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US SUPREME COURT A CONSEQUENTIAL TERM ... BUT NOT GOOD NBC News: Looking back at the Supreme Court’s term and its landmark rulings PLAY YOUTUBE VIDEO Original article: https://www.youtube.com/watch?v=Cpi8hN76t7k Peter Burgess COMMENTARY Peter Burgess
Looking back at the Supreme Court’s term and its landmark rulings NBC News Jun 29, 2024 10.1M subscribers ... 94,042 views ... 1.6K likes #SCOTUS #SupremeCourt #abortion As the Supreme Court concludes another term, it is once again reshaping the legal landscape, with decisions on abortion, gun rights, social media and more. NBC News’ Liz Kreutz sits down with a panel of judicial and legal experts to reflect on this year’s rulings and their consequence. NBCUniversal News Group is the media partner of Aspen Ideas Festival. » Subscribe to NBC News: / nbcnews NBC News Digital is a collection of innovative and powerful news brands that deliver compelling, diverse and engaging news stories. NBC News Digital features NBCNews.com, MSNBC.com, TODAY.com, Nightly News, Meet the Press, Dateline, and the existing apps and digital extensions of these respective properties. We deliver the best in breaking news, live video coverage, original journalism and segments from your favorite NBC News Shows. 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Visit NBCNews.Com: https://www.nbcnews.com/ Find NBC News on Facebook: / nbcnews Follow NBC News on Twitter: / nbcnews Get more of NBC News delivered to your inbox: nbcnews.com/newsletters #SupremeCourt #SCOTUS #abortion Transcript Discussants: Neil Katal a professor of law at Georgetown University Melissa Murray a professor of law at NYU George Conway president of the Society for the Rule of Law Noderated by Liz Kreutz of NBC at the Aspen Ideas Festival 0:00 I'm so excited for this conversation I know it's going to be a very Lively newsy and insightful night given the fact that we are coming off a day and a week of so many consequential decisions by the court some that have yet to be decided or one that's yet to be decided that we're still waiting on but all of these with wide reaching and far-reaching impacts for all of us in the years and decades to come so with that I will introduce our esteemed panelists here an experts we have Neil katal a professor of law at Georgetown University a best-selling New York Times author and a partner at Hogan levels he has argued 51 cases before the US Supreme [Applause] Court Melissa Murray a professor of law at NYU focusing on constitutional law family law and Reproductive Rights and Justice she is an MSNBC legal analyst and the co-host of a podcast I'm sure many of you have listened to strict scrutiny a hit podcast about the Supreme Court she is also a best-selling New York Times author [Applause] 1:04 and last but not least George Conway president of the society for the rule of law this is an organization of conservative and libertarian lawyers and others that he founded in 2018 to address threats to the rule of law in America he also as an attorney successfully argued the Securities case Morrison be National Australia Bank uh before The Supreme Court in 2010 and also represented Paula Jones in her lawsuit against former President Bill Clinton so welcome thank you so I want to start with a very consequential decision that the court made today and this is this overturning of What's called the Chevron Doctrine this is a landmark 40-year ruling it's a backbone principle for how the federal government keeps corporations in check this ruling was 63 down ideological lines and it's seen as a major blow to the power of federal agencies so I just want to get each of your reactions big picture to the significance of this decision and what the impact is going to be long term NE so first of all thank 2:03 you for having me this conference I love it's one of the few my mom comes to every year it's it's it and this panel is just extraordinary so you're in for a treat um you know I've been coming to this conference and speaking at the court for about the court for a decade litigating before it for two the Court's really changed and this case is a really good illustration the key principle in our law is what we call story decis respect for precedent the idea that no current group of justices knows everything and so you look to the Past for guidance for wisdom for stability in the law two years ago the court spit on that Doctrine in the Dos decision overturning Row versus Wade one of the most canonical precedents of our lifetimes today they did the same thing in another area of law which sounds Arcane but is at least as important the Chevron Do's Doctrine is basically this most government rule most government rules on you aren't done by Congress Congress is incapable of legislating 3:06 they can't agree on the whether the sky is blue it's all agencies it's agencies like the Federal Communications Commission regulating your phone bill or the Department of Homeland Department of of uh home of HHS Health and Human Services which is about Medicaid and the Medicaid expansion and the Affordable Care Act or it's about immigration and DHS and those rules consumer protection the Consumer Finance protection board Environmental Protection greenhouse gases ozon o ozone protection all of that's set by the agencies and what the decision today says is agencies don't have any say over the power they effectively have to regulate this area there's no even though they're the experts and understand the nuances it's up to courts now to decide all this this is massive deregulation this is as important as any decision in our lifetimes it's a total switch to the way 4:02 our government operates and it's going to massively deregulate the economy Melissa do you want to jump in on that sure also want to Echo Neil's thanks thanks so much for having us this is a really fantastic conference and many thanks to Tina who's done such a great job curating it and to all of the staff who have done such herculian work to bring all of this together this decision will change government as we know it I can't say it any more plainly than that the way that most of us experience government is through administrative agencies if you want a passport you don't call your Congressman you go to an administrative agency to get your passport you want to adjust your immigration status you go to an agency to do that that is how government works we live in a sprawling sprawling Society you cannot go to Congress for everything so Congress writes these laws but in those laws it delegates authority to the administrative agencies to then make rules R for how the statute will actually be administered and the Chevron 5:04 Doctrine was decided in 1984 and it was done when the Reagan Administration was sued for one of the regulations that it made and the regulation was actually quite