it, power corrupts, and absolute power absolutely corrupts. We have an individual here who controls space, 90 percent of launches, 80 percent of low earth satellites, controls the EV market or dominates it in the U.S., controls communications across battlefields, and is the wealthiest man in the world, and now he's decided that he needs to control AI. So from a strict historical perspective, we very rarely look back and think the most powerful person in the world, which I would argue Elon Musk is right now, should have had more power. And if you want to get even more soft and more personal to character, this is an individual who supposedly has an addiction to ketamine, sleeps with a loaded gun next to his bed, is being sued concurrently by two women for sole custody of that child because he hasn't seen that child. And his involvement in the government was to cut funding for HIV positive mothers in Africa.

And now he wants to control the one piece of the Internet on totally baseless legal grounds that he should own it. What could go wrong? This should and will be a knockout in the first round.

SMERCONISH: OK. I know how Scott Galloway is voting on today's poll question. Step back and just address this for the rest of us. What's at stake for us? Front page today of the Times print edition, a discussion about how Bernie Sanders and Steve Bannon can agree on one thing.

They think AI is dangerous and out of control. I'm paraphrasing. And anecdotally, there's a lot of information here about people across the country just really worried that there's a lack of regulation and that the horse has already left the barn. Big picture view from Scott Galloway is what?

GALLOWAY: We shouldn't be. If you're waiting on the better angels of CEOs or trying to pick which one is more noble, don't hold your breath. And that's a bad strategy. We're supposed to elect talented, thoughtful people who have the domain expertise to prevent a tragedy of the commons and create regulation that saves us from these technologies. But hoping or picking one person because we think they're better than the other.

Every CEO of a tech company follows the same journey. They started as Anakin Skywalker. They turn into Darth Vader because our system rewards them for profits and wealth and little else. This is a failure of regulation on the government, but trying to figure out who would be less bad is just a dumb way to run a government.

[09:10:02]

We would still be pouring mercury into the river. We would still be selling cigarettes to 14 year olds if the government hadn't stepped in. This isn't Musk versus Altman. This is whether or not we have the foresight to elect the people, the domain expertise and the leadership to regulate these companies such that we don't have to engage in these ridiculous character assessments.

SMERCONISH: It's not -- by the way, it's not an excuse for what you've just said, your indictment of the government, but I don't think they understand it. To me, it's reminiscent of the senator who says to Zuckerberg, you know, how do you make money? We sell ads. Senator.

Final thought from you and then I've got to run.

GALLOWAY: We figured out a way how to mostly regulate nuclear detonation. There were nuclear scientists who thought that was the end of the world and killed themselves. The illusion of complexity has been weaponized by the incumbents to delay and obfuscate regulation. We can absolutely and should regulate this.

We need a younger general election -- elected representative. We need less gerrymandering and we need citizens united overturned such that our elected representatives can do what they are supposed to do. And that is understand these perfect technologies. Regulate them such that they do their goddamn job and prevent a tragedy that comments. We can absolutely regulate AI and should.

SMERCONISH: When you come back, don't hold back your feelings. Next time, tell us what you're really thinking. Thank you, Scott.

GALLOWAY: Thanks, Michael. It was good to be here.

SMERCONISH: What are your thoughts at home? Hit me up on social media and I will incorporate some of your reaction into the program. Musk at least has an appreciation for the risks and dangers of AI. Altman seems like he just wants to push forward and through and throw -- through caution -- through caution -- through OK, through caution to the wind.

Look, I read some of those doomsday quotes and there are a lot more that have come from both camps. I mean that -- that's the irony in all of this, is that both of them seem fully cognizant of the dangers that are being discussed as of concern to Bernie Sanders and Steve Bannon and to all of us.

Make sure you're voting at smerconish.com on today's poll question, where I'm asking, who do you want to win this battle? Somebody's got to win this battle for the future of Open AI. You realize I'm asking very specifically about that entity, Altman or Musk, and deliberately I didn't give you the option. Let me just make this point, if I may.

I know a lot of you say neither of those guys. I'm not giving you that option today because in the trial, one or the other is getting the verdict.

The Justice Department is charging former FBI Director James Comey with threatening the life of the president over a cryptic social media photo. You've all seen it by now, right? While many legal scholars would call it protected speech, I sat down with former Bush administration justice official. That would be John Yoo, the Berkeley law professor. He said that Comey might have a harder time hiding behind the First Amendment than you might think.

