Cspan2. The Supreme Court just wrapped up its current term with a number of significant decisions. Host we have briand goron and john malcolm here. Thank you for being in this morning. Breanna, i will start with you and ask what your take is on the decisions that came down in the recent term. There were two Big Decisions that came down the last day of the term. Guest i think this was a deeply different disappointing decision from the court because the chief justice threw up their hands and acknowledged that extreme partisan gerrymanders are inconsistent with what quit to do anything about them. Justice kagan got it right in her decision when she recognized , when do the courts can do things when can the courts do things . Otherwhat was the decision last week you thought was important . Case, it the sentence challenged the Trump Administrations decision to add a Citizenship Question to the 2020 census. The chief justice got right on this one. I agree with some of his legal reasoning, but he was right to reject the effort to add this question to the census. As he said, the secretary of was contextualon and this would undermine the accuracy of the census count. This is an important count that we take every 10 years to determine how represented are dust representatives are allocated in congress and how funding is allocates is allocated. Thisthe census recognizes would undermines the accuracy of the count. Host john malcolm, your take on the recently completed term . Guest as is the case with all terms, there were some opinions that pleased and disappointed me. In the last week, the agency case, the kaiser case, where i thought it was a step in the right direction of raining in the deference courts are supposed to give agencies interpreting their own regulations, but it didnt go as far as i would have as far as i would have liked. I will comment on those two cases. With respect to the part of his and desh partisan gerrymandering case, the court partisan gerrymandering case, the court said gerrymandering has been around for our entire history. Around in the late 1900s and they drew a district that looked like salamander. Thats where gerrymandering came from. The majority in the router case case didnt rucho say they like gerrymandering. They said the framers in the constitution didnt give judges a role. They said this was checked by congress in order to do anything if they wanted to do anything about partisan gerrymandering. Any constitutional challenge speaks to the need for proportional representation. Theres nothing in the constitution about proportional representation. And there is no measurable, ro liable criteria that one can come up with to measure how much reliable criteria that one can come up to measure how much gerrymandering there is. With respect to the senses, we had a Citizenship Question on our senses, in one form or the sus, we had a Citizenship Question on the census, and one form or the other. There were all kinds of questions about race, gender, and all preferences on the census. The court said this wasnt a violation of the constitution. The enumerations clause says theres supposed to be a census conducted every 10 years. It doesnt say congress how. It doesnt Tell Congress how. t think the court got they got a fractured opinion. Before the liberal justices reasonsecretary rosss for joining this, intentional. He kicked the case back to the lower courts and gave commerce an opportunity to come forward with a more fulsome explanation. Whether they have time to get it done, host we will focus on more than just the census and gerrymandering, but watching these last courts, the market cases and final decisions, both of those felt like unfinished work. Citizenship in the case, it is still an active case. Guest thats right. Maryland,ct court in a number of courts around the country, and one of those cases was the maryland. The District Court judge there was considering the addition of this question was motivated by discriminatory purposes. That could well proceed if the administration indicates it would continue to try to put this question on the census. The question is timing. They needed to have the census questionnaire finalized by june 20. Theres a serious question about whether there is time to go back to the bureau and try to come up with another reason to put this question on the census. Host are there other potential gerrymandering cases that could come for the next term . Guest rachel gerrymandering cases, the start has died of those. They have another one of those this term, too. Unless there is change in the composition of the court, the issue of political gerrymandering is decided. Undecidedother issues, but i dont think that is one of them. Host i want to get our washington journal viewers and listeners in on the conversation. 202 7488000 free democrats. 202 7488001 for republicans. Independents and others, 202 7488002. , an the conversation and couple of the key decisions came down in announcements from the court as the term concluded. They temporarily blocked the 2020 census Citizenship Question. They ruled federal judges have no authority to correct artisan gerrymandering. They allowed for the jailing of certain immigrants eligible for deportation. They allowed a person to be charged and tried for the state offense same offense in state and federal courts. They also decided on the case of the peace cross, allowing the cross in maryland to stand. Brianne, your take on that decision in terms of what it means for potential of religious freedom cases to come before the case . Guest it was interesting, the way that the justice who wrote for the majority in that case wrote the opinion. It was not as broad an opinion as you might have expected from the conservative court. What he said was that this is a memorial that has been out for a long time and was not put up to promote