>> COMING UP NEXT ON ARIZONA HORIZON: IT'S OUR ANNUAL U.S. SUPREME COURT REVIEW.

WE'LL TAKE A LOOK AT SOME OF THE MAJOR DECISIONS FROM THIS YEAR'S SESSION AND DISCUSS OTHER ASPECTS OF THE HIGH COURT'S TERM.

IT'S OUR SUPREME COURT REVIEW, AND IT'S NEXT, ON ARIZONA HORIZON.

GOOD EVENING, AND WELCOME TO ARIZONA HORIZON.

I'M TED SIMONS.

TONIGHT IS OUR ANNUAL SUPREME COURT REVIEW.

EACH YEAR WE LOOK AT SOME OF THE BIGGER CASES DECIDED BY THE HIGH COURT AND DISCUSS WHAT THOSE DECISIONS SAY ABOUT THE MAKEUP OF THE COURT.

JOINING US TONIGHT IS PAUL BENDER FROM ASU'S SANDRA DAY O'CONNOR COLLEGE OF LAW... AND STEPHEN MONTOYA, A PARTNER AT MONTOYA, LUCERO AND PASTOR.

JERK GOOD TO HAVE YOU BOTH HERE -- GENTLEMEN, GOOD TO HAVE YOU BOTH WITH US.

THANK YOU FOR JOINING US.

IT LOOKS A LITTLE FESTIVE WITH THE BALLOON, WHERE ARE YOU GOING WITH THIS?

>> WELL, JULY 4th, WE HAVE TO CELEBRATE.

>> OKAY.

ALL RIGHT.

IS PRESIDENT TRUMP CELEBRATING BECAUSE IT SEEMED LIKE HE HAS A BIT OF A WINNING STREAK HERE GOING, ESPECIALLY WITH THESE EMERGENCY RULINGS.

>> IT'S A LITTLE FRIGHTENING.

IN FACT -- I MEAN, IT'S A LITTLE SURPRISING, AS WELL AS FRIGHTENING.

I WAS THINKING THAT THE COURT WAS -- THE COURT'S GOT A BIG PROBLEM WITH HIM BECAUSE HE'S GONNA KEEP DOING CRAZY THINGS, AND THEY HAVE TO DECIDE WHAT TO DO ABOUT IT.

AND IT SEEMS TO ME THAT THEY WERE DOING OKAY, AND THEY WERE KEEPING HIM UNDER SOME CONTROL, BUT, BOY, THE LAST WEEK OR SO, I DON'T KNOW WHAT'S GOTTEN INTO THEM OR WHAT HASN'T GOTTEN INTO THEM.

SO RIGHT NOW I'M UNSURE WHAT HE'S GONNA BE DOING, AND I'M ESPECIALLY UNSURE ABOUT WHETHER THE COURT WILL INFLICT ANY KIND OF REINS ON HIM.

THEY SEEM TO BE WILLING TO LET HIM DO ALMOST ANYTHING.

>> AND THESE EMERGENCY RULINGS, HOW UNUSUAL TO HAVE SO MANY OF THESE THINGS, AND CORRECT ME IF I'M WRONG, BUT THESE THINGS ARE TEMPORARY.

THEY ALLOW FOR THE CASES TO GO THROUGH, BUT THEY ALSO ALLOW FOR HIM TO SAY, IF I WANT X, X HAPPENS.

>> THEY ARE UNPRECEDENTED.

HOWEVER, THAT CORRESPONDS TO HIS UNPRECEDENTED STRING OF -- VERY UNUSUAL EXECUTIVE ORDERS, DOING THINGS THAT REALLY NO PRESIDENT HAS EVER TRIED BEFORE.

SO IT'S ACTUALLY NOT SURPRISING THAT YOU HAVE SO MANY EMERGENCY ORDERS, BECAUSE HE IS CREATING A LOT OF MANY EMERGENCIES BASED UPON HIS EXECUTIVE ORDERS.

WHAT'S TROUBLE BEING IT IS THE COURT IS DECIDING MAJOR ISSUES ON.

EMERGENCY DOCKET WITHOUT ORAL ARGUMENT, WITHOUT BRIEFING, AND FOR EXAMPLE, THE COURT HAS EFFECTIVELY OVERRULED THE CASE THAT'S OVER 90 YEARS OLD, HUMPHREY STECKERS -- EXECUTORS, AND SAID THAT THE PRESIDENT OF THE UNITED STATES CAN UNILATERALLY IGNORE AN ACT OF CONGRESS AND REMOVE MEMBERS OF MULTIMEMBER QUASI LEGISLATIVE BOARDS, NOTWITHSTANDING THE FACT THAT CONGRESS PASSED A LAW SAYING THAT YOU CAN ONLY REMOVE THEM AT CONCLUSION OF THEIR TERM OR OTHERWISE FOR GOOD CAUSE SHOWN.