deregulatory it was an environmental regulation that really accured to the benefit of Corporations the court in a unanimous decision in 1984 said that in situations where the terms of the statute are ambiguous the agency gets different courts defer to the agency's interpretation of how the statute should work the agency gets to resolve the ambiguity that put a lot of control in the hands of agencies and it made it easier for agencies to regulate and for some groups namely regulated industry that was a real problem because agencies do lots of things in terms of Regulation and make it harder and more difficult and more costly for regulated Industries to function so imagine a world with without regulation it would 6:01 be better for the corporations but it might not be better for us right so with agency regulations you serve Ordinary People but you disserve the interests of wealthy conglomerates that would prefer fewer barriers to competition what this decision does is not only lower the barriers for those corporate interests it also shifts power from agencies to courts and right now the lower federal courts have been stocked over the past 5 years by the Trump Administration with movement conservatives who are hostile to the prospect of Regulation and who are hungry for deregulation so now when these ambiguous statutes present themselves it's no longer going to be agencies who determine their meaning it will be courts and it will largely be courts staffed with judges who are skeptical indeed hostile to the prospect of regulated regulation so George if you could jump in on that and your action too but also it does seem like this is 7:01 coming off a series of rulings where it seems like the court is indicating that they're trying to maybe take more power away from other agencies and even Justice Kagan wrote a scathing dissent today accusing her conservative colleagues of forgetting their role in the three branches of government writing that the majority disdains restraint and grasps for power so what do you make of that in the context of this decision by the court the context of this decision I respectfully dissent at least in part and the reason why descent is because what is an issue or what was an issue in the Chevron decision was the interpretation of statutes the interpretation of law as it is passed by Congress and it is just fundamental we learned it in law school that you know ever since marber against Madison is the duty in the province of this famous quote Duty in the province of the courts to say what the law is and it's up to the courts ultimately the courts have final say about what Congress says and what the statute say says not some administrative agency which may have an interest in expanding its own power and 8:06 what I I I understand the concerns that there you know there certainly is a deregulate deregulatory bent among um Republicans and conservatives and certainly with the Trump Administration and hopefully not with the second Trump Administration um they it's the fact is that there still will be deference to findings of the of the should still be difference under the administrative procedure act to the actual findings of fact and findings of the I don't mean findings very specifically in like a traffic accident but the findings about what problems are and the scientific analyses that that go go into administrative decisions and also in particular in into the rul making but at the end of the day it's up to the courts to basically said well what what does this word mean in the context of what um his what you know what what how the word is used generally in the context of which it was used whether it be in a in a in a in in the sense of a of of 9:06 business or in sense of what Congress was trying to get at and I think at the at the end of the day I don't know that it's going to make that much of a difference uh whether or not the courts apply Chevron or not because the Supreme Court hasn't really applied CH Chevron very strongly um in in in a number of years in fact it doesn't bother with it I mean and and the other thing about Chevron is it just doesn't there's just no basis in you know if Congress wanted to say that in the administrative procedure act it could have said that that that the court should defer although I'm not sure Congress would have the power to do that and I think that um one of the other things about it is that um the Supreme Court I don't think that it's it's necessary for the Supreme Court to actually have to um I I think the Supreme Court well I I lost that train of thought but but you get my idea well sounds familiar 10:05 for us you heard all you heard all this before Neil or George jump in I mean do you agree with Melissa bid you know exactly exactly um that I mean do you agree with this point that it seems like the court is taking on cases or making rulings that's essentially giving them more power oh 100% I mean look I don't disagree I mean I normally agree with George on almost everything on this I do disagree the question is not you know do courts have some role in the interpretation of course they do the question is particularly in these highly specialized areas do you want administrative agencies to be deferring to those decisions or do you think the generalist courts are the ones to do so the Supreme Court in 1984 said we're going to defer to agencies as making that decision that decision in 1984 is one of the most cited decisions ever in American history is cited 18,000 Times by lower courts 70 Times by the Supreme Court itself and it is the fabric and basis of a good deal of our regulatory 11:05 state right now so what the Court's done and maybe you think it's right maybe you think it's wrong but just descriptively they are they're basically handing the power to the deregulates now I remember what I was going to say like governor who was the governor of Texas who couldn't get to five when he I have five things right I mean the two things are one is I don't think this is a power grab by the Supreme Court I think that what happened in in Chevron was an unjustified they an unjustified giving up of judicial Authority and again it wasn't based upon anything in the statute and the other thing about it is it wasn't it kind of was a decision of a rump Court I mean they barely had a majority how many people were on that Court six yeah it was a Sixers Court it wasn't really well thought through if you read I I when I've read Chevron you know I don't practice it the way you do but I took admin ministrative law many decades ago I couldn't figure out where 12:02 the heck they got that from I understand the logic that you know there are all these things going on in these regulatory cases that generalist judges don't understand but on the other hand these laws were passed by generalist legislators and if if if it's up to the legislators