christianity. He distinguished this cross and the question of keeping the cross up from putting up a new cross in the future. Justice breyer also suggested Courts Holding in this case was pretty narrow. I dont think it tells us that much about other similar cases in the future. Host john, where do you does that open the door for potential other religious liberty cases . Guest religious liberty cases are always on the court bar stockett. I agree and slightly disagree. I agree with that the court the court did not go as far as they could have. One thing i found very significant, in the early 1970s, this of bring court had a case in which it established a threepart test where the court was going to use for establishment because whenever it was looking at establishment establishment clause, whenever it was looking at establishment clause cases. Courts is all over the map. In that case, not a single justice has a kind thing to say about the lemon test. Even the two dissenters. They didnt even mention lemon in their dissent. I think it is possible that lemon is on life support, but also possible the pathologist has not arrived to declare it dead. I thought that was significant. We will see if lemon truly is dead. Host more cases that talk about. Here with the heritage found age on dacians institute for congressional Government Vice president , john malcolm, and Brianne Gorod, tell us about your view on the court. Publicthe center is a law firm tank dedicated to the progressive premise of the constitutions history. When you look at the constitution, when you look at the whole constitution amended over time to be made more democratic and i terrien, it is a progressive document. We make the originalist arguments, but we make arguments branded grounded in the constitution. The Heritage Foundation is a very prominent conservative think tank. The institute for Constitutional Government where we discuss all legal issues, we discuss it at the constitution on a conservative perspective and originalist perspective. We engage in robust and civil debates with organizations like sometimes find common ground, but often dont. Some otherll get to cases, but we have colors waiting period hear from bill in virginia beach. Bill, republican, go ahead. Caller real quick. Looks like we have one conservative and one progressive liberal on our show today. I wanted to ask a quick question. Understanding,l to both your guests, does a person have to be a u. S. Citizen in order to vote in a president ial election . In any state in the country . I will get off the phone and listen for your answers. Guest i think the answer to that is, yes, the states can allow noncitizens to vote in state races, but citizens cannot vote in a federal election. Caller the Court Announced host the Court Announced that they are taking up the dhaka term,ecision in the next these children that came in as young immigrants. Set the scene on that. What is the issue at stake . Guest this was a challenge set up a program set up under the obama administration. Not to grant citizenship, but to allow individuals brought here as children to have deportation deferred, be able to get work permits. It has been an incredibly successful program. The Trump Administration decided to terminated because they said it was unlawful. There were a number of challenges brought, and what we have consistently seen from the lower courts is the decision that the program is not unlawful. Towas a lawful exercise determine where to focus Immigration Reform and resources. So the order to terminated cant stand. Host they are taking this up with a decision likely from a year likely in a year from now. Guest im not surprised by it. To fill out a little bit about what she said, the deferred action for child Arrival Program was put in by president obama. He said he was going to do this by executive action, uses phone and pen, the Trump Administration, and authorize this on prosecutorial discretion. One thing a president can do with their phone and pen can undo it pen, another can undo it with their phone and pen. A number of challenges have been asserted and a number of lower courts have frustrated the administration trying to wind down dhaka saying it is arbitrary action. The court has decided to take up whether in fact the Trump Administration can unwind daca the way they have. Even if the issue has been exercised in project or prosecutorial discretion. I was not surprised to see the court taken up. Host logistically, when they announced the case this far in advance, they could take it up. Are they likely to take it up early in the term . They can certainly decide earlier than june 2020. Guest given when it was granted, it will probably be heard at the end of this year. Often the cases that are the most contentious, where there are likely to be multiple opinions, those are the ones that often being decided in june. Host lets get back to calls. Republican line, phoenix. Good morning. Caller good morning. Thank you very much. I have been watching for a little bit, maybe half an hour. I did see the previous section. It seems like everything is being kicked down the road. They can is being kicked down the road, and it seems the , Justice Roberts, is doing one of the same things, some of the same things, kicking the can down the road. There will come a time when people face and confront responsibility. That the senses question is nothing. Theres nothing that can be said about it, except it is illegal legal and very fair to ask about citizenship. This is the responsibility of govern the, to in thethat are legally continental United States, and also the other territories, of course. I will hang up and listen. Thank you and have a great day. Host thank you. I was going to go back to first principles. We talked earlier about the constitutional question in the case. Thats where i disagree with john and the