>> YEAH.

AND, PAUL, THESE EMERGENCY ORDERS, CORRECT ME IF I'M WRONG, BUT IT LOOKS LIKE MOST OF THEM WILL DECIDED 6 TO 3.

MERIT CASES, WHICH WE'RE GOING TO GET TO IN A SECOND HERE, A COUPLE OF THEM AT LEAST, THEY SEEM LIKE THEY'RE NOT QUITE AS SPLIT ALONG THESE IDEOLOGICAL LINES.

AM I GETTING THAT RIGHT?

>> WELL, MORE OR LESS.

IT'S VERY HARD TO SAY ANYTHING BUT THE 6-3 DIVISION -- BECAUSE IT KEEPS CHANGING A LITTLE BIT.

BUT IN THE LAST COUPLE OF MONTHS, I HAVE BEEN SURPRISED AT HOW MANY 6 TO 3s THERE WERE.

I WOULD HAVE EXPECTED MORE -- AND MAYBE I'M JUST SAYING WHAT I'D LIKE TO HAVE HAPPEN.

WHAT I'D LIKE TO HAVE HAPPEN IS FOR THEM TO ACT AS INDIVIDUALS AND NOT A 6-3 COURT BUT HAVE A COURT WITH 9 PEOPLE ON IT AND THEY'RE ALL THINKING ABOUT IT AND DO WHAT THEY THINK RIGHT.

THE 6 TO 3 BUSINESS, THE LIBERALS HERE, THE CONSERVATIVES HERE, YOU STOP THINKING ABOUT THE ISSUES WHEN YOU START THINKING ABOUT IT IN TERMS OF LIBERALS AND CONSERVATIVES.

THAT'S WHAT REALLY BOTHERS ME ABOUT THAT.

>> PAUL, IS CHIEF JUSTICE ROBERTS, IS HE -- IT SEEMS AS THOUGH HE WANTED THIS COURT TO HAVE COHESION AND BASICALLY BE AS YOU DESCRIBED.

DOESN'T SOUND LIKE IT'S LIKE THAT.

HE CAN'T BE HAPPY, CAN HE?

>> I DON'T KNOW.

I DON'T KNOW HIM PERSONALLY.

I DON'T THINK HE SHOULD BE HAPPY, AND I'M KIND OF DISAPPOINTED.

I MEAN, HE HAS SUCH A WONDERFUL BACKGROUND AS BEFORE HE BECAME CHIEF JUSTICE THAT YOU COULD EXPECT HE WOULD BE ONE OF THE GREAT CHIEF JUSTICES, IT HASN'T WORKED OUT THAT WAY.

HE HASN'T HAD ANY MAJOR INFLUENCE ON THE DIRECTION OF THE COURT.

AND MORE IMPORTANTLY, HE HASN'T PRESENTED ANY PHILOSOPHICAL STRETCHES TO THE COURT, ANY IDEAS.

ONE OF THE BIG IDEAS THAT'S POSED ON THE CONSTITUTION, I DON'T THINK THERE ARE ANY.

AND HE'S VERY SMART.

AND HE KNOWS A LOT.

HE'S BEEN AROUND FOR A LONG TIME.

SO THAT'S QUITE DISAPPOINTING.

AND I THINK HE'LL BE AROUND FOR A LOT LONGER.

HE'S NOT VERY OLD.

>> WHAT DO YOU THINK, SEEN IN IS IT A ROBERTS COURT?

IS IT A BARRETT COURT?

IS IT EVEN CLOSE ENOUGH TO BE A CERTAIN JUSTICE'S COURT?

>> I THINK IT IS A ROBERTS COURT.

BUT IN AN IRONIC WAY, THE CONSERVATIVE WING, THE CONSERVATIVE FIVE OTHER MEMBERS OF THE COURT, WHO ROUTINELY VOTE CONSERVATIVELY, HAVE MADE IT THEIR COURT, AND ROBERTS HAS DECIDED TO GO ALONG WITH THEM AND HAS ASSUMED LEADERSHIP OF THAT GROUP.

-- HE WAS IN THE MAJORITY THIS TERM OVER 90% OF THE TIME.

AND -- >> AND IS THAT HIGHER THAN YOU?

>> IT'S A LITTLE HIGHER THAN USUAL, BECAUSE AS WE HAVE DISCUSSED, PAUL, HE HAS SWUNG FURTHER LEFT TO MAINTAIN HIS LEADERSHIP -- EXCUSE ME.