You'll hear those words. And next 15 years ago today, I'll bet you know exactly where you were. This is the day a team of Navy seals descended on a compound in Pakistan and ended the manhunt for Osama bin Laden. The man who commandeered that mission, retired Admiral William McRaven, joins us on this pivotal anniversary and we'll talk about the legacy of Operation Neptune Spear in the context of his new book, his new tribute to the American spirit. The Admiral is next.

Sign up for the newsletter at smerkondish.com when you're voting. You'll get the work of illustrators like Eric Allie and also Steve Breen.

(COMMERCIAL BREAK)

[09:17:48]

SMERCONISH: Today is the 15th anniversary of Neptune Spear, the U.S. special operations raid that killed Osama Bin Laden. Joining me now is the man who commanded that mission, retired four star U.S. navy Admiral William McRaven, 37 years as a Navy SEAL, he rose to the commander of all U.S. special operations forces. And you'll remember Admiral McRaven for his famous make your bed speech at the University of Texas that now has over 150 million views online and is of course a best-selling book.

He's a New York Times best-selling author several times over and he's written a new book, "Duty, Honor, country and a Tribute to the American Spirit." Admiral, great to see you. This is a book that's a collection of thoughts and speeches and poems. It includes a speech that you delivered in support of the Boy Scouts that really stands out, especially on this day, because with regard to the planning of the bin Laden mission, you single out Secretary Robert Gates for his courage for a very interesting reason. Why?

ADM. WILLIAM MCRAVEN (U.S. NAVY FOUR STAR ADMIRAL): Yes, first, Michael, great to be with you. You know, as we were debating the mission to get bin Laden to do the raid, the president would at the end of the day, at the end of the session, go around the room and Secretary Gates was never in favor of the raid. And I remember at one point in time after we had our session, we went outside the Situation Room and I pulled the Secretary aside And I said, Mr. Secretary, I work for you. You know, if you don't want me to advocate for the raid, I won't do it.

And this point of great integrity was he turned to me and he said, bill, you have an obligation to give the President of the United States your best military advice. And that's what I expect you to do. He says, look, I was, you know, scarred a little bit by what happened during Desert One because he was in the White House at the time. He says, but right now, you give the President your best military advice and I'll give him my best advice as a secretary. And they don't always have to align.

SMERCONISH: You say in the book. I remain convinced to this day that the courage exhibited by this secretary to let his subordinate brief a mission he was opposed to maybe one of the most unselfish and honorable things I witnessed in my time in the military. Why did you write the new book, Admiral? What is it you wanted to most convey?

[09:20:08]

MCRAVEN: Well, the book, of course, the title, "Duty, Honor, Country," as you know, Michael comes, you know, from MacArthur's great speech at West Point in 1962, and he talks about these three words, and he says, duty, honor, country, says these three hallowed words are what you ought to be, what you can be, and what you will be, he says they're the rallying point to build courage when courage seems to fail, to regain faith when faith is lost, and to give you hope when hope is forlorn. So this book really is about courage, faith and hope. It is at a time when I think the American people are struggling with their belief in America. And I will tell you, I spend a lot of time with the youth of America. I teach at the LBJ School at the University of Texas. I travel the country. I have great optimism about the future of this country.

It's going to be hard as we come up on 250 years. It's been hard getting here. It's going to be hard to keep this going. But I will tell you, there are great people out there that are doing remarkable things. And this book, I hope, will inspire people who read it to realize that, you know, we're doing just fine and we're going to be OK if we just keep fighting for our democracy.

SMERCONISH: Admiral McRaven, you're a man of so many talents, including that of poetry. Do you have a copy of the book handy? And if so, turn to page 90, because I made a full screen of page 90 of the book. And let me just say, this is a poem called I Remember, and as you describe a tough poem to write, it is angry, it is regretful, it is filled with fear and loss, but it is also filled with an unwavering respect and admiration for all those who served and those who gave their full measure. If you could pick it up on page 90 and offer whatever explanation you think necessary, I'd love it if you'd read aloud.

MCRAVEN: Yes. Thanks, Michael. This was a poem, as you said, that was a little hard for me to write. I was a little angry because there is a print that I have in my office that I look at every day, and it's soldiers about to go into a house in Ramadi. And I have been on a lot of those missions, although past my operator's time.

But I could feel that mission as I look at that print. And the guys are about to go into an enemy house. There's a helicopter coming down the road. There's a pander vehicle in the back. There's a dog on a leash.

