“This Supreme Court Is Its Own Worst Enemy:” Expert Discusses SCOTUS New Term

>>> THE SUPREME COURT'S NEW TERM JUST STARTED AND THE PRESIDENTIAL ELECTION IS JUST THREE WEEKS AWAY.

STEVEN IS A PROFESSOR AT GEORGETOWN UNIVERSITY AND HE JOINS HARI SVEENIVASAN ABOUT THE ROLE IT CAN PLAY.

>> THANK YOU.

HERE WE HAVE A NEW SUPREME COURT SESSION.

WE STARTED TO HEAR ARGUMENTS IN SOME OF BIG CASES.

I GUESS ONE LAST TERM THAT HAS THESE SIGNIFICANT CONSEQUENCES THAT WE ARE STILL CONSIDERING RIGHT NOW, BECAUSE HELLO, WE ARE JUST AMONTH AWAY FROM ELECTION.

THE PRESIDENTIAL IMMUNITY RULING.

WHAT RIPPLE EFFECTS HAS IT HAD ON THIS ELECTION TODAY?

>> I THINK THE RIPPLE EFFECTS WILL CONTINUE TO BE FELT.

WE HAVE SEEN HOW IT HAS PROCEEDED IN ALL THE CRIMINAL PROSECUTIONS OF PRESIDENT TRUMP.

THE CASE IN FLORIDA THAT WAS THROWN OUT IN LIGHT OF JUSTICE THOMAS.

THERE IS AN APPEAL PENDING AND THE CASES IN NEW YORK AND GEORGIA.

I THINK THE CONTINUING EFFECTS IN THE SHORT TERM IS THAT WE ARE GOING TO GET TO THE ELECTION WITHOUT REALLY ANY RESOLUTION OF THOSE CASES.

THE LONG TERM EFFECTS VERY MUCH REMAIN TO BE SEEN, NOT JUST FOR FORMER PRESIDENT TRUMP, WHO IF HE IS NOT ELECTED IN NOVEMBER, I THINK WE ARE STILL IN SERIOUS JEOPARDY, AND ALSO WHAT IT MEANS FOR EXECUTIVE POWER, AND WE HAVE A SUPREME COURT DECISION, AND EXECUTIVE BRANCH CONDUCT THAT CAN'T BE INTERFERED WITH, INVESTIGATED AND LOOKED AT.

BOTH AS IT APPLIES TO PRESIDENT TRUMP AND THE BROADER SPACE.

>> YOU RAISE AN IMPORTANT POINT.

THE CRITICS OF TRUMP POINT OUT -- IF IT'S PRESIDENT HARRIS OR A FUTURE PRESIDENT, THIS APPLIES EQUALLY TO THEM.

>> THE LONG TERM EFFECTS ARE LESS ABOUT SLIMS THAT CRIMES THAT PROCESS CUSS, AND I THINK WE'RE GOING TO SEE FUTURE PRESIDENTS, WHETHER THEY ARE DEMOCRATS OR REPUBLICANS, TROTTING OUT THE CRIMINAL IMNUNETY, TO RESIST SUBPOENAS FROM CONGRESS TO RESIST OVERSIGHT FROM CONGRESS, AND CIVIL SUITS IN THE COURTS.

THAT IS AN INTERESTING QUESTION THAT IS TOO EARLY TO ANSWER.

HOW FASH AND WIDE BEYOND THE SPECIFIC CONTEXT OF THE CRIMINAL PROSECUTIONS WILL IT HAVE AN IMPACT.

IT WILL THE HAVE AN IMPACT.

WE HAVEN'T SEEN IT YET.

>> ONE OF THE FACES IS ABOUT GHOST GUNS.

THIS IS A TECHNOLOGY NOW THAT IS OUT FOR SEVERAL YEARS.

IF YOU OR I HAD A 3-D PRINTER AT HOME, AND THERE ARE PEOPLE WHO CAN AFFORD THAT, WE COULD PRINT, TAKE THE PLANS OFFER THE INTERNET AND PRINT A FUNCTIONING WEAPON.

THE CASE IS WHETHER THEY SHOULD HAVE SERIAL NUMBERS OR NOT.

