back to the latest edition of the Mo News interview podcast. We're making it available on all podcasts given the high interest in the Supreme Court this week. A lot of talk in the past couple of days about the Supreme Court as they have rolled out a series of major rulings, including that major decision regarding immunity and presidents, what it means for Trump, what it means for the power of presidents. I thought no one better to break this all down for us than the chief legal correspondent at CBS News, Jan Crawford. We are colleagues for a decade. She's been covering the court for three decades. She's interviewed a number of the justices, written books about the court, and really breaks things down in a very conversational way as, you know, one side declares victory, one side freaks out, her message, everyone called down. And so she breaks down the immunity case. She breaks down several of the other rulings, including the abortion rulings, the gun rulings, as well as several decisions regarding what's called the administrative state limiting the power of federal agencies. We talk about that. We talk about the divisiveness in the country and how that has impacted the court, the relationships between the justices. Some of the interesting alliances this term and what a Biden victory or a Trump victory may mean for who leaves the court in the coming year. So a lot in this conversation, whether you're a Supreme Court nerd, whether you're just trying to get a better understanding of what exactly just took place the last couple of weeks, and what it means for the future of the government, the future of this country. I think you'll really enjoy this conversation. I love Jan. And I think you will too. Before we get started here, I want to thank you for listening to this podcast. A reminder, all of our conversations are released first on the Monuse Premium Podcast. If you're not already a premium member, join over at mo.news/premium gives you early access, gives you access to a member's only Instagram account, where you get weekend news, you get news quizzes, you get Q&A's context, analysis, and a lot of extras. You can again, join over at mo.news/premium. We have family and group packages available. And premium members, again, get early access to all interviews. And then a number of them do eventually head over to the Monuse interview podcast. If you don't already subscribed to that, please subscribe to the Monuse interview podcast beyond the daily pod. All right, with that, let's get started. Jen Crawford, Chief Legal Correspondent at CBS News. It's so great to catch up with you. Great to see you, Mo. Jan and I spent nearly a decade together at CBS. We miss you. And I miss, well, I miss you. And I miss it. I miss a lot of people over there. Got to spend some time in Washington. I mean, not everyone, but most people. And certainly some aspects of CBS, other aspects, I'm happy to be on my own these days. I will say there's been a lot the Supreme Court term. You have covered the Supreme Court for a very, very long time. You know, some of the justices very well. We're coming off in the last 24 hours off of the season finale here and the major decision in regards to the immunity case. We've a lot to talk about this term, but I want to start with this immunity case. There seems to be a lot of confusion out there as to what exactly they decided, what it means, what was the headline for you out of it? That Donald Trump can still be prosecuted for some of his actions around January 6. I mean, the court found for the first time ever that presidents have generally speaking immunity, absolute immunity for, you know, most of their official acts that they're doing as president and furtherance of their duties. But they have no immunity for their unofficial acts that they would do in private or potentially as a candidate or a party leader. So they kicked it back to the lower court judge, Tanya Chuckin. And she's going to have to decide based on my thoughts, somewhat surprising guidance from the Supreme Court. I wasn't expecting it to be quite as detailed. What is in fact an official act? And what is an unofficial act that Trump can be prosecuted for around, you know, his activities to allegedly overturn the results of the 2020 election? So what's going to happen? I think special counsel Jack Smith is probably going to maybe narrow his indictment a little bit. But there's a lot still there for him to work with. And Chuck Kim will probably have some hearings. She'll have a lot of briefings. That means delay. That's going to take some time. So I think it is highly unlikely we'll have a trial before the election. But that's probably unlikely anyway, because she's already said that once she says a trial date, it's going to be nearly three months, she's going to give them two to three months to prepare for trial. So, you know, we're already getting pretty close to November, even if you're going to be able to have a trial in the next month or so. So, you know, I think that again, this is a big term for Donald Trump. There were three cases that either directly or indirectly affected him. He won all three. But at the end of the day, I am not sure those are going to be the big lasting victories that he had hoped for. Right. You know, I was struck by the reactions because, you know, you have Donald Trump declaring ultimate victory here of vindication. And then you have President Biden and Democrats. And frankly, the dissent by Senator Sotomayor, you know, saying they have fear for the democracy. Biden says afterwards, there are now virtually no limits as to what a president can do. That's just not true. And, you know, I understand that everyone wants to bash the court if you're Democrats, because you don't agree with these decisions. But there again, I think Jack Smith is not going to agree with that. I certainly don't expect the special counsel to say, "Oh, well, you know, may as well just put my papers back in my briefcase and call it a day." I mean, he's already, I'm sure, hard at work trying to figure out, you know, what he can go forward with in this prosecution of Trump. And like I said, I think there is a lot there. This is a landmark decision written by the Chief Justice for the first time ever they find presidents have immunity for, generally speaking, most of their official acts from criminal prosecution. The courts never ruled that before because no president has ever been charged with crimes before. I mean, once again, here's Donald Trump doing something and getting charged. So, so there's been a reason why in 250 years of American history, they never had to, the court never had to deal with this sort of thing. Right. So once again, here comes Trump and, you know, the whole legal system has got to like try to figure out what to do next. So, you know, obviously, understandably, you see Democrats trying to say, you know, this is the end of democracy. You had a fiery dissent by Justice Sotomayor, you know, certainly not the first one that she's delivered this term. I think the justices right now are really glad they don't have to see each other again until September is the end of their term. And you had, you know, on the other side, as you said, you had Trump saying, like, this is a huge win and I'm filing a letter right away, you know, in the New York case to say that that hush money trial that I was convicted for has to be thrown out. Well, I mean, that's ridiculous, too. I mean, you have these two extremes, both, you know, no, and then you have what the court actually did here, but they did. They certainly say, yes, there is some immunity and they say why, like, we can't have a situation where future presidents can be prosecuted for official acts. That is a dangerous road to go down. And if it sounds far fetched, look what Trump said in the debate last week, when he suggested that Biden's immigration policy was criminal and then, you know, raising the prospect that if Trump were to win, his DOJ could go after Biden for some of his policies. So the court walled that off that kind of official behavior. No, immigration policy, you know, whether or not a president, like, you know, someone raised the prospect of President Obama with drone strikes inadvertently killing an American citizen. Well, by the way, we should note he inadvertently killed three American citizens and he actually purposefully killed one American citizen. But that again, official acts in furtherness of a president's official duties. No, you know, you can't come in there after a bitter campaign and decide that you're going to throw the, you know, you win, you throw the losing candidate in jail. So that's that that if Trump does win this election, the people on the left who are criticizing this decision may be seeing an entirely different tune when Trump's attorney general goes in there and starts looking at potential charges. Though based on what I saw among liberal legal commentators, based on what Sony said to Mayors, you know, dissent was where she talks about using seal team six to assassinate an opponent. You know, a lot of the question revolves around this, Janet, I know you read the whole decision. Couldn't Trump jail Biden as an official act? No, and I mean, you know, again, I thought this was also really unusual. I mean, Robert says in his majority decision, I mean, he really kind of response very sharply to these dissents, accusing him of fear mongering with these extreme absurd hypotheticals. A president is not authorized to assassinate a rival. Like that's outside the bounds of a president's authorized official actions. That is illegal under military law. There's an executive order that prohibits assassinations. So, you know, again, you know, looking at the actual decision that it does not foreclose prosecution for Donald Trump for his actions or a lot of his actions around January 6. That is what now the federal district court judge is going to have to do the hard work of how to apply this decision. But I am sure Jack Smith already has papers ready to go that there is a roadmap. We've got some lower court decisions, one in particular that kind of sets out how to analyze the framework between an office holder acting as president and an office seeker giving speeches at campaign rallies, acting as a candidate. I think that will really guide a lot of what Chekken does in this case. Though, this does appear to make prosecution of a president much more difficult. You know, one of the things that really like, what are we talking about? Are we really going to be in a situation where like, you know, we've never happened before. Yes, it is going to make prosecution of a president more difficult so that some president goes into office and says, I didn't like your immigration policy and tells his attorney general like, go or, you know, let's go do some kind of special counsel investigation because they didn't police the border the right way. I mean, the chief actually sucks in his opinion about there's going to be every former president, his successor, maybe critical of how they enforced a number of different laws on the books. And that it was a concern of the court. We don't want to have that kind of routine situation where current presidents are seeking to prosecute their predecessors for political reasons because they didn't like their policies. And that's something the important of the court does here, right, Jan, is they try to think about scenarios and really try to think about the future here. And they were sort of future-proofing this. And so while short-term you have people who are frustrated as to how it makes the current case against Donald Trump more challenging, what they're really looking to do here is protect all future presidents from unnecessary prosecution and frankly, limit like their decisions that they make for the good of the country because they fear prosecution. Well, that's certainly what the majority would say. And that's what John Roberts said in his opinion that this is a case that will have lasting significance. So yes, that's true. I also think that that is somewhat of a criticism of this decision because, all right, sometimes they do think, oh, we're writing for the ages. Well, instead of just looking at the exact case in front of them. So that has also been a criticism of this court that sometimes let's just stop worrying about writing for the ages and decide the case in front of you. So it's kind of a mixed bag on that, I think. Yeah, as far as what they wrote, it does not prohibit prosecution of presidents for their acts that are not those official things that they would do. If the court said they had to be protected from prosecution for official acts so that they can conduct their presidential duties without fear of being prosecuted. One example that's come up, and I'm interested in your take on this, having heard John Dean on cable yesterday, is that with this ruling, this effectively reinforces a bit of what Richard Nixon infamously said, which is, it's not illegal if the president does it and would have made prosecuting Watergate very difficult, if not impossible. What's your perspective on that? I mean, I think that you would argue that was he acting as an official act? Was some of that or was that outside the bounds of his official duties? Was he acting as more of a candidate, I mean, illegal activity to seek office for potentially reelection or election? I mean, so that I think you would argue there under that decision, there are ways that you could say, well, yeah, no, that's also not something that the president should have been doing. And so perhaps a prosecution could go forward. Yeah, there are some of the conversations that inevitably come up might be protected now under official acts, conversations with advisors, et cetera, right? And the court talks about, yes, conversations with justice department officials in the indictment as an example of Trump, that that would be considered an official act, potentially conversations with the vice president. But then the court says, but those kind of engagements, especially with the vice president, the government could come in and rebut that, you know, we presume there's official act. But if there's evidence that, for example, the president really had no role with which he doesn't in the certification of an election, then that, which again, he that's Trump did and tried to do and there's no role there, then that would make that then an unofficial act. So it's all these kind of line drawing, again, that the judge is going to have to do in this case, but she's gotten somewhat of a roadmap from the court. And then like I said, there's another case involving civil issues and police officers who would sue Donald Trump in the civil capacity. And the panel there gives another kind of roadmap for how do you decide between the office holder and the office seeker and the court sites that case approvingly. Were you surprised, you know, going into this, some people said when it comes to cases that are so politically charged like this, the court likes to be unanimous or at least not decide along partisan lines. Were you surprised to see this end up six to three? No, not after the argument. I mean, obviously, this is not the case that John Roberts, it's not the way he would have wanted this case to come out, you know, six three divided along ideological lines, obviously not. But after the argument, it was clear that they were not going to be unanimous on this one. Unlike, for example, in some of the other cases that they had this term, either unanimous or nearly unanimous, like in the other some of the other Trump cases, the Colorado ballot case, where they all agreed that states cannot kick Donald Trump and presidential candidates off their primary ballots. So that was a big, the first big win for Trump, right? He got to stay on the ballots. And then another big win, the court, you know, again, six three, but with a different lineup of justices, the newest justice, the Biden appointee, Justice Katanji Brown Jackson went over and joined Chief Justice Roberts' opinion on whether or not some of these January six defendants, including President Trump, can be charged with obstruction of an official proceeding or whether prosecutors were trying to stretch that, you know, in Iran era, Sarbanes, Oxley law about accounting fraud, you know, beyond its intended purposes. Jackson joined with Roberts in that case, and Amy Coney Barrett, a Trump appointee joined with the two other liberals, Kagan and Sotomayor, to say, you know, it's fine what prosecutors are doing. The majority in that case said, no, you've got to tie it to some evidence. That's what the law requires, some tampering of evidence. So that sounds like a win for Trump, you know, and it sounds like a win for the January six defendants, this accounting law about evidence. Right. There's a couple dozen people who are in prison solely on that charge, and several hundred people who were being charged with that previous interpretation. Right. But already prosecutors arguing, and in the lower court, in some of those cases, that they can still go forward with that prosecution because there was some evidence they can argue that these January six defendants were trying to tamper with, you know, or disrupt. And what was that evidence? The certificates of the state electors that Congress was counting. So I believe that that charge will still be valid for to bring against Donald Trump because you can argue that, you know, if you're just a rioter and you didn't even know what was going on in there, well, you know, you didn't even think about the balloting, you just got caught up in like going into the Capitol shouldn't apply to you. But if you realize they're counting these certificates, state electors, obviously Trump presumably was would be the argument, then that charge can still apply to you. Why is that charge important? Prosecutors have used that because it carries the most severe sentence potentially up to 20 years in prison. So it's been a really powerful tool for prosecutors try to get plea deals because, you know, you may be like, well, trespassing, you know, six months, so you know, I'll take my chances, but all of a sudden you're looking at a 20 year potential sentence, you're going to start wanting to plea out a lot faster. We've got a lot of guilty pleas off of that. So, you know, bottom line, this is always why I appreciate working with Jen because I was like, well, the left is freaking out and losing their minds. The right is like celebrating that, you know, this is the best sport ever. And every everything's redeemed. And you're here to say both sides are not necessarily right here. Yeah, I that being slow down, slow down, slow down everybody. Yeah. You brought up the fact that, you know, there's the case where Katanchi Jackson grew up with conservatives, Amy Coney Barrett, a couple times now, including in that immunity case, partly a sides with the liberals in terms of the interpretation of not being able to use official acts in prosecuting unofficial acts. Curious, you know, we were so caught up in the six three narrative, six conservatives versus the three liberals, but it appears this term, where does this rank in terms of how many cases were actually not ruled a lot of that yet? I haven't done stats on that. But we did have some unusual splits and unusual alliances this term. And some of the big controversial cases this term, you know, let's look at what they did with the issue of abortion, you know, after two years after they overturned Roe versus Wade said that the issue of abortion was up to the state, states could ban it if they wanted they could allow it if they wanted. Just don't come to us with these abortion cases anymore. Well, they got to this term one on whether or not that the abortion pill, if a priest don't, it's one of two pills used in medication abortion, obviously the most common method of abortion in this country, whether the FDA had properly approved the use of that pill. And the court said this case should not be before us. And they just kind of kicked it down the road, slapped down the Fifth Circuit, which is the Texas, Louisiana federal appeals court, a theme we also saw this term, them slapping down the Fifth Circuit. The Fifth Circuit known for being very conservative and said that the parties in that case, the group of doctors didn't have what's called legal standing to bring the case. You know, they may not like the FDA's approval of this abortion pill and how they did it and made it easier for women to get, particularly after the pandemic. But just because you don't like a policy doesn't mean you can file a lawsuit over it. You have to show that causes you direct harm and the doctors in that case were unable to do at the court rule. So they kicked that one down the road. Then they had one from Idaho and that one involved emergency abortions. If Idaho passed one of the most strict laws banning abortion in this country, exception only for a woman's life or cases of rape or incest, the Biden administration came in and sued Idaho and said, well, there's a federal law that guarantees women who go to the emergency room, a needing care, can get that stabilizing care. And that conclude abortions if their health is in serious jeopardy, their health. Maybe not they're going to die, but perhaps they'll lose their kidney functions or their ability to have children in the future. The Biden administration argued this federal law, you kind of trumped the state law that they said banned those kind of abortions for health reasons. After the argument, after the court agreed to grant the case, the Biden administration urged the court, don't take the case. They did anyway. They had arguments in the case, come to find out. The record seemed to have changed. The state was saying, like, we would allow those kind of abortions for health reasons. The legislatures changed one thing. The state Supreme Court in Idaho has said, yes, those kind of abortions are permitted under our law. So at the end of the day, the court said, like, we're just going to dismiss this case. And you guys let it keep going in the lower courts. The Idaho law right now, that portion of it is on hold. The federal law is still going to apply for now. Lower courts work it out. And there you had a really unusual coalition of justices where you had the chief justice, Justice Sonia Sotomayor, Justice Lena Kagan, two liberals, and then you had Kavanaugh and Barrett. So you had kind of this weird coalition of conservatives and liberals coming together to say, you know, we should never have taken this case. So you know, they punted on really on the issue of abortion this term. They no decision on the merits for abortion. Guns was another big issue for the court. Yeah, guns specifically in regards to the device that allows semiautate guns to effectively become automatic guns. Bump stocks. Bump stocks. Yeah. And that was a case, you know, after the festival in Las Vegas, where a gunman used a bump stock on his gun to make it fire more like a machine gun, ended up, you know, responsible for the deaths of 60 people. Trump then president said to his ATF, figure out a way, ATF and just department figure out a way to ban those bump stocks. And without Congress, without Congress and the Obama administration, it concluded it would take an act of Congress that they couldn't do it. But Trump's like, well, I'm going to do it. So that was the issue in that case. And the court said consistent with the way that has long been interpreted, including by the Obama administration, presidents don't have that authority to ban bump stocks under an old law that bans machine guns, generally bans machine guns. And that if you want to ban bump stocks, Congress passed a law banning bump stocks. There's no suggestion that it would violate the Second Amendment Congress could do it. But you know, once again, you know, Congress isn't doing it. Yeah, I think Kavanaugh writes in in that case, like, you know, like, actually, he thinks this would be a pretty good idea to bump that bump stocks based on what he's seeing. But Congress, you're, you know, it's your role. So Jan, we talked about the Trump cases, one of the other larger themes that you've been getting to here and some of your answers is the administrative state, the Supreme Court, effectively trying to recalibrate it in a way and really put the onus on Congress saying that the executive agencies have taken too much power. And there were a number of cases that they ruled on this term. You know, so much of the term, obviously, was hugely important because it affected whether Donald Trump was going to be able to even run for president, you know, be kicked off ballots. Could he be prosecuted? And if so, for what? I mean, those are major issues involving Trump, but the biggest takeaway from the term in terms of just potentially everyday impact is this series of decisions that, as you said, really kind of recalibrates the power of federal agencies, whether it's the EPA, the FDA, you know, all these federal agencies that conservatives have long thought have way too much power. They've taken on way too much power that Congress should have done or maybe courts should have more of a role in reviewing what they're doing. And, you know, that conservative belief is given just unelected bureaucrats power over American life. So the court really in a series of hugely important decisions that have not gotten nearly as much attention because, you know, it sounds like who wants to talk about the administrative state, you know, the power of federal agencies. But those were, I think, probably the biggest takeaway of this term because there's one, they overturned a 40-year-old decision that we call Chevron. And that essentially said that, you know, when the law is unclear, the federal laws are unclear, that the federal agencies get to kind of fill in the gaps and that courts have to defer to their judgment. And the court has not cited that case in almost a decade. And so basically what they did is kind of just knock the last leg out of that stool and kind of tell lower courts, like, stop using that case. We're just going to stop with this different stuff. The reason I say that one got mostly attention but maybe actually the least significant is because the writing has been on the wall in that case. The federal agencies have already kind of adjusted to it. They knew that was going to happen eventually, especially with this conservative court. But there were two other ones that were potentially even more important and then taken together the three really scale back the power of federal agencies. One involves the SEC. This fellow got hit with, you know, up to a million dollars in fines. This SEC brings those cases before what's called administrative law judges. And they, you know, or arguably can be a rubber stamp for what the SEC wants to do. You know, they rule for the agency upwards of 90% of the time. And he argued, like, wait a minute, like, you know, I want to be able to go into court and have a trial for a real judge or real jury or whatever. And the Supreme Court said, in this case, yeah, you know, you got to, you know, SEC, if you want to do this, you got to go to court like everybody else. And you got to prove this in court enough of this. So that's a big one. You know, potentially giving ordinary Americans more power to, you know, fight what they may think are unfair charges and require some of these agencies to prove in court. The pushback, just to, you know, you talked about the conservative critique, unelected bureaucrats, too much power. The liberal critique would say this gives too much power to the corporations, whether to pollute or engage in financial impropriety. That is the big criticism of what they've done, especially in the Chevron decision. But it's going to have a much bigger impact on some of these other areas where, you know, it's just some of these, like the second one, you know, there's their business, small businesses who have been in business. And then you have these new regulations come in that can completely affect your business. And what are you supposed to do? I mean, that's the third one that the court said, you know, like you're going to be able to kind of challenge that and say like, well, these rules shouldn't apply to me. So yeah, I mean, that that is the, the kind of sky is falling. Oh my God, the world's coming in with this new conservative court. But I would just say on that score, the agencies have anticipated that Chevron getting overturned for some time. So they, they've already figured out how to kind of work around that. And on the other ones, you know, the SEC, let's say, for example, they're going to have to go to court. Sure. But the SEC can get the funds to do that. And most of these cases involving the SEC end up pleading out even before they would ever get to a trial. So I just don't see that one's going to have that much, you know, of an onerous burden on these federal agencies. One question I had, you know, the, the conservatives take this original as a view, what have the founders intend? At the same time, the country's been around 250 years. And the country we have today, the government we have today is not the government we once had. To what extent do the justices, especially the conservative majority, take into account that Congress is pretty dysfunctional these days? You know, to what extent are they ruling when it comes to, well, ideally, this is what Congress should be doing versus for practically speaking, acknowledging what Congress has been up to in recent decades. Are they effectively ruling for a 2020, a realistic notion of a 2020 for America? That's actually, you know what, most I hadn't thought about it that way. I mean, I think you could argue that the bump stock case, they were saying with the guns, when they were saying, you know, Congress, ban bump stocks, if you know, we think bump stocks should be banned, do your job. I think you could read along those lines in that decision. But I mean, generally speaking, I would say, no, they still see a real lane for Congress. Look at abortion policy. You know, there's nothing in the court's jurisprudence that would prevent Congress from passing a law that would protect abortions, you know, 12 weeks, 15 weeks guarantees. Right. This notion of talking about codifying Roe as they've discussed. Yeah, there was nothing in, there's nothing stopping Congress from doing that, except Congress can't do anything. And that gets to my question, like, you know, they're savvy people. The Supreme Court is across the street from Congress. They watch what happens there. Do they take the, you know, the dysfunction of Congress into account when they rule things like, well, that's Congress's job. You know, they really don't. And they believe that, you know, the courts job is the court that this conservative court does anyway. I mean, that's their perspective that this is it's not our job when there's a vacuum and when things aren't getting done for us to step into it, that courts should still have a more limited role. The legislature has this role, the president has this role. And so that is, you know, they they don't believe conservatives don't that if Congress doesn't act, we need to fix it. I think, you know, liberals would much more see where there's a problem. We should be able to, you know, step in and fill the vacuum. And that was a big thing that came up. I mean, way, I'm going to give you a throwback name, but that was a big issue. And Justice Souters, David Souters confirmation. He was a conservative nominee, kind of George H. W. Bush. This is the early 90s. No nominee. And during his, so the conservatives really believe they had pulled a fast one on the Democrats, you know, they were going to sneak this conservative onto the court. And, you know, they would not be able to find anything in his record to, to, to Vida. And during his confirmation hearing, he actually got asked a question about the role of the courts. And he suggested that when Congress and the political since branches aren't acting, you know, courts can have a duty to step in and fill those vacuums, you know, sounding a lot like Justice William Brennan, one of the great liberals. And in a book I wrote on the court, someone in the White House at the time, the Bush White House watching this hearings literally says out loud, my God, what have we done? And what they did was appoint a liberal to the Supreme Court, David Souter ended up voting pretty reliably with the liberal bloc. So that is the kind of way of how you can distinguish how these kind of conservatives and liberals see their roles. By the way, as an addendum to that, we should mention the subsequent appointment by the Ed Bush White House was one Clarence Thomas. Who certainly has a very different view. They didn't make that mistake twice. And, you know, that's a theme, another thing that we've seen this term. I think, you know, Justice Thomas seems to be kind of back where he is often alone and dissent in some of these cases or joined by Justice Alito and sometimes with Justice Gorsuch. So you're almost seeing, instead of a six, three conservative liberal court, we've seen some cases a three, three, three court where you've got, you know, the Chief Justice, Justice Kavanaugh, Justice Barrett coming together a lot. And then you've got the more conservative justices coming together, the three others, Thomas Alito and Gorsuch, and then you have the liberals. And so I think that's going to be a really interesting thing to watch. The thing about the court now, and any time you cover it, look at a new nominee coming onto the court and new Justice, for example, Justice Jackson, our newest Justice, it takes several years to kind of get a sense of where that court's going to be. A new Justice will cause the other justices to like rethink their positions. You'll see alliances start to change. So you can't just assume when a conservative joins the court, this is going to make it more conservative or a liberal joins the court. It's going to have this impact on it. It's like those old days with the Polaroids, you know, where you take a picture and it's like really blurry at first. And then it starts coming into focus. That makes sense. And we all thought you shook the photo to make it develop quicker. And it turns out that that actually, well, it's a great song though. But that's kind of what we've seen this year, like that photograph of this court, this new court with Cachange Brown Jackson joining it, replacing Justice Breyer, that that photograph is starting to come more into focus. And you are seeing some of these different alliances where there may be a moderate conservative block, a more conservative conservative block, a liberal block. And then sometimes you'll see, you know, like we saw in some of the cases this term, some weird alliances of justices too. But right