- The role of the United States Supreme Court, the judiciary, we're gonna have a conversation with someone who knows this subject well.

Jenny-Brooke Conden is a professor at law at Seton Hall University, one of our longtime higher ed partners.

Professor, good to see you.

- Good to see you, Steve.

Thanks for having me.

- You got it.

Let's talk about the Supreme Court.

They've been busy in the last few months, haven't they?

- They have, and you know, I think that busyness has been a function of both the regular work of the court, but perhaps more importantly, it's been the emergency dockets in which the court has been increasingly deciding important issues involving the legality of executive action through emergency orders.

- Okay, let's go through 'em.

On the first day in office, President Trump issued an executive order attempting to end birthright citizenship.

Six to three majority.

Did in fact the Supreme Court with three justices appointed by President Trump, did they end birthright citizenship?

Meaning if baby born here of parents who are not here legally, historically they would be a citizen.

Did the court say no longer is that the case?

- Not yet, Steve.

So that question, which, you know, lawyers refer to as the question on the merits, the actual legality of that executive order that you just described remains an issue that the court is one day going to have to decide.

What it was really deciding in its June 27th decision was whether or not the lower court that had addressed the legality of that had the power to put it on pause until the court actually gets to the central merits issue later in the case.

And so the case is really important because it is looking at two separate issues, really.

What the court told us in June was what it thought about something that frequently is a means by which lower courts pause or stop, during the course of litigation, executive actions that are challenged as unconstitutional, something known as a universal injunction.

So the court was focusing its attention on whether or not the courts have the power to issue these kinds of injunctions.

But the reason why it still has grave consequences for the underlying policy is that the court allowed the policy, which countless scholars, and I think three or four federal courts, lower federal courts, have now said is patently unconstitutional.

So the court has allowed it to go into, the executive order, to go into force in the interim, even though it has not told us definitively what its decision is on the question of its legality.

- So how about this?

'Cause there's so many decisions that the court is making that have wide-ranging ramification.

Transition care for transgender youth, six to three vote.

Doing what?

- Well, I think that case is an example of the court giving great deference to a state to enact a law that the state claimed was in its view in the interest of its powers to protect the health and safety of its residents.

But you know, that is not an emergency ruling.

That was a case in which was fully briefed and the court is telling us its decision on the merits.

And basically it's saying we're only gonna look at whether or not this is a rational law.

And it believes that it was.

Of course the challengers and the dissents in that case made great arguments regarding the fact that this was discrimination and unequal treatment for transgender youth who were being disallowed access to medical care that their doctors had said was in their interest.

And so it was an equal protection case and the court said it didn't think it was discriminatory, it deferred to the states.

- Stay on the issue of what the President can and cannot do.

"The New York Times," this happens to be the day, we're taping in the middle of July.

The Supreme Court agreed on Monday that the Trump administration can proceed with dismantling the Department of Education by firing thousands of employees.

I mean the president can do, apparently, based on the Supreme Court, the law of the land, can make those cuts even if it was Congress who appropriated the dollars for the Department of Education and other agencies.

Where the heck is this?

The so-called balance, Professor?

- I think that decision from the court is really concerning.

The Department of Education is created by Congress.

It's the product of federal statute.

And the court did, you know, allowed the executive unilaterally to effectively overturn that statute.

And that's not what the Constitution provides.

We overturn statutes through the democratic process, not through a single person, the President.

And so it's important to note this was another emergency, sometimes referred to as shadow docket decision.

So the court did not, again, definitively rule that the president has the power to do this, but it did say it was willing to let the president put this executive order into place during the timeline that it takes the litigants to actually challenge it in the lower courts and work their way up to the federal court.

Now, normally when the court looks at a request for emergency relief, it has to ask itself, "Is there a likelihood of success on the merits?

Is the person who wants the emergency relief likely to win?"

And so here the court is saying it thinks there's a likelihood of success, you know, that President Trump would prevail and that the irreparable harm sort of points in the direction of the President not being able to pursue this policy.

And that's deeply troubling.

- Lemme try this.

Back in the day, and you're a student of judicial history, Franklin Delano Roosevelt, a Democrat, attempted to pack the court.

"I want more of my people there.

Let's expand the size of the Supreme Court, add more justices, I'll appoint those justices, they'll be my justices.

I will control the court."

He didn't say that publicly, but I mean, what else was he looking to do?

To what degree do you believe President Trump believes that the court, the courts overall, but the Supreme Court in particular, they're his judges?

- Yeah, I think the President's both aggressiveness in pursuing these policies, his public statements about his belief that the court will allow him to do these often very straightforward illegal things suggest that the President does believe the court is on his side.

And I think what this term shows us and should give us all, you know, some pause is that precisely when we need the court to assert itself to ensure that the President does not disregard the co-equal branch of Congress, that he respects Congress, when the President respects due process rights, when the President respects the President's obligation to follow the plain terms of the Constitution, when we need the court to stand up for those rights and for the Constitution.

And a number of these emergency rulings, the court has said it's going to give the President all matter of deference and power and allow him to do these things that are ultimately unlawful.

And so I do think the President probably understands that he has that authority with the court, that he's going to be given that leeway and that the court is doing very little to disabuse him of that impression.

- But Professor, moving forward beyond President Trump, there'll be a new president in a few years.

Say that President is a Democrat, say that President has totally different policy ideas of philosophy of governing President Trump.

Has the court not, as the highest court in land, not already established a degree of executive power and authority unprecedented in American history that all of a sudden can't be changed if the justices don't like the policies of a new democratic progressive left-leaning dem- I mean, president.

That's not for President Trump, that's for whomever the executive is, not just now, but moving forward.

Am I misinterpreting that professor?

- No, not at all.

I think our constitution is concerned about the separation of powers, not because of any particular political perspective or any particular policy, it's concerned about it because the separation of powers protects all of us.

It protects individual liberty, it protects the rights of the states and it protects the, you know, the design of the framers to have a process that is balanced and is democratic.

And so you're right that the court's precedents will not just benefit President Trump, but they will do damage to the balance of powers into our constitutional system of democracy going forward.

Even if there is a person in office whose policies, you know, your viewers might agree with more or maybe not.

But I think this is a question about our constitution that is bigger than any one president.

But I do think it's important that in this moment when we have somebody in office who is pressing as hard as this person can to defy constitutional norms and to exceed constitutional powers, the fact that the court is giving that person such a expansive amount of power is concerning in the short term and will do long-term damage as well.

- Professor, thank you.

We'll continue our discussions with other legal scholars on the implications, the impact of not just the Supreme Court, but appellate courts, other lower courts and the balance of power, the separation of branches of government.

Thank you, Professor.

We appreciate it.

- Thank you.

- I'm Steve Abubato.

We'll continue to have important, meaningful discussions about the way our government works or doesn't work.

See you next time.

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