who can actually hear that can actually hear and bring in people to testify to actually be clearer if they really want to Grant some authority to a a a a a a reg regulatory agency they can be more specific about it and that's actually part of the problem I think that we're seeing um in the Supreme Court and the Judiciary these days precisely because we have this this par paralysis in the executive not the executive branch but the legislative branch where things can't get passed and people can't they they want to both the legislative branch and the executive branch love to punt things to the court and it puts a lot of pressure on the court and it's bad for the court it's bad for the judicial system bad for the rule of law example I think is the bubar 13:01 case which we're going to talk about where well we'll talk about that but that's an example of where Congress didn't do its job and and now the Supreme Court is is getting you know attacked for meliss not draw but okay we like no my face has no chills I've been the whole time um this is what she always does With Me true um so let me just I she likes me anyway I do like you um I don't like this so to be really clear Congress legislates and they're not they can't see around all Corners so they will write broadly textured legislation like the Clean Air Act was written in the 1970s they could not have contemplated at that time all of the different kinds of threats to air quality the different pollutants that would emerge so they write these broad textured statutes they delegate authority to the administrative agency to overtime write regulations that are consistent with the principles 14:04 outlined in the statute like that's how you allow statutes to continue to evolve you don't have to keep writing new statutes all the time for the same thing like it's the same with the bump stock case which I guess we will get to but when Congress wrote that they amended it they did some updates to it but they didn't know about bump stocks at the time and they didn't know what a bump stock could do and so then the agency regulat so part of this I don't mean to be bald about it but the hostility to the administrative state which is not just visible in this case but broadly across this term there were several other cases challenging the authority of administrative agencies and in almost all of those cases the authority of the administrative agency was stripped it's a broad attack on the administrative State and in my view it reflects a kind of modification of the Supreme Court where there is in much the same way you see margorie Taylor green refusing to refer to Dr fouchy as a doctor the court 15:03 refusing to seed authority to agencies staffed with experts and the most interesting thing about it is they say we know at least as much as these expert agencies we have the institutional competence to decide that's what they said today but like in Jerry mandering which I would have thought they would have had much more competence to decide they say oh no we lack the competence and ability to draw districts and B boundaries when it comes to voting so institutional competence is an argument that's like selectively trotted out when it suits a certain majority so I think that this Segways well into the next topic I want to break up bring up which is that this comes at a time when trust in the court is declining there's a new poll from AP and the norc center for public affairs that shows seven in 10 Americans believe the justices put ideology over impartiality seven and 10 Americans how problematic is this for our country and how did we get here Neil um I think it's really problematic um 16:00 the court my entire lifetime I was born in 1970 it's been a majority Republican appointees my entire life and most of you in this room um but it's a different form of conservative now than before it's a type of conservative that is a bit more out of the mainstream with American society you see that in decisions like dobs you see that in guns you see that in criminal justice and so it is you know these polls are not surprising Melissa I think it's hugely problematic for the court to have a public that believes that decisions depend on the ideology of those who occupy the nine seats on the court the court is unlike the political branches it's not like Congress it doesn't control the power of the purse it's not like the president it doesn't command an army the court has no way to make us obey its decisions other than the fact that we believe what it's doing is legitimate and so when the court seems illegitimate whether it's because of ethical lapses or because we view 17:04 their decisions as unduly political that's a real problem for the court they can't get back from that unless they do a real sea change and the loss of Faith from the public is absolutely fatal to the court George you want to jump in I concur in the Judgment in part on this um I I absolutely agree there's a there's a real problem with faith in the court that has been AG ated by um these frankly atrocious ethical lapses that we have seen um among one Justice in particular and then you know flags with the other I see what you did there I see what I did there I'm not um I mean the numbers are just incredible and and I find it just deeply disturbing and disappointing because I you know one of the justices in particular who seems to fly around the world is one that I I've admired over the years but that said um I think it's 18:02 I I think the problem of politicization of the court is something that has gone H has occurred over a long period of time the court has become too powerful and too important in our lives and part because of the problem that I mentioned earlier that we kind of discussed with the you know Congress and and the executive branch sometimes just abdicating uh questions to the court but also I think the court became and you've heard me say this before I think on a podcast and I you know now she's going to make a face um the the the court became intoxicated with its own power um in the 50s 60s and 70s it started by doing absolutely the right thing um by restoring the effect of the Reconstruction amendments that it unjustifiably um ENT essentially eviscerated at the end of the 19th century but then it thought well we can solve a lot more problems than that and then you know it went too far too fast in too many ways 19:03 and into areas where it probably shouldn't have gone into one of which was and I I you know don't throw things at me roie Wade I mean roie Wade the problem with roie Wade was I think as as even Justice um Justice Ginsburg wrote and got in a little trouble at her confirmation hearing about you know it it went too far too fast um and I can debate whether or not it actually has any I don't have never been able to see the basis of it in the con stition and that said