HE'S SWUNG FURTHER RIGHT TO MAINTAIN HIS LEADERSHIP OF THE COURT'S RIGHT WING, WHICH REALLY SHOULD NOT BE DESCRIBED AS A WING, BECAUSE A WING -- THERE'S ALWAYS TWO.

AND THEY HAVE TO BE OF EQUAL SIZE.

THIS IS DEFINITELY A ONE WING THAT IS LARGER THAN THE OTHER, WHICH COULD LEAD THE PLANE TO CRASH.

>> I WANT TO GET TO THE BIRTH RIGHT CITIZENSHIP BECAUSE WE HAD NEWS TODAY REGARDING THAT STATEMENT.

WE'LL START WITH YOU.

THE BIG DEAL, ORIGINALLY, WAS UNIVERSAL INJUNCTIONS AND THE IDEA OF DISTRICT COURT JUDGES, FEDERAL JUDGES BASICALLY, YOU KNOW, MAKING A RULING THAT COVERS THE WHOLE COUNTRY.

SUPREME COURT SAID, WHAT, NOT SO FAST, BUT... >> WELL, IT WAS KIND OF -- I BASICALLY THINK, UNFORTUNATELY, THAT IT WAS MUCH ADIEU ABOUT NOTHING.

DISTRICT COURT JUDGES IN A VERY CONCRETE WAY COULD NEVER ISSUE NATIONWIDE INJUNCTIONS BECAUSE DISTRICT COURTS DON'T BIND OTHER DISTRICT COURTS.

SO TRUMP COULD HAVE LOST IN ONE DISTRICT, BEEN SUED IN ANOTHER DISTRICT, AS HE WAS IN THIS CASE, AND HE COULD HAVE WON IN THAT OTHER DISTRICT, AND HE WOULD HAVE NO LONGER BEEN SUBJECT TO THAT INJUNCTION BECAUSE ONE DISTRICT COURT'S OPINION DOESN'T BIND ANOTHER DISTRICT COURT, AND THE CONCEPT OF RESCUE CHICADDA AND COLLATERAL STOPEL THESE COURT RULES THAT BIND PARTIES TO JUDGMENTS DON'T APPLY TO THE FEDERAL.

THEY DO NOT APPLY TO THE FEDERAL GOVERNMENT.

SO YOU COULD HAVE ALWAYS HAD CONFLICTING DISTRICT COURT OPINIONS THAT WOULD HAVE PROHIBITED, AS A PRACTICAL MATTER, A NATIONWIDE INJUNCTION.

>> YEAH.

PAUL, WHAT WHAT DID YOU MAKE OF THE IDEA THAT UNIVERSAL INJUNCTIONS ARE A NO-GO BUT AS WE FOUND OUT TODAY CLASS-ACTION SUITS, YOU CAN GO AHEAD WITH THOSE.

>> YEAH.

I'M -- I ADMIT, I DO NOT UNDERSTAND IT.

THEY DON'T GIVE ANY REASON ABOUT WHAT'S WRONG WITH UNIVERSAL INJUNCTIONS EXCEPT THAT THEY DON'T GO BACK TO THE FOUNDING, TO THE WAY THINGS WERE AT THE TIME WE BECAME A NATION.

WHY IS THAT IMPORTANT ANYMORE?

WHY IS THE CONSTITUTION FROZEN IN A MEANING THAT'S NOT -- OH THE WHOLE LEGAL SYSTEM IS DIFFERENT NOW, SERVING DIFFERENT.

WHY -- WHEN I SAW THAT IN OPINION, I SAID, THEY CAN'T BE SERIOUS.

THEY'RE GOING TO DECIDE THIS ACCORDING TO PRECEDENT, AND THE PRECEDENT GOES BACK TO THE REVOLUTION?

IT MAKES NO SENSE TO ME.

AND I DON'T KNOW WHERE THEY'RE COMING OUT BECAUSE AS YOU POINTED, THEY'RE A CLASS-ACTION.

THEY HAVEN'T CLASSIFIED -- THEY HAVEN'T CLARIFIED HOW YOU SUE CLASS ACTIONS AND A LOT OF OTHER THINGS ABOUT IT.

SO IT'S A MESS.

>> BUT, PAUL, WITHIN THAT MESS, WHAT STOPS THE JUDICIARY FROM PUTTING ANY KIND OF BRAKES ON THE WHITE HOUSE?

>> WELL, THAT'S A GOOD QUESTION.

THEY SOMETIMES PUT BRAKES ON THEM.

I THINK NOT ENOUGH.