It is hot. It is dusty. And it brought me back to Iraq and the incredible sacrifice of not just the soldiers, but the soldiers sailors, airmen, marines, the Foreign Service officers, the intelligence professionals, everybody that served there. But this is what I wrote on the last page. It says, I remember the letters, the letters that I had to write to the -- those soldiers that were killed.

I remember the letters written again and again and again and again. When will the letters stop? Why are they so young and stoic and brave and caring? What will I say this time? I remember the sorrow.

I remember the sorrow. The sound of taps on the hillside covered with the graves of heroes, the tearful widow, a weeping child, a folded flag I remember the sorrow so clearly. Their shadows grow dim and I fight to remember. Their stories grow old and I must fight to remember. They gave everything.

The least I can do is remember. I remember -- I must remember. I must always remember.

SMERCONISH: It's beautiful. The book is terrific. I'm appreciative and I'm grateful that on this 15th anniversary of just an incredible mission that you commanded, that you're joining us. I wish you good things, Admiral, with the book. Thank you, sir.

MCRAVEN: Thank you. Thank you, Michael.

SMERCONISH: Still to come, can a photo of seashells on a beach constitute a federal crime? The government says James Comey was sending a coded message to eliminate President Trump. It's a case that pits prosecutorial discretion against the Supreme Court's standards on presidential safety. I'll ask Berkeley law professor John Yoo if this indictment is a genuine defense of the executive branch or a stretch that no jury will buy.

Elon Musk warning that AI is not only a threat to business, but also a threat to our very existence as he fights OpenAI and Sam Altman in court. I want to know what you think. Pick one or the other when you're at smerconish.com, who do you think you want to win this court battle for the future of open AI? Is it Altman or is it Musk? Neither is not an option.

[09:25:08]

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Your fear of AI is the collapse of humanity.

ELIEZER YUDKOWSKY, COFOUNDER MACHINE INTELLIGENCE RESEARCH INSTITUTE: Well, not the collapse, the abrupt extermination. There's a difference.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

SMERCONISH: As you know, for the second time, the Trump administration has indicted former FBI Director James Comey. The charge is knowing and willfully making a threat to take the life and inflict bodily harm upon the president of the United States. It flows from an Instagram image of seashells that spell out 8647, which was taken as a threat against the president. Eighty-six is slang, meaning to throw out or eliminate something. Donald Trump is, of course, our 47th, 45th and 47th president.

Many have criticized.

[09:30:00]

SMERCONISH: -- against the president. Eighty-six is slang meaning to throw out or eliminate something. Donald Trump is, of course, our 47th, 45th and 47th president. Many have criticized the indictment, saying that such a message is well within the range of political speech protected by the First Amendment.

When I interviewed Berkeley Law professor John Yoo this week, remember he's the former deputy assistant attorney general for the office of legal counsel under President George W. Bush, he did not quite agree with that assessment.

(BEGIN VIDEOTAPE)

SMERCONISH: Professor John Yoo, doesn't he have a First Amendment right? Isn't this political speech?

JOHN YOO, LAW PROFESSOR AT THE UNIVERSITY OF CALIFORNIA, BERKELEY: No.

SMERCONISH: Why not?

YOO: The court has said. So, there have been people who've been prosecuted under this specific law. It's threatening the life of the president. It's not just threatening anybody, which is also a crime but usually under state law. And the Supreme Court has said there is no general First Amendment defense to threatening the life of the president.

In fact, the Supreme Court said -- there's this is a case called Watts. People haven't been talking about this, but you can look it up. It's right there. And it says -- the Supreme Court said in the 1960s that the government has an overwhelming interest in protecting the life of the president to make sure people aren't threatening them all the time so that he can do his job. And so, there is no general free speech right to threaten the president's life.

SMERCONISH: I hold in my hand the two-page indictment. Is this really a good use of the DOJs time?

YOO: That's a harder question.

SMERCONISH: Why?

YOO: No, no, no, because, look, the government has what we call prosecutorial discretion. They choose which cases to bring. Personally, if I was the attorney general, I don't know if I would spend a lot of time on a case like this. But this justice department clearly thinks it's important.

They do go after most people who threaten the life of the president. Just -- actually, I was looking this up under President Biden, the DOJ and FBI went to a guy's house and ended up shooting the guy and killing him because they were serving a warrant, because the guy had emailed in a threat to the president's life.

So actually, the Secret Service, the FBI. and DOJ, they really do take this seriously. They're -- they are people in jail right now for threatening the life of the president.

SMERCONISH: I can't see how this case will be successful. Do you think this case could be even in North Carolina, be successful?

YOO: It's going to be hard because the jury -- as you say, the jury -- if you're a good defense attorney, you're going to say 86. That's just a number. Forty-seven, what's that? Nobody -- and that's important. It has to be objectively clear to a reasonable person that that's a real threat. (END VIDEOTAPE)

SMERCONISH: John Yoo is a brilliant guy. I disagree with him. Eighty- six has different meanings, including we're out of soup, which my wife was told by a waitress when we went out to dinner this week, 86 on the clam chowder, literally, is what he said.

Additionally, the burden here for the prosecution is not to prove how President Trump interpreted the shell picture. It's to prove that Comey intended to make a violent threat, or at least knew that there was a substantial chance that it would be viewed as threatening. Which is why I can't see that the case actually gets as far as a jury.

Social media reaction to today's program so far, you can find me in all the usual places X, Facebook. What do we got?

Comey knew exactly what he was doing. To say he didn't is just keeping your head in the sand.

I like the reference because it was a picture taken on the beach. Knew what he was doing. I don't think that he knew that he was threatening the life of the president of the United States. I just made this point. And by the way, there was a great "Washington Post" analysis, I think it was yesterday, maybe the day before, which said that the way in which -- I have the indictment right here, the way in which the indictment was written relied on a misapplication of the law from the Supreme Court of the United States on this issue.

It's not -- what's most important here is getting in the head of Comey rather than the head of Trump. It's not how President Trump perceived the shell picture, it's what Comey intended when he said it. And I don't think that Comey's intention can be proven as, you know, I wanted to put a threat on the president of the United States. I know, grisly subject. Here's another social media reaction. What do we have?

I disagree, neither is a valid option. A.I. -- OK, so this is on the poll question today of, you know, pick your least favorite villain. Is it Musk or is it Sam Altman? And I know that so many of you say, well, I don't want to pick either of them. But I'm asking a question about the trial taking place in Oakland, California, right now relative to the future of OpenAI.

And at issue is whether Musk gets his wish, which is to return OpenAI to its not for profit roots. Or does it proceed with what will probably be one of the largest IPOs ever? So, neither is it an option in the context of this case. And that's why the choices in the poll question today are one or the other one or the other.

Still to come, a controversial opinion from the Supreme Court changes the interpretation of the Voting Rights Act as Alabama becomes the second state to redraw its political map. In the wake of the decision, how many other states could follow the court's green light to overhaul their congressional districts?

[09:35:04] We'll speak to legal expert Nina Totenberg in just a moment. And you still have time to weigh in on today's poll question at Smerconish.com. As I just referenced, who do you want to win the court battle for the future of OpenAI, Sam Altman, Elon Musk?

I've already explained why neither is not an option. See why some experts believe this is a battle we cannot afford to lose.

(BEGIN VIDEO CLIP)

AZA RASKIN, CO-FOUNDER, CENTER FOR HUMANE TECHNOLOGY: We need to take a threat from A.I. as seriously as global nuclear war.

DANIEL ROHER, OSCAR-WINNING DIRECTOR: I want to ask you to promise me that this is going to go well.

SAM ALTMAN, CEO, OPENAI: That is impossible.

ROHER: OK.

(END VIDEO CLIP)

SMERCONISH: On Wednesday, the Supreme Court handed down a blockbuster opinion, Louisiana versus Callais. In a six to three decision, the court affirmed that a new Louisiana congressional district was designed using unconstitutional racial gerrymandering.

[09:40:07]

Louisiana has six congressional districts. Close to a third of its citizens are black. This new district, devised under section two of the Voting Rights Act, was meant to create a second majority black district in the state.

Justice Alito, in his majority opinion, wrote, quote, "Allowing race to play any part in government decision-making represents a departure from the constitutional rule that applies in almost every other context."

But in a scathing dissent read from the bench by Justice Elena Kagan, she stated the decision will, quote, "Eviscerate the law and systematically dilute minority citizens voting power." The decision had an immediate effect. Louisiana Republican Governor Jeff Landry postponed the May 16th House primaries.

Meanwhile, Alabama Governor Kay Ivey has called a special session for legislators to reschedule their midterm primaries and revert to a previous electoral map. Republicans asking other southern governors to delay their primaries. And, of course, that's what this whole debate is about. Which system best reflects the will of the voters. With Democrats and Republicans differing on how the minority vote should be treated.

