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

LOOK AT SOME OF THE HIGH PROCEDURE FILE CASES DECIDED BY THE COURT THIS SESSION AND THE IMPACT OF THOSE DECISIONS ON OUR COUNTRY.

THE SUPREME COURT REVIEW IS NEXT ON "ARIZONA HORIZON."

>>> GOOD EVENING WELCOME TO "ARIZONA HORIZON IN OIL TED SIMONS.

THE JULY WAS NEW YORKED BY YET ANOTHER MASS SHOOTINGS.

A LONE GUNMAN SHOT INTO A ROUND OF ABOUT 100 PEOPLE AT AN ANNUAL INDEPENDENCE DAY BLOCK PARTY IN SHREVEPORT, LOUISIANA.

REACTION TODAY FROM A SHREVEPORT COUNCILWOMAN.

>> YOU WILL NOT GET AWAY WITH THIS.

WHAT YOU HAVE DONE IS TRAUMA TIES THIS COMMUNITY.

YOU HAVE TRAUMATIZED US IN A WAY THAT IS UNFATHOMABLE.

HAVE YOU HURT US IN WAYS THAT WE CANNOT ECHO INTO WORDS.

YOU HAVE CAUSED US GRIEF, YOU HAVE CAUSED US PAIN, AND I WANT WHOMEVER YOU ARE TO PAY.

>> NO MOTIVE, NO ARRESTS AS YET IN THAT SHOOTING THERE.

IS AN ARREST IN MONDAY'S MASS SHOOTING IN PHILADELPHIA IN WHICH FIVE PEOPLE WERE KILLED AND TWO OTHERS WOUNDED.

40-YEAR-OLD SUSPECT WAS ARRAIGNED TODAY ON MURDER CHARGES.

ALSO THIS WEEKEND, THREE PEOPLE WERE KILLED IN FORT WORTH, TWO WERE KILLED IN BALTIMORE, AND NINE WERE INJURED IN WASHINGTON, D.C. ALL AFTER RANDOM SHOTS WERE FIRED INTO OUTDOOR HOLIDAY GATHERINGS.

AND THE AVERAGE TEMPERATURE ON EARTH THIS PAST MONDAY WAS THE WARMEST ON RECORD.

THE AVERAGE GLOBAL TEMPERATURE TWO METERS ABOVE THE SURFACE WAS 62.6 DEGREES, THAT BEAT THE MARK OF 62.4 SET LAST JULY AND ALSO IN AUGUST OF 2016.

RESEARCHERS SAY THAT A COMBINATION OF CLIMATE CHANGE AND AN EL NIÑO WEATHER PATTERN ARE BEHIND THE NEW RECORD HIGH.

>>> TIME NOW FOR OUR ANNUAL SUPREME COURT REVIEW AS WE LOOK BACK AT SOME OF THE BIGGER CASES DECIDED BY THE HIGH COURT THIS PAST SESSION.

THERE'S A LOT TO COVER SO LET'S GET RIGHT IT TO.

WE WELCOME OUR GUESTS ASU LAW PROFESSOR PAUL BENDER AND ATTORNEY STEPHEN MONTOYA OF MONTOYA LUCERO AND PASTOR.

GENTLEMEN GOOD TO HAVE YOU HERE THANK YOU SO MUCH FOR JOINING US.

PAUL I WANT TO START WITH YOU ON A COMMENT BY PRESIDENT BIDEN "THIS IS NOT A NORMAL COURT."

WHAT DO YOU MAKE OF THAT?

[LAUGHTER] >> I GUESS I AGREE WITH HIM BUT, YOU KNOW, THIS IS AN INTERESTING TURN.

IT'S THE FIRST FULL TERM WHERE ALL OF THREE TRUMP APPOINTMENTS SO EVERYBODY IS INTERESTED TO SEE WHAT THIS IS GOING TO LOOK LIKE.

FOR MOST OF THE TERM IT LOOKED LIKE IT NOT GOING TO BE AS CONSERVATIVE AS PEOPLE FEARED.

TRANSACTION -- FOR EXAMPLE, THE ALABAMA REDISTRICTING SYSTEM WHICH ONLY HAD ONE BLACK DISTRICT WHEN A QUARTER OF THE STATE ARE BLACK PEOPLE WAS ABOLISHED IN THE VOTING RIGHTS ACT.

AND A COUPLE OF OTHER THINGS LIKE THEY UPHELD THE CHILD WELFARE ACT AND A COUPLE OF OTHER CASES LIKE THAT.

