Toronta. What difference without kennedy . He was the most heterodox, has strong views on subjects but they dont always line up with the traditional liberal conservative, very much in favor of gay rights, free speech, whether liberal or conservative free speech and he was sometimes wild card. Most likely new justice will be line up with the other four republican. Paul that could be the case, dan, its interesting, if you look at First AmendmentJuris Prudence, kennedy was very strong, wrote the Citizens United decision, for example, on Campaign Finance and free speech and theres no guaranty that his replacement even if socalled conservative is going to be as strong on First Amendment or even on state rights. Well, thats right. All of these nominees in Supreme Court, intelligent person have their own mind, they are able to identify whether they will vote most of the time with conservatives or the liberals but theres no real predicting and a lot of the issