WELCOME TO "KENTUCKY TONIGHT."

I'M RENEE SHAW.

THANK YOU SO MUCH FOR JOINING u OUR TOPIC TONIGHT: THE U.S. SUPREME COURT.

THE COURT MADE H JUNE 24TH WHEN IT OVERTURNED THE ROE V. WADE DECISION.

OTHER DECISIONS RELATED TO FIREARMS, RELIGIOUS LIBERTIES AND GREENHOUSE GAS EMISSIONS AND FACTORIES TO USE FOSSIL FUELS, DECISION AFFECTING KENTUCKY'S COAL INDUSTRY ALSO AFFECT THE DAY-TO-DAY LIVES OF KENTUCKIANS WHEN THE JUSTICES RETURN TO THE BENCH THIS FALL, CONTROVERSIAL CASES ON AFFIRMATIVE ACTION AND STATE LEGISLATURE'S POWER OVER ELECTIONS POLICY DOMINATE THE D TO DISCUSS RECENT DECISIONS, CASES BE TO HEARD, AND THE POWE OF THE NATION'S HIGHEST COURT, WE'RE JOINED IN OUR LEXINGTON STUDIO BY SAMUEL MARCOSSON, a CONSTITUTIONAL LAW PROFESSOR AT THE UNIVERSITY OF LOUISVILLE.

SCOTT WHITE, A LEXINGTON LAWYER AND FORMER KENTUCKY DEPUTY ATTORNEY GENERAL.

APRIL WIMBERG, PARTNER AT THE LAW FIRM DENTONS GREENEBAUM AND A MEMBER OF THE FEDERALIST SOCIETY, LOUISVILLE .

AND JOINING YOU BY SKYPE, PAUL SALAMANCA, A UNIVERSITY OF KENTUCKY LAW PROFESSOR.

WE WANT TO HEAR FROM YOU.

SEND US A QUESTION OR COMMENT ON TWITTER AT KYTONIGHTKET.

SEND AN EMAIL OR USE THE WEB FORM AT KET.ORG/ MAKE SURE TO CHECK THE BOX THAT THAT YOU ARE NOT A ROBOT AND YOU CAN GIVE AS A CALL AT 1-800-866-0366.

WELCOME TO OFF OUR GUESTS NEAR AND FAR.

PROFESSOR SALAMANCA IS ENJOYING HIS TIME IN DENVER, COLORADO.

WE'RE TRYING ALL NOT TO BE JEALOUS BUT WE'RE SO GLAD THAT YOU TOOK TIME AWAY, PROFESSOR, TO BE WITH US AND WE'RE GOING TO BEGIN WITH YOU.

I WANT TO READ FOR YOU A WRITER AMY HOWL OF THE SCOTUS BLOG WROTE RECENTLY THIS.

"A NEW BALANCE OF POWER WAS ON DISPLAY OVER THE 21-22 TERM AS THE-COURT'S MAJORITY SIGNALED THEY WOULD PUSH AHEAD ON HOT BUTTON ISSUES LIKE GUN RIGHTS, RELIGION AND RELIGION WITH OR WITHOUT CHIEF JUSTICE JOHN ROBERTS PIN WANT YOU TO TALK ABOUT THIS NEW CONSERVATIVE COURT AND THE POSITION PERHAPS THAT CHIEF ROBERTS IS IN WHO MANY HAVE PERCEIVED AS BEING A MODERATE.

WHAT DOES THE NEW COURT LOOK LIKE AND WHAT CAN WE EXPECT GOING FORWARD ABOUT THE TYPES OF DECISIONS THEY'RE LIKELY TO MAKE THAT WOULD BE ALONG IDEOLOGICAL OR PARTISAN LINES?

>> I THINK THAT'S A REALLY HELPFUL INSIGHT THAT MS. HOWELL MADE AND THAT YOU'RE MAKING, RENEE.

CHIEF JUSTICE ROBERTS HAS A STYLE OR AN APPROACH THAT'S DESCRIBED AS INCREMENTAL.

HE LIKES TO MAKE THE SMALLEST DECISION POSSIBLE TYPICALLY SPEAKING THAT WILL RESOLVE THE CASE AND MAKE RELATIVELY SPEAKING AS LITTLE NEW LAW AS POSSIBLE.

AND I THINK HE WOULD HAVE PREFERRED TO DO SOMETHING LIKE THAT IN DOBBS IN THE DECISION ABOUT ABORTION.

BUT HE WAS OUTVOTED BY THE FIVE PEOPLE TO HIS RIGHT ON THAT.

OH A LOT OF ISSUES CHIEF JUSTICE ROBERTS IS NOT MEASURABLY LESS CONSERVATIVE THAN THOSE FIVE, HOWEVER, BUT REALLY IT IS AN ISSUE-BY-ISSUE APPROACH.

HE CERTAINLY WAS INCREMENTIST ON THE AFFORDABLE CARE ACT.

AND HE WAS OBVIOUSLY INCREMENT LIST ON ABORTION.

WHERE THAT'S TRUE, I THINK THAT'LL PLAY OUT.

SO WHAT WE'LL SEE IS A MORE, I GUESS A MORE CLEARLY CONSERVATIVE COURT WHERE THERE'S SOME DAYLIGHT BETWEEN CHIEF JUSTICE ROBERTS AND THE FIVE PEOPLE TO HIS RIGHT.

>> AND JUST TO GO BACK TO THE DOBBS DECISION AND TO TALK ABOUT THAT JUST BRIEFLY BECAUSE WE'VE TALKED ABOUT THAT QUITE A BIT ON THIS PROGRAM, I'LL GO TO YOU, MR. WHITE.

THERE WERE SIGNS AND SIGNALS THAT THE JUSTICES WERE WILLING TO ROLL BACK ROE.

OF COURSE, THERE WAS THE LEAKED CRAFT THAT CAME OUT IN MAY THAT POLITICO HAD PUBLISHED BUT THERE WERE OTHER DECISIONS ARE THINGS THAT THEY SNIDE DECIDED NOT TO HEAR THAT COULD HAVE INDICATED THEY WERE WILLING TO MAKE THIS STEP.

>> OF COURSE 1 THE BEST THING THAT CAME OUT WAS THE LEAKED OPINION.

WHICH SIGNALED WHAT THEY WERE GOING TO DO.

IT'S THE END OF THE TERM SO ALL THE LAW CLERKS THAT WERE CLERKING FOR ALL THOSE ADJUSTS ARE PRESUMABLY GOING HOME.

HOPEFULLY THEY'VE BEEN ABLE TO TAKE THEIR PHONES WITH THEM AND THAT THE INVESTIGATION WILL PROBABLY GRIND TO A HALT, BUT, YOU KNOW,, QUITE FRANKLY, OTHER CASES THEY DIDN'T CHARACTER, THEY KIND OF GAVE YOU THE IMPRESSION THAT AS PAUL SAID YOU ARE GOING TO SEE AT WORST THE CONTINUATION OF AN INCREMENTIST.

I THINK A LOT OF PEOPLE THAT HAVE LITIGATED IN WOMEN'S REPRODUCTIVE RIGHTS AREA REALLY THOUGHT THAT THE MISSISSIPPI STATUTE WAS LIKELY TO HOLD.

THERE'S A LOT OF SCEPTICISM WHETHER TEXAS DID, EVEN THOUGH THAT GOT NOT REALLY UPHELD BUT THEY DECIDED NOT TO DEAL WITH IT ON THE SHADOW DOCKET, BUT THE REALITY WAS, YOU KNOW, CITIZEN COLLINS -- SENATOR COLLINS, A SENATOR FROM MAINE WAS OUTRAGED BY THE VOTES OF A COUPLE OF THE PEOPLE SHE HAD MET WITH.

THE CAVANAUGH I THINK SHE SINGLED OUT IN PARTICULAR, THAT HE HAD TOLD HER THAT ROE WAS SETTLED LAW.

AND THEN, OF COURSE, AS SOON AS THEY GET A SUPER MAJORITY, THEY OVERTURN ROE.

SO I DON'T THINK ANYONE, AT LEAST THAT I'VE TALKED TO, REALLY EXPECTED ROE TO GO AWAY THIS YEAR UNTIL WE GOT THE LEAK.

ANDIT REALLY SPOKE TO HOW MUCH WHERE CONEY BARRETT WAS GOING TO COME DOWN ON AND THE REJECTION OF, AS PAUL SAID, ROBERTS IS MORE INCREMENTALIST APPROACH.

I THINK HE'S JUST AS CONSERVATIVE AS THE OTHERS.

HE NIGHT BE AS FAR RIGHT AS ALITO AND THOMAS BUT HE'S CERTAINLY IN THAT GROUP, AND HE WAS IN THE SICKS.

IT'S NOT LIKE HE -- HE KIND OF FILED A FAIRLY MEANINGLESS CONCURRENCE BUT ESSENTIALLY HE WAS IN THE SIX.

>> I WANT TO GO TO YOU, PROFESSOR, TO ASK YOU DID THE COURTS DECIDE MORE THAN THEY SHOULD HAVE WHEN IT CAME THE TO DOBBS DECISION?

JUST AS YOU HEARD MR. WHITE SAY, DID THEY GO TOO FAR?

>> I THINK THEY DID FROM MY OWN PERSONAL POINT OF VIEW.

I WASN'T SURPRISED WHAT THEY DID.

I WAS TELLING MY CLASSES FROM THE BEGINNING OF LAST ACADEMIC YEAR THAT THEY WERE GOING TO OVERTURN ROE SUPERIORS WADE AT THE FIRST OPPORTUNITY.

I THINK WHAT THEY DID WITH SB8 IN TEXAS MADE IT CLEAR.

THE HANDWRITING WAS ON THE WALL.

SO I THOUGHT THAT THIS WAS EXACTLY WHAT THEY WERE GOING TO DO.

