>> Ted: Coming up next on Arizona horizon, it's our annual Supreme Court wrap-up show and we look at the high court's decisions in what was a very eventful form andeventful term and that's next on Arizona horizon.

Welcome to the special Supreme Court edition of Arizona horizon.

Each year, we look back at the U.S. Supreme Court's latest term and how the session's major cases were decided and there is plenty to look back on and what is the high court's consequential terms in recent history and our guests, ASU Paul bender and Stephen Montoya and gentlemen, good to have you here and thank you for join us.

Paul, I said this was one of the most consequential terms and what say you?

>> Probably one of the most consequential terms since I've been following the court since the second world war.

Why is that?

This term in the two most important cases, the court has used a different approach to deciding individual rights, questions and using an approach where they ask whether the government has a compelling interest in light of current conditions of invading the right that it's invading.

From the government's point of view, whether the government has a strong interest in regulating what it's doing.

That right, that approach is lead to the brown and board of education rules, discrimination and all kinds of stuff.

This term, the court in the abortion case and the second amendment case, no, they don't care about current positions.

The question is historical.

You have a right only if the right is deeply rooted in American history.

So if you apply that, let's say, they've applied that to say there's no abortion right and apply that to the right against gender discrimination, the question is active in that area and protected against gender discrimination.

If you approach the court and they continue to use it, is a principle against that rooted in American history?

It's the opposite.

The thing rooted in American history is gender discrimination.

If you only prevent gender dis-crumbdiscrimination today, you won't protect it.

That's true of racial severe segregation and same-sex marriage and the right to use segregation and what it's developed since the second world war in a way in which the court balances the damage of the fundamental rights against the government, whether it has a compelling interest in invading those rights and that's not relevant.

In the gun case, nothing about conditions.

New York tried to limit the ability to have guns in public and you would think the court would talk about what's going on with guns in public today.

No, they talk about whether there's an an that analog in history.

>> Ted: Stephen, is this an originalist thinking?

These are significant decisions and Paul called this consequential since his time in watching the court and what about you?

>> Another adjective would be discretionary.

It's what I called fake originalism.

Thomas' recitation is farcical and inaccurate and there is a long history of regulating guns in the United States.

In fact, the primary drafter of the second amendment is a guy who's well known, James Madison.

He sponsored a bill in the Virginia state legislature to prohibit people from carrying guns outside of their property because they were poaching livestock on his property.

So, in Arizona, we all remember tonmbstone and you had to check in our gun.

The regulation of firearms in the United States is as old as the second amendment and probably predates it.

So Thomas has his history completely wrong core correspondingly in Roe v. Wade.

The history of terminating pregnancies before quickening is well established in the United States, is well established in European history going back to ancient history.

For example, Aristotle in the fourth century recommended it before quickening.

So to write it out of the history books is bad history.

>> Ted: Paul, dis-matleing, as yountling ofFDR and later?

>> Nobody joined him and he said it and they did it in those two cases.

The second amendment case and abortion case.

Abortion is not a constitutional right because they couldn't find it rooted in the American history.

Is the right against racial segregation a constitutional right?

I would think so and right to be free of segregation rooted in American history?

I would think not.

The court played a creative roll in developing rights and the court rejected that.

Not only in these two cases, but it has rejected that in theory.

And they mean what they say, as you said, Ted, the court's litany of development of rights that with the Miranda rule and the right that you can't use unconstitutionally evidence in criminal pros cues.

contribution.

prosecution.

That's all stuff that the court did because of current conditions.

The court seems to be saying no to that.

One of the problems with using history, you get it wrong.

These people are not historians.

And that's not what you want on the court.

You want on the court people who look at current conditions and wave them in light of constitutional principles and the court refused to to do that this year.

>> Ted: Stephen, we have the three trump appointments and this make-up, it will stick around for awhile.

[ Laughter ] >> Probably, it probably is, and it's it's scarry.

But it should call attention to the reality that the court does not operate in a vacuum.

Congress has some control over the court and the nine is not written in the constitution and the nine should change to a larger number to make the dort court to a larger number.

The court is out of control and destroying itself.

I think people need to help the court save it's its reputation and as an institution by modifying it modifying which and constitutional.

>> Ted: With that, let's get to individual cases.

We're talking about the educational case.

Were you surprised the court took this action this soon?