BUT THIS JUDICIARY HAS I THINK NO LEADERSHIP.

CHIEF JUSTICE ROBERTS COULD BE THAT, BUT I DON'T THINK HE IS, AND THERE'S NOBODY ELSE WHO -- I MEAN, THINK ABOUT THE DAYS WHEN YOU ALWAYS WANTED TO KNOW WHAT JUSTICE SCALIA WAS SAYING ABOUT SOMETHING BECAUSE -- HE WAS A VOICE THAT HAD TO BE RECKONED WITH IN ALMOST EVERY CASE, AND THAT'S BEEN TRUE IN A NUMBER OF TIMES IN THE COURT'S HISTORY.

THERE'S NOBODY LIKE THAT ON THE COURT.

THEY JUST SEEM TO BE WALLOWING IN A LOT OF DOCTRINES WITHOUT COMING GRIPS ABOUT WHAT'S REALLY IMPORTANT, LIKE WHAT'S WRONG WITH UNIVERSAL INJUNCTIONS?

YOU CAN READ THAT OPINION 10 TIMES, AND I DON'T SEE ANYTHING IN THERE SAYING WHAT'S WRONG WITH THEM.

THEY JUST DON'T GO BACK FAR ENOUGH.

>> HOW -- WHAT -- IS THAT THE WAY A SUPREME COURT TODAY SHOULD DECIDE THINGS?

>> YEAH, STEVEN, BACK TO MY QUESTION, WHAT STOPS THE COURT?

WHAT STOPS THE WHITE HOUSE, I SHOULD SAY, FROM JUST GOING AHEAD WITH JUST EGREGIOUS ACTIONS IF ONE COURT SAYS NO, DOES EVERY SINGLE -- DO WE HAVE TO HAVE A PATCHWORK OUT THERE OF YESs AND NOs OF JUNCTIONS AND NO INJUNCTIONS?

>> WELL, YES, BUT THAT'S POSSIBLE.

AND THAT HAS BEEN THE CASE OFF AND ON FOR MANY YEARS.

I REALLY DON'T THINK THIS IS GONNA BE A BAR.

I KNOW THAT A LOT OF LIBERALS WERE DECRYING THIS.

I'M ACTUALLY A LIBERAL.

I DIDN'T DECRY IT.

THERE ARE PROBLEMS WITH UNIVERSAL INJUNCTIONS.

THEY LEAD TO FORUM SHOPPING.

AND ONE JUDGE IN AN OBSCURE PLACE LIKE IN NORTH TEXAS OR SOME OTHER, YOU KNOW, VERY UNPOPULACE PLACE, THE JUDGE ISSUES AN INJUNCTION THAT COMPLETELY FREEZES THE FEDERAL GOVERNMENT.

IT SEEMS LIKE A LOT OF POWER TO GRANT ONE PERSON, BUT PAUL IS RIGHT, THAT'S -- IN THE REAL WORLD, THAT DOESN'T HAPPEN BECAUSE INJUNCTION -- AN INJUNCTION ISSUED BY THE DISTRICT COURT IS IMMEDIATELY APPEALABLE TO THE FEDERAL COURT OF APPEALS AND THE FEDERAL COURT OF APPEALS CAN MAINTAIN THE IMMEDIATE ORDER TO SUSTAIN AN INJUNCTION.

AND THAT HAPPENS ALL THE TIME.

SO ACTING LIKE ONE FEDERAL JUDGE WAS GOING TO CONTROL THE UNITED STATES, THAT IS NOT A REALITY, BUT LIFE GOES ON WITHOUT UNIVERSAL INJUNCTIONS.

THERE ARE CLASS ACTION.

THERE ARE STATE ACTIONS.

THAT CAN BIND WHOLE STATES AND THAT IN SOME CASES ARGUABLY THE COURT ACKNOWLEDGED IN THE OPINION, CAN BIND THE ENTIRE NATION.

THEN THERE'S THE ADMINISTRATOR PROCEDURE ACT WHICH SPECIFICALLY AUTHORIZES DISTRICT COURT JUDGE TO VACATE RULES, ADMINISTRATIVE RULES, THAT ARE UNCONSTITUTIONAL.

SO IT'S NOT THE EDGE OF THE WORLD.

WAS IT A SILLY OPINION?

IT CERTAINLY WAS A SILLY OPINION.

AND IT WAS AN OPINION THAT WAS ISSUED UNDER THE WORST POSSIBLE FACTS.

IF ANY CASE CRIED OUT FOR A UNIVERSAL INJUNCTION, IT WAS THIS ONE.