AND IF WHAT YOU THINK OF WHAT THEY DID DEPENDS ENTIRELY ON WHAT YOU THINK OF ROE.

IT'S HARD TO SEPARATE THOSE TWO OUT.

BUT TEACHING AT THE ABOUT AN DIES SCHOOL OF LAW I TEND TO BE GUIDE BIDE JUSTICE BRAN DICE'S WISDOM AND HE ALWAYS COUNSELED IN FAVORITE IN A OHEST POSSIBLE CHOICE TO NOT DECIDE MORE THAN YOU NEED TO, THE PASSIVE VIRTUES OF A COURTED GOING SLOW.

I THINK CHIEF JUSTICE ROBERTS HAS MODELED HIMSELF AFTER THAT, AND SO I THINK THAT'S THE RIGHT APPROACH.

AND THEY COULD HAVE STRUCK DOWN THE MISSISSIPPI LAW IN DOBBS WITHOUT OVERTURNING ROE.

CHIEF JUSTICE ROBERTS SHOWED US HOW.

>> AND THE ABORTION BAN WE SHOULD MENTION.

>> RIGHT, THE 15 WEEK ABORTION BAN, HE WOULD HAVE UPHELD IT WITHOUT STRIKING DOWN ROE.

SO THE COURT COULD HAVE DONE THAT UNDER -- WITH CHIEF JUSTICE ROBERTS HAVING LAID OUT THE BLUEPRINT.

BUT THE CORD DECIDED TO DO MORE ONCE THEY HAD THE FIVE VOTES TO DO IT ON ISSUES LIKE THAT, CHIEF JUSTICE ROBERTS NO LONGER HAS CONTROLLING OF THE DIRECTION OR THE SCOPE OF WHAT THE COURT'S GOING TO DO.

>> PROFESSOR, WE ALSO HEARD AND READ SEVERAL PIECES ABOUT THE LATE RUTH BADER GINSBURG AND ABOUT HER BEING QUOTED THAT ROE SHOULD NOT HAVE BEEN THE CASE ON WHICH ABORTION RIGHTS WERE SETTLED, THAT THAT WAS FLAWED.

DO YOU SEE THAT LOGIC?

AND WHAT -- PRESENT TO US THE ARGUMENT THAT SHE WOULD HAVE MADE THAT THAT WASN'T THE BEST CASE TO SETTLE ABORTION DISPUTE AND RIGHTS.

>> I THINK HER ARGUMENT WAS THAT THE REASONING WASN'T THE BEST, THAT IT WASN'T THE STRONGEST CASE THAT COULD BE MADE FOR A RIGHT TO -- FOR A WOMAN TO CONTROL HER OWN REPRODUCTIVE CHOICES AND THEIR HER OWN REPRODUCTIVE DES ANYONEY.

>> PRIVACY RIGHTS VERSUS -- >> PRIVACY RIGHTS AND THE WHOLE TRIMESTER FRAMEWORK WAS ARGUABLY UNNECESSARY TO KEHL WITH THE TEXAS LAW.

SO IRONICALLY, JUST AS YOU CAN CRITICIZE DOCS FOR DOING MORE THAN IT NEEDED TO DO TO DECIDE THE MISSISSIPPI CASE, YOU CAN LOOK BACK TO THE 1970S AND SAY THE SAME THING ABOUT ROE, THAT THE COURT IN ROE DECIDED MORE THAN IT NEEDED TO STRIKE DOWN THE TEXAS LAW WITH THE WHOLE TRIMESTER FRAMEWORK, WITH VIABILITY, ET CETERA, THAT JUSTICE BLACKMAN SET UP IN ROE, SO YOU COULD ARGUE THE TWO DECISIONS ARE BOOKENDS OF BOTH BEING EXAMPLES OF WHETHER THE RESULT WAS RIGHT OR NOT, DECIDING MORE THAN WAS NECESSARY TO ACTUALLY DECIDE THE CASE BEFORE THE COURT.

>> MS. WIMBERG, I FEEL FREE TO CRIME HAVE CHIME IN SEPARATELY BUT I DID WANT TO TALK ABOUT SEPARATE LAW AND THERE'S A LATIN TERM STARE DECISIS TO STAND BY THINGS DECIDED.

AND SO THE IDEA THAT THERE IS NO PRECEDENT AND THAT PRECEDENT CAN BE OVERRULED BY THE NEXT THING, IS THERE ANY SUCH THING AS SETTLED LAW?

>> WELL, I GUESS -- MAYBE TO JUST CAPTURE A LITTLE BIT OF PROFESSOR MARCOSSON'S COMMENT BECAUSE I THINK IT LEADS INTO, ONE OF THE BIG DISTINCTIONS BETWEEN, YOU KNOW, ROE V. WADE AND WHAT HAPPENED IN THE OUTCOME, NEITHER PARTY ACTUALLY ARGUED FOR TRIMESTERS.

IT WAS SOMETHING THAT THE COURT KIND OF CAME UP WITH ON ITS OWN.

AND IN THAT, AND THEN WHEN THE CASE CAME UP WITH DOBBS THIS TIME, I THINK THAT FROM WHAT WE READ IN THE OPINION, AND I DIDN'T LISTEN TO ARGUMENTS WITH THAT, THAT BOTH SIDES SAID YOU HAVE TO DECIDE.

YOU EITHER HAVE TO UPHOLD ROE OR IT GOES AWAY.

AND THAT I I THINK WAS JUST A VERY INTERESTING POSITION AND NOT -- IT WASN'T PITCHED AS -- TO THAT ROBERTS COURT TO WALK THIS BACK.

AND SO THEN KIND OF MOVING TO THE STARE DECISIS.

IT IS I THINK -- WE AS PRACTITIONERS VERY MUCH RELY ON WHAT THE COURTS HAVE SAID IN ADVISING CLIENTS.

IT IS EXTREMELY IMPORTANT I THINK FOR EVERYONE AS KIND OF THE OUTLINE OF THE DISSENT.

BUT IT WAS POINTED OUT IN THE MAJORITY'S OPINION THAT PRESS DIDN'T DOES GET OVERRULED.

IT DOES GET CHANGED.

AND THE MOST SIGNIFICANT TIME THAT IT DOES GET CHANGED IS WHEN YOU'RE INTERPRETING THE CONSTITUTION.

AND SO THAT'S WHERE, WHETHER YOU AGREE OR NOT WITH THE OUTCOME, I THINK THAT THAT'S WHAT THE COURT WAS SAYING, IS THAT FOR THESE INSTANCES IN OUR HISTORY, THIS HAS HAPPENED.

>> WELL, THE FINAL OPINION MADE CONNECTION BETWEEN ABORTION RIGHTS AND RACIAL SEGREGATION, AND I THINK THAT IT WAS JUSTICE ALITO THAT WROTE, LIKE THE INFAMOUS DECISION IN PLESSY VERSUS FERGUSON, ROE WAS ALSO EGREGIOUSLY WRONG AND ON A COLLISION COURSE WITH THE CONSTITUTION FROM THE DAY IT WAS DECIDED.

SO TO DRAW THAT PARALLEL AND THAT REALLY THERE'S NOTHING -- THERE'S NO REFERENCE FOR THE RIGHT TO OBTAIN AN ABORTION, THE CONSTITUTION MAKES NO EXPRESS REFERENCE TO A RIGHT TO OBTAIN AN ABORTION.

PROFESSOR MARCOSSON, I WANT YOU HAVE TO HAVE TO HAVE YOU COMMENT ABOUT JUSTICE A LETE OWES' RATIONALE AND COMMENTS THERE.

>> I THINK THAT'S DEEPLY TROUBLING.

JUSTICE ALITO, IF HE REALLY MEANS IT AND THE MAJORITY THAT HE WROTE NOR REALLY MEANS IT, THAT ANY UNENUMERATED NON-TEXTUAL RIGHT IS THEREFORE AT RISK BECAUSE ABORTION IS NOT MENTIONED IN THE CONSTITUTION, THERE IT WASN'T A LONG TRADITION PROTECTING THE RIGHT TO CHOOSE BEFORE ROE WAS DECIDED AND CERTAINLY NOT IN THE 19th CENTURY, IF THAT'S OUR TEMPLATE, IF THAT'S GOING TO BE OUR STANDARD, A WHOLE LOT OF OTHER UNENUMERATED RIGHTS THAT WE TAKE FOR GRANTED ARE ALSO GOING TO BE AT STAKE, AND JUSTICE THOMAS, WHATEVER ONE THEY THINK OF HIM, WAS AT LACINESSES IN HIS CONCURRENCE.

HE SAID, I THINK WE SHOULD RECONSIDER THE SAME-SEX MARRIAGE DECISION.

WE SHOULD RECONSIDER THE RIGHT TO CONTRACEPTION.

WE SHOULD RECONSIDER A WHOLE LOT OF OTHER RIGHTS THAT INVOLVE THE RIGHT TO PRIVACY BECAUSE THEY'RE ALSO UNENUMERATED AND WE SHOULD NOT ONLY RECONSIDER THEM, YOU WE SHOULD OVERRULE THEM '2 FIRST OPPORTUITY.

THOSE RIGHTS IN OUR AT STAKE AFTER THE OPINION IN DOBBS, AND JUSTICE ALITO'S ATTEMPTS TO CLAIM OTHERWISE RING HOLLOW.

>> CAN I PIGGYBACK A LITTLE BIT ON WHAT SAM JUST SAID.

SET ASIDE THE REMARKABLY INTEMPERATE TONE OF ALITO'S OPINION IN NEARLY PERSONALIZING IT SO YOU HAVE TO WONDER ABOUT THE DINE NICKS OF THE COURT ITSELF, BUT -- DYNAMICS OF THE COURT ITSELF, BUT THIS NOTION OF AN HISTORICAL ANALYSIS TO BASICALLY INFORM UNENUMERATED RIGHTS THAT ARE ACCEPTED, HAVE BEEN LITIGATED, ARE RELIED UPON, I MEAN, MILLIONS AND MILLIONS OF WOMEN HAVE RELIED UPON ROE V. WADE, AND NO MATTER HOW YOU CRITICIZE THE OPINION IN '72, IT WAS A 7 TO 2 DECISION.