that you know that has politicized the court and poisoned the court ever since and then the court actually compounded the problem two years ago by overruling role after 49 years which was absolutely insane so basically you know we're we're we're we we the court exists under this curse that of of many many years of it making itself much more powerful in American life than it ever should have been and and that no one you know I mean you're absolutely right 20:01 where you know you basically say well I mean we've had presidents particularly the Republican ones I can see you know appointing justices with the idea unstated sometimes or just sub seleno of overturning particular cases and you know I it is a very very disturbing problem and I think and and I think it it's done a tremendous amount of damage um to the court and to the rule of law and it gets to the point where people are reading things into ordinary decisions on statutory interpretation reading more politics into things than than I think should be like the bump stop case and and just to give you a personal reflection on that you know when I started arguing before the Court Justice Kennedy and Justice OK Conor were on the court and every time I stood up at the podium I honestly had no way no understanding of what they were going to do in the case they were total swing votes they were listening so hard my brother-in-law Jeff Rosen wrote an article about Justice Kennedy called the agonizer because he'd agonize at visibly 21:03 at the bench about what he wanted to do it's not like that anymore I mean when I go up to argue now I pretty much know where most of the justices are on any given case there may be some in play and there are some you know notable powerful you know counter examples like last year when I argued more versus Harper the election case but for the most part the lot of the juses aren't in play the way they used to be so I agree with almost everything George said and everything that Neil said um um you write that down they have I I think it is like it's easier to tell where they're going to go and it's much easier to predict what the outcomes are and I think before it was just much harder the swing justices truly were swing justices and they were also more in the middle right I mean so the middle of the court has really moved to the right and and that makes PR ability much easier in a lot of ways um you know I want to take issue with Georgia's assessment of the Warren Court 22:05 in the 1950s in the 1960s and the burger Court in the 1970s I mean it's kind of ludicrous to think of the Court as being high on the narcotic of women's rights right I mean like that was you're you're right so and you rightly note that the court was making good on the promise of the Reconstruction Amendments of what I assume you were referring to in brown yeah same idea for some of these other decisions and again row was actually less contentious in 1973 than brown was in 1954 right we would never say today that brown was wrongly decided yet The South was in open Defiance of brown in 1973 when row was decided by a 7-2 court written by a republican Justice no one said much about anything the big news story on January 22nd 1973 when row was announced was that lb J died it wasn't that the court had decided this right it is only later through politics and 23:05 because of the desire to realign the Republican party and siphon off votes from both the South and the Upper Midwest that abortion becomes a wedge issue it becomes politicized it wasn't politicized they weren't out in front of the people and Justice Ginsburg noted that her objection so she did talk about the court being too far in front but her biggest objection was that the decision was rooted improperly she thought in substantive due process when it should have reflected a commitment to women's equality and and and agree again that justice justice Ginsburg was right on that but on the other hand she also did make an extensive point in that very same law the article which I commend because it's fascinating to read it you know what's it 30 years down the road um what row did and the way row did it is even if you assume that there is some that abortion is implic ated in the constitution in some some way even though there's no real textual basis for 24:04 it or no historical basis for it um what row did was essentially legislative I mean it answered and and it's actually doing what the court may be trying to do in this immunity case and what's taking them so long is they're trying to answer all questions at once for all hypotheticals and what they did in row which was the problem with it I think ultimately not just the question of whether or not there was a a textual or historical or structural basis the standard ways that people you know you don't have to be an originalist to believe this um to understood how you interpret the Constitution row was was essentially a very very detailed statute um of what could be done at each stage of the pregnancy even though you know it was really you know it wasn't just deciding one case it was trying to decide every possible case that could come out of the 50 different abortion regimes that 25:05 existed in the United States and and I think that was ultimately I think that ultimately cast you know a very dark shadow on the court and and I think that's what contributes to the politicization of the court that exists to this day George I want to ask you about because you basically brought up Justice Clarence Thomas do you think he should have recused himself from some of these cases these Trump cases I don't know that he should it was necessary for him to recuse himself from the January 6th case because I don't think there's any indication that um Mrs Thomas did anything of any sort that would render her in wait hey hey wait for the rest wait for the rest you'll like what I'm about to say you got to wait for the whole answer um I I don't know that he's it was it it's I mean I I think you can make an argument for recusal I think the 26:02 argument for recusal actually is much stronger when you drive home at night from the Supreme Court and there's this upside down American flag and you drive to your beach house and there's this whatever it is that appeal flag appeal to Heaven that I think is a more a stronger I mean but I will say this about Justice Thomas I mean I think there should be a criminal investigation I've said that I think that I see I knew you'd like that but I'm not saying that because I'm trying to please you I I just can't it's it's absolutely that the amount of money involved and the failure to disclose those amounts I mean I don't I mean people go to jail all the time for making false statements to the government under 18 USC 1001 and a whole bunch of other Federal statutes and those disclosures were just I mean they weren't just