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A
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The Supreme Court issued a series of sweeping rulings this summer on everything from keeping men out of women's sports to gun rights and birthright citizenship. And while conservatives have been frustrated by some of the rulings, most of them have prompted strong praise from the right.
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D
Kerry Severino, president of the Judicial Crisis Network, joins us today to look at how the rulings will impact the lives of American and how the session was a massive win for the originalist approach to the Constitution. I'm Georgia Howe with Daily Wire executive editor John Bickley. This is a weekend episode of MORNING wire. Joining us now is Kerry Severino, president of the Judicial Crisis Network. Kerry, thanks for coming on.
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E
Great to be here.
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D
So you've called Trump versus Slaughter the most important case of the term. First, why do you think that? And why is expanding the president's authority to remove agency officials such a significant constitutional shift?
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E
Well, first of all, it's not just me saying this. President Trump himself said this was gonna be the most important case of the term. A lot of us, you know, we learned from civic class there's three branches of government. We don't realize how much government has been done by this mysterious fourth branch, the administrative state. President Trump calls it the deep state because often it is these entrenched government bureaucrats who think they're running the show, but they don't really answer to the American people. What Trump versus Slaughter does is puts that back into the Proper constitutional structure. So what the court said is you can't have a system of leaders of these agencies that the President doesn't have ultimate control over. So by giving the President back the power to remove heads of those executive agencies, it means that his agenda, and not the agenda of the deep state is the one that's going to be running the, the administrative state, which is really most of the laws that are getting across the finish line in this country are, are just regulations coming out of that state. Congress doing a lot of the legislating. So this means that legislation and that executive branch enforcement is back under the constitutional structure.
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D
Now, how do we parse that with their other finding that President Trump couldn't fire Fed Governor Lisa Cook?
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E
So the Supreme Court created a, basically a carve out to the Trump vs. Slaughter line for the Federal Reserve government Board of Governors. What the majority said is this has a different sort of history. They traced it back to the first and second banks of the United States. They said this is not the same type of agency. And so they, they carved out an exception. You know, I agree with Justice Barrett's dissent in that case. I think it was kind of arbitrary and didn't really fit the history correctly. But at the end of the day, I think it's a, it's a relatively small carve out. And it's important to remember President Trump wasn't trying to fire Lisa Cook just for, you know, so he could replace her with someone else. He was firing her for cause. And that's very different. The heads of agencies are going to be like heads of the, a cabinet where you get a new president and you get a new Secretary of State and you get a new Secretary of Transportation and all those things. The Fed is going to be different. And I think that's, that is going to be the one exception to that rule. And he, but in the case of cause, in her case, mortgage fraud, the President does still retain the ability to fire her. He just is going to need to go through some additional procedural steps.
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D
Now on gun rights, what do these rulings signal about where the court is going with the Second Amendment?
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E
This is a very strong second Amendment court and this term is no exception. We had two major Second Amendment cases and in both of them the court ruled for strong enforcement of the right to keep and bear arms. In one, we had a case that had sort of strange bedfellows with the, the pro drug community and the pro second Amendment community because the government was trying to disarm a man and deprive him of his second amendment rights because he periodically used marijuana maybe once or twice a week. And what the court said is there's not a histor precedent for something like that kind of minor level of drug use being something that you could lose your right to bear arms over. Maybe if it were something where someone was, was a, a serious addict or a more serious drug. But they have to do that on a case by case basis. They can't just say any illegal drug use because that could include a lot of things like borrowing your roommate's Adderall in college, not endorsing it, but also probably not a reason that you should lose your right to bear arms. A second gun case was out of Hawaii. Hawaii was trying to flip the script on a, the traditional understanding of property laws, which is that you have a right to enter places like businesses or, you know, gas stations, grocery stores that are open to the public unless they exclude you, unless they specifically say you can't come in. And so if you, if a business didn't want you to allow you to who a licensed gun carrier to carry your weapon in those places, they could put up a sign and exclude you. What Hawaii did is said, you know, you can't go there unless they affirmatively give you consent first. But what that does is makes the second amendment right a really second class right. And it means it's very hard for anyone just if they're carrying guns, say, say you're being stalked by a former spouse or something, you're carrying a gun for your personal safety. You can't get gas, you can't get groceries even if you leave it in your car. And that, that was just way beyond what we have historical precedent for. So that was a very important strengthening against states like Hawaii and other states, California, New York, who are trying to get around the second amendment and find any way they can to limit gun rights.
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Now, Justice Thomas wrote an extensive dissent on that birthright citizenship ruling, even though his side didn't prevail. Do you think that his dissent and others could influence future litigation?
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E
Yeah, One of the things he said is I don't think this is the last word on this matter. And when Justice Thomas says that, pay attention because there are a lot of cases and a lot of issues where he's the one who raised a flag and said, you know, this is something that deserves further litigation. I think what we have now is five justices and who came to a conclusion about the history of the 14th Amendment. But his, his dissent is very powerful and it's possible with time and with further scholarship on this issue that it could win the day. In the meantime, I know that the administration is looking at other ways that still would be within the constitutional structure to try to crack down on birthright tourism in particular. That, that, that's one of the things that all both the dissents called out as probably pretty clearly should have been allow understanding of the 14th Amendment. It's a muddier case for illegal immigration, whether that actually as an original matter could have been covered. And at the end of the day, there's also the option that is difficult, but I think it's an important enough issue to make it worth it. And that is a constitutional amendment. I think this is something that a lot of people are talking about as well, and that obviously overrides what the Supreme Court was interpreting, because they were looking at the language of the 14th Amendment as it is now.
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D
Now, what about other core conservative priorities? We talked about gun rights, but what about free speech and protecting women's. How significant were the Court's rulings on those issues?