THAT SEEMS KIND OF -- A SIDEWAYS WAY TO GET AT THIS.

>> YEAH, I THINK FOR THE SECOND YEAR IN A ROW, HERE WE HAVE AN IMPORTANT CASE THAT IS NOMINALLY ABOUT GUNS AND THE POWER OF ADMINISTRATIVE AGENCIES IN THE CONTEXT OF SPECIFICS.

AND CONGRESS HAS GIVEN THE GOVERNMENT BROAD POWER TO REGULATE FIRE ARMS AND THE QUESTION IS WHAT IS A FIREARM.

THE GHOST GUNS, EVERYONE AGREES IF YOU OR I WALKED IN A STORE, A LICENSED FIREARM SELLER AND BROUGHT THE SAME PRODUCT, THAT CONGRESS WOULD HAVE A POWER TO REGULATE IT.

WHO CAN BUY IT, WHO HAS -- THE SERIAL NUMBERS AND REGISTRATION REQUIREMENTS, BACKGROUND CHECKS AND THE QUESTION IS WHETHER THAT SHOULD APPLY WHEN YOU HAVE COMPANIES WHO ARE SELLING KITS FOR 3-D PRINTERS OR WE WILL SEND YOU PIECES OF PLASTIC AND YOU PUT IT TOGETHER, AND WHAT I WAS STRUCK BY, HARI, I WOULD HAVE THOUGHT THE ANSWER IS OBVIOUSLY YES.

I THINK THE SUPREME COURT IS GOING TO END UP THERE.

VOICES FROM SOME OF THE MORE CONSERVATIVE JUSTICES, AND REALLY A POWERFUL SIGN OF WHERE THE SUPREME COURT IS WHEN IT COMES TO WHAT I THOUGHT WERE STRAIGHTFORWARD STATUTORY QUESTIONS.

>> THE COURT WILL DECIDE THE CONSTITUTIONALITY OF GENDER AFFIRMING CARE.

WHAT ARE THE ARGUMENTS THERE?

>> THIS IS THE BIGGEST COURSE THE CASE HAS ON THE DOCKET.

THIS IS A COLLAGE TO A TENNESSEE LAW THAT BANS CERTAIN KINDS OF GENDER AFFIRMING MEDICAL PROCEDURES ESPECIALLY FOR ADOLESCENTS, AND THE QUESTION, WHETHER THIS DISCRIMINATION WHICH SINGLES OUT TRANSGENDER INDIVIDUALS, WHETHER THAT KIND OF DISCRIMINATION IS IN VIOLATION OF THE EQUAL PROTECTION CLAUS, THE IDEAL THAT GOVERNMENT HAS TO HAVE A GOOD JUSTIFICATION BEFORE IT TREATS SIMILAR SITUATED PEOPLE DIFFERENTLY.

AND THAT IS REALLY A TEST FOR THIS COURT AND WHETHER IT'S GOING TO TREAT TRANSGENDER STATUS DISCRIMINATION THE SAME WAY IT TREATED NOT JUST RACE AND SEX, BUT AS WE SAW IN THE CONTEXT OF EMPLOYMENT, EVEN SEXUAL ORIENTATION DISCRIMINATION.

THAT HAD BOTH JUSTICE GORSUCH AND ROBERTS IN AGREEMENT.

IS THE COURT GOING TO TAKE THE STEP FROM SEXUAL ORIENTATION FROM ORIENTATION TO TRANSGENDER, OR WILL THEY FIND A NARROWER GROUND.

A LOT OF EYES ARE FOCUSED ON.

>> THIS THE SUPREME COURT OFTEN GETS LAST MINUTE APPEALS, ESPECIALLY ON DEATH ROW CASES AND THEY TOOK UP A CASE THAT IS INTERESTING.

61-YEAR-OLD RICHARD GLOSET FROM OKLAHOMA WAS CONVICTED AND SENTENCED TO DEATH, AND HE MAINTAINED HIS INNOCENCE, AND THERE IS MISCONDUCT IN THE 30 YEARS THE CASE HAS BEEN GOING ON.

WHAT IS AT THE CENTER OF THE CASE.