false oh I forgot to add in the you know the vase that somebody gave me when they came over for Thanksgiving dinner I mean this this is just do 27:01 millions of dollars of stuff and and those documents which get filed with the federal government were false and I I if I were you know I I mean I think of poor Abe fores I don't know how many people know that history of Abe fores um he resigned from the bench for basically I mean you you inflation adjust the money he was getting from that guy in New York is nothing compared to what Clarence Thomas has taken and I and and it pain me to say this I like justice Thomas personally I've met Justice Thomas I've met Mrs Thomas i' you know and and they're very personal they're very okay okay for this is what happens to me everybody hates me but anyway we're going to move on to unless you wanted to jump in on this one no I mean I again I agree with everything you say I think the failure to disclose this things it's a real ethical lapse um I want it make clear it doesn't really matter matter whether Justice Thomas or 28:00 even if Mrs Thomas is actually actively involved in a coup or an attempted coup but it is the appearance right the Optics like everyone who's a lawyer understands that often the bigger issue is that you don't appear to be impartial and that's especially true of the court and you know I don't want to be in the business of saying that the spouses of Supreme Court Justices can't have jobs and they can't do things and they're essentially appendages of their Partners but when your partner is a member of the highest court in the land you have to make some adjustments in order to be respectful of their position and to facilitate their position like thir good Marshall's wife Marshall they enjoyed a very active life a social life when he was the head of the NAACP legal defense fund when he became a Justice and they moved to they moved to Washington when he became solister General and then when he became a Justice they saw their social life completely retract because they couldn't 29:01 socialize with all of the people they'd socialized with before because they were likely to be before the court right now no one on the court is thinking about that we have Justice Alo giving interviews to a lawyer SL journalist who later came before the court or was on one of the briefs in a case that was before the court this term we have justices going salmon fishing with individuals who may have business before the court their spouses are doing business with people who routinely come before the court the appearance is terrible and they have to understand that and it looks like everyone else is playing by the rules but the people who are off sensibly making the rules that we all have to live by don't play by the same rules can I throw in move I I feel like I'm moderating a presidential debate 30 seconds I um well and Melissa's got an absolutely good point there about because section what it 455 of the judicial code talks about not just actual conflicts but the appearance of impropriety um and the other point I would make about this is that it is 30:04 just upside down that the Supreme Court has no ethical ethical rules applying to it because not just because it decides important cases like this case overruling Chevron and and and and abortion and all these hot button cases that that they they have a higher concentration of than any other court in the nation but when you argue okay Neil has probably 10,000 cases in the courts of appeals um you know they know who the parties are in those cases all right so basically when they they look at the disqualification sheets they say oh it's Joe acne company versus Smith oh I have stock in acne company Boom the problem in the Supreme Court is that you know my case you mentioned my case National Australia Bank um I I represent a foreign Bank in the federal Securities laws applied to the trading of foreign corporations there were dozens of on dozens of companies throughout the world 31:01 who may have had you know who who who had a financial interest in this case and they wouldn't be listed on any sheet any disqualification sheet the Supreme Court precisely because it decides so many cases that don't just involve the the the the interests of the parties at hand needs to have a stricter a much stricter uh code of ethics than any other court in this country so Neil I'm going to come to you for this one let's talk about this Trump immunity case this is about whether former president Donald Trump is or isn't immune from prosecution in the election interference case what is going on that we don't have a decision what's happening well we have no idea the court is a black box except for when they leak opinions or mistakenly post them on their website um but um uh that neither of those has appeared to have happened here so look this case is asks the question which to almost ask it to answer it if a president violates the criminal law as a sitting president is 32:04 he immune from the reach of the criminal law and prosecution afterwards and no president in our history has ever taken this view at least while sitting president I guess you know Richard Nixon gave an interview in 1977 in which he said if the president does it it's not illegal which I start I've taught constitutional law 20 times I start you know my class with that quote and everyone thought it's is preposterous it's the most ridiculous statement because of course the entire American Constitution Rebels against that idea that's what our Founders were all about about saying no one was above the law but here you've got Donald Trump coming along and saying this um it was rejected by the trial court resoundingly reject rejected by the court of appeals with a very conservative prominent conservative judge on the panel saying Trump's absolutely wrong and then it goes to the Supreme Court where they've slow walked this thing taking a long time for 33:00 briefing a long time for argument and now a long time for decision um I was at the argument I was about four hours long I don't think it went well for for uh Donald Trump so I'm expecting on Monday this is the decision we're waiting on and we're expect I'm expecting on Monday that Trump will lose and that the court will say that that he is uh that he is uh not absolutely immune there may be some pockets in which there is some IM um for him but and for other presidents but for the most part I do expect it to be a loss now why do I think that because at the argument Justice sotoor asked Trump's lawyer pretty early on a question which was in the court of appeals you told us that your POS that Trump's position was that he could go and assassinate his political rival Joe Biden um and Order na Navy SEAL Team Six to do it and that wouldn't be a violation of the law and was that right and and the lawyer basically said