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E
Those are going to be major. And both of those cases had issues that touched on LGBTQIA rights that are. That are being pushed right now in society at large. We have 27 states now that protect women's sports by requiring that only biological females actually compete in women's sports. And that's very important, as anyone who has played sports or has kids who play sports knows, there's just a difference between boys and girls. Regardless of how someone identifies personally, that. That doesn't change the underlying biology. And. And frankly, even regardless of, you know, different hormones people take, obviously there's science that's developing on that, but it doesn't take you back to the same baseline as someone of. Of the opposite sex. What the Supreme Court said is you don't have to have a perfect fit. Even if there are some women who could beat some men in a foot race, that doesn't mean you can't make women's sports for women and men's sports for men. That's great news for the 27 states who have those laws. And I think it's. It's good news for the 23 states who really should have those laws. So people who live in those states now don't have to worry. Maybe this is going to violate the Constitution. Maybe it's going to violate Title 9. No. In fact, I predict the next piece of litigation is going to be asking whether allowing men in women's sports doesn't violate Title 9, because that's depriving women of a fair competition in those in those categories. So in that the First Amendment as well, Colorado, which is on the cutting edge of attempting to crack down on religious freedom in this case, was also cracking down on free speech. And they said that counselors, even though all they were doing was talking to their clients, could not counsel someone who wanted to live in accordance with their biological sex or with heterosexuality. They couldn't help them in that way, although they could counsel them to lean into either homosexuality or a different gender identity. And the court said 9, 0 by the way, unanimously, that that's not allowed. You can't have the state picking a side of a controversial issue that way. They can. And so counselors, at least if they're just using speech, that is a free speech issue, states can't get in the way.
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D
I know there is at least one D transitioner who wants to sue her therapist in Texas because her therapist encouraged her to undergo a double mastectomy. Will that free speech protect that therapist in that case?
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E
Well, when we're talking about the First Amendment free speech, we're talking about governments attempting to crack down on again, one point of view or another on an issue. I think to have a physician exposed to liability because they gave bad advice to a patient just because that speech that doesn't change. It could take it out of the say, medical malpractice law. You know, I don't know the details of the case well enough to know whether that's something that they're likely to succeed on a malpractice suit. But I know there have been other cases, and in particular in Great Britain, a large amount of payment to a young woman who was encouraged recklessly to transition. And then obviously it's something that you can't fully ever go back for from retrieve your fertility and retrieve any body parts that you've removed. Something that it's going to be a very interesting thing to watch go through the courts. I think doctors and medical professionals across the board are going to have to be very careful, as they really should have been in the beginning to think through the whether there's true scientific basis for the advice they're giving to their patients. And what we've seen in some of the litigation coming out is actually there there hasn't been. And some of the medical groups giving advice in these cases are doing so for fundamentally political rather than scientific reasons.
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D
Now, what do you see as the next major constitutional battlegrounds and are there cases already in the pipeline that could speak to that?
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E
The First Amendment is always a really important issue and this has been a very strong court for religious freedom. So we have more cases coming up next next term on that issue. We also have, we have Colorado again trying to keep a Catholic preschool out of their state funded programs that that the court has been pushing back on for a long time. They're going to try anyway. We'll see. And we have parents who have been have their children forcibly transitioned, not against the child's will, but against the parents and not the school districts hiding that from them. And that's something the Court is going to consider as well.
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D
Now, you wrote an article for the Daily Wire and I want to read a quote and ask you about it. So you said, quote, in a dispute over the president's tariff powers, originalist justices ended up on both sides. A useful reminder that originalism is a method, not a rubber stamp. And methods sometimes produce results conservatives don't like. So can you unpack that a little bit?
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E
Yeah. So we have to make sure we're distinguishing between conservative politics and policies and conservative judging. So just because a judge comes on a side of case, it doesn't mean they agree with the policy result. It might means they, they think that's what the law requires. So in this case, they were interpreting a law that gave the president very broad tariff power. But the question is how broad? And they, and so the question, it turned on things like what is an emergency and is having across the board tariffs? Is that a regulation of commerce in, under the language of the statute? And what they had to do was not say, gee, is it, is it a good idea for the, for there to be tariffs or is there a bad idea? That's not their job. That's the job of the elected branches. They had to look and say how broad is this language? And, and it's also important to remember that, you know, if they had said that the word emergency could be incredibly broad, it's not just President Trump who gets to use it, it's President, you know, President Biden could have used it that way. Future presidents of both parties, you could imagine them putting tariffs on everything that had to do with petroleum products because they're concerned about the environment or things like that. So we have to make sure we are reading the statutes as they're written. And Congress can always go back and change that. Congress can pass their own tariffs, they can broaden the language in that statute. But we want judges that even, even if it means sometimes we're going to disagree with the bottom line result. Like I, I wish that that law had gone through a different way, perhaps same thing with birthright citizenship maybe. I just, I, I wish we had a different outcome there. But if what we want are judges who are trying to look at the language itself because that's what the people of America have passed and that's the language that they'll have to go back then and change. If we don't like how it applies
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D
to situations today, now, 10 or 20 years from now, which of the rulings from this past season do you think are going to have the longest term
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E
impact well, obviously, as I said, Trump versus Slaughter is hugely important because it's going to cabin in the administrative state and the deep state that's going to have lots of waves. There was also a really important issue, redistricting case, LA vs Calais, which is putting an end to the unconstitutional system of looking at race when you're districting. We shouldn't be drawing our political lines based on race. And it was very important because the court said we have a colorblind constitution. I think that's gonna have a lot of repercussions down the line.
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D
All right. Well, Kerry, thank you so much for making time with us and coming on today.
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E
Great to talk to you.
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That was Cary Severino, president of the Judicial Crisis Network. And this has been a weekend edition of morningwire.
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