DO WE REALLY WANT SOME -- A KID TO BE A CITIZEN IN ONE STATE BUT BEING BORN FIVE MINUTES AWAY FROM THE NEXT STATE WOULD NOT -- WHERE HE WOULD NOT BE A CITIZEN?

THAT MAKES NO SENSE AT ALL.

>> BUT PAUL, THE IDEA, AGAIN, FROM THE ADMINISTRATION AND FROM CONSERVATIVES, THAT YOU ARE GIVING THAT ONE DISTRICT JUDGE MORE POWER THAN YOU'RE GIVING THE EXECUTIVE BRANCH BY SAYING NO TO THE EXECUTIVE BRANCH.

I MEAN, DO THEY HAVE A POLICE DEPARTMENT TO?

>> WELL -- DO THEY HAVE AP POINT?

>> WELL, EVERYTHING HE DOES IS REVIEWABLE BY THE COURT OF APPEALS, AND THESE COURT OF APPEALS ARE VERY QUICK SOMETIMES TO THE OVERRULE WHAT A DISTRICT JUDGE DOES.

I DON'T THINK THERE'S A REAL PROBLEM WITH DISTRICT JUDGES SEEKING OVER TOO MUCH POWER ALL BY THEMSELVES AND NOBODY CAN DO ANYTHING ABOUT IT.

IT'S NOT TRUE.

THE COURT OF APPEALS CAN ALWAYS DO SOMETHING ABOUT IT.

AND IF THE COURT OF APPEALS DOESN'T, THE SUPREME COURT CAN, AND ALL OF THAT CAN HAPPEN IN A VERY SHORT PERIOD OF TIME, IN A FEW DAYS.

>> BUT IN THIS CASE, NO COURT OF APPEALS OVERRULED THE DISTRICT COURTS.

THEY ALL AFFIRMED WITH THE DISTRICT COURT AND THEY DIDN'T EVEN SPEED UP THEIR CONSIDERATION OF THE MERITS BECAUSE THEY ALL BELIEVED THAT PRESIDENT TRUMP'S EXECUTIVE ORDER WAS UNCONSTITUTIONAL.

>> LAST QUESTION ON THIS, BECAUSE WE HAVEN'T EVEN GOTTEN TO THE MERITS OF THE CASE AS FAR AS WHAT THE SUPREME COURT DID.

DO WE EXPECT TO SEE ALL SORTS OF CLASS ACTION SUITS COME FLYING HERE?

>> I SOMEHOW DON'T THINK SO.

ALTHOUGH, IT'S A POSSIBILITY.

I JUST DON'T UNDERSTAND WHAT THEY'RE GETTING AT.

THEY DON'T TELL US WHAT'S WRONG WITH WHAT'S BEEN HAPPENING.

THE PROBLEMS THEY'VE CAUSED, AND WHY CAN'T IT BE DEALT WITH IN THE WAY I WAS JUST DESCRIBING.

IF A DISTRICT JUDGE OVERREACHES OR ACTS IN A SILLY WAY, YOU CAN REVIEW THAT.

AND THE COURT SYSTEM IS PRETTY SENSIBLE ABOUT THAT.

AND IF THEY DON'T DO IT SENSIBLY, THE SUPREME COURT CAN DO IT.

SO I DIDN'T SEE ANY PROBLEM SOLVING IT.

IT'S MUCH MORE OF A PHILOSOPHICAL THING -- THAT'S NOT THE RIGHT WORD.

I UNDERSTAND THE FEELING THAT OFTEN THE JUDGE -- ONE SINGLE JUDGE ENJOYING THE WHOLE GOVERNMENT, WHEN YOU JUST PUT IT THAT WAY, IT SOUNDS SILLY, THAT THEY SHOULDN'T BE ABLE TO DO THAT.

BUT THAT ISN'T WHAT HAPPENS.

ONE SINGLE JUDGE COULDN'T OVERRULE THE WHOLE GOVERNMENT BECAUSE IT'S TWO LEVELS TO REVIEW WHAT THAT JUDGE DOES AND ALL OF THE OTHER JUDGES WHEN THERE'S SOMETHING DIFFERENT.

SO IT SEEMS TO ME TO BE A NON-PROBLEM, WHICH MAY NOW BE SOLVED IN A WAY THAT I DON'T KNOW WHAT THE ANSWER IS GONNA BE.

I DON'T KNOW HOW THIS IS GONNA WORK OUT.

>> AND AS FAR AS BIRTH RIGHT CITIZENSHIP, STEVEN, HOW IS THAT GOING TO WORK OUT?

THEY'VE TAKEN IT UP NEXT SESSION; ARE THEY NOT?

>> WELL, I DON'T KNOW.