It should be noted, by the way, that the electorate can change, and it's far from guaranteed that the black vote will be monolithically democratic in the future as Harry Enten recently observed (BEGIN VIDEO CLIP)

HARRY ENTEN, CNN SENIOR DATA REPORTER: Trump's approval among African Americans at this point in term one, he was at 12 percent. You know, he's been losing ground with a lot of groups. He's gaining. He's gaining ground with African-Americans. he's up to 16 percent at this point.

This could have major ramifications and could help put Republicans over the top in a number of southern places in the midterm elections. And we even see it to a wider degree among the party ID margin, where all of a sudden, there are a number of African Americans who are walking away from the Democratic Party, and a number of them who are walking into the Republican tent.

The Donald Trump led Republican Party is making gains among African Americans that we simply could have not seen the Republican Party make in a generation.

(END VIDEO CLIP)

SMERCONISH: Here to discuss this game changing Supreme Court case, legal affairs correspondent for NPR, Nina Totenberg.

(BEGIN VIDEOTAPE)

SMERCONISH: Nina, thank you so much for being here. Three years after ending affirmative action in college admissions, how much of a surprise was this?

NINA TOTENBERG, NPR LEGAL AFFAIRS CORRESPONDENT: Well, it wasn't a surprise because this is a conservative court that has been very hostile to the Voting Rights Act. So, I can't say it was a surprise. But it still is going to have thunderous repercussions for our political system.

SMERCONISH: Help me explain it in lay terms. It's a reinterpretation of section two that's going to end the process of using race to carve up congressional districts like that district we've all seen in Louisiana, but still, discrimination based on race will not be allowed. Can you achieve both of those goals?

TOTENBERG: Probably not. So, let's sort of take this apart. First of all, I don't -- I don't think you can really understand this without first understanding that, just a few years ago, the court said that states can gerrymander however they want. In other words, for partisan purposes, they can definitely do anything they want, no matter how extreme. And that means that in states that are dominated by one party or another, you're going to see what you've already seen the beginning of this year, and it'll just get worse and worse. You'll see red states and blue states, and it'll be very rare that they're not completely just bisected to achieve the maximum partizan result.

So, its' not just Congress. It goes all the way down to state legislatures, to school boards, to city councils. All of that has been covered by the Voting Rights Act. And so in Congress, I think you're going to see fewer minority representatives. And that includes not just black representatives, but Hispanic, people of color. There are a quarter of those -- a quarter of Congress is like that now. And you're going to see fewer of those folks than you've seen since reconstruction.

SMERCONISH: You make a great observation because we tend to think about this in national terms. And yet, as they say, all politics are local. This will have a ripple effect to the local level.

I want to ask Nina Totenberg this, no one knows these personalities as a journalist the way that you do. Justice Kagan read her dissent and omitted the traditional respectfully from her conclusion. What does that tell us?

TOTENBERG: She has -- this is the thing that she has worried her the most on the court and about which she has been most ferocious. And so I think she's not respectful in this -- in this instance. And it's a very powerful dissent. It was in the courtroom.

[09:45:00]

It was -- it was a very sober and sad moment hearing her enunciate her dissenting opinion, which she knows will be the dissenting opinion for a very long time. If this is ever changed, it probably won't be on her watch.

SMERCONISH: Justice Alito wrote the opinion for the majority. In a matter of such consequence, how do you see the role of Chief Justice Roberts?

TOTENBERG: You know, Chief Justice Roberts has been opposed to the Voting Rights Act since he was a young aide in the Reagan administration. He tried to get the attorney general for whom he worked then, William French Smith, to get the president to veto the renewal of the Voting Rights Act in the 1980s. And President Reagan, of course, did sign it.

It was a bipartisan bill. The interesting thing is that the voting rights act was initially and continued to be bipartisan, and not just a few Republicans, lots of Republicans supported it and supported renewing it and strengthening it. And in ways that were specifically undone by the Supreme Court repeatedly, including this week.

SMERCONISH: Final question related subject, insofar as it deals with the court, there was another thing that united the conservative justices this week, and that is that each attended the state dinner for the king and queen of England. Were you surprised by that?

TOTENBERG: No. You know, we -- it is always said that when the president invites a person to the White House it is a mandatory appearance, which is why Trump in the first term was so insulted when people didn't, you know, for the Kennedy awards did -- said they wouldn't come. Artists said they wouldn't come.

But normally you respect the presidency enough to show up. And, the only odd thing about this is that it was only the Republican appointees. And usually at a state dinner or -- like this, there are some members of the court invited. Not all of them are invited. Usually they rotate it through, you know, the White House invites two or three, and they almost always, in my memory, is bipartisan.