SO THINGS WERE GOING AS IF IT LOOKED LIKE THEY WERE MAYBE GETTING INTO A COUPLE OF REAL CONSERVATIVES ALITO AND THOMAS, THREE REAL LIBERALS, JACKSON, SOTOMAYOR, AND KAGAN AND FOUR PEOPLE IN THE MIDDLE AND IF THE LIBERALS GOT TWO THEY COULD WIN CASES.

THE LAST WEEK OF THE TERM WAS A COMPLETE TURNAROUND.

AND IT WAS REALLY GOING BACK TO WHAT PEOPLE REALLY FEARED WHICH WAS A VERY, VERY CONSERVATIVE COURT.

THE AFFIRMATIVE ACTION IS A PERFECT EXAMPLE OF THAT.

I DON'T KNOW WHERE THAT PUTS US.

WHICH IS THE REAL COURT.

THE COURT IN WHICH ONE OF TWO OR THREE OF THE FOUR PEOPLE IN THE MIDDLE LIKE ROBERTS, KAVANAUGH, GORSUCH AND BARRETT WILL THINK OF JOINING THE LIBERALS IF TWO JOIN YOU HAVE A 5-4 LIBERAL DECISION.

IF ONE OR NONE OF THEM JOIN THEN YOU HAVE A 6-3 CONSERVATIVE DECISION.

AND THEN THE LAST WEEK OF THE TERM THERE WERE SEVERAL 6-3 CONSERVATIVE DECISIONS BY SO IF THAT'S WHAT'S GOING ON WE HAVE A REALLY CONSERVATIVE COURT.

IF WHAT HAPPENED IN THE FIRST PART OF THE TERM IS GOING ON WE HAVE A COURT THAT ISN'T TOO MUCH DIFFERENT FROM WHAT IT WHEN WE HAD JUSTICE O'CONNOR AND JUSTICE KENNEDY AS THE SWING VOTES.

>> STEPHEN, THE ABILITY, THE WILLINGNESS TO OVERTURN PRECEDENCE AS PAUL MENTIONED WE'RE NOT QUITE SURE WHAT KIND OF COURT IT IS BUT BETTER GET USED IT TO BECAUSE THESE JUSTICES THE TRUMP APPOINTEES THEY'RE YOUNG AND THEY'RE GOING TO BE A WHILE.

>> YEAH, I THINK WE BETTER GET USED IT TO, UNFORTUNATELY, I WISH WE COULD MIX THE COURT UP.

I WISH PEOPLE WOULDN'T SEE ITS NUMBER TO BE FIXED BECAUSE IT'S NOT.

IT COULD BE EXPANDED AND I THINK IT SHOULD BE EXPANDED NO MATTER WHAT.

I JUST THINK NINE IS TOO SMALL A NUMBER FOR SUCH AN IMPORTANT BODY.

>> WERE CONSERVATIVES EMBOLDEN BY THE 6-3 NUMBER AS OPPOSED TO THE 5-4.

>> YES, THEY WERE, BUT, THE PUBLIC'S REACTION TO LAST TERM, I THINK, DECREASED THEIR ENTHUSIASM AS WITNESSED BY THE VOTES OF ROBERTS AND JUSTICE KAVANAUGH.

I THINK THEY'RE BOTH COMMITTED TO MODERATING THE RIGHT WORD SLOPE OF THE COURT.

I WAS GOING TO SAY SLANT I WAS LOOKING FOR A STRONGER TERM.

>> INTERESTING.

PAUL YOU REFERRED TO THIS LET'S GET TO SOME OF THE CASES HERE SPECIFICALLY THE AFFIRMATIVE ACTION WITH RACE CONSCIENCE ADMISSIONS AT HARVARD AND NORTH CAROLINA.

REAL QUICK OVERVIEW OF THE CASE, AND WHAT THE COURT DECIDED?

>> WELL, THE OVERVIEW IS IT WAS COMPLETELY WRONG BUT WHAT THE COURT DECIDED WAS THAT RACE CONSCIENCE AFFIRMATIVE ACTION DONE BY A GOVERNMENTAL SCHOOL IS UNCONSTITUTIONAL AND DONE BY A SCHOOL THAT GETS GOVERNMENT FINANCIAL ASSISTANCE IS A VIOLATION OF TITLE 96 WHERE THEY GET THAT FROM I DON'T KNOW.

THE 14th ATTEMPT WAS DESIGNED TO INTEREST GRATE BLACK PEOPLE INTO THE SOCIETY -- INTEGRATE BLACK PEOPLE INTO THE SOCIETY.

WHEN A UNIVERSITY DOES SOMETHING TO GET MORE BLACK PEOPLE INTO THE UNIVERSITY, THAT IS TO INTEGRATE THE UNIVERSITY THEY SEEM TO BE DOING EXACTLY WHAT THE BOARD WAS INTENDED TO DO.

HERE YOU HAVE A COURT WHICH SAYS WE DON'T WANT TO GO BACK TO THE ORIGINAL INTENTION OF THE 14th AMENDMENT.

THE ORIGINAL INTENTION OF THE 14th AMENDMENT WAS TO END SEGREGATION, DIVERSIFY THE COUNTRY, HERE YOU HAVE THE COURT SAYING EXACTLY THAT VIOLATES THE CONSTITUTION.

IT MAKES ABSOLUTELY NO SENSE.

>> AND CHIEF JUSTICE ROBERTS, STEPHEN, NO MEASURABLE OBJECTIVES JUSTIFYING RACE.

CHIEF JUSTICE THOMAS SAYS RACIALISM CAN'T BE UNDONE BY DIFFERENT OR MORE RACIALISM?

>> I DISAGREE AND I REALLY THINK THE CASE WAS MISLAWYERED.

I WAS LOOKING AT THE BRIEFS THIS MORNING AND I WAS LISTENING TO THE ARGUMENTS.

NEITHER HARVARD NOR THE UNIVERSITY OF NORTH CAROLINA, A MEMBER OF THE CONFEDERACY, A SLAVE STATE, ARGUED THAT ANY REPAIRTIVE JUSTICE OR THE NEED THE DEMAND FOR REPARATIVE JUSTICE TOWARDS THE AFRICAN-AMERICAN COMMUNITY JUSTIFIED AFFIRMATIVE ACTION BUT THAT'S EXACTLY WHAT WOULD HAVE WON BECAUSE EVEN JUSTICE THOMAS REFERRED TO THE FREE BANS BUREAU THAT WAS PASSED IN THE MIDST OF THE AFTERMATH OF THE CIVIL WAR WHICH WAS RELEASED CONSCIENCE AND DID LOOK AT HARDSHIP AND IN FACT, JUSTICE THOMAS WAS RIGHT IN HIS CONCURRENCE IT WAS COLOR BLIND INSOFAR AS IT INCLUDED WHITES, AS LONG AS THEY EXPERIENCED SIMILAR HARDSHIPS.

SO, THE COURT PURPORTED TO OVERRULE AFFIRMATIVE ACTION WITHOUT REALLY OVERRULING THE MAIN JUSTIFICATION HISTORICALLY, IDEOLOGICALLY FOR AFFIRMATIVE ACTION AND I THINK THAT WAS REALLY A MISTAKE ON HARVARD'S PART AND THE UNIVERSITY OF NORTH CAROLINA'S PART.

WHAT DO YOU THINK, PAUL?

>> I THINK THE MAIN REASON FOR DOING THAT WAS THAT THE COURT AT THE BEGINNING OF THE AFFIRMATIVE ACTION ERA DECLINED TO SAY THAT REPAIRING THE AFFECTS OF PAST DISCRIMINATION WAS A VALID THING FOR THE UNIVERSITY TO DO.

THEY SAID DIVERSITY THAT'S THE COMPELLING INTEREST.

AND I THINK THAT'S WHY THE BOARD IS TALKING ABOUT DIVERSITY RATHER THAN WHAT YOU WANT TO TALK ABOUT WHICH IS WHAT THEY SHOULD BE TALKING ABOUT.

THE POINT TO DISCUSS IN THE 14th AMENDMENT THE CONSTITUTION IS NOT COLOR BLIND, THE 14th AMENDMENT IS NOT COLOR BLIND.

CONGRESS THAT PROPOSED THE 14th AMENDMENT WAS NOT COLOR BLIND THEY WERE ALL THE MAIN PURPOSE OF THE 14th AMENDMENT WAS TO RATIFY A STATUTE THAT CONGRESS HAD PASSED WHICH WAS RACE SPECIFIC.

THEY WANTED TO GIVE BLACK PEOPLE THE SAME RIGHTS AS BLACK PEOPLE THAT'S WHAT THE STATUTE SAYS.

CONGRESS WAS AFRAID THAT STATUTE WAS NOT BE CONSTITUTIONAL SO THEY PASSED THE 14th AMENDMENT TO MAKE SURE THAT THAT STATUTE WAS CONSTITUTIONAL AND THE PURPOSE OF THAT STATUTE WAS TO INTEGRATE THE COUNTRY TO END SEGREGATION.

TO BRING BLACK PEOPLE INTO THE COMMUNITY AND TO HAVE THE COURT NOW SAY THAT IS JUST ASTOUNDING.

IT HAS NOTHING TO DO WITH THE REASON FOR THE 14th AMENDMENT.

>> WE SHOULD MENTION REALLY NO IMPACT HERE IN ARIZONA, STEPHEN BECAUSE ARIZONA HAS SOMETHING SIMILAR TO WHAT THE COURT ALREADY DECIDED?

>> THAT IS TRUE.

>> YEAH.

OK, STICKING WITH YOU STEPHEN, THE ALABAMA REDISTRICTING CASE.

WAS THAT A SURPRISE DECISION?

>> THAT WAS A BIG SURPRISE, AT LEAST TO ME AND I'LL TELL YOU WHY.

BECAUSE, OK, FIRST OF ALL THE THREE JUDGE COURT THAT INITIALLY CONSIDERED THE CASE WAS A VERY CONSERVATIVE COURT.

THAT WAS THE 11th CIRCUIT.

AND THE 11th CIRCUIT SAID THAT THE REPUBLICAN DRAWN MAP WAS UNCONSTITUTIONAL, VIOLATED SECTION 2 OF THE VOTING RIGHTS ACT.

ALABAMA APPEALED TO THE SUPREME COURT ON THE SO-CALLED SHADOW DOCKET AND THE COURT IMPOSEDED A STAY ON THE CONSERVATIVE 11 CIRCUIT'S OPINION INVALIDATING THE MAP AND THE OLD MAP, THE REPUBLICAN MAP WAS USED FOR THE NEXT ELECTION AND SEVEN OUT OF SEVEN CONGRESSIONAL SEATS WENT TO THE REPUBLICANS SURPRISE, SURPRISE.

THEN WHEN THE COURT HEARS THE CASE ON THE MERITS THEY VACATE THE STAY AND AFFIRM THE COURT THEY PREVIOUSLY STAYED AND THEY'RE ALLOWING THE MAP THAT WILL ACTUALLY ALLOW THE AFRICAN-AMERICAN COMMUNITY IN ALABAMA A -- THERE WAS A LOT OF HISTORICAL DISCRIMINATION AGAINST AFRICAN-AMERICANS IN ALABAMA TO PROCEED AND ELECT TWO REPRESENTATIVES TO THE HOUSE.

>> I WAS GOING SAY, PAUL, IT SOUNDS AS IF FROM A DISTANCE HERE ONE IN SEVEN ALABAMA DISTRICTS WITH MAJORITY BLACK BUT JUST ONE OF THE SEVEN DISTRICTS MAJORITY BLACK, THEY'RE 25% THERE IN THE STATE.

SO, SOMETHING HAD TO GIVE HERE DID IT NOT?

>> THAT HAS BEEN A PATTERN FOR YEARS.

ALABAMA IS NOT THE ONLY SOUTHERN STATE WHERE THAT'S TRUE.

THAT IS GIVING BLACK PEOPLE IN THE STATE UNDERREPRESENTATION.

WITH BOTH THE CONGRESSIONAL DELEGATION AND THE STATE LEGISLATURE.

SO IT WASN'T A SURPRISE, I AGREE WITH STEVE SOMETHING MUST HAVE HAPPENED TO CHANGE IT.

HEY, THIS COURT IS NOT STUCK IN A STRICT CONSERVATIVE AGENDA THEY ARE WILLING TO THINK ABOUT THINGS BUT THEN WE GET THE LAST WEEK OF THE TERM WHEN IT LOOKS LIKE THEY'RE NOT WILLING TO THINK ABOUT THE THINGS.

>> QUICKLY HERE, RACE A FACTOR HERE, RACE NOT SUPPOSED TO BE A FACTOR AS FAR AS COLLEGE ADMISSIONS ARE CONCERNED.

DOES THAT MAKE SENSE TO YOU?

>> NO.

>> NO.

>> OK. YEAH.

STEPHEN, YOU WHAT DO YOU THINK?

>> IT DOESN'T MAKE SENSE TO ME AT ALL.

I AGREE WITH THE COURT WHEN THERE'S A HISTORY OF DISCRIMINATION IN ORDER TO REMEDY THAT YOU HAVE TO TAKE RACE INTO ACCOUNT.

>> REAL QUICKLY ROADMAP STEPHEN FOR OTHER GERRYMANDERING CASES, CHALLENGES?

>> YEAH, IN FACT THE ONE IN LOUISIANA REALLY IS GOING TO RESULT IN A DIFFERENT CONGRESSIONAL DELEGATION FROM THAT STATE.

>> ALL RIGHT, PAUL.

CHILD WELFARE CHECK THE IN 1972 KEPT INTACT HERE.

AGAIN WAS THIS A SURPRISE DECISION?

>> A LITTLE BIT, YES, BECAUSE THE MAIN THING IN THE UNION CIVIL RIGHTS GIFT IS TO GIVE PREFERENCE TO COUPLES IN ADOPTING INDIAN CHILDREN.

YOU MIGHT THINK THAT THE COURT WHICH SEEMS TO BE AGAINST ANYTHING THAT'S RACE CONSCIENCE, ESPECIALLY GIVING TO MINORITIES WOULD LOOK AT THAT VERY SKEPTICALLY YET THE COURT PRETTY RESOUNDING I THINK 7-2 UPHELD THE CHILD WELFARE ACT WHICH WAS VERY SUCCESSFUL IN THAT IT WHERE INDIAS WERE GETTING ADOPTED BY NONINDIAN FAMILIES AND INDIANS WERE LOSING POPULATION.

THESE KIDS WERE BEING ADOPTED OFF THE RESERVATION.

CONGRESS WANTED TO CHANGE THAT IT WAS A RADICAL THING TO DO IT AND WORKED AND THE COURT UPHELD IT.

SO AGAIN, I'M SEEING HEY, THIS COURT IS REALLY NOT AS CONSERVATIVE AS PEOPLE FEAR IT TO BE.

>> YEAH, GO AHEAD, GO AHEAD, PAUL YOU WANT TO ADD TO THAT?

>> THE AFFIRMATIVE ACTION CASE IS JUST SO BAD THAT IT'S HARD TO A COURT WHICH WOULD DO LOST ITS TRACK IT'S LOST ITS CONTACT WITH THE CONSTITUTION YOU TAKE A CONSTITUTIONAL AMENDMENT WHICH WAS INTENDED TO INTEGRATE SOCIETY INTENDED TO BRING BLACK PEOPLE INTO THE SOCIETY AND THE UNIVERSITY DOES THAT AND THE COURT SAYS 14th AMENDMENT SAYS IT'S UNCONSTITUTIONAL THAT'S JUST ABSURD.

>> STEPHEN, BACK TO THE INDIAN CHILD WELFARE ACT THE CLAIM WAS THE STATE SHOULD HAVE SAY AND DO HAVE SAY IN FAMILY MATTERS.

THERE'S ALSO THE CLAIM THAT RACIAL PREFERENCES IN THIS CASE WERE UNCONSTITUTIONAL.

WHY DID THE COURT DECIDE OVERWHELMINGLY, AS PAUL MENTIONED WHY DID THIS COURT DECIDE AS THEY DID?

>> TWO REASONS.

FIRST, THE COURT DECIDED CORRECTLY THAT THE FEDERAL GOVERNMENT HAS ALWAYS HAD JURISDICTION OVER THE TRIBES AND BECAUSE THIS IMPACTED THE TRIBES THE FEDERAL GOVERNMENT COULD ENACT THE STATUTE.

NOW, THE COURT DID NOT CONSIDER THE EQUAL PROTECTION CLAIM AGAINST THE ACT BECAUSE THE DEFENDANT, THE SECRETARY OF THE INTERIOR IN THE CASE ISN'T THE ONE THAT TOOK AWAY THE LITTLE INDIAN KIDS FROM THE NONINDIAN FAMILY AND GAVE THEM BACK TO THE TRIBE.

THOSE WERE STATE OFFICIALS.

SO THE COURT RULED THAT THE PARENTS OR THE FOSTER PARENTS DIDN'T HAVE STANDING TO MAKE THAT CLAIM AND NEITHER DID THE STATE BECAUSE THE EQUAL PROTECTION CLAUSE DOESN'T PROTECT THE STATES.

>> IT PROTECTS PEOPLE.

>> IS THE RACIAL QUESTION ANSWERED THEN?

>> NO, THEY REFUSE TO CONSIDER IT BASED UPON STANDING AND LEFT IT TO ANOTHER DAY.

I DON'T THINK THAT OTHER DAY WILL EVER COME.

I THINK, I THINK THEY'RE PUNTING ON THAT PERMANENTLY.

>> PAUL, ANOTHER CASE HERE REGARDING NAVAJO TRIBE NATION AND COLORADO RIVER WATER REJECTED THE NAVAJO TRIBE'S CLAIM THAT THE U.S. IS OBLIGATED TO FIND A WAY FOR SECURING WATER RIGHTS FOR THE NATION?

>> YEAH, YOU KNOW WHEN YOU LOOK AT THE HISTORY OF THAT, THAT'S REALLY A BAD DECISION.

REALLY THE GOVERNMENT THE FEDERAL GOVERNMENT HAS TRUST RESPONSIBILITY TOWARDS THE INDIAN RESERVATIONS.

IT RUINS THEM THEN THE TRIBES CAN'T DO ANYTHING UNLESS CONGRESS AGREES WITH IT.

SO, JUST SAY HEY, YOU GOT TO FIND YOUR OWN WATER WE'RE NOT GOING TO HELP YOU DO THAT.

THEY KNEW THEY WERE SETTING UP A RESERVATION IN A DESERT AREA IT WAS GOING TO NEED A LOT OF WATER AND NOW IT TURNS OUT THEY NEED MORE WATER.

THEN THEY SAY HEY, YOU HAVE A TRUST RESPONSIBILITY TO FOLLOW IT AND HELP US GET THE WATER AND THE SUPREME COURT SAYS NO, THE TRUST DOESN'T SAY ANYTHING ABOUT WATER SO YOU DON'T HAVE ANY RIGHTS HERE.

THE TRUST DOCUMENT DOESN'T HAVE TO SAY ANYTHING ABOUT IT.

SETTING UP AN INDIAN RESERVATION AND CLAIMING JURISDICTION OVER THE ENTIRE RESERVATION IS SOMETHING WHEN CONGRESS DOES THAT THAT GIVES THEM A RESPONSIBILITY TO MAKE SURE THAT THE TRIBE IS ABLE TO PROSPER AND HAVE WITHOUT WATER YOU CAN'T PROSPER.

>> JUDGE JUSTICE GORSUCH SIDED WITH IT LIBERALS?

>> I AGREE WITH PAUL.

I THINK THE COURT WAS WRONG TO SAY OH, THE TREATY DIDN'T SPECIFY THAT THEY GET WATER THAT'S LIKE SAYING THE TREATY ALSO DIDN'T INCLUDE THE TREES ON THE LAND.

I THINK IT'S SILLY, I THINK IT'S WRONG.

I AGREE WITH JUSTICE GORSUCH.

>> INTERESTING.

STEPHEN STICKING WITH YOU THE FREE SPEECH GOODNESS GRACIOUS ANOTHER WEDDING DESIGNER AND PLANNER I THINK IN COLORADO AGAIN MAKING IT THE SUPREME COURT AND DO WE WE FINALLY HAVE CLOSURE ON THIS ISSUE?

>> NO.

FIRST OF ALL I THOUGHT IT WAS AN INTERESTING CASE 303 CREATIVE BECAUSE IT SEEMED TO REVERSE THE FIRST PARAGRAPH OF THE MASTERPIECE CAKE SHOP CASE WHERE THE COURT SAID IT WAS NEVER GOING TO ALLOW A COMMERCIAL ENTITY TO EXCLUDE PEOPLE BASED UPON THEIR SEXUAL ORIENTATION, WHICH IS PROTECTED BY THE CONSTITUTION.

SO I THINK IT WAS AN INTERESTING CASE, A SURPRISING CASE IN SOME WAYS A TRAGIC CASE BECAUSE WHAT THE COURT DID IS IT RULE THAT BUSINESSES HAVE A FREE SPEECH RIGHT TO DISCRIMINATE AGAINST PEOPLE.

AND IN THIS CASE THEY HAPPEN TO BE A SAME-SEX COUPLE THAT DIDN'T EXIST.

BUT I WONDER WHAT THE NEXT CASE IS GOING TO BRING.

I PERSONALLY, HOWEVER, THINK THE COURT IS NOT GOING TO ALLOW THIS DOCTRINE TO BE EXPANDED.

AND IT'S ONLY GOING TO APPLY TO BUSINESSES THAT ACTUALLY DO CUSTOM CREATIVE SPECIALIZING QUASI-ARTISTIC WORK.

I THINK THAT'S AS FAR AS IT WILL GO.

I'M NOT SAYING I AGREE IT WITH.

I THINK IT WAS WRONG BUT I THINK THE COURT IS GOING TO PUT A LIMIT TO IT.

>> WHAT DO YOU MAKE OF THIS, PAUL?

>> I THINK THE COURT GOES OUT OF ITS WAY TO SAY IT'S NOT GOING SAY THAT A RESTAURANT OWNER WHO DOESN'T LIKE PEOPLE HAS A FIRST AMENDMENT RIGHT NOT TO DO THAT WHEN THE STATE HAS AN ANTIDISCRIMINATION THEY SAID THIS CASE IS DIFFERENT BECAUSE THE PEOPLE HERE THE WEBSITE WERE ENGAGED IN FIRST AMENDMENT ACTIVITY.

SO, TO SAY THINGS THAT THEY DISAGREE WITH WOULD BE VIOLATE THE FIRST AMENDMENT.

A RESTAURANT OWNER REFUSES FOR GAY COUPLES IS NOT EXPRESSING HIMSELF IN THE SAME WAY THEY MADE THAT DISTINCTION CLEAR.

I DON'T AGREE WITH THE DECISION BUT I THINK IT'S GOING TO BE COMPLIANT.

>> PAUL REAL QUICKLY JUSTICE SOTOMAYOR SAYING THAT THE COURT ISSUED A NEW LICENSE TO DISCRIMINATE.

YOU AGREE WITH THAT?

>> NO.

NO.

I'M TRYING TO SAY THEY DIDN'T ISSUE A LICENSE TO DISCRIMINATE.

THAT CASE HAS BEEN MISUNDERSTOOD IN A LOT OF PLACES.

THE COURT IS VERY CLEAR THAT THE WAY IT IS BECAUSE THE BUSINESS INVOLVED IS A FIRST AMENDMENT BUSINESS IT'S AN EXPRESSIVE BUSINESS AND THEY SAY YOU CAN'T MAKE AN EXPRESSIVE BUSINESS SAY SOMETHING IT DOESN'T WANT TO SAY.

FIRST AMENDMENT PREVENTS THE GOVERNMENT FROM FORCING PEOPLE TO SAY THINGS THEY DON'T BELIEVE IN.

THAT DOESN'T OCCUR IN MOST CASES IN BY BUSINESSES DISCRIMINATE ON THE GROUNDS OF RACE AND SEXUAL ORIENTATION.

THE RESTAURANT WHO REFUSED TO SERVE MIXED RACE COUPLE IS NOT EXERCISING HIS FIRST AMENDMENT RIGHT.

>> WEDDING DESIGNER MAKE ALL THE DIFFERENCE THEN, STEPHEN, YOU THINK?

>> I HOPE SO.

I DON'T KNOW HOW YOU CAN LIMIT.

THAT WHAT ABOUT A WEDDING PHOTOGRAPHER?

I DON'T KNOW.

IT'S -- PEOPLE ARE GOING TO SUE NO MATTER WHAT.

WE'LL SEE WHAT HAPPENS NEXT.

I DO THINK THE COURT IS -- I AGREE WITH PAUL, TRY TO CONTAIN THIS DOCTRINE.

I SURE HOPE SO.

>> THOSE ARE SOME OF THE BIGGER CASES.

BUT PAUL I WANT TO GO BACK TO YOU ON SOMETHING THAT CHIEF JUSTICE ROBERTS SAID I WANT TO GET INTO A PHRASE HE USED IN HIS OPINION.

COURT DON'T MISTAKE HEARTFELT DISAGREEMENT ON THE COURT FOR DISPARAGEMENT.

WHAT DID YOU MAKE OF THAT?

>> IT WAS VERY SURPRISING.

IT'S SO DEFENSIVE.

HE'S OBVIOUSLY AWARE THAT PEOPLE UNDERSTAND THAT THE COURT IS SAYING THINGS ABOUT EACH OTHER WHICH PEOPLE SHOULDN'T SAY.

I MEAN THE COURT WHEN PEOPLE DISAGREE ON THE COURT THEY CANNOT TO DO SO CIVILLY.

AND I THINK ROBERTS WAS TRYING TO SAVE THEM FROM THAT BUT TO DO THAT IN AN OPINION HEY, WHEN WE DISAGREE WITH EACH OTHER WE'RE STILL FRIENDS?

WHAT HE FELT THAT WAS GOING TO ACCOMPLISH.

I LIKE WHAT'S BEHIND THAT IS THAT HE DOESN'T WANT PEOPLE THEY BUNCH OF ANGRY PEOPLE COMMITTED TO PARTISAN VIEWS BUT THEY ARE A BUNCH OF ANGRY PEOPLE WHO IS COMMITTED TO PARTISAN VIEWS.

HE IS TRYING TO TAKE THE ROLE OF SOMETHING WE CAN'T TAKE THE ROLE.

>> JUSTICES THOMAS CAME AFTER EACH OTHER.

>> WE HAVE SEEN IT BEFORE MUCH MORE INTENSELY IN A CASE I'M SURE YOU REMEMBER, YOU REPORTED ON BUSH VERSUS GORE WHEN THE SUPREME COURT ESSENTIALLY HANDED THE PRESIDENCY TO BUSH.

THAT WAS A SORE SPOT ON THE COURT FOR A PERIOD OF YEARS AS WE ALL REMEMBER.

THEY GOT OVER IT.

I THINK THEY'LL GET OVER THIS.

IT'S IN THEIR INTEREST TO GET OVER THIS IN ORDER TO MAINTAIN THEIR POWER AS JUSTICES AND AS A COURT.

>> MAINTAINING THEIR POWER AS JUSTICES AND A COURT SOME ARE SAYING THAT THAT POWER IS OVEREXTENDING NOW TO WHERE IT NEVER WAS IN THE PAST.

IS THAT A VIABLE ARGUMENT THERE?