chief justices opinion. The opinion mandates the count of all people in the country, no matter if their citizens were not oro no matter where theyre from. If you look at the history of the constitution, there is evidence throughout the base that this was important to the framers. Just to put a finer point on something john noted earlier, the Citizenship Question has been asked in some form, but not asked in the short form of all respondents for decades. Int is important Context Understanding what a significant change the Trump Administration is proposing, and why experts within the census era thought it could undermine the accuracy of the count. Guest it wasnt a short form and asked of every house up until 1950. Between 1950 and 2010, it was 12, 13, or 15 of households. It does do a count of everybody and asks whether the person is a citizen. It doesnt ask whether they are here illegally. There are lots of people that are lawful permanent residents that live in the country who are not citizens. Answers to census questions are, by law, to be kept confidential. There are reasons on why you would want to know about citizenship. The reason it was offered by sec. Wilbur ross, was that the department of Justice Needs the information to litigate Voting Rights act cases and cases challenging whether there are enough majority minority dish makes districts. There are lots of programs were the beneficiaries have to be United States citizens. The court didnt buy the reason that was offered by secretary ross, but those are the policy reasons in support. Host correct me if im wrong, but the question is out of their hands come out of the court part chains. It is back to the Commerce Department and state cases proceeding in maryland. Guest its a federal case, but we are back to the District Court. Guest i feel fairly confident in a matter of days, it will be back. Here is sydney in alexandria, louisiana on the independent line. Caller i would like one of them to explain to us how the Supreme Court has all this authority to rule laws unconstitutional or constitutional when judged , just took it. They write laws that are so scrambled up that you have a republican read it and think it means one thing, and a democrat means it another. Gobbledygookt this and write a law in plain english . Thank you. Host john malcolm, do you want to tackle the short history of judicial review . Guest there are three branches within the rogue government. The judiciary is meant to provide a check on the congress branch. What Justice Scalia was saying is that, in his view, mine too, the Court Extends itself to reach issues that they deem to be constitutional issues. Justice scalias opinion should have been left for the process. C courts are not supposed to rewrite laws. In reality, they occasionally do. Judges take an oath to defend the constitution and are there to provide impartial justice to all people who appear before them, regardless of political affiliations. Inevitably, ones Life Experiences and approach to the bench, and predilections, sneak into opinions. Its regrettable, but reality. Guest judicial review goes back to the early days of the republic. If you look at the role of the federal courts, the framers created a federal judicial system to serve as a check on illegal action. That is important to understand the gerrymandering case and why the chief justice and the courts majority got it wrong. Tois the role of the courts step in and address unconstitutional actions and extreme partisan gerrymandering, like the one in this case, is an example of that. Host the chief justice and direction of the court, this is among the wrapup pieces, the wall street journal said he moves to the right, and they write even a chief justice who holds the courts ideological center and his formal leadership cannot always retain the reins. In dissent inlf 10 cases which upheld including one that upheld a ban in uranium mining. Also, a lower courts ruling in racial gerrymandering. There were various judges joining judge ruth bader ginsburg. The role of the chief justice in this, is past term. Guest for years we talk about court referring to tony kennedy. I think it is fair to say it is now chief Justice Roberts court. Its worth remembering he is at the center of the court and conservative. He has a conservative record on court, but he has some of theys and other conservatives in the court. In part because of the chief justice caring deeply about the reputation of the court and its legitimacy. He doesnt want judges to be seen at sibley politicians and roads. Watching him this term and in the future will be interesting to see what extent he seems driven by his conservative ideological views or is willing to put those aside and follow the law in the interest of preserving legitimacy of the court. Host john, do you think the with a full convention contention is making more decisions in previous terms. Is chief Justice Roberts steering it in that direction . Guest im not sure he is steering it in that direction. If there were going to be a change, it would be a change in personnel. Is right in the chief justice is right in the center of where the court is. More majority than any other justins in the court other justice in the court in terms of the major ones. He provided the vote in the census case and is the person who kept hour and seminal rock deference. In a case. T live those were two significant cases. In terms of the change from personnel from Justice Kennedy did cavanaugh, it is early days. To justice cavanaugh, it is early days. I would say the following, anaugh has talked about being an originalist and textual list textualist. I dont think they could have set Anthony Kennedy was either of those. Billy wanted me to difference, the one you can only point to was the partisan gerrymandering case. Its a case a number of years ago in which the majo