yes that's our position to say that is to 34:03 you know it is ridiculous and Justice Barrett right away just popped up eyes opened and um you know I saw between that body language and the Chiefs I thought that it looked that way now of course anything can happen in the deliberation in the months to come but I expect it'll be a loss but un for Trump but unfortunately for those of us who believe in the rule of law a loss that comes so late in the process he can't be largely tried before the November election and all this information that Jack Smith the prosecutor is uncovered which only he has the American public's never seen it we will not see before the election you disagree Melissa a little bit um I I don't know that I took the same thing away from oral argument that you did I do remember that exchange with Justice Sor and then Justice Barrett also going forward with that cqu and and I think Justice Barrett has been actually quite surprising in sort of her unwillingness to be coup 35:02 forward in the way that some of her conservative colleagues have been um her her descent in the fiser case today I think was really striking in that regard um I took from that oral argument that there were definitely pockets of the Court who very much wanted to carve out some pockets of immunity for the former president and I think I I think they will write an opinion just as corset said it would be an opinion for the ages I mean it's certainly taken ages to get there um and you know like it it will be a banger I'm sure um I don't think it matters though and I think Neil is exactly right on that account that's an opinion that we will teach in constitutional law and like I guess now we'll know what the Contours of criminal immunity are for the president but as a practical matter this court immunized Donald Trump from Criminal liability on the January 6th election interference case when they granted sirari in this case and then delayed the oral argument until April 36:04 25th the very last day and then they're now waiting until the very last day of the term to issue a decision Jack Smith asked the court in December to bypass the DC circuit it's like so you know CT before judgment before the appell at court has intervened which happens a lot in other cases where the court is hot to trot to get to an issue including for example that mtala case the Idaho case they do this all of the time um here though the court was like no let the DC circuit get to it and the DC circuit heard oral argument in January they took about a month to write the opinion um wrote a very comprehensive opinion in which they painstakingly reviewed every claim that Donald Trump's lawyers made even the ones that were specious to the point of being stupid and they took those seriously kind but they and they took those seriously and I think they did so because they thought okay we are serving this up to the court yeah they wanted to wrap it all up so they 37:03 wouldn't and and summarily affirm it and the court was like no we've got more to say and so I think the court always knew it was going to get to this and if they did they should have taken it in December and given the American people an opportunity to know what is actually going on in this trial what evidence the government has against Donald Trump and to actually have accountability before a jury of his peers well I I basically agree with everybody here okay um I agree with Neil that I think the decision is going to come out very badly for Donald Trump um I do think that I I read the exchanges at oral argument quite the same way I think but I also think that they shouldn't have taken the case I think if they were going to take the case absolutely Melissa's right they should have taken it uh before judgment they see you know I mean it amazes me I hadn't really read the Idaho case until um it came out before it came out uh and um the notion that they granted C before judgment in that case and not in this case that they were ultimately decided to it's just to me is absolutely insane 38:07 and when they failed to Grant um cir for judgment in in in the uh in the in the Trump case I thought it was like well maybe they're just going to let the it's such an easy case they're going to let the DC circuit decide it and then you know they can always hear the appeal from the criminal conviction um you know and and decide the immunity case at that point but they didn't do that they decided to take it after letting after after letting the letting it go through the court of appeals notwithstanding the fact that you know this is one of the most important criminal cases since uh you know the trial of Aaron Burr it's probably the most important criminal case in the history of the United States and then they took it and then you know they they took their sweet time about it now that said I don't think they did what they did in terms of the timing to give Donald Trump um some kind of a timing Advantage with respect to this trial actually may you know I like you're losing them I lose them I 39:01 lose them I get them back I lose them I get them back look I just tell you what I think I'm maybe wrong half the time I but anyway I I think what they did here it's a problem that this court has I mean this court again thinks of itself as this court that has to decide everything and make everything perfect and answer questions that don't actually are not presented in the case and so they they were hung up at this argument the way I read the argument about hypotheticals that have nothing to do with the actual raw facts of a president of the United States attempting to extend his term of office after losing a presidential election and I I but that said I mean I this is not an easy you know trying to decipher and trying to delineate what what protections the President should have um from prosecution for official acts which you know I I there has to be 40:02 some I mean I I I I agree with professor of of Trevor Morrison of NYU who is no conservative he's a liberal you know there you could imagine some bizarre circumstances where I don't know a republican Congress under speaker uh Marjorie Taylor green passes a law basically saying that if that if the Pres the current president um you know Joe Kam Harris uh forgets does not submit a balanced budget with without typos in it by X date she shall be subject to 50 years in jail after she leaves office okay you know that would be insane there would be some in insane hypothetical circumstances that would go into it and the way uh Trevor Morrison put it was like you know there are some there are some you know there's this Youngstown I may getting too deep into his this Youngstown sheet and soyer Company the steel seizure case that some people may remember from from great from George I'm going to interrupt you because I'm looking at the clock and we have so much 