BERGER WAS ON THAT.

I MEAN, IT WAS ALL -- THERE WERE MANY REPUBLICAN APPOINTMENTS ON THAT ROE COURT.

AND YOU HAVE REAMS AND REAMS OF LITIGATION POST ROE.

AND SO WHETHER OR NOT ROE WAS RIGHTFULLY DECIDED OR NOT, TO ME I UNDERSTAND, BUT TO ME IT'S REALLY ACADEMIC.

THE ISSUE REALLY IS, IS THAT RIGHT OF WOMEN OF AUTONOMY TO BE ABLE TO MAKE THEIR OWN LIBERTY DECISIONS, IS THAT NOW TIED TO -- ARE WE NOW HISTORICAL BOUND BY HOW THOSE, THAT HISTORY EXISTED IN 1868 WHEN THE 14th AMENDMENT WAS PASSED AND THE LATE 18th CENTURY WHEN THE CONSTITUTION WAS INITIALLY RATIFIED.

THE PROBLEM IS, IS ALITO IS BASICALLY SAYING THAT THE SUPREME COURT IS EQUIPPED TO ALSO BE THE SUPREME HISTORIANS, AND THEY JUST AREN'T.

IF YOU LOOK AT PARTICULARLY THE CRITICISM, THE RECENT ONE, AN ARTICLE THAT I JUST READ OVER THE WEEKEND BY SAUL CORNELL WHO IS A HISTORY PROFESSOR AT FORDHAM, AND HE IS CONSIDERED ONE OF THE PREEMINENT LEGAL HISTORIANS OF CONSTITUTIONAL THOUGHT DURING THE COLONIAL PERIOD, HIS CRITICISM OF ALITO'S HISTORICAL ANALYSIS, NOT JUST IN DOBBS BUT IN ROBERT'S DECISION, I GUESS THOMAS' DECISION IN BRUIN, IT'S JUST RIDICULOUS.

WE'VE BASICALLY GOT A BUNCH OF 20-YEAR-OLD LAW CLERKS AND NINE JUSTICES WHO HAVE BEEN TRAINED AS LAWYERS NOW DECIDING DOES THE HISTORY ALLOW FOR CERTAIN UNENUMERATED BUT YET VITAL RIGHTS TO EXIST IN A CONTEMPORARY SOCIETY.

>> SO I WANT TO GO TO PROFESSOR SALAMANCA AND THEN I'LL COME TO YOU, MS. WIMBERG BECAUSE I CAN SEE YOU MANY CHO TENG BIT TO GET IN ON THIS.

[LAUGHTER] I THINK THAT'S BEEN ACCOMPLISHED.

>> CHOMPING AT THE BIT.

PROFESSOR SALAMANCA, JUMP IN HERE, SIR.

>> I APPRECIATE SCOTT'S CONTRIBUTION THERE.

I MEAN, SCOTT WAS TALKING ABOUT THE TEST THAT JUSTICE ALITO SAID IS APPROPRIATE WHICH IS TO ASK WHETHER A PARTICULAR RIGHT THAT IS NOT ENUMERATED IS NEVERTHELESS DEEPLY ROOTED IN THE HISTORY AND TRADITION OF THE UNITED STATES.

THAT'S THE TEST THAT JUSTICE ALITO SAID WAS APPROPRIATE.

AND SCOTT'S RIGHT WHEN HE SAYS THAT THE SUPREME COURT TO A VERY SIGNIFICANT EXTENT HAS TO MAKE ITSELF THE SUPREME COURT OF HISTORY IF THAT'S THE TEST.

AND I WILL ALSO CONCEDE, AND SCOTT'S MAKING A TERRIFIC POINT, THAT HISTORY IS COMPLICATED AND IT'S POSSIBLE TO GET IT WRONG.

THERE ARE A COUPLE OF ALTERNATIVES IF YOU DON'T DO IT THAT WAY.

ONE ALTERNATIVE IS TO GO BY A TEST WHERE PEOPLE SHOULD HAVE THE RIGHT TO MAKE DECISIONS THAT SHAPE THEIR -- GIVE SHAPE TO THEIR LIVES.

I THINK THAT WAS THE PHRASE THAT THE THREE DISSENTING JUSTICES USED, AND THE CONCERN ABOUT THAT IS IT'S REALLY HARD TO KNOW -- IT'S NOT FALSIFIABLE.

IT'S REALLY HARD TO KNOW WHEN THE JUSTICES GOT IT WRONG AND IT IS IT'S REALLY HARD TO SAY THE JUSTICES ARE DOING SOMETHING BECAUSE THEY CAN ACTUALLY SEE INTO THE PSYCHE OF THE UNITED STATES OR WHETHER THEY'RE SAYING SOMETHING BECAUSE THAT'S JUST HOW THEY FEEL.

IT'S A DIFFICULT TEST TO ADMINISTER AND JUSTIFY IN A DEMOCRACY.

SO IF YOU'VE GOT TO CHOOSE BETWEEN A HISTORICAL TEST WHERE YOU AT LEAST HAVE A YARDSTICK, HISTORY, AND KIND OF AN ABSTRACT PHILOSOPHICAL TEST, IT MAY BE PREFERABLE TO TAKE THE HISTORICAL TEST.

THE OTHER ALTERNATIVE IS TO SAY THAT THERE ARE NO UNENUMERATED RIGHTS AT ALL WHICH IS NOT WHAT JUSTICE ALITO SAID AND IT'S NO WHAT THE DISSENTERS STEAD.

IT'S POSSIBLE JUSTICE THOMAS SAID THAT WANTS SAM WAS SAYING.

I'M NOTEY IS SO SURE THAT THAT'S WHAT JUSTICE THOMAS WAS SAYING.

I THINK HE WAS SAYING MORE WE SHOULD LOOK AT THIS THROUGH THE LENS OF PRIVILEGES OR I MUNICIPALITIES WHICH IS ANOTHER CLAUSE IN THE 14th AMENDMENT BUT I'LL GRANT TO SAM I DON'T KNOW WITH THAT JUSTICE THOMAS WOULD THEN DO, BUT ASSUMING THAT JUSTICE THOMAS WOULD LOOK ASKANCE AT SOME OF THOSE RIGHTS THAT SAM MENTIONED, HE'S ONLY ONE PERSON.

THE CHIEF JUSTICE DIDN'T SAY THAT.

JUSTICE A LOT LITO VERY CLEARLY SAID THOSE ARE DIFFERENT CASES, AND THE DISSENTERS OBVIOUSLY WOULDN'T THINK THAT WAY.

SO IT STRIKES ME AS BEING 8 TO 1 ON THAT PARTICULAR ISSUE.

BUT I APPRECIATE THE FACT THAT WE'RE REALLY GETTING AT A GRANULAR LEVEL WITH THE DOCTRINE HERE BECAUSE THERE'S A LOT TO TALK ABOUT.

>> MS. WIMBERG.

>> WELL, AND TO FOLLOW PAUL, I THINK THAT, YOU KNOW, EVEN JUST TAKING A STEP BACK, THAT WHERE I THINK THAT YOU SEE THE MAJOR PHILOSOPHY, NOT WITH JUST THE DOBBS CASE BUT WITH A LOT OF CASES THAT WE SAW -- THAT CAME OUT RECENTLY AND THAT PROBABLY WILL COME OUT IS A STRONG BELIEF IN THE SEPARATION OF POWERS, AND WE ALL BELIEVE IN THAT.

IT'S THE FACT THAT I THINK THIS COURT AND THE MAJORITY HAS STRUGGLED IN JUST A PHILOSOPHICAL WAY OF SAYING, OKAY, WHERE DOES OUR LINE DRAW BETWEEN MAKING LAW AND INTERPRETING LAW?

BECAUSE THE JUDGES SAID THAT'S NOT OUR JOB.

WE ARE HERE TO JUST READ WHAT THE CONSTITUTION SAYS AND WHAT THE LEGISLATURES SAYS AND TO INTERPRET.

WE'RE NOT HERE TO MAKE LAW.

AND I THINK THAT'S THE BIG PROBLEM THAT THE COURT HAD WITH ROE, IS THAT THEY THOUGHT THAT IT WAS JUST A LOT OF -- IT ALMOST LOOKED LIKE A LEGISLATIVE FINDING, THAT THEY RELIED ON IN MAKING THAT DECISION, SO I THINK THAT THAT'S KIND OF THE BIG ISSUE.

AND SO WHEN -- AND AGAIN, PAUL TOUCHED ON THIS SAYING THIS IS WHERE THE COURT IS.

WHAT'S A SUBSTANTIVE DUE PROCESS RIGHT?

BECAUSE WE KNOW WHAT THE COURT SAYS WITH REGARDS TO WHAT ARE OUR ENUMERATED RIGHTS AND WHAT'S A SUBSTANTIVE PROCESS?

THOMAS SAID, I DON'T BELIEVE IN SUBSTANTIVE PROCESS BECAUSE I BELIEVE IN TEXT AND THE TEXT SAYS IT IS ONLY THAT YOU'RE GUARANTEED THIS PROCEDURAL DUE PROCESS, NOT SUBSTANTIVE AND SO I THINK WHERE HE WAS -- AT LEAST THE WAY I READ IT, AND I KNOW EVERYBODY INTERPRETS IT DIFFERENT, BUT THE WAY I READ IT, IT'S LIKE, HEY, IF YOU REALLY CARE ABOUT THESE LAWS, FIND SOMETHING ELSE TO HANG YOUR HAT ON BECAUSE I DON'T BELIEVE IN SUBSTANTIVE DUE PROCESS.

>> EXPLAIN TO US SO THAT THE COMMON VIEWER, NON-LEGAL MINDED, CAN UNDERSTAND WHAT YOU MEAN BY SUBSTANTIVE DUE PROCESS.

>> SO SUBSTANTIVE DUE PROCESS, ACTUALLY I THINK IT'S BETTER PROCEDURAL DUE PROCESS IS WHAT JUSTICE THOMAS BELIEVES IN AND SAYS ALL IT'S SAYING, IT'S NOT THAT YOU HAVE A RIGHT TO PRIVACY.

IT'S JUST THAT YOU HAVE A RIGHT THAT IN THE COURT SYSTEM OR IN THE LEGISLATIVE SYSTEM TO PROTECT THAT PRIVACY, AND THAT'S ALL THAT IS.

THERE'S JUST PROCEDURE IN PLACE.

AND THAT'S WITH THE PACKET DECISION, THAT CAME UP THERE IN TERMS OF THE CALIFORNIA, PACKA SUBJECT OR WAS IT A PROCEDURAL LEGISLATION?

SO I THINK THAT'S AGAIN WHERE YOU SEE A LOT OF THE COURT FOCUSING ON, IS ARE YOU GETTING A DUE PROCESS RIGHT THAT'S JUST PART OF WHAT YOU'RE ALLOWED TO HAVE AS PART OF THE CONSTITUTION TO PROTECT OR IS IT SOMETHING MORE WHERE, AGAIN, THE SUBSTANTIVE DUE PROCESS HAS BEEN LOOKED AT TO THAT HISTORICAL PART, SOMETHING THAT'S BEEN SO FOUNDATIONAL OF OUR -- >> SO TO PROFESSOR MARK 'ZINES POINT, THEN, USING WHAT YOU JUST SAID, CAN WE EXPECT UP ENDING OF SAME-SEX MARRIAGE OR INTERRACIAL MARRIAGE OR CONTRACEPTION?

>> AND AGAIN THAT'S THE MAJORITY, AND IF WENT OUT OF THEIR WAY TO SAY THIS IS NOT WHAT WE'RE TALKING ABOUT.

WE'RE NOT TALKING ABOUT -- AND I UNDERSTAND.

I UNDERSTAND THAT THAT'S IF DEBATE, BUT NONE OF THEM HAVE INDICATED THAT THEY WANT TO ROLL BACK SUBSTANTIVE DUE PROCESS.

WHETHER IT HAPPENS -- >> BUT THEY HAVE -- I'M SORRY.

I'VE INTERRUPTED.

>> YOU GO AHEAD.

>> I WAS JUST GOING TO SAY SUBSTANTIVE DUE PROCESS IS JUST SIMPLY THERE WAS A DECISION OF THE SUPREME COURT THAT BASICALLY SAID THE BILL OF RIGHTS OR THAT THE FREEDOMS, OUR CONSTITUTIONAL FREEDOMS DEFINITELY APPLY TO THE FEDS.

WITH THE 14th AMENDMENT, ALL THOSE RIGHTS THAT ARE GUARANTEED TO US AS AMERICANS AND CITIZENS AND NON-CITIZENS ARE GUARANTEED TO US IN TERMS OF CITIZENS OF THE STATE.

SO THE 14th AMENDMENT MAKES THOSE RIGHTS POLITICAL TO THE STATE.

AND -- AP POLITICAL.

I HAVE TONS OF RESPECT FOR APRIL.

THOMAS HAS ABSOLUTELY REJECTED SUBSTANTIVE DUE PROCESS.

I WOULD ALSO SAY IN TERMS OF O BETTEROFELD.

>> THIS IS THE SAME-SEX MARRIAGE.

>> THE SAME-SEX MARRIAGE, AND SAM NEEDS TO SPEAK TO THIS BECAUSE HE IS TRULY AN EXPERT ON THIS AREA OF LAW, BUT I'LL JUST NOTE THERE WERE FOUR DISSENTERS.

THERE WAS THOMAS, ALITO, ROBERTS, AND SCALIA.

SCALIA'S DIED, AND WE THINK WE NOW HAVE SCALIA, JR. AND IN AMY BARRETT KONY.

SO WOULD SAY IT AT LEAST THOMAS AND SCALIA ARE READY TO ROLL WALK ROBERTOFELD BECAUSE THE RIGHT TO SAME-SEX MARRIAGE, THE RIGHT TO NOT HAVE THE STATE CRIMINALIZE SEXUAL RELATIONS BETWEEN SAME-SEX, THE RIGHT FOR A WOMAN TO USE CONTRACEPTION, THE RIGHT TO -- FOR A BLACK MAN AND A WHITE WOMAN TO MARRY OR AN ASIAN MAN AND A BLACK WOMAN TO MARRY, THOSE ARE ALL RIGHTS THAT ARE GUARANTEED THROUGH SUBSTANTIVE DUE PROCESS ANALYSIS, AND SO TO ME THEY'RE AT RISK.

MAYBE I'VE OVERSTATING IT.

>> I DON'T THINK YOU'RE OVERSTATING IT BUT I THINK THERE'S ANOTHER WAY TO THINK ABOUT IT.

>> I LIKE THAT.

>> AND THAT IS THAT BOTH APRIL AND PAUL MADE THE POINT THAT, WELL, THE MAJORITY DIDN'T SAY THEY WERE GOING TO DO THAT.

THEY SAID, THIS IS A DIFFERENT CASE BE ET CETERA, AND THEY DID SAY THAT.

BUT THE QUESTION IS CAN YOU DISTINGUISH THOSE CASES, THOSE OTHER ISSUES IN A WAY THAT'S COHERENT GIVEN THE LOGIC OF JUSTICE ALITO'S OPINION, AND IF WE'RE GOING TO TAKE HIM SERIOUSLY, WE HAVE TO SAY THE LOOKING HIS OPINION, WE SHOULD APPLY IT TO THOSE OTHER SITUATIONS, AND IF THE RIGHT HAS TO HAVE BEEN EITHER IN THE TEXT OR HAS TO HAVE BEEN TRADITIONALLY PROTECTED UNDER OUR SYSTEM OF LAW, ALL THOSE OTHER RIGHTS ARE AT RISK BECAUSE IF YOU APPLY THAT SAME LOGIC, THEN THEY SHOULD BE A H. AT RISK, AND IF WE'RE NOT GOING TO APPLY THAT SAME LOGIC AT THIS POINTITES JUST POLITICS.

IT'S THE COURT REACHING A RESULT AND DOING IT BASS THEY DON'T LIKE ABORTION, NOT BECAUSE THE CONSTITUTION READ PROPERLY WITH A CERTAIN MEANS INTERPRETATION, A CERTAIN METHOD INTERPRETATION, PRODUCES AND MUST PRODUCE THAT RESULT.

AND SO THE CHALLENGE FOR THE MAJORITY IS GOING TO BE WHEN THEY GET THOSE CASES, HOW CAN THEY POSSIBLY WALK BACK THE LOGIC THAT PERMEATES JUSTICE ALITO'S OPINION.

IN MY VIEW THEY CAN'T AND THEY'RE GOING TO HAVE TO COME UP WITH SOME -- THEY'RE GOING TO HAVE TO OVERTURN A CASE LIKE OBERGFELD AND THE SCEPT DECISION AND LAWRENCE AGAINST TEXAS, THE CASE THAT SAID THERE WAS A RIGHT TO PRIVACY WHEN IT INVOLVES SEXUAL RELATIONS BETWEEN TWO CONSENTING ADULTS IN THE PRIVACY OF THEIR OWN BEDROOM.

IF THOSE CARED NOT AS THE H. AT "LIKES," TEN THE LOOKING ADJUST ALITO'S OPINION MEANS NOTHING.

>> PROFESSOR SALAMANCA.

>> I THINK -- I TAKE SEAMS POINT AND SCOTT'S POINT AS WELL BUT I THINK IT'S IMPORTANT TO READ THE ENTIRETY OF JUSTICE ALITO'S OPINION FOR CLUES AS TO HOW THE COURT WOULD HANDLE CASES IN THE FUTURE, AND I THINK EVERYONE'S RIGHT TO BE EMPHASIZING THIS PHRASE "DEEPLY ROOTED IN THE HISTORY, TRADITION OF THE UNITED STATES" BECAUSE THAT'S THE PHRASE THAT MEANS A LOT, BUT JUSTICE ALITO SAID A COUPLE OF OTHER THINGS THAT I THINK MATTER.

ONE IS, AND THAT GETS THE THAT FANCY LATIN PHRASE YOU USED, RENEE, STARE DECISIS, ONE COMPONENT OF STARE DECISIS IS THE EXTENT TO WHICH PEOPLE HAVE RELIED ON A PARTICULAR DECISION.

AND JUSTICE ALITO SAID WE SHOULD BE MINDFUL OF THE FACT THAT IF THERE WERE AN ATTACK ON-HIGH ANY OF THESE OTHER IDENTIFIED RIGHTS FROM PRECEDENT, THEY, TOO, WOULD BE SUBJECT TO THEIR OWN GRANULAR ANALYSIS IN TERMS OF STARE DECISIS AND THAT INCLUDES RELIANCE.

LET'S START WITH OBERGFELD VERSUS ONCOLOGIST, THE CASE WITH SAME-SEX MARRIAGE.

I CAN'T IMAGINE A RIGHT UPON WHICH PEOPLE COULD HAVE MORE CLEARLY RELIED THAN -- OR A DECISION OR A DECISION ON WHICH PEOPLE COULD HAVE MORE CLEARLY RELIED THAN A DECISION PURSUANT TO WHICH THEY GOT MARRIED, BOUGHT A HOUSE, BORROWED MONEY, ADOPTED CHILDREN, TOLD EACH OTHER THINGS THAT THEY HOPED WOULD NEVER BE TESTIFIED TO IN COURT.

I MEAN, THE RELIANCE IS OVERWHELMING THAT THOSE MARRIAGES ARE NEVER GOING TO BE UNDONE.

SO I DISAGREE WITH STATEMENT THAT OBERGFELD IS -- COULD EVER BE OVERRULED.

>> WHAT ABOUT PROSPECTIVE OVERRULING?

>> REPEAT WHAT YOU SAID.

>> I SAID WHAT ABOUT PROSPECTIVELY OVERRULING OBERGFELD WITHOUT NULLIFYING PREVIOUS MARRIAGES.

>> THAT'S DIFFERENT, SAM, BUT I CAN'T POSSIBLY SEE IT HAPPENING IN HINDSIGHT.

BUT IN ADDITION TO THAT, AND I WANT TO SAY SOMETHING ELSE ABOUT OBERGFELD AND LAWRENCE VERSUS TEXAS, THIS IS AN EQUAL PROTECTION COMPONENT ANALYTICALLY TO BOTH OF THOSE, AND I, SAM, YOU KNOW THIS AREA OF LAW FAR BETTER THAN I DO SO YOU KNOW WHAT I'M SAYING.

JUSTICE KENNEDY PUT EMPHASIS ON BOTH DUE PROCESS AND EQUAL PROTECTION IN LAWRENCE, AND ALTHOUGH HE PUT ALMOST ALL OF HIS EMPHASIS ON DUE PROCESS IN OBERGFELD, HE PUT IN A COUPLE OF PARAGRAPHS ABOUT EQUAL PROTECTION TOWARD THE END THERE, SO IT DOES REST ON MORE THAN JUST SUBSTANTIVE DUE PROCESS AND ALSO RESTS TO SOME EXTENT ON EQUAL PROTECTION WHICH I THINK MAKES IT DOCTRINALLY DISTINCT.

WE HAVE TO GO THROUGH A SEPARATE ANALYSIS.

SO THAT LEAVES GRISWOLD.

I THINK THAT -- >> CAN I INTERRUPT PAUL WITH JUST A QUESTION?

>> GO AHEAD, MR. WHITE.

>> PAUL, I WAS JUST YOURS ON THE EQUAL PROTECTION.

I HAVEN'T READ THE BRIEFS IN DOBBS IN A WHILE, BUT I DON'T RECALL THERE BEING ANY REAL EQUAL PROTECTION ARGUMENT.

>> I'M NOT SAYING THAT.

>> WERE YOU SURPRISED ABOUT THAT?

>> YOU MEAN WHY THE GOVERNMENT TRIED TO DEFEND IN IT THOSE TERMS?

>> YEAH.

>> I'M NOT SO SURE THAT NO ONE DID, SCOTT.

I THINK IF YOU LOOK AT JUSTICE ALITO'S OPINION, HE SAYS AT SOME POINT SEE -- VERSUS AIELLO.

I KNOW I'M IN THE WEEDS NOW.

>> OH, YEAH.

>> HE DID SAY IT'S NOT A SUBSET CLASSIFICATION.

WHAT I'M SAYING, I'M MAKING A DIFFERENT POINT.

I'M SAYING THERE'S A EQUAL PROTECTION IN OBERGFELD AND LAWRENCE WHICH MAKES IT DIFFERENT FROM DOBBS.

BUT I'M TRYING TO CONCEDE THE POINT THAT GRISWOLD IS MAYBE CLOSEST TO THE BUBBLE AND MOST DEPENDENT UPON THAT STRICTLY HISTORICAL ARGUMENT IN WHICH CASE IT MIGHT COME DOWN TO THE QUESTION OF HOW READILY AVAILABLE CONTRACEPTION WAS IN 1868, HOW LEGAL IT WAS OR ILLEGAL IT WAS, AND THAT WOULD BE THE HISTORICAL ANALYSIS THAT SCOTT WAS TALKING ABOUT EARLIER, AND ASSUMING FOR THE SAKE OF ARGUMENT THAT IT WASN'T CLEARLY PROTECTED, WASN'T CLEARLY AVAILABLE IN 1868, AND I DON'T HONESTLY KNOW THE ANSWER TO THAT, THEN THE QUESTION WOULD BE TO WHAT EXTENT DID PEOPLE COME TO RELY ON THE AVAILABILITY AND THE LEGALITY OF CONTRACEPTION SINCE 1965.

AND IT SEEMS TO ME THAT WOULD BE ITS OWN ARGUMENT.

SO I'M NOT TRYING TO TAKE EVERYTHING AWAY FROM THE POINT THAT SAM AND SCOTT ARE MAKING, BUT I DO THINK THAT THERE'S A LOT MORE IN JUSTICE ALITO'S OPINION THAT WOULD COMPLICATE THAT ANALYSIS THAN SIMPLY SAYING IT'S PURELY A HISTORICAL ANALYSIS.

>> ANY FURTHER COMMENT ON THAT BEFORE WE TALK ABOUT SOME OTHER CASES?

APRIL?

NO.

WE CAN MOVE ON.

LET'S TALK ABOUT OCTOBER DOCKET WHICH THE JUSTICES RETURN.

WE UNDERSTAND THAT THEY'RE GOING TO TALK ABOUT AND HEAR SOME HIGH-PROFILE CASES.

WE THOUGHT THAT WHAT WE HAD IN THE JUST RECENTLY IN JUNE AFFIRMATIVE ACTION, STATE LEGISLATURE'S POWER OVER ELECTIONS.

IN THE CASE OF WEBSITE DESIGNER WHO FOR RELIGIOUS REASONS DOES NOT WANT TO CREATE WEND WEBSITES FOR SAME-SEX COUPLES.

COULD THIS BE -- WHAT COULD THIS FORETELL, PROFESSOR MARCOSSON?

>> WELL, I'VE TRIED TO SAY TO PEOPLE THAT I THOUGHT THE 21-22 TERM TO ME IS ANALOGOUS -- I KNOW THIS IS GOING TO BE A FAR-OUT ANALOGY BUT GO WITH ME.

>> I WILL.

I'M HERE FOR YOU.

>> -- IS SORT OF LIKE THE DAY THAT WE DROPPED THE ATOMIC BOMB ON HIR SHEM ON YOU.

IT WAS -- HIR SHEM ON YOU.

THE WORLD CHANGED THAT DAY IRRETRIEVABLY, IR REV KELBY, AND I THINK THE SUPREME COURT COURT AND ITS DECISION CHANGED JUST AS IR REV KELBY FOR AT LEAST DECADES COME WITH THIS LAST TERM.

WITH THAT IN MIND, THE 22-23 TERM IS GOING TO BE A CONTINUATION OF THAT.

IT IS GOING TO REINFORCE, DOUBLE DOWN ON WHAT WE SAW THIS LAST TERM BECAUSE THIS NEW CONSERVATIVE MAJORIY IN WHICH THEY DON'T NEED JUSTICE ROBERTS, CHIEF JUSTICE ROBERTS' VOTE AND SO THEY DON'T NEED TO GO SLOW ON ISSUES LIKE AFFIRMATIVE ACTION, THEY'RE NOT GOING TO GO SLOW, AND ON PROTECTION OF RELIGIOUS CLAIMS TO BE EXEMPTED FROM OTHERWISE -- REQUIREMENTS THAT WOULD OTHERWISE REQUIRE NON-DISCRIMINATION LIKE SOMEBODY NOT PERFORMING -- NOT PARTICIPATING IN A SAME-SEX MARRIAGE CEREMONY.

WE ALREADY SAW ISSUES INVOLVING RELIGIOUS LIBERTY THAT THE COURT HAD IN THE JUST COMPLETED TERM.

THAT'S GOING TO ACCELERATE.

>> WITH THE PRAYING FOOTBALL COACH.

>> THE PRAYING FOOTBALL COACH AND THE MAINE SCHOOLS WITH -- IF MAINE WAS GOING TO ALLOW FOR PAYING TUITION OF PRIVATE SCHOOLS, THAT HAD TO INCLUDE RELIGIOUS SCHOOLS.

THE COURT IS CHARTING A NEW COURSE.

AND IT WILL NOT BE THE SAME.

>> TIME FOR THE 2024 PRESIDENTIAL ELECTION.

IN TIME FOR THE 2024 PRESIDENTIAL ELECTION.

>> EXACTLY.

EXACTLY.

SO, YOU KNOW, TEACHING LAW CHANGED IMMENSELY IN JUST THIS LAST YEAR, AND IT WILL CHANGE MORE AFTER THE NEXT TERM.

SO I THINK THAT'S WHERE WE ARE.

>> HOW CONSEQUENTIAL IS THE NEXT TERM, MS. WIMBERG?

AND WOULD YOU EVEN DESCRIBE IT AS PROFESSOR MARCOSSON HAS, THIS 2021-22 TERM?

>> I DON'T THINK THAT I'D USE THAT SAME ANALOGY BUT I DO THINK THAT IT I WAS REALLY IMPORTANT TERM, AND I THINK THAT -- FIRST, I THINK YOU HAVE TO RECOGNIZED THAT PEOPLE SAID MAYBE YOU WOULD HAVE SEEN THIS A YEAR AGO, BUT TO GET CERT, TO HAVE YOUR PETITION HEARD BY THE SUPREME COURT YOU NEED FOUR ADJUSTS TO VOTE, AND I THINK -- JUSTICES TO VOTE, AND I DON'T KNOW THAT ROBERTS WOULD HAVE VOTED TO HEAR A DOBBS CASE, SO YOU'RE JUST STARTING TO HEAR OR YOU'RE JUST STARTING TO GET SOME OF THOSE CASES THAT REALLY THIS KIND OF NEW LIKE THOUGHT PROCESS OF HOW TO APPROACH THE CONSTITUTION IS COMING ABOUT.

AND SO I DO THINK THAT YOU'RE GOING TO SEE A LOT OF CHANGES.

I MEAN, I WILL TELL YOU IF YOU HAD EVER READ ANY DISSENT OF THOMAS BEFORE AND HE'S JUST LIKE, I AFFIRM IN EVERYTHING EXCEPT FOR I DON'T BELIEVE IN THIS DEFERENCE THAT WE CALL THE CHEVRON DEFERENCE WHERE WE REFERENCE OR WE KIND OF REFERENCE THIS DEFERENCE TO THE FEDERAL AGENCIES AND THEIR DECISIONS, AND WE'LL SEE SOME OF THOSE CASES COMING UP.

AND SO THAT'S WHERE I THINK THAT YOU'RE GOING TO SEE SOME OF THESE NEXT BIG BOMBSHELLS, IS REALLY KIND OF TOWARDS THE ADMINISTRATIVE STATE.

AND WE SAW SOME OF THAT COMING OUT OF THE RECENT DECISIONS AND STARTING TO CHANGE THE LINE OF THINKING, OKAY, WELL, IS THIS THE -- HOW DO WE -- >> THE MAJOR QUESTIONS.

>> THE MAJOR QUESTIONS.

AND SO I THINK THAT YOU'LL START SEEING A LOT OF THE CASES FOCUSING ON THAT.

IN TERMS OF RELIGIOUS LIBERTY, I THINK THAT THERE IS ALSO PROBABLY A REALLY STRONG CHANGE IN THE COURT TO SAY, YOU KNOW, THE MAINE, FOR THE AUDIENCE OUT THERE THAT'S NOT FAMILIAR WITH IT, THE MAINE CASE IS THE MAINE NEEDED CHARTER SCHOOLS.

THEY WEREN'T SERVING THEIR RURAL POPULATION IN MAINE.

AND THEY SAID, OKAY, WE'RE GOING TO GIVE MONEY TO CHARTER SCHOOLS, AND THEY WERE GIVING MONEY OUT, AND A RELIGIOUS SCHOOL APPLIED AND THEY DENIED THEM FOR THE SOLE PURPOSE BECAUSE THEY WERE RELIGIOUS, AND I THINK THAT WITH THE -- THE COURTS ARE PREDICTING, SAYING IS THAT YOU CAN'T DISCRIMINATE JUST BASED ON RELIGION.

AND THAT'S NOT -- AND THE BOSTON CASE AND THE FLAG AND SAYING THIS IS -- THESE ARE CASES IN WHICH THERE'S NOT A STATE REPRESENTATION OF RELIGION, BUT YET THERE ARE PRIVATE ACTORS USING STATE RESOURCES, JUST AS ALL THESE OTHER ACTORS ARE, AND THAT YOU CAN'T DISCRIMINATE AGAINST THOSE.

>> SO ARE WE SEEING A MORE POLITICALLY ACTIVE SUPREME COURT?

BY SIMPLY ENTERTAINING OR HEARING THESE CASES THAT YOU SAY THEY NEED FOUR JUSTICES TO EVEN SIDE DECIDE TO HEAR.

BUT THE FACT THAT THEY ARE HEARING THEM, DOES THAT SIGNAL THIS IS NOT THE COURT THAT'S ABOVE PARTISAN POLITICS AS WE HAD PERCEIVED THE HIGHEST NORT LAND TO BE AS ABOVE THIS KIND OF POLITICAL INTERFERENCE?

AND PERHAPS THAT'S NOT THE RIGHT DESCRIPTION OF THE COURT, BUT MANY MIGHT EVEN THINK THAT.

>> AND I THINK THAT -- I DON'T CONSIDER THE COURT AS POLITICAL AS I THINK WHEN WE LOOK AT, LIKE WHEN WE CALL OUR POLITICIANS AND OUR LEGISLATURES.

I THINK THAT IN THE COURT, I THINK ITSELF IT HAS BEEN VERY, I WANT TO SAY, THEY'RE VERY TRANSPARENT IN THE WAY THAT THEY GET ALONG AND THE WAY THAT THEY LISTEN TO EACH OTHER.

AND SO I HOPE THAT CONTINUES.

YOU KNOW, EVEN THOUGH YOU SEE SOME STRONG PUNCHES ACROSS THE AISLE, THAT HAS BEEN HAPPENING FOR YEARS AND YEARS, AND HOPEFULLY THEY'RE STILL COLLEGIAL AT THAT COURT.

I HAVEN'T SEEN ANY INDICATION THAT THAT'S DIFFERENT.

BUT YET THE POLICIES, YOU'RE SAYING ITS IS IT POLITICAL DIFFERENT.

I DON'T KNOW IF IT'S THE POLITICS OR IS IT THE APPROACH.

AND I THINK THAT THIS COURT JUST APPROACHES THE LAW DIFFERENT, AND I DO THINK THIS IS GOING TO BE A BIG TASK FOR PROFESSOR MARCOSSON AS HE TEACHES ON LAW BECAUSE THERE ARE GOING TO BE CHANGES.

IN TERMS OF THE SWEEPING CHANGES IN HOW WE RUN OUR DAY-TO-DAY, I'M NOT AS DRACONIAN AS THE WAY THAT I THINK.

I STILL BELIEVE THAT WITH THE DOBBS DECISION, THEY PUT IT BACK TO THE STATES.

AND KENTUCKY, YOU KNOW, MAY HAVE CERTAIN LEGISLATION.

WE STILL HAVE OUR KENTUCKY CONSTITUTION.

WE STILL HAVE CERTAIN THINGS THAT WE'LL SEE.

>> SO WILL THAT BE THE WAY IT GOES AND ALL THESE DECISIONS WILL BE MADE AT THE STATE LEVEL, THAT THE STATES DECIDE WHAT THEY WANT TO DO?

>> NOT NECESSARILY.

CERTAINLY IN THE ABORTION AREA YOU'RE IN ALMOST EVERY STATE WITH A TRIGGER LAW THAT THOSE ARE BEING LITIGATED.

IN KENTUCKY IT WILL ESSENTIALLY BE MOOT.

IF THE CONSTITUTIONAL AMENDMENT THAT'S ON THE BALLOT THIS FALL PASSES WHICH EXPRESSLY SAYS THERE'S NO RIGHT TO ABORTION IN KENTUCKY.

SO THAT BECOMES A PART OF THE CONSTITUTION.

BUT, YOU KNOW, THE LINKAGE OF THE CURRENT -- AND THIS ISN'T NEW.

THIS ISN'T JUST WHEN AMY CONEY BARRETT WENT ON THE COURT.

THERE HAVE BEEN HARD FIGHTS, YOU KNOW, FOR SOME PERIOD OF TIME ABOUT, YOU KNOW, SUBSTANTIVE PROCESS, NO SUBSTANTIVE PROCESS.

ENUMERATEDE NEUM RITE, DO EXIST OR DO THEY NOT.

HOW ARE WE GOING TO DETERMINE IF AN EXECUTIVE BRANCH RECTOR AGENCY HAS EXCEEDED THE SCOPE OF ITS AUTHORITY?

IF YOU LOOK AT JUST THE VERY LAST WEEK OF THIS TERM, THESE CASES CAME DOWN.

DOBBS CAME DOWN.

BRUIN, GUN CASE CAME DOWN.

THE WEST VIRGINIACATION CAME DOWN, WHICH ESSENTIALLY EVISCERATED THE EPA'S ABILITY TO REGULATE THE CLEAN AIR ACT IN TERMS OF EMISSIONS AT POWER PLANTS, AND THAT'S WHERE WE SAW THE MAJOR QUESTION DOCTRINE FINALLY BE EMBRACED.

WE SAW THE CASTRO CASE, WHICH DRASTICALLY REDUCED TRIBAL AUTHORITY AND SOVEREIGNTY.

THE VEGA CASE WHERE MIRANDA WARNINGS WERE -- FOR PEOPLE THAT NEED TO DEAL WITH THAT A LOT, THAT WAS UNDERMINED.

KENNEDY CASE, WE WERE TALKING ABOUT EARLIER, CHURCH-STATE OVER THE PUBLIC SCHOOLS.

I MEAN, AND THEN THE TEXAS CASE, WHICH WAS INITIALLY CHARACTERIZED AS A BIDEN WIN, ESSENTIALLY THE COURT IS TELLING THE EXECUTIVE BRANCH, YOU HAVE TO ENFORCE THIS IMMIGRATION POLICY, WHICH, YOU KNOW, I GUESS -- I GUESS THE COURT NOW CAN ORDER THE PRESIDENT WHAT TO DO AS OPPOSED TO CONGRESS.

BUT MY POINT, THIS IS A FEDERALIST SOCIETY WISH LIST.

IF I REMEMBER, THE FEDERALIST SOCIETY, I WOULD BE GOING, MY GOD, WE'VE GOTTEN EVERYTHING WE COULD HAVE POSSIBLY HOPED FOR.

AND, OF COURSE, THE FEDERALIST SOCIETY IS TOTALLY ALLIED WITH THE REPUBLICAN PARTY.

AND SO THIS NOTION THAT THE COURT IS APOLITICAL IS -- IS JUST BEYOND, IN MY VIEW, A DENIAL OF REALITY.

AND WHEN YOU'RE LOOKING AT WHAT'S COMING NEXT, WHETHER YOU CALL IT AN ATOMIC BOMB OR BOMBSHELLS, IT WAS BEYOND CONSEQUENTIAL.

NOW, FOR A COMMON LAW PROFESSOR LIKE PAUL AND SAM, THERE'S AN EXCITING PART OF IT BECAUSE YOU GET TO REWRITE YOUR WHOLE -- YOUR WHOLE CURRICULUM, I GUESS.

BUT THE REALITY IS, THOUGH, IS THAT ON THE NEXT TERM, I JUST WROTE DOWN A COUPLE, BUT WE'VE GOT, I MEAN, MAJOR -- WEST VIRGINIA CASE, THE COURT BASICALLY DEALT WITH THE CLEAN AIR ACT.

WE'VE GOT ANOTHER CASE COMING UP WITH THE CLEAN WATER ACT.

AND I THINK, A LOT OF US THINK THAT CHEVRON IS GOING TO GO AWAY, AND AMY -- OR I'M SORRY -- APRIL WAS TALKING ABOUT THE CHEVRON CASE WHICH ESSENTIALLY THE COURT GIVES DEFERENCE TOON AGENCY THAT HAS A LOT OF EXPERTISE WHEN THEY'RE HAVING TO APPLY A VAGUE STATUTE.

IT'S MUCH MORE COMPLEX THAN THAT.

BUT THEN YOU'VE GOT THE BIG AFFIRMATIVE ACTION CASE COMING UP.

YOU'VE GOT -- >> THIS IS IN HIGHER EDUCATION.

>> YES, IT APPLIES TO HIGHER EDUCATION.

YOU'VE GOT THIS INDEPENDENT STATE LEGISLATURE CASE COMING UP FROM -- YOU KNOW, IT WAS -- >> FOR FEDERAL ELECTIONS.

>> FOR FEDERAL ELECTIONS.

AND THIS LITERALLY JUST APPEARED OUT OF NOWHERE IN A CONCURRENCE THAT CHIEF JUSTICE RENQUIST ROAD IN GORE.

THE SUPREME COURT IN V. GORE ON WHAT OCCASIONS THIS I'M AWARE OF HAVE DISMISSED THE INDEPENDENT LEGISLATURE DOCTRINE BECAUSE IT MAKES NO SENSE.

>> AND WHAT DOES THAT MEAN?

>> WHAT IT BASICALLY SAYS IN TERMS OF THE AREA -- THERE ARE TWO CLAUSES IN UNITED STATES CONSTITUTION THAT APPLY.

ONE IS THE ELECTIONS CLAUSE.

THE OTHER IS THE PRESIDENT ELECTORS CLAUSE.

AND BASICALLY WHAT IT SAYS IS THAT THE STATES CAN REGULATE FEDERAL ELECTIONS SUBJECT TO THE POWERS OF THE CONGRESS AS DEVISED BY THE LEGISLATURE.

I'M PARAPHRASING THE ACTUAL LANGUAGE, BUT ESSENTIALLY WHAT THIS ARGUMENT DOES IS EXCISE OUT FROM REVIEWING WHETHER STATE ELECTION LAWS APPLY TO A FEDERAL ELECTION, WHICH IS BASICALLY ALL ELECTION LAWS, AND THEN IN TERMS OF REDISTRICTING, THE CONGRESSIONAL DISTRICTS IS BASICALLY SAYING THAT THE STATE COURTS HAVE NO AUTHORITY.

HERE, STATE LEGISLATURE, GO DO WHATEVER YOU WANT TO.

AND WE'VE ALREADY SEEN THE HANDS-OFF APPROACH THIS PARTICULAR COURT IS TAKING WITH ELECTION LAWS.

AND SO THAT'S A MAJOR THING COMING DOWN.

AND I THINK WE ESSENTIALLY ALL KNOW WHERE IT'S PROBABLY GOING TO GO.

WE'VE GOT A DEATH PENALTY CASE COMING OUT OF ALABAMA.

WHERE THE QUESTION IS WHETHER OR NOT THE STATE CAN EXECUTE SOMEBODY WITH DEMENTIA.

SEE HOW THAT GOES.

AND THEN THERE'S A BIG ANTITRUST CASE WHICH IS WAY, WAY, WAY OUT MY ZONE BUT IT'S REALLY A STANDING CASE THAT DEALS WITH APPLE AND ITS APP STORE AND BASICALLY THE CLAIMANTS ARE TAKING THE POSITION THAT THE APP STORE, THAT APPLE HAS A MONOPOLY, AND THE ISSUE IS WHETHER APPLE USERS, YOU OR I THAT OWN AN iPHONE, CAN WE SUE APPLE UNDER THE ANTITRUST STATUTES.

SO I'M EXPECTING, IF YOU'RE TALK ABOUT HIR SHEMEAU, WE MAY BE TALKING ABOUT NAG SAKE NEXT JULY.

>> AND NOW WITH THAT WE'VE RUN THAT METAPHOR INTO THE GROUND.

>> YES, BUT IF YOU'RE A FEDERALIST, IF YOU'RE FROM THE -- AND THIS IS -- I MEAN, I HAVE GREAT RESPECT, I MEAN, YOU ALL KICKED THE TAIL OUT OF THE AMERICAN CONSTITUTIONAL SOCIETY.

I MEAN, THE FEDERALISTS HAVE BASICALLY GOTTEN THEIR WISH LIST, YOU KNOW.

AND THEN YOU PUT INTO ALL OF THIS THAT THESE DECISIONS -- AND THIS IS WHY CHIEF JUSTICE ROBERTS WARNED AGAINST -- THE COURT AS AN, TOO, IS ABANDONING THE NORMS WITH HOW IT APPROACHES CASES.

AND ROBERTS IS SITTING THERE TRYING TO HOLD UP A CAUTION FLAG.

WE MAY GET THERE BUT BEE NEED TO BE MORE INCREMENTALLY.

THEN YOU ADD IN HOW ARGUABLY TWO OF TRUMP'S THREE APPOINTEES SHOULDN'T HAVE BEEN HIS APPOINTEES.

NOW -- >> THAT'S A WHOLE NOTHER SUBJECT.

>> THEY WERE LEGALLY HIS APPOINTEES, BUT THAT WAS JUST BASED ON PURE POLITICAL POWER.

>> PROFESSOR SALAMANCA, I WANT YOU TO JUMP IN BUT I ALSO WANT TO TALK ABOUT THE SITUATION WITH JUSTICE THOMAS AND HIS WIFE WHO HAS SHOWN SOME PARTISAN ACTIVISM, AND IF THERE IS EVER A PRECEDENT FOR A JUSTICE TO RECUSE HIM OR HERSELF FROM CERTAIN CASES OR IS THERE IMPEACHMENT POSSIBLE IF THERE'S FOUND TO BE A PREPONDERANCE OR WHATEVER THE LEGAL TERM WOULD BE OF EVEN AIDING AND ABETTING A SPOUSE IN THAT TYPE OF ACTIVITY.

>> WELL, THE PROCESS OF IMPEACHMENT IS KIND OF AT THE INTERSECTION OF LAW AND POLITICS, SO IT'S ESSENTIALLY WHAT THE HOUSE OF REPRESENTATIVES THINKS CONSTITUTES HIGH CRIMES AND MISDEMEANORS AND WHAT TWO-THIRDS OF THE SENATE THINKS IS THE BASIS FOR REMOVE SOMEONE FROM OFFICE.

I'M NOT AWARE OF ANY EVIDENCE THAT JUSTICE THOMAS HIMSELF HAD ANYTHING TO DO WITH ANYTHING.

SO THE QUESTION WOULD BE IF A PERSON COULD REASONABLE HAVE QUESTIONS ABOUT HIS IMPARTIALITY ON THE BASIS OF HIS WIFE'S PARTICIPATION IN THE POLITICAL PROCESS.

MY UNDERSTANDING OF THE eMAILS SHE SENT OR THE TEXTS OR TWEETS IS THAT THEY WERE FAIRLY INNOCUOUS.

SO I HONESTLY THINK THIS -- MAYBE MY FRIENDS DISAGREE WITH ME, BUT I THINK THIS IS SOMEWHAT OVERBLOWN.

I THINK THE JANUARY 6th COMMITTEE SHOULD -- SHOULD PROBABLY KEEP TO OTHER THINGS.

I THINK IT'S ACTUALLY HURTING ITSELF BY MAKING A BIG DEAL ABOUT THAT.

NI A PERSON COULD LOOK AT WHAT THE SUPREME COURT HAS DONE AND IS IN THE PROCESS.

TRYING TO DO IN A MORE CHARITABLE RIGHT, PERHAPS, AND MIGHT PROPOSE A MORE CHARITABLE LIGHT AND THAT IS NOT THAT IT'S TRYING TO DICTATE CONCLUSIONS, IT'S TRYING TO SIMPLY INSIST ON THE PROCESS.

STATES NOW CAN MAKE THE DECISIONS, EACH STATE, HOW MUCH THEY WANT TO PERMIT OR NOT PERMIT ABORTION.

IT'S PER MISSABLE IN NEW YORK AND MASSACHUSETTS AND ILLINOIS AND NOT ESPECIALLY PER MISSABLE IN A LOT OF OTHER STATES, AND THAT -- SO THE SUPREME COURT ISN'T SAYING ONE WAY OR THE OTHER WHAT HAS TO HAPPEN.

IN WEST VIRGINIA VERSUS EPA, I THINK IT'S A VERY HEALTHY OPINION AND LET ME DISCLOSE THAT I WORK FOR THE DEPARTMENT OF JUSTICE AND I, WHILE THAT CASE WAS BEING LITIGATED UP,.

WHAT THE COURT SAID IN THAT CASE WAS NOT THAT CONGRESS COULDN'T DO THESE THINGS, THAT WE COULDN'T HAVE CAP AND TRADE, THAT WE COULDN'T REGULATE THE POWER INDUSTRY BEYOND THE FENCELINE.

THEY SIMPLY SAID THAT CONGRESS HADN'T SAID THAT.

CONGRESS HAD SPOKEN WITH GREAT HAVING ANESS AND THAT YOU COULDN'T FIND A MASSIVE -- VAGUENESS AND YOU COULDN'T FIND A MASSIVE AUTHORITY IN THE KIND OF IF VAGUE LANGUAGE THAT THE EPA WAS RELYING ON.

I WAS ACTUALLY FRANKLY A LITTLE BIT SPLINTED THAT THE SUPREME COURT DIDN'T ROLL UP ITS █SLEEVE AND ACTUALLY GO INTO THE LANGUAGE OF THE CLEAN AIR ACT, BUT AGAIN, I WAS AT THE DEPARTMENT OF JUSTICE AND I KNOW A FAIR AMOUNT ABOUT THAT CASE, AND I THOUGHT THAT WE HAD A PRETTY GOOD CASE ON THE TECHS OF THE STATUTE AND I WOULD HAVE BEEN GRATEFUL IF THE COURT HAD SAID THAT.

BUT THEY WENT IDENTIFY AT MAJOR QUESTIONS DOCTRINE, WHICH THE DEPARTMENT OF JUSTICE, AT LEAST WHEN I WAS THERE, IT SWITCHED, BUT THAT WAS THE POSITION THAT IT TOOK WHEN I WAS THERE.

IRRELEVANT WANT TO CLOSE WITH SOMETHING.

THE -- I WANT TO CLOSE WITH SOMETHING, THE CLERK ON THE STATE LEGISLATURE'S CASE.

AGREE WITH SCOTT THAT IT HAD AT LEAST PART OF ITS PROVIDENCE OPINION OF BY CHIEF JUSTICE RENQUIST BUT IT ALSO COMES FROM THE CONSTITUTION, THE TIMES AND PLACES AND MANNER -- I'M READING FROM MY PHONE -- THE TIMES, PLACES AND MANNER OF UPHOLDING ELECTIONS FOR SENATORS AND REPRESENTATIVES SHALL BE PRESCRIBED IN EACH STATE BY THE LEGISLATURE THEREFORE.

SO WE CAN SAY THAT IT MEANS THE LEGISLATURE AND THE COURTS, BUT THAT'S NOT WHAT IT SAYS.

I THINK WE NEED TO GIVE THE SUPREME COURT SOME CREDIT FOR TAKING THE TEXT OF THE CONSTITUTION SERIOUSLY.

>> PROFESSOR MARCOSSON.

>> OH, BOY.

SO MUCH HAS HAPPENED.

[LAUGHTER] FIRST, I ACTUALLY THINK THAT THE COURT IS POLITICAL.

AND I DON'T THINK IT EVER HASN'T BEEN.

I THINK IT'S A MISCONCEPTION.

I DON'T THINK IT'S A SPECIAL OR NEW CRITICISM OF THIS CURRENT COURT, THAT IT IS DEEPLY ENMESHED IN THE POLITICAL PROCESS.

WHEN I -- IF FIRST THING SAY TO MY COMMON LAW STUDENTS EVERY YEAR IS I ASK THEM A QUESTION.

WHAT'S THE MOST IMPORTANT SKILL FOR A CONSTITUTIONAL LAWYER?

AND THEY NEVER GET IT RIGHT.

THEY MAKE ALL THESE GUESSES ABOUT BEING ABLE TO BE PERSUASIVE AND REASON ANALYTICALLY AND KNOW THE CONSTITUTION.

NO, NO, NO, THAT'S ALL VERY NICE.

AND THE ANSWER IS THE ABILITY TO COUNT TO FIVE.

YOU HAVE TO BE ABLE TO COUNT TO FIVE TO GET -- APRIL MAY REMEMBER THIS.

YOU HAVE TO BE ABLE TO COUNT TO FIVE JUSTICES TO FIGURE OUT WHAT ARGUMENTS WILL BE PERSUASIVE TO THE FIVE YOU NEED TO WIN OVER BECAUSE IF YOU CAN WIN OVER FIVE, YOU WIN.

SO IT IS POLITICAL IN A DEEPLY MEANINGFUL SENSE.

AND I THINK THE COURT HAS ACTED AS A POLITICAL BRANCH.

AND THAT SHOULDN'T SURPRISE US.

YOU KNOW, FOR EXAMPLE, IN THE EPA CASE, THE -- THIS COURT SAID THAT THE LANGUAGE OF THE DELEGATION TO THE EPA ON CLEAN AIR TO DO CLIMATE CHANGE REGULATIONS IS VAGUE.

AND AS JUSTICE KAGAN SAID IN HER DISSENT, IT ISN'T VAGUE AT ALL.

IT'S BROAD, AND THERE'S A DIFFERENCE BETWEEN A BROAD DELEGATION, WHICH THE CLEAN AIR ACT HAS FOR ALL SYSTEMS.

IT USES THE TERM SYSTEMS.

AND A VAGUE DELEGATION.

CONGRESS DOES NOT HAVE TO BE -- MENTION EVERY POSSIBLE THING THAT MIGHT COME BEFORE AN AGENCY FOR THE AGENCY TO HAVE POWER TO USE THAT AUTHORITY.

BUT NOW THEY HAVE TO.

THEY HAVE TO ANTICIPATE THINGS THAT MIGHT HAPPEN YEARS OR DECADES INTO THE FUTURE OR THEY HAVE TO LEGISLATE AGAIN.

AND THAT'S THE COURT, IN MY VIEW, INSERTING ITSELF IN OVERRIND CONGRESS' POWER TO GIVE BROAD DELEGATION OF AUTHORITY TO ADMINISTRATIVE AGENCIES.

THAT IS VIOLATING THE SEPARATION OF POWERS THAT THE COURT INSERTING ITSELF INTO CONGRESS' AUTHORITY.

AND AS FAR AS WHETHER THIS GIVES THE AUTHORITY BACK TO THE STATES, NOW THE STATES CAN NOW DECIDE THESE THINGS, THAT'S FIRST OF ALL IN THE ABORTION CONTEXT, WE SEE THAT TEXAS IS NOW THREATENING EMPLOYERS WHO DO BUSINESS IN TEXAS THAT IF THEY PAY FOR THEIR EMPLOYEES TO GO OUT OF STATE TO HAVE AN ABORTION WHERE IT IS -- EVEN IF IT'S LEGAL IN THAT STATE, THEY WILL PROSECUTE, AND IF IT'S LAWYERS, SEEK TO HAVE THEM DISBARRED.

SO THERE'S NOT JUST, WELL, EVERY STATE CAN HAVE ITS WAY.

STATES ARE USING DOBBS IN ORDER TO TRY TO PROJECT THEIR ABORTION POLICIES ACROSS STATE LINES.

IN ADDITION TO THAT, LOOK AT ALL THE CASES IN WHICH THE STATES HAVE BEEN STRIPPED OF THEIR POWER TO MAKE THEIR OWN CHOICES ON GUNS, THE NEW YORK CASE, THE STATE REGULATION IN NEW YORK WAS STRUCK DOWN.

THE MAINE CASE, MAINE WAS DEPRIVED ITS ABILITY TO MAKE THE CHOICE WHETHER OR NOT PUBLIC DOLLARS WOULD GO TO SUPPORT RELIGIOUS INSTRUCTION.

SO THOSE -- IT GOES BOTH WAYS.

THERE WERE SOME DECISIONS IN WHICH STATES WERE EMPOWERED AND THERE WERE OTHER DECISIONS IN WHICH STATE AUTHORITY WAS TAKEN AWAY.

YOU CAN'T PAINT WITH A BROAD BROADBRUSH ON DIVEST LIKE THAT.

>> I THINK THE BIG DISTINCTION, AND AGAIN I THINK IT GOES BACK TO PHILOSOPHY, IS THAT THOSE WERE ENUMERATED BY CONSTITUTIONAL RIGHTS, AND THAT'S WHERE THE SECOND AMENDMENT, THE GUN LAW, THAT IS -- AND THAT'S WHERE THEY DIDN'T SAY THAT YOU CAN'T LICENSE, THE SUPREME COURT DIDN'T SAY THEY WERE BANNING THE WAY THEY LICENSE.

THEY WERE JUST SAYING THE JUSTIFICATION TO CARRY.

SO I DO THINK WHEN YOU'RE TALKING ABOUT RELIGIOUS LIBERTY, AGAIN, THOSE ARE YOUR -- MY CONSTITUTION, THOSE ARE THE ONES THAT YOU CAN SEE AND READ THE TEXT.

AND WE ARE REALLY IN A GRAY SPACE ON THE SUBSTANTIVE DUE PROCESS, AND I THINK THAT WE WILL SEE.

IF I CAN CIRCLE BACK REAL QUICK ON JUST THE POLITICALNESS OF THE COURT, I DO THINK IT'S REALLY IMPORTANT TO REMEMBER, JUSTICES CAN BE PERSUADE, AND WE'VE SEEN THAT SO MUCH OVER TIME, AND I -- THAT'S WHY I THINK IT IS SO IMPORTANT TO KIND OF RESPECT THAT OFFICE AND THIS LIFELONG TENURE, THAT YOU GET THE KENNEDYS AND THE ROBERTS AND THE PEOPLE THAT ARE IN THE MIDDLE OR THEY'RE OPEN TO HEARING ARGUMENTS.

AND WITH REGARDS TO THE THOMAS, WE HAVE NEVER SEEN A SUPREME COURT JUSTICE IMPEACHED, AND I THINK THAT THERE'S ONLY BEEN ONE ATTEMPT, AND THAT WAS SAMUEL CHASE, AND HE WAS A FOUNDER, AND IT WAS -- LITERALLY RIGHTLY AFTER, WE'RE STARTING OFF AS A COUNTRY.

AND POLITICS REALLY GOT INVOLVED.

AND THAT IS WHEN IT HAS NEVER BEEN DONE AGAIN, AND HE WASN'T ACTUALLY IMPEACHED BUT IT WAS BECAUSE THEY THOUGHT HE WAS POLITICAL BECAUSE HE WAS SPEAKING HIS MIND.

>> WE'LL HAVE TO LEAVE IT THERE.

I THINK THIS HAS BEEN A GREAT COMMON LAW 005.

I DON'T KNOW.

>> I COMPLETELY AGREE WITH APRIL AND PAUL THAT IN TEACHING THOMAS IS INSANE.

>> WE'LL HAVE THIS CONVERSATION CREW OF LANE BUT YOU CANCH WAIT GEN ONLINE TOMORROW AT KET.ORG AND I WILL SEE YOU TOMORROW NIGHT AT 6:30 FOR "KENTUCKY EDITION."

TAKE GOOD CARE.