now, on the big cases, like when we're talking about Trump, you see those divisions really come out. And there were bitter divisions on display at the end, especially in this immunity decision. But others too. Yeah, when you hear when you see the last line of a dissent with fear for democracy, never seen that. Never seen that. I was going to say you've studied the courts going way back. 30 years much. Never have I seen that. Why would she write that? What's her goal? Who's her audience? I think that this court is still, there's still a lot of residual anger from what they did in Dobbs. That was the case two years ago where they overturned Roe versus Wade. And I think that was a real jolt, not only to the country, but to the court. And those justices, those liberal justices now, whenever they see the court overturning Chevron or finding, you know, sweeping presidential immunity for official acts, it's like PTSD. You know, like here we go again. They're dismantling these old decisions or taking them on different directions. So I think that you're seeing a lot of that still kind of percolate up, not to say that they don't have strong dissents and, you know, strong disagreements in these cases, but sometimes some of the dissents that they've had, for example, Justice Sotomayor dissented in the bump stock case. And that, and she read it from the bench, which they only do when they really disagree. They read a summary of it from the bench. And that was extreme. Like, I thought, you know, there's really no need for that. And I think that is an example that there is still a lot of this kind of residual anger from Dobbs. And I don't know that they'll ever get over that. I mean, they'll have to function as a court. You know, they got to, you know, it's like, you got to member your family, though, that you don't really particularly like very much still have to function with them. But, you know, it still can get really irritated with them for other reasons. Those are at initial, like, they showed who they are, you know. I think some people will be surprised to know. And, you know, you say this and you're familiar with the interesting friendships that formed on the court through the years of justices who have very different interpretations of the law and from opposite sides of the political spectrum, but had real friendships. Is that still the case or is that less? I mean, has the divisiveness of the country gotten into the court now? Yeah, there's nothing like there used to be where you had this, I mean, two kind of real extremes on the court ideologically, Justice Scalia and Justice Ginsburg. And they were very close friends. They, you know, had almost weekly dinners together with their spouses. They traveled together. They had, you know, foreign trips together. I mean, they were very close couples. They socialized frequently. And there was a genuine affection, even though they had very different views on the law, there is nothing like that now. I think the justices, you know, by and large, get along. Some of them play golf together across the aisle, you know, the ideological aisle. Some of them go to basketball games, again, across the ideological aisle. But it's not the same thing as we've seen in the past, much as you don't see those great friendships in Congress anymore either. Yeah, I mean, a bygone era where Republicans and Democrats socialize, I know Joe Biden has discussed those days, but he lives in these days now as do the rest of us. A big theme that we've discussed in, you know, as we've talked about the last couple of courts is also the drop in approval, the drop in trust, the public perception of the court. You know, that's also been something that has come up, especially as some of the stories have revealed what some of the justices have been doing behind the scenes, you know, gifts they've been getting. To what extent are they policing themselves? How is the court dealing with that? You know, I imagine Justice Roberts doesn't want to be his like, he doesn't want his legacy to be that, you know, he oversaw the court when it completely lost the trust, the majority of America. How do they deal with that at the same time, you know, decide all the cases? And to what extent does that public perception impact the way that they're ruling on these cases? You know, we don't really, I don't, I mean, I haven't really seen the public perception impacting them at all. You know, otherwise, I mean, the critics are Democrats and they're still issuing decisions that Democrats don't like. So I don't see that having an impact. But I mean, I think they all, not just the chief justice, but I think they all are very concerned about, you know, the public perception of the court. And obviously, the court, you know, kind of ebbs and flows, the opinion polls do. It took a real hit after Bush versus Gore when, you know, they stopped the Florida recount, which gave the presidency to George W. Bush, but then it recovered. And I think now you're seeing it still kind of hanging around, you know, at or near its lowest approval ratings, you know, historically, it's still way better than Congress. I mean, it's, you know, what is it now for around 40? We're bringing a curve in Washington. Yeah. And it's still way better than the president and the media. But I think it's a real concern that, you know, a lot of our institutions, there's just diminishing faith and confidence in our institutions. And I think a lot of that is a result of the political process. Some of the narratives that the courts are corrupt, that you're hearing from Senate Democrats in particular, kind of a coordinated campaign, stemming from this anger that, you know, Trump stole a seat from President Obama. And I think there's a real anger at the court and a real effort to, to, you know, undermine and delegitimize the Supreme Court. I think you see that on the right with the criticisms that have been alleged and thrown at Judge Murchin and the New York Cash Money trial, that the courts are corrupt. You see, you know, Republicans in Congress saying courts are corrupt and the judge is corrupt and justice is, you know, and I mean, all of that has real consequences. You know, if you don't have people believing in the institution of justice, that's a real problem for democracy. I had Jonathan Carl from ABC on a couple of weeks ago, and he thought, you know, he went through various scenarios if Trump is reelected. And one question that came up is that, you know, the Supreme Court doesn't have his own police force that ultimately there's a concern. And you hear it from, you know, people around Joe Biden and Democrats who are, you know, want to beat Donald Trump this November, that Trump would come back in there and may stop respecting the decisions of the Supreme Court. I know there's a lot of far-fetched ideas there, but your comment just now reminded me of that, which is there are certain aspects of society, certain ways that things are structured, which assume a respect for the