>> I wasn't surprised but disappointed and shouldn't have as the chief justice points out.

The case before them was a case about a regulation of abortion that would have prohibited after 15 weeks after conception, which would permit 95% of the abortions done now and most abortion clinics don't do abortions after 15 weeks.

Mississippi had a statute that couldn't do them after 15 weeks.

Instead of saying, the viability rule is not a constitutional rule and as long as a state leaves open the right to ie abortion, that's entitled to regulate in ways.

Instead of that, they've taken issues that aren't in the case and necessary to decide and overruled the case that's been there more than 40 years, destroying all kinds of reliances to people.

Yeah, that was surprising and disappointing.

And that's the problem.

When you do in the way they're doing it, you can make that sudden change because you don't care about what's going on in the country today.

If you want to get rid of the right-of-wayright-of-wayright-of-wayright of abortion, let's talk about the rights of the fetus.

They don't talk about that.

They say I not ratted rooted in American history and we don't have that.

>> Ted: Is it moving fast faster and further than folks anticipated?

>> Absolutely.

And this really shows the false rhetoric of conservatism because this is not a conservative court.

This is an activist court.

A conservative court would not have overruled a presence presence precedent of 50 years standing.

That was a product of conservative courts.

>> Ted: During the three trump appointees, what did they say about precedent and say about Roe v. Wade and did that hold true once rubber hit the road?

>> Not really.

Brett Kavanaugh what's deceptive and Thomas claimed he never talked about Roe v. Wade in law school.

I went to the same law school and believe me, that's all we talked about and that's all everyone talked about, Roe v. Wade.

They finally got rid of it.

The only one relatively candid versus Roe v. Wade would be Barrett.

She basically said it wasn't a super precedent.

It was very controversial and that's as far as she would go.

But Brett Kavanaugh said I'm a go along type of guy and believe in the rule of nine and literally said that.

>> What's the future of those confirmation hearings?

You can't believe anything they say.

What does that do the to Supreme Court process?

It's so important that people have confidence in the people we put on the court.

If they start deceiving us about what they're thinking, the court will lose a large amount of the public support that it's had over the years and that's bad.

>> Ted: Paul, we have so many cases and we want to keep it moving.

You refer to New York State rifle and pistol association there in New York regarding law-abiding citizens carrying outside of home for self-defense and gives us more and how did the court side?

The >> The cord court decided you have a case to have at home and this is whether you have a similar right to have a handgun out on the street to self-defense.

New York has a big gun problem and tried to limit that by saying to have a gun on the street, you have to get a license and in order to get a license, you need special reasons to have a gun on the right, that you've been threatened, you're in a business, danger that you might be assaulted.

If you're just like ordinary people, you don't.

So that ordinary people don't have that right so there's not pro live ration ofproliferation of guns on the street.

The court said you can't do that.

Why?

There's no analog in American history for that right.

That's not a good reason forward doingfordoing that.

Does New York need need to do that?

They don't look at that and it gets to be a mechanical and an abstract and it just doesn't -- how can you write an opinion about gun rights and not mention the fact there are always incidents of large numbers of people killed by assault rifles?

That's the problem today.

And the court deals with it by saying we don't care about today.

Let's look in history to see if there's an analog and there is.

And the court gets it wrong anyway.

>> Ted: Did the court look at the fact because there's so much gun violence right now, that the right to carry away from home to protect one's self, that is a good reason for that right?

Did that go that far?

>> Creat,Yeah, they actually did.

The problem is, that puts more guns on the street and that really does turn contemporary America in large urban years to a present-day Tombstone?

We'll have a present day gun corral.

I don't think anyone who studied the history of American law can reasonably say there's not a tradition of carrying pistols in America because there is that goes back to the founding.

However, there's also a tradition that allows the government to regulate that reasonably.

And I think such a regulation would be reasonable in a tense urbandenseurban area like New York City.

Would it be reasonable on a ranch?

Probably not.

The law can allow for that.

But just making it a constitutional right above regulation, I think is wrong.

The first amendment, free speech, subject to regulation, time, place and manner re reStrickions.

mannerrestrictions.

>> We've depended on the courts in the last 50 years to take current conditions and think about what fundamental rights should be in loot light of the current conditions.

The things that scares me, they won't do that.

They'll look to history.

So just departing and rejecting the idea that they are the ones to look at the individual rights, concerns and to balance them against current conditions and to decide whether the government has reached a reasonable balance.