You know, you in the sense that you pick somebody appointed by a Republican president, and somebody appointed by a Democratic president. That wasn't the case here. But it's -- in the greater scheme of Trump things, it's, I suppose, is to be expected.

SMERCONISH: Nina Totenberg, thank you so much for your expertise and analysis.

TOTENBERG: Thank you for having me.

(END VIDEOTAPE)

SMERCONISH: Checking in on your social media reaction right now. You can follow me on X, Facebook, my YouTube page, however you want to reach me.

You won't read this. Well, we've proven that incorrect. SCOTUS found that representation based mainly on skin color is unconstitutional.

Nathan Hale1755, I agree. That is exactly what Justice Alito said. We're not going to allow you to draw that meandering kind of a Louisiana map just so you can consolidate black vote and make sure there's black representation.

I'll tell you something interesting. I asked in my poll question a couple of days ago in the aftermath of this decision, should race be considered in redistricting? And 60 percent -- I think, 30,000 voted that day said, no, don't consider race.

And then on air, I asked people, do you agree with the recent Supreme Court decision pertaining to the Voting Rights Act? And similarly, people are like, no. But that was the outcome of the case. That was the outcome of the case.

Alito says, we're not going to allow you to discriminate based on race, but we're not going to allow you to draw districts that are based on race. So, Nathan Hale, there you go. Surprised you, didn't I?

You still have time to vote on today's poll question at Smerconish.com. And here it is. Who do you want to win the court battle for the future of OpenAI, Sam Altman or Elon Musk?

Hey, by the way, can I just say I'm doing the weave now? I'm doing the weave just like the president, except in my case, I am going to bring it back to something, which is this, you know, who ought to draw those legislative boundary lines? Artificial intelligence. Wouldn't you like to see what A.I. -- I mean, this is an area with regard to A.I. on which we all ought to be able to agree. Let A.I. draw those boundary lines.

Sign up for my newsletter when you're voting at Smerconish.com. Rob Rogers sketched this for us this week. And here's another one from Jack Ohman, also in my newsletter.

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[09:53:54]

SMERCONISH: OK, there's the result so far, 22,466. See, a lot of you didn't vote because you wanted to vote for neither. I get it. Who do you want to win the court battle for the future of OpenAI, Altman or Musk? Seventy-seven percent say Sam Altman.

Arguably the only election Sam Altman or Elon Musk could ever win is the outcome of this poll when they're pitted against one another. Here's more social media reaction from today's program. What do we have?

From the world of X. That poem -- right. I mean, that moment with Admiral McRaven was one of the best moments in the show's history. No, it was probably the best moment. So needed in these days in which we live. Thank you, Admiral.

I feel the same way. The only thing any of us are going to remember about today's program is Admiral McRaven reading a poem from his new book. I did not know that his talents, vast as they are, extended to writing poetry. Let me just give you some context.

So in the new book, he talks about the speeches that he delivers and what went into them, and he reprints some of them. And of course, we've all watched -- 150 million of us have watched the speech about "Make Your Bed." In this case, he's writing a poem at a time that he's reflecting on speaking to Gold Star family members.

[09:55:06]

I'm going to tell you how the -- how the poem began because you heard how it ended. And I think he wouldn't mind. It's titled "I Remember."

I remember the heat. A dry, suffocating torrent of air, the blazing burning sun baking the tarmac. Melting our souls. No clouds, no trees. Just a furnace of hate and heat. I feel the hate. I remember the heat.

I remember the dust filling our nostrils, caking our mouths. It rained from the sky and rose from the ground. With every turn of the tire and step of the foot there was dust. Dust, dust, everywhere dust.

I remember the heaviness. The helmet pressing upon my head, the armor squeezing my chest. I remember the weight of life and death at the end of our guns.

I remember the fear aboard the eight-wheeled coffin, surrounded by a thin shield of steel, the fear of the streets, the fear of the smiling people, the fear of no return.

I remember their faces so young, so stoic. Why couldn't they have been old men almost there. Not the young, not the young who would ever grow old. I remember their faces. I cannot forget their faces. I remember the loss, the searing pain of the unfilled boots, the solemn speeches, the lowered ramp and the flag draped coffin. A hole so deep in my heart only God could fill it.

Thank you, Admiral McRaven. If you missed any of today's program, you can always listen anywhere you get your podcasts. Thank you for watching. See you next week.

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