I DON'T THINK PRESIDENT TRUMP WANTS IT TAKEN UP BECAUSE I THINK -- I THINK HE'LL LOSE, AND I THINK HE'LL LOSE BIG.

I DON'T KNOW IT WILL BE A 9-0 OPINION.

I THINK AT WORST, IT WOULD BE A 7-2 OPINION.

REVERSING HIS EXECUTIVE ORDER, AND YOU DON'T EVEN HAVE TO REACH THE CONSTITUTION ISSUE BECAUSE THERE ARE TWO STATUTES ON THE BOOKS THAT UNEQUIVOCALLY PROCLAIM BIRTH RIGHT CITIZENSHIP, THAT ARE VALID STATUTES, THAT THE COUNTRY HAS TO OBEY.

AND THE PRESIDENT DOESN'T HAVE THE RIGHT TO NULLIFY CONGRESSIONAL STATUTES, EVEN THOUGH HE HAS THIS TERM, AND THAT WOULD BE THE CASE OF TIKTOK VERSUS GARLAND, A STATUTE WAS PASSED, PROHIBITING FOREIGN OWNERSHIP OF TIKTOK.

IT WAS AFFIRMED THAT -- IT WAS CHALLENGED ON FIRST AMENDMENT GROUNDS, UNSUCCESSFULLY, BEFORE THE SUPREME COURT OF THE UNITED STATES.

AND PRESIDENT TRUMP HAS REFUSED TO ENFORCE THE ORDER.

THAT IS SOMETHING THAT IS RELATIVELY -- THIS IS UNPRECEDENTED FOR THE 20th CENTURY AND THE 21ST CENTURY.

>> PAUL, I WANT TO GET TO ANOTHER CASE HERE, THIS OUT OF TENNESSEE, REGARDING TRANSGENDER CARE FOR MINORS.

A TENNESSEE LAW KIND OF PROHIBITED SOME OF THESE MEDICAL TREATMENTS.

THE COURT TOOK IT UP.

WHAT DID YOU READ FROM THIS?

>> WHAT DID I FREED IT?

I READ FROM IT THAT THIS IS GONNA SOUND A LITTLE TOO GENERAL -- THAT THE COURT'S APPROACH TO EQUAL PROTECTION CASES DOES NOT MAKE ANY SENSE.

THIS IS NOT AN EQUAL PROTECTION CASE.

I MEAN, WHAT ARE WE TALKING ABOUT?

THE RULE THAT GENDER CLASSIFICATIONS ARE A SUSPECT CLASSIFICATION ARISES FROM THE FACT THAT FOR A LONG TIME THE COURT DID NOT TAKE SERIOUSLY THE PROBLEM OF GENDER CLASSIFICATIONS.

WHEN THEY STARTED DOING THAT, THEY SAID, HEY, WE'RE GOING TO TAKE THIS SERIOUSLY.

THE COURT HAS BUILT THAT INTO A WHOLE STRUCTURE, WHERE YOU READ THIS OPINION, AND THEY NEVER TELL YOU WHAT'S WRONG.

AGAIN, NEVER TELL YOU WHAT'S WRONG WITH WHAT THE COURT DOES.

IT'S JUST PHILOSOPHICALLY WRONG.

I DON'T THINK THE COURT HAS EVER REALLY COME TO GRIPS WITH WHAT THIS MEANS.

BUT THIS CASE AS AN EQUAL PROTECTION CASE, WHAT IS EQUAL PROTECTION PROBLEM IN THIS CASE?

WHAT GROUPS ARE BEING TREATED UNEQUALLY?

>> CHIEF JUSTICE ROBERTS, REAL QUICKLY, PAUL, WROTE THAT THIS KIND OF THING SHOULD BE DECIDED BY THE PEOPLE, THEIR ELECTED REPRESENTATIVES AND THE DEMOCRATIC PROCESS.

>> WELL, YOU CAN SAY THAT ABOUT ALMOST ANY CASE WHERE YOU SAY SOMETHING THAT IS NOT UNCONSTITUTIONAL.

I MEAN, THAT'S THE WHOLE POINT, ONE OF THE MAIN THINGS.

OF COURSE, WHAT ARE THE THINGS THAT MAY LEAD TO THE DEMOCRATIC PROCESS.

AND THAT'S THE ISSUE HERE.

I'M NOT SURE WHAT THE RIGHT ANSWER IS IN THIS CASE.

IT'S A HARD -- FOR ME, A HARD EQUAL PROTECTION CASE, FIRST OF ALL, BECAUSE I DON'T SEAY QUALITY, AND TWO, BECAUSE IT'S SUCH A HARD ISSUE.