Instead, look to the past.

If they had that position all along, you wouldn't have brown expect board of education and rules against gender discrimination or use contraceptives or rules of gender discrimination and there were no Miranda warnings to keep silent or excluding evidence because it was unconstitutional seized.

All of that are new developments in constitutional rights of exactly the opinions saying it's not going to do anymore.

>> Ted: Let's go to the EPA to affect business, you're going too far.

Is that a surprising decision?

>> No, that was not a surprising decision and I think that's a less radical decision than the other two decisions that we've discussed.

The EPA rule that the Obama administration was using to regulate greenhouse Georgias greenhouse gases was not intended to do that, had never done that before the Obama administration.

Trump did away with that and the second circuit sent it back to the environmental protection agency and before they could render a decision, it went to the Supreme Court and the court decided it saying, oh, that obscure regulation was never meant to do that.

Therefore, it cannot do that and I understand that and I actually sympathize with that, but what it's not looking at is that if Congress doesn't like the way the environmental protection agency is construing these rules, Congress knows how to speak for itself and it hasn't.

This is tale a actually a sign and as Paul knows, our government no longer functions, so a lot of times, we're punting to the administrative agencies to make decisions that our elected officials refuse to make and cannot make.

>> Ted: What happens to the other agencies?

The F.D.A., they make regulations all of the time and they affect businesses.

>> Of course, they do.

And the problem in this area is not a problem dreated created by the court.

The problem is the problem created by Congress of inaction and in act to deal with the inability to deal with the court.

The problem between control, coal and wind energy, those are big questions which Congress should be deciding and they don't.

You're left with the agencies who have people who understand the science trying to do it and Congress is not going to do it.

I can understand that you have to have somebody do it, but I would like Congress to do it and the court -- Congress is not doing it and that puts the court in a terrible decision.

>> You're discriminating against religion and that doesn't help.

>> I agree with Paul largely and I'm not offended by what the teacher did, why he invited the press to watch him do it, is other issue.

This is what disturbs me about this.

If the Christian is allowed to >> Ted: If this was a Muslim with a call to prayer certain amounts of times a day and you were a football coach, were the court have reacted similarly.

>> Not at all.

They would not have.

The right solution here, think, as Steve is say, saying, these are hard problems.

Balance one thing against another.

What rights should people have and what harm will that do to other people if they exercise them.

That's something to be left to the school to decide.

The school knows current conditions and what's gong.

If they make a really wrong decision were that balance, you can strike it down.

But in general, that should be left, I think, to the school.

It would be reasonable in some conditions to say, you can't pray at the 40 40 40-yard line and people would be worried about it and students concerned about it and people feeling bad about it.

In this community, you should do it someplace else and other communities, it may be OK.

The court doesn't want to look at things that way and instead, they want a rule that applies e where.

everywhere and that leads to rules that don't make sense.

>> Ted: Earlier you said the court is out of control and there's concern that the public approving ratings for the court are dropping.

Is the court out of step with public opinion and does that matter?

>> It is absolutely out of step with public opinion.

And it does matter because like it or not, the justices are public servants and they have the obligation to serve the public and regardless of the history that they want to cherry bick thecherrypick, they ratify a flexible constitution that's written in very general terms intentionally to allow for flexibility and growth and they are using a cherry-pick history to act as a strait jacket on the growth of the people and the operation of the court.

That will only hurt the independence of the court in the long run.

So it is a big problem.

The justices do have to answer to the people.

All public employees have to answer to the people including the justices.

So it is very wrong and hurtful to the United States and the court itself for them to do that.

>> Ted: Paul, last word, answering to the people or answering to law?

What are we looking at here?

>> I think the critical thing is that the justices who are doing this, the majority of the courts were nominated to the court by presidents who did not win the popular election.

And that's a big, big problem.

If they had been nominated by presidents who did win that election, we would have a completely different court.

The big problem with the American system is that you can elect a president without the popular vote and can put people in office for the rest of their lives who don't reflect the opinion of the majority of people in the country.

>> Ted: Gentlemen, we'll stop it there and great conversation.

Always a pleasure for the Supreme Court review.

Thank you for joining us.

>> Thank you.

>> Thank you.

>> Ted: And that it is for now and thank you so much for joining expus youjoining us and you have a great evening.

♪♪