>> WHAT IS REMARKABLE IS TWO DIFFERENT THINGS.

NOT JUST THAT RICHARD GLOSSET IS PROTECTING.

THE OKLAHOMA ATTORNEY GENERAL NOW CONCEDES NOT THAT HE IS INNOCENT, BUT THERE IS ENOUGH MISCONDUCT THAT HE SHOULD BE AT LEAST RETRIED SO THERE IS AN INTINTED VERDICT.

BUT MEANWHILE, THE OKLAHOMA COURT OF CRIMINAL APPEALS, IN OKLAHOMA, REFUSED TO ALLOW IT TO HAPPEN.

ON ITS VIEW, THERE WERE PROCEDURAL BOXES THAT HE HAD FAILED TO CHECK.

YOU KNOW, I WOULD HAVE THOUGHT THAT THIS WOULD BE A RELATIVELY STRAIGHTFORWARD CASE FOR THE SUPREME COURT.

WHEN YOU HAVE EVEN THE ATTORNEY GENERAL AGREEING THERE HAS TO BE A NEW TRIAL.

HARD TO IMAGINE THE JUSTICES SAY OTHERWISE.

BUT WE HEARD A LOT OF SKEPTICISM NOT JUST FROM CLARENCE THOMAS OR SAMUEL ALITO, OUT JOHN ROBERTS WHETHER IT WAS OBVIOUS THAT HE IS ENTITLED TO A NEW TRIAL.

REALLY, THESE ARE THE ONLY CAPITAL CASES THE SUPREME COURT HAS TAKEN UP WHEN YOU HAVE THIS MUCH AGREEMENT ABOUT WHAT WENT WRONG IN A TRIAL COURT.

>> YOU WROTE RECENTLY, THE SUPREME COURT IS ITS OWN WORST ENEMY.

EXPLAIN.

>> YEAH, IT'S A BROADER POINT WHERE THE COURT IS.

WE HAVE FOR THE FIRST TIME IN AMERICAN HISTORY, AT LEAST IN THE LAST DECADE OF SO, A COURT WHERE ALL NINE OF THE JUSTICES ARE ALIGNED IDEALOGICALLY WITH THE PRESIDENT WHO APPOINTED THEM.

ANY TIME THE JUSTICES DIVIDE, IT LOOKS LIKE IT'S A PARTISAN DIVISION.

IT'S AN EXERCISE OF PARTISAN JUDICIAL POWER.

THE BEST DEFENSE FOR THAT, FOR THE COURT TO PROVE IT'S NOT TRUE, IS TO PERHAPS NOT SIDE IN ALL THE BIG CASES IN A WAY THAT SPLITS THE COURT 6-3 ALONG THE PREDICTABLE LINE, AND EMBRACE SOME OF THE REFORMS THAT HAVE BEEN PROPOSED BY ME AND OTHER FOLKS AND TRY TO AVOID SENDING A MESSAGE IN EVERY BIG CASE, THE BEST PREDICTOR OF OUTCOME.

THE MORE THE COURT CAN ACT IN WAYS THAT THEY ARE NOT JUST JUDGES.

THE MORE IT MIGHT BE ABLE TO ARREST SOME OF THE REALLY ALARMING EROSION IN PUBLIC FAITH WE HAVE SEEN OVER THE LAST COUPLE YEARS.

>> SPEAKING ON OF THAT EROSION, WE HAVE A RECENT PEW SURVEY FOUND THAT 51% OF THE AMERICANS HAVE AN UNFAVORABLE VIEW OF THE COURTS.

THIS IS ONE OF THE INSTITUTIONS, A COUPLE DECADES AGO, THAT WE HAD BIPARTISAN AGREEMENT, SOMETHING WE HAD FAITH IN.

AND HERE WE ARE, 50/50.

>> IT HAS NOTHING TO DO WITH THE RESULTS.

IT'S COMMON PLACE FOR THE COURT DEFENDERS TO BLAME THE CRITICS FOR BEING UP HAPPY ABOUT THE RESULTS.

BUT THE REALITY, THE COURT DEPENDS ON PUBLIC SUPPORT.

IT DEPENDS ON THE PUBLIC FAITH THAT IS ERODING.