process. Right. And, you know, there are Supreme Court police officers. So, but, you know, the idea of security, that's a real problem, who's going to provide that to what extent are there enough there's there enough protection from the court, you know, how high are the threats we're seeing against judges across the country at every level now. Those are all big concerns. And I think that it is potentially a real problem, no matter who's in office. I mean, you know, we have Biden in office now, and we have a narrative out there from the right and the left that our courts are corrupt. Sorry. I didn't mean like literal security police, meaning if the Supreme Court ruled on something, we've always assumed that the president would then respect the decision of the Supreme Court, meaning police, meaning not going over to the White House and saying, you must, you know, you must do what the court just ruled. No, I think, but that I think that's true across the board, Moshe. It's not just the president. I mean, Justice Breyer, who obviously retired and was replaced by his former law clerk, Justice Catanji Brown Jackson, he spoke and still does often about how the court has no standing army. You know, you can't just go out and say you've got to enforce our decision. It relies a lot on the faith and confidence that people have in the judiciary. And, you know, if that is undermined, that's a concern. So I think that is it. And that is a universal concern at the Supreme Court among online justices. We, you know, always speculate at the end of a term, going to the next term, when the next opening on the court might be. We, you know, see that both Alito and Thomas are in their mid 70s. There's been some chatter among Democrats that said to me, or, you know, should go while Biden is president, given her, you know, various health issues. What's your sense of the current court, how long they're in it, and depending on who wins in November, how that could impact retirements in the next term? I think if Biden is reelected, it's unlikely we'll have any retirements, maybe one. If Trump is elected, we may have one as well. I think that it's still a relatively young court. I know that, I mean, Justice Thomas has no plans to retire. Justice Salido, I'm not so sure about. As far as Justice Sotomayor, no plans to retire to supply pressure from Democrats earlier that she should leave now and give President Biden a chance to fill that seat in a way that they believe Justice Ginsburg should have done and did not, which then, of course, led to a conservative replacing her when she passed away. So I think it's hard to say. I think it's certainly possible, though, if Trump wins, he could get another nomination. If Biden wins, he could get another nomination. A couple of more cases just to wrap it up. There were several social media cases, this term, as the courts confront new media, regulation, free speech, etc. Though in a couple of those cases, they punted it back down and was curious, as you've been watching, how courts handle new types of technology and how to manage that, how they've been managing social media. One question I had is also related to, it seems like there's been a number of cases this term. I don't know if you can tell me if it's more than normal, where they aren't making a final decision on things. They're sending it back down. Right. I think that's the way when you see the court, I mean, there's two things that potentially could be going on. I think, for example, on the abortion cases, on one they found standing, no, you shouldn't have brought this lawsuit in the first place. You didn't have the legal right to sue because you can't show you were harmed. That was the case involving the abortion pill. That's a pretty conservative doctrine. It's a way of kind of restraining courts and keeping them out of some of these political issues. The very conservative federal appeals court in that case, the Fifth Circuit, which we discussed earlier, they thought they're withstanding. I thought the court sent a message like, no, don't go to court first. That's not unless you've got a real issue. That's a pretty conservative John Roberts way of restraining courts, that issue. The idea of having a record, a real case before you, again, which we saw in the Idaho abortion case, some of these two social media cases also went down, one of them on standing as well. Again, it's a way of just kind of keeping the court out of some disputes until there's actually a real dispute. The social media cases were so interesting, obviously, conservative attempts to either require social media companies to tell people if you're getting blocked or shadow banned, not to eliminate presidential candidates or presidents from your social media sites, really trying to efforts by states to police some of the behavior by social media companies. There was another one that argued that the Biden administration was putting undue coercion on social media companies so that they wouldn't put things up. They criticized lockdowns or vaccines or talk about 100 Biden's laptops. They're trying to get meta on Twitter. They were urging them to take things down. Right. That lawsuit, the people challenging that, they said that the government was really pulling the strings for these social media companies. The court said, "You can't show that you have a really ongoing controversy there and kick that one out, too." The social media cases, they were interesting, but at the end of the day, they didn't really resolve much. They have granted one, which I haven't read the briefs on yet, but they will have another social media case next term that looks at a state law in Texas, age requirements, if you're going to access porn sites, and that raises some interesting free speech and social media concerns as well. It's an ongoing issue, new technology, and how you apply it to the First Amendment in an old constitution, an old document. Right. A bunch of guys and wigs in the late 1700s wrote this document, and we're trying to discern, based on their right in their document, how they would have felt about Facebook and TikTok and all the various issues we confront today. Among those, Jen, just next term, a case that I'm sure they'll have you do a number of stories on at CBS is the trans case that they've picked up. Tell me about that and any other major cases in the next term that we should be looking at. I think that is the biggest case so far. They decided not to take up an assault weapons ban out of Illinois. People were challenging us a second amendment violation. They said basically that it was too soon, and that case needed to still proceed through the lower courts. That'll probably come up either at the end of next year. We'll get that one. So right now, the one that I think is probably the most controversial involves the state bans, gender surgeries, hormone treatments, and puberty blockers for people under 18 years of age. There's about two dozen states that have these bans. There's