41:02 more to I'm sorry so much more to get you I want to talk about abortion but you have a quick thing you want to here's here's just perhaps a more anod reason for why it's taking so long leaving aside the fact that maybe there's some strategery and take like having it play out for so long and I think the chief justice is genuinely demanding unanimity yes in this decision and in the Judgment at least and then there will be as we've seen in a lot of the unanimous decisions this term even though they're unanimous in the Judgment they don't necessarily agree on all aspects of the reasoning so there are lots of concurrences and partial concurrences and dissents and that takes a long time to circulate and then get out so Melissa I'm going to direct this question first to you and we we'll have to be quick with this and because I want to open up to questions for all of you but I do and I want to get big picture thoughts from you guys but Melissa with abortion the two cases we've seen here with the Idaho decision to temporarily allow emergency abortions there and also the mytha prone decision should these be seen as a win for abortion rights or how should we see them no these are not wins for abortion rights full stop so CL yes 42:02 they're not wins in the MyHop prone case the court simply said that the pro-life doctors who brought this case didn't have standing they were the wrong plaintiffs to bring this case because they had never been injured by the fda's regulation of Myer Prestone that doesn't mean they got to the merits of whether the FDA had properly regulated Mier Prestone or whether it had exceeded its Authority as an agency to regulate me prone it just dealt with the jurisdictional question that means means that some other plaintiff with a better claim like a state perhaps could come back in the future maybe after this election when people aren't quite so exercised about abortion rights and the court could actually deal with the question of whether the FDA has properly regulated mff prone the Idaho case is even more striking in my view because as George noted the court actually granted C before judgment so this was never reviewed by the ninth circuit the court immediately took this up and that's suggested that there were at least five people on the court who were hot to trot 43:01 to take this case which suggests that there are five people for a judgment to hold that the federal law that conflicted with Idaho's abortion ban did not necessarily preempt that abortion ban as federal laws are typically supposed to do after the oral argument in the Idaho case it seemed really clear that there was a quite significant portion of the court that were really skeptical of the federal government's ability to preempt state laws limiting abortion and again that would be a sea change in the whole doctrine of federal preemption whether federal laws that conflict with state laws actually occupy the field and take precedence the court did something really unusual here so after five months of having this case pending on its docket it did it which is to say that it dismissed the case on The View that ciari had been improvidently granted and typically a dig happens when the court realizes sometime after ciari is granted that they their changed circumstances or something happens where they they just really shouldn't be doing 44:02 this case nothing has changed though in the Idaho case women are still being airlifted out of Idaho when they need emergency abortion care there are still questions about what doctors can do and whether federally funded hospitals can provide this care nothing has really changed in my view what has change is that maybe some portion of the Court perhaps led by John Roberts recognizes that abortion is a politically Salient issue that can Galvanize electoral majorities and we saw in the 2022 midterm elections that women trooped off to the polls with rose death on their lips and the court does not want yet another decision to fuel the march of women back to the polls they don't want to be in the midst of electoral politics they want to be outside of the fry and I think these two decisions that weren't really decisions at all they can they will come back to this court eventually 45:00 they're jurisdictional questions at get the court out of the way but leave those decisions for another day maybe after the election I wish we could keep talking about this topic but I think right now to be able to open it I want each of you to go around and please give me your big picture thoughts on what's next for this court and potentially what's at stake uh with this upcoming election in November for the future of the Court well I think the Chief Justice you know cared so much about the institutional legitimacy of the Court trying to steer it a bit to the center speak with unanimity all the stuff he said it his confirmation Hearing in 2005 it has not gone well for him and he is um losing control of the court it's moving far to the right of where he is where the American public is and it doesn't seem like there's a you know any logical stopping point next year they're going to have an important case on transgender rights they're going to have other important cases coming before it they're like George says grabbing more and more of the difficult cases for themselves and deciding them often with six to3 majorities I think this is 46:06 incredibly bad for the country um and I see no solution on the horizon that's Grim so my statement is not about the court but about the courts at large the federal courts um the federal courts I think are captured by conservative interest the Trump Administration was not really successful on any domestic agenda item except the federal courts they managed to stock the lower federal courts with movement conservatives who are very young and very extreme and we see this in the way the Supreme Court's docket has been shaped this year a huge portion of the Court's docket this year came from the fifth circuit which is perhaps the most extreme intermediate appell Court in the country the fact that the fifth circuit sent so many cases to the court is really interesting because it essentially means that the court has to moderate what the fifth circuit does and that actually serves a purpose for the court whenever the court has to te back 47:01 from some extreme decision that the fifth circuit has made it allows the court to assume the mantle of moderation of being sort of in the middle when in fact they've just tacked back from something that was so far off the wall that we still moved to the right it's just less perceptible than it would have been if you had the lurt that the fifth circuit had wanted so what we are seeing now is the court is moving to the right it may not be as perceptible in some areas as it is in others but the fact that the lower federal courts