THE MORE THERE IS PUBLIC DISCORD AROUND THE COURT, THE MORE THAT IT'S ERODING, EVEN IF IT'S ONE FROM PARTICULAR BLOCK, THE HARDER IT WILL BE FOR THE JUSTICES IN FUTURE CASES WHERE IT REALLY, REALLY MATTERS TO PUSH BACK AGAINST THE POLITICAL BRANCHES WHEN THEY DO AGGRESSIVE, YOU LAWFUL THINGS WITH THE POSSIBILITY THAT WE WILL HEAD IN A SECOND TERM OF TRUMP.

IT'S SOMETHING WE HAVE BE WORRIED ABOUT.

>> HOW MUCH OF THE TRUST EMOTION IS REALLY BECAUSE OF THE ACTIONS OF A PARTICULAR JUSTICE?

RIGHT NOW, CLARENCE THOMAS, JUSTICE ALITO.

THERE ARE SEVERAL ARTICLES AND THEIR CONNECTIONS TO MAGA MOVEMENT AND -- AND I WONDER WHETHER THAT SINKS INTO THE GENERAL PUBLIC?

YOU KNOW, THESE GUYS ARE PARTISANS ANY WAY.

>> I THINK IT DOESN'T HELP.

IT GOES BACK TO WHAT WE TALKED ABOUT A FEW MINUTES AGO.

THE ONUS IS REALLY ON THE COURT.

WHEN YOU HAVE STORIES ABOUT JUSTICE ALITO, JUSTICE THOMAS, ONE REA MIGHT BE, OH, GOSH, SOME OF THESE ARE GENERAL CONCERNS.

LET'S TALK ABOUT THEM.

LET'S TALK ABOUT REFORMS.

INSTEAD, WHAT WE HAVE MOST BY GOTTEN IS ENTRENCHMENT.

DIGGING IN.

IT'S THAT NONOF THE STORIES ARE TALKING ABOUT ANYTHING LEGITIMATE, AND THE BEHAVIOR IS NOT PROBLEMATIC, EVEN THOUGH THAT JUSTICE THOMAS HAD TO AMEND A COUPLE OF HIS DISCLOSURE FORMS.

WHEN THE COURT OR AT LEAST SOME OF THE JUSTICES ARE GOING TO BURY THEIR HEADS IN THE SAND, THAT IS WHEN IT REINFORCES A CONCERN THIS IS NOT A COURT THAT IS INTERESTED IN ACCOUNTABILITY, AND THAT IS WHERE I'M CONCERNED THE COURT IS SETTING IT UP UP, AND THE COURT IS TRYING TO STAND UP, TO A PRESIDENT WHO IS ABUSING POWER OR A GOVERNOR ABUSING POWER AND THEY ISSUE A SIGNIFICANT DECISION AND THERE IS NO ONE LEFT TO ENFORCE IT.

AND YOU KNOW, THIS IS NOT JUST A HYPE -- HYPOTHETICAL, AND THEY WANTED TO REMOVE RAISER WIRE, AND THEY DEFIED THE SUPREME COURT.

THAT SET OFF ALARM BELLS NOT JUST IN LAW SCHOOLS BUT IN THE SUPREME COURT ITSELF.

WRUNS WE HAVE GONE DOWN A SLIPPERY SLOPE AND TALKING ABOUT IGNORING SUPREME COURT RULINGS THEY DON'T LIKE, THE COURT IS IN A PRECARIOUS POSITION, REGARDLESS OF WHO THE JUSTICES ARE AND HOW WE FEEL ABOUT THEIR RULING.

>> WASN'T IT SUPPOSED TO BE A CODE OF CONDUCT A BEHAVIOR THAT WAS GOING TO FIX A LOT OF THIS.

>> IT WAS REMARKABLE THAT THE SUPREME COURT DID ADOPT AN INTERNAL CODE OF CONDUCT.

THOSE WHO THOUGHT THAT WAS A SOLUTION IS AHEAD OF THE CURVE HERE.

PART OF THE REAL QUESTION IS NOT WHAT THE RULES ARE, BUT WHO IS GOING TO POLICE THEM AND WHAT IS GOING TO ENFORCE THEM.