another dozen or so, I think 14, that protect these surgeries. There's a real division in the country. The question is basically whether that violates the concepts of equal protection, where these states are saying that you can't have these surgeries, these kind of sex transition surgeries if you're transgender, but you can take puberty blockers. It's more focused on puberty blockers and hormone treatments, but you can have those treatments if you have just a medical condition. They're saying that discriminates against them based on sex. This is a lawsuit filed by the Biden administration defending this kind of trans care and treatments against the state bans that outlawed for children and minors. Is that a case too, where you think there could be an interesting alliance among the justices that this might not fall, 6-3? No, my guess is that will be, yeah, my guess is that will be 6-3. I mean, it's hard to say again. That's one of the fascinating things about the arguments, because you can sometimes really get a sense of where they're going with their questions. They'll tip their hand a little. We don't have the full briefings on it, and they've just granted that case. It'll be argued next fall, but based on the arguments that have been raised and the constitutional issue of stake, equal protection of 14th amendment, the conservatives have a more narrow view of that, and liberals have a more expansive view. If that were hold, I would guess that case would be 6-3. The bans will stand. What's not at stake in that case is there's another issue that they're not going to decide, so there's an unresolved constitutional issue on whether that runs afoul of parents' rights and their parents' rights. That would still be another issue people could try to come back on. Seems like the core of the past couple of years has really leaned into some of these culture war issues. Is that something you get a sense that they're eager to take on those types of things, or would they rather stay out of these third-rail type topics? Or do they not really have a choice? I think they take cases that come to them. Right now, you see people across the country aggressive attorney generals in southern states primarily trying to get cases to the Supreme Court. Look at what's going on in Louisiana, where you've got the governor saying that the Ten Commandments have to be in every classroom prominently displayed as a center focus. That is blatantly unconstitutional. You see that going down based on the previous 1980 Kentucky ruling and some of the other rulings? It's unconstitutional in a matter, but there is an old line of cases that basically has already been overruled. He's arguing that take it informally overruled the lemon test, but I don't know. I mean, my point is, I mean, I will see, but my point is that so there's a real effort to get the court to take these cases. And I think what we saw this term is the court said, hold on, fifth circuit, seven of the nine cases they had from the Fifth Circuit, the conservative Fifth Circuit, they reversed. So, you know, they're... Six, three conservative majority of the Supreme Court reversed the majority of rulings by the even more conservative Fifth Circuit. Correct. And many of those cases were not six, three, they were more unanimous than that. So, this conservative Supreme Court is telling the Fifth Circuit, you know, stop. So, you know, I think that you could try to get cases to the court, but right now the court is showing, I think, some discipline and saying, it's got to be properly before us. The parties have to be the right that, you know, we're still going to insist on these procedural niceties. We're not just going to be looking out for, you know, you're not going to be able to drag the Supreme Court into these political disputes. Yeah. It seems, you mentioned how eager, I mean, I was struck, I think the governor of Louisiana said, like, bring it on. Like, I'm looking forward to fighting this in court. Yeah. I'm going to take it all the way up to the Supreme Court. You know, of course, you know, he's got a lot of problems in Louisiana and people can't afford insurance anymore. So, you know, politicians would rather talk about these social issues and distract people from, you know, things that are really affecting them in their home states. Story is all this time for politicians. Jan, with that, I want to thank you. I'll let you get back to your day job. That's not really just started talking, but it was great to talk to you. I mean, it's been an incredible term. And I also feel like even in the time when we first started working together to today, the residents of the court, you know, the time, you know, we worked together at CBS, you know, we watched the gay marriage ruling and some of those rulings. But in the past couple of years, it just feels like the cases they've taken on and the impact the court is having, especially in the last couple of years, it feels more impactful. It feels and it feels like top of mind for Americans in a way that it wasn't always the case. Well, I mean, I think, you know, it always feels like it's consequential because we're in the middle of it. And the court has, you know, always had major decisions that have enormous impact on everyday life and decide the presidency, like, for example, Bush versus core. I think this time, you know, you've seen a couple things that are different. You saw, I think the court was a real issue in the 2016 presidential election conservatives, or at least it gave conservatives cover for why they were going to vote for Donald Trump. They pointed to that that is very unusual. The courts rarely an issue in the election. And then you've seen this court overturn Roe versus Wade, which then became an issue across the country and elections across the country. So the court has also some of its decisions have driven politics as well. And those disputes are not going away. Once you get on somebody's radar, what's this court doing, you know, taking away reproductive rights, you know, people then start paying more attention to the court. What else are they doing? So I mean, I agree with you that it does now feel like it's the center of conversation. We'll leave it there, Jan. Appreciate the conversation. The insight is always and great talking to you, much. Talk to you soon. All right, I want to thank Jen Crawford again for joining us. Appreciate her insights, her wisdom. When it comes to all things Supreme Court, I hope you enjoy this conversation. If you want to be able to hear more of these types of conversations and you're not already a member, please join Mo News Premium over at mo.news/premium. Again, mo.news/premium. We have a special deal for groups and families. It's a way to get access to our members on the Instagram account, members on the podcast, weekend news coverage, news quizzes, a lot of extra content and also the knowledge you're supporting independent media and mo news. Thanks, everyone. I'll see you back here soon. [Music]