are really out there with some of these decisions the court has to correct them but even as they correct them they still move to the right is telling right so we are in the middle of a situation where this is not a consensus moderate Court this is a court that is ideologically Extreme and we need to Grapple with that George well I mean I I there's always going to 48:00 be times when one particular circuit or two particular circuits kind of gets over one side or the other I mean used to be the ninth circuit used to be perceived as like the all the crazy leftwing decisions came up and now it's the fifth circuit all the crazy rightwing decisions came up as far as the Court's concerned absolutely because there's there's you know you now do have a 63 majority of conservatives the court is moving moving to the right but I I have to say that maybe I'm hopeful that you know there just there will be a movement back particularly you see Justice Barrett and you see chief justice um uh uh Roberts on cavan not as much as I thought he would be you know they have to understand that the most important thing they have to get the cases right in their own View and they do have their own philosophical views they shouldn't be considering electoral politics but they also need to be incrementalist I mean one of the problems that we had and one of the 49:01 reasons why we are where we are today as I said earlier is the lack of incrementalism when people want you know the justices should not be thinking about where they want to move the law five years from now they should be deciding cases now on the facts now and not trying to basically you know pick cases that they think will move the law in the direction that they want to move it and then answering hypothetical questions in those opinions that will govern future cases and I think that um you know I think that the problem is that this the the whole the court has become too much too too important in American life and the fact that you have you know I mean the Constitution guarantees it life tenure you know has sort of you know is now become this this this fuel for people thinking for justices thinking that they're basically they can do whatever they want they're not responsible to anybody witness that cocktail party that you know where where 50:00 you had a Justice spouting off about politics so I I you know that that concerns me I wish there was a solution to it the solution the only solution I've ever thought I think might help but I don't know if it's Constitution would be a way of of basically having a not not expanding the court but having a situation where every you the court varies in size and you have n every two years you add somebody to the court and then you sit the court sits in panels of nine of the the nine least senior individuals um and then you could swap in one of the older people uh to to fill in a recusal and and basically so there' be a regular appointment process to the court that would I think that would depoliticize some of what's going on I don't know whether that's constitutional I think there's an argument it could be because it could be patterned somewhat uh after what happens actually in the courts of appeals they only said in panels of three but I don't know that's the only solution I can think of to the the modern difficulties of confidence in 51:03 the court that I can well let's open it up this was fascinating thank you guys and I I only have a few minutes but hopefully we can get a couple questions in here right up here up front I think we have a microphone coming around so wait for a second I like it though I'm with you thank you hi thank you so much for coming to speak with us today I have learned so much um and many much of it is very scary um so we hear a lot about how this court and like the super majority is unprecedented but Mr Conway you've also uh alluded to earlier eras of the Court the Warren Court sometimes being perceived as judicially active and also I know the lochner court was also the lochner era Court was also seen as very judicially active those eras came to an end and I'm curious if you see any patterns or is there any precedent for catalyzing the end of a Court's era um whether that pressure can come from the president like when FDR threatened to pack the court or whether that pressure comes from the people what does history 52:05 tell us about this so far I don't see any pressure I mean I do think that President Biden should be effectively running against the court um I think that is the from from his perspective the enemy uh they are the people who are taking away the rights that he's trying to protect um but I haven't even heard it enunciated really from the Democratic Party um so I don't see and I certainly don't see any internal movement I think George is right to say they're grabbing a lot of power they're not being incrementalist I totally disagree with him about row I think row you needed to have that kind of broad statement because you know as we just saw in yesterday's debate you have Trump lying saying Row versus weight means you could have late term abortions in the third trimester and murder babies and stuff like that the court needed to set Basic Ground rules there that's the court I think at its finest in doing that but when you have an individual criminal case like the January 6th one I think 53:00 George is absolutely right to be incr that incrementalism is the right way to go unfortunately none of that is the conversation at the court right now U let's get this woman right here again thank you so much for what you do here and what you do nationally uh for the conversation I'm interested in the Chevron case and how that might uh apply to issues like the National Environmental Policy Act NEPA we are in the middle of oil and gas uh extraction territories here we're surrounded by 85% public lands and are very concerned with how uh those sort of laws that protect air quality water quality and our surroundings are administered in the future so do you believe Chevron affects neot yeah um we have to keep it quick cuz I'm told that we are basically out of time so who wants to just jump in so just briefly there are a bunch of regulations promulgated by the EPA under 54:05 that and so all of those are now not going to get the same deference they did before so it could call into question those just as in every other aspect of administrative regulation that Melissa was talking about unfortunately we are out of time but thank you all I'm sorry we couldn't get to everyone's questions but you guys were phenomenal and fascinating thank you so much for this great discussion thank you to all of you have a wonderful night thanks for watching stay updated about breaking news and top stories on the NBC News app or follow us on social media

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