AND I THINK WHAT WE HAVE LEARNED IS THAT WE SHOULDN'T AND CAN'T TRUST THE JUSTICES THEMSELVES, AND JUSTICE KAGAN SAID IT SHOULDN'T BE UP TO US.

AND I'M A LITTLE SKREPT CAL ABOUT OVERSIGHT.

BUT I DON'T THINK IT WOULD BE THAT BIZARRE OR PROBLEM MATTIC TO HAVE CONGRESS CREATE INSPECTOR GENERAL FOR THE FEDERAL THREE COURTS.

NOT WITH THE POWER TO REMOVE JUSTICES BUT TO LOOK AND INVESTIGATE, TO PUBLIC ANY TIME THERE IS A CONCERN.

AND THE DISCLOSURE REQUIREMENTS OR THE ETHICS RULE.

AND I HAVE TO THINK THAT WOULD NOT BE PERFECT, AND AT LEAST WE WOULD NOT BE DEPENDENT ON THE MEDIA AS PRINCIPLED AS IT MIGHT BE TO DO THE WORK THAT THE COURT AND COURT INSTITUTIONS OUGHT TO BE DOING FOR US.

>> HERE WE ARE, A MONTH AWAY FROM THE ELECTION, AND WE ARE AS A NATION POISED FOR THIS ELECTION HAVING COURT DRAMA ATTACHED.

THIS WOULD BE AT THE LOCAL LEVEL.

IT WOULD BE AT THE NATIONAL LEVEL.

IF THERE ARE SITUATIONS WHERE THE SUPREME COURT HAS TO BE A AR HOW DO THAT DO IT?

>> BEHIND THE SOUND BITES WE SEE IN MEDIA, IT'S BECAUSE IT'S A LEGITIMATE QUESTION.

IF THE ELECTION -- IF WE HAVE A REPEAT OF 2000 WHERE THE PRESIDENTIAL ELECTION COMES DOWN TO ONE STATE, AND WHERE THERE IS LITIGATION IN ONE STATE THAT IS JUST POSITIVE OF WHICH CANDIDATE IS GOING TO WIN, ARE WE CONFIDENT THAT IF IT GOES TO THE SUPREME COURT, THE COURT WILL HAVE A FAIR HEARING AS OPPOSED TO FINDING A WAY TO RULE FOR PRESIDENT TRUMP?

I THINK WE SHOULD BE CONFIDENT BUT THE COURT'S BEHAVIOR IS KBI THE AMERICANS ARE NOT CONFIDENT.

AND THAT IS REALLY A DAMMIC INDICTMENT FOR THE COURT.

I HOPE THIS IS MORE A REPEAT OF 2020.

THE ELECTION WAS NOT CLOSE, AND THE SUPREME COURT STAYED OUT OF IT.

IT'S HARD TO IMAGINE IF WE GET TO 2000 WHERE THERE IS ONE TIPPING POINT STATE, EITHER THE OUT OF THAT DISPUTE OR WE COULD HAVE A TON OF FAITH THAT THE COURT WOULD HANDLE THE DISPUTE.

THE COURT WAS ABLE TO RECOVER FROM BUSH VERSUS GORE AND HOW IT INTERVENED IN THE 2000 ELECTION.

BUT THIS IS VERY DIFFERENT COURT.

THIS IS A COURT WITH MUCH LESS PUBLIC CREDIBILITY GOING IN, AND SPENT THE LAST FOUR OR FIVE YEARS IN THE MIDDLE OF A TON OF PUBLIC CONTROVERSY ON EVERYTHING FROM ABORTION TO AFFIRMATIVE ACTION TO GUNS TO RELIGION, AND THERE COMES A STATE WHERE THE COURT RUNS OUT OF CAPITAL TO SPEND ON CASES AND THAT IS WHY, FOR LOTS OF REASONS, I REALLY HOPE WE DON'T FIND OUT IN THE NEXT MONTH OR TWO MONTHS IF THIS IS GOING TO BE ANOTHER 2000 ALL OVER AGAIN.

>> PROFESSOR, STEVE, THANKS VERY MUCH FOR JOINING US.

>> THANKS.