>> WELL YOU KNOW, THE FAMOUS WORK "DEMOCRACY IN AMERICA" THAT IN AMERICA EVERYTHING BECOMES A LEGAL ISSUE AND I THINK HE WAS RIGHT.

I DON'T KNOW THAT -- I DISAGREE WITH THE COURT'S DECISIONS BUT FOR EXAMPLE, THE 303 CREATIVE CASE IN COLORADO, THE FIRST AMENDMENT CASE.

I THINK THAT IS -- THAT WAS SOMETHING THE COURT HAD TO INTERVENE IN.

THE FREE SPEECH CLAIM, I DISAGREE WITH BECAUSE IT WAS COMMERCIAL SPEECH WAS NOT A FRIVOLOUS CLAIM NOR WAS THE STATE OF COLORADO'S DESIRE TO SAY, HEY, IF YOU WANT TO DO BUSINESS IN COLORADO YOU HAVE TO DO BUSINESS WITH EVERYONE.

THE AFFIRMATIVE ACTION CASE THIS WE HAVE BEEN ARGUING ABOUT AFFIRMATIVE ACTION SINCE THE END OF THE CIVIL WAR.

SO, I THINK THESE ARE IMPORTANT ISSUES THAT WILL INEVITABLY COME BEFORE THE COURT.

>> PAUL, THE WHOLE MERRICK GARLAND THING THE QUESTION RULE ETHICS FROM A COUPLE OF JUSTICES CONSERVATIVES.

HOW MUCH DOES THAT PLAY INTO WHAT NOW SEEMS LIKE A VERY LOW LEVEL OF SUPPORT AND CONFIDENCE FROM THE AMERICAN PUBLIC ON THIS COURT?

>> I THINK IT PLAYS A LOT INTO IT.

THE COURT, THAT'S WHERE I THINK CHIEF JUSTICE ROBERTS IS JUST WRONG.

HE KEEPS SAYING THE COURT CAN TAKE CARE OF THESE ETHICAL PROBLEMS DON'T BOTHER US WE'RE GOING TO BE FINE.

THEY CAN'T TAKE CARE OF IT.

IT KEEPS GETTING WORSE AND WORSE.

AND I THINK THE PUBLIC CONFIDENCE IN THE COURT IS GOING DOWN.

NOT ONLY BECAUSE THE CASES IT DECIDED ARE NOT PROPERLY BECAUSE THE JUSTICES DON'T SEEM TO HAVE A SENSE OF WHAT THEY HAVE TO DO TO MAINTAIN THE PUBLIC'S CONFIDENCE.

IT TAKES AN ENORMOUS AMOUNT OF MONEY FOR SOMEBODY WHO HAS MANY CASES BEFORE THE COURT AND NOT TO REACH A JUDGMENT IN THOSE CASES.

HOW CAN ANYBODY LOOK AT THAT AND THINK THAT'S THE KIND OF COURT YOU WANT TO HAVE.

SO IT'S A BIG PROBLEM, I'M SORRY THAT CHIEF JUSTICE HAS RESISTED THAT, I HOPE THAT CONGRESS DOES SOMETHING ABOUT THAT BECAUSE THE THE COURT DOESN'T LOOK LIKE AN ETHICAL COURT.

>> THE COURT LOOK LIKE AN ETHICAL COURT TO YOU?

>> I THINK IT IS AN ETHICAL COURT, I DON'T AGREE WITH IT BUT I DON'T THINK IT'S UNETHICAL BUT IT DOESN'T LOOK -- I SAID IT IS AN ETHICAL COURT, IT DOESN'T LOOK LIKE ONE.

BECAUSE IT'S NOT LETTING EVERYONE LOOK.

WITHOUT THAT TRANSPARENCY, AND ALSO A CONFESSION OF SOME MISTAKES.

I THINK LOOKING AT IT BACKWARDS, ALITO AND THOMAS WOULD CONCEDE HEY, I PROBABLY SHOULDN'T HAVE DONE THAT, THAT JUST DOESN'T LOOK RIGHT.

I DO TOTALLY AGREE WITH PAUL THAT CONGRESS NEEDS TO INTERVENE AND THE COURT CANNOT PLACE ITSELF ABOVE THE LAW.

THEY NEED TO OBEY THE SAME RULES THAT ALL FEDERAL JUDGES HAVE TO OBEY.

>> ALL RIGHT, WE WILL STOP IT RIGHT THERE.

PAUL BENDER, STEPHEN MONTOYA AS ALWAYS GREAT DISCUSSION AND GREAT ANALYSIS GOOD TO HAVE YOU BOTH HERE.

>> .

>> THANK YOU.

>> GOOD TO SEE YOU, PAUL.

>> THANK YOU SO MUCH FOR JOINING US, YOU HAVE A GREAT EVENING.