THE QUESTION IS TO WHAT EXTENT CAN A STATE REGULATE THE WAY DOCTORS RUN THEIR PRACTICE AND SAY CERTAIN THINGS THAT DOCTORS WANT TO DO, THEY CAN'T DO BECAUSE THE PEOPLE DON'T LIKE WHAT'S HAPPENING, THAT BOTHERS ME.

IT DOESN'T SOUND RIGHT.

BUT IT'S HARD FOR ME TO MAKE ANY ARGUMENT ABOUT WHY THAT'S NOT -- THE STATE COURT CAN'T SAY, HEY, WE HAVE DOCTORS AND WE WANT TO LET THEM -- WE DON'T WANT TO LET THEM DECIDE WHAT THEY WANT TO DO.

SOMETIMES THEY DO THINGS THAT GO TOO FAR.

SO WE'LL STEP IN SOMETIMES AND STOP THAT.

WHY IS THAT A BAD THING TO DO?

IT MAY BE WRONG IN PARTICULAR CASES, BUT THE COURTS SUPERVISE WHAT PROFESSIONS DO.

WHY NOT THE AVAILABILITY TO SUPERVISE THIS.

>> PART OF THE OPINION THAT I JUST READ HERE WAS THAT SO BASIC, AS PAUL MENTIONED, YOU COULD SAY THAT ABOUT ANYTHING, BECAUSE THEY REALLY DIDN'T WANT TO GET TOO DEEP ON THIS?

>> WELL, THEY GOT VERY DEEP INTO IT.

THE CASE WAS -- THE STATUTE WAS ORIGINALLY CHALLENGED BY PARENTS OF IMPACTED CHILDREN ALLEGING THEY HAD A DUE PROCESS RIGHT, WHICH IS VERY WELL ESTABLISHED TO CONTROL THE MEDICAL CARE THEIR CHILDREN RECEIVED.

THAT CLAIM WAS NOT ACCEPTED BY BY THE SUPREME COURT TO RECONSIDER AFTER THAT CLAIM LOST IN BOTH OF THE LOWER COURTS.

THE PROBLEM THAT I HAVE WITH THIS STATUTE IS IT ALLOWED HORMONAL TREATMENT FOR MALE CHILDREN AND FEMALE CHILDREN ASSIGNED AT BIRTH, FOR A HOST OF REASONS.

BUT NOT FOR GENDER AFFIRMING KARENS.

AND THE REAL REASON FOR THIS STATUTE -- AFFIRMING CARE, EVEN.

AND THE REAL REASON FOR THE STATUTE IS THAT PEOPLE WANTED TO REALLY OBTAIN MEDICATION IMPACTING THEIR GENDER IDENTITY, AND THE STATUTE WAS ALL ABOUT GENDER, BUT THE COURT SAID IT WASN'T ABOUT GENDER, IT WAS ABOUT AGE, WHICH WAS NOT TRUE, BECAUSE THE CARE WAS ALLOWED WHEN IT DID INVOLVE, AN ALLEGED TRANS KID, OR A KID WHO WANTED TO BECOME TRANSSEXUAL, SO IT WAS ABOUT GENDER.

BUT THE COURT SAID THAT IT WAS NOT SUBJECT TO INTERMEDIATE SCRUTINY, WHICH IS THE STANDARD ORDINARILY APPLIED TO GENDER AND APPLIED TO RATIONAL BASIS FOR IT.

AND THAT WAS VERY DISHONEST OF THE COURT.

THIS IS A VERY DISHONEST OPINION AUTHORED BY THE CHIEF, WHO IS LEADING THE CONSERVATIVE WING OF THE COURT.

THE COURT IS NOT DIRECTIONLESS.

I AGREE WITH PAUL, THAT CHIEF JUSTICE ROBERTS IS NOT AN INTELLECTUAL LEADER OF THE COURT, BUT HE IS A POLITICAL LEADER OF THE COURT, AND SO FAR HE IS LEADING THIS 6 TO 2, YOU KNOW, 7 TO 2, MAJORITY OF THE COURT WITH, 1 JUSTICE SWINGING, JUSTICE KAGAN.

YOU KNOW, ONE JUSTICE MOVES AROUND, BUT IT'S STILL A SOLIDLY CONSERVATIVE COURT.

>> WITH THAT IN MIND, PAUL, LET'S KIND OF LOOK AHEAD HERE WITH A CRYSTAL BALL.

THE NEXT SESSION SOUNDS LIKE COLORADO'S BAN ON CONVERSION THERAPY COULD IN THERE, THIS BUSINESS OF LIMITS ON COORDINATED CAMPAIGN EXPENDITURES.

THAT'S GOING TO BE WATCHED VERY CLOSELY.

EMERGENCY POWERS TO IMPOSE TARIFFS.

THAT MOST LIKELY WILL BE HEARD BY THE COURT.

WHAT -- WHERE DO WE GO FROM SNEER WHAT DO YOU SEE?

WHAT DO YOU -- WHERE DO WE GO FROM HERE?

WHAT DO YOU EXPECT?

>> THAT'S A REALLY GOOD QUESTION.

I DON'T KNOW WHERE WE GO.

THE COURT IS CIRCLING AROUND, MILLING AROUND, NOT KNOWING WHERE IT'S GOING, DECIDING THINGS ON VERY INSUBSTANTIAL GROUNDS, AND THEY DO ANOTHER CASE ON UNSUBSTANTIAL GROUNDS AND I DON'T GET ANY SENSE OF REAL PRINCIPLE COMING OUT OF THE COURT, WHO ARE THE REAL PRINCIPLE JUSTICES WHO ARE -- YOU KNOW, THE WAY WE USED TO THINK ABOUT FREE SPEECH, HE KEPT SAYING THE SAME THING.

EVENTUALLY I THINK HE CONVINCED EVERYBODY ELSE.

THERE WAS SOMETHING GOING ON PHILOSOPHICALLY, THE IDEAS WERE IN PLACE.

OF THEY DON'T HAVE ANY IDEAS IN PLACE HERE.

OF COURSE IT'S A BIG DISAPPOINTMENT TO ME.

>> YEAH, THOSE ARE SOME PRETTY BIG CASES HERE.

>> THEY ARE BIG CASES.

BUT I THINK THE COURT'S PATH IS CLEAR.

I THINK THEY'RE GONNA SAY, GENDER -- THE PROHIBITION OF GENDER AFFIRMING CARE OR THE PROHIBITION OF COUNSELING KIDS AGAINST BEING TRANS VIOLATES THE FIRST AMENDMENT, THE COLORADO STATUTE THAT YOU MENTIONED, THEY'RE GOING TO SAY THAT VIOLATES THE FREE EXPRESSION OF RELIGION CLAUSE AND THE FREE SPEECH CLAUSE.

I THINK THEY'RE GOING TO STRIKE THAT DOWN.

THE TARIFF ISSUE IS A MORE DIFFICULT ISSUE BECAUSE THERE'S REALLY NO EMERGENCY REGARDING THAT, AND THAT'S CLEARLY A TAX.

BUT THE COURT LIKES TO DEFER TO THE PRESIDENT NO MATTER WHAT.

SO I THINK THE ODDS ARE THAT THE COURT WILL FIND SOME WAY TO AFFIRM WITH THE PRESIDENT -- WHAT THE PRESIDENT HAS DONE IN REFERENCE TO THAT.

AND I THINK THE IDEOLOGY OF THE COURT IS CLEAR, AND I THINK THE PATH OF THE COURT IS CLEAR.

I AGREE WITH PAUL, THAT IT DOESN'T MAKE SENSE.

JURIS PRUDENTIALLY, BUT IDEOLOGICALLY, POLITICALLY, IT DOES MAKE SENSE, AND IT IS REALLY A PROFOUNDLY CONSERVATIVE COURT.

IT'S NOT AS CONSERVATIVE AS THE FIFTH CIRCUIT, FOR EXAMPLE.

BUT IT IS NEVERTHELESS VERY CONSERVATIVE, AND THE SEVEN-VOTE MAJORITY OF THE CONSERVATIVES GOVERNS RELATIVELY UNEQUIVOCALLY.

>> THANK YOU SO MUCH.

WE'VE RUN OUT OF TIME, DOGGONE IT.

CAN YOU SAY IT IN 15 SECONDS IN.

>> NO.

THAT'S NOT SUPPOSED TO HAPPEN IN THIS DEMOCRACY.

THE COURT SHOULD NOT BE RUNNING THE COUNTRY.

THE CONGRESS IS THE BODY THAT SHOULD BE AND THE COURT IS NOT GIVING THEM ENOUGH SPACE TO OPERATE.

>> THOSE WILL BE OUR LAST WORDS, GENTLEMEN.

GOOD CONVERSATION, AS ALWAYS.

THANK YOU, BOTH, SO MUCH.

WE REALLY APPRECIATE IT.

>> GREAT TO SEE YOU, PAUL.

>> SAME HERE.

>> AND THAT IS IT FOR NOW.

I'M TED SIMONS.

THANK YOU SO MUCH FOR JOINING US.

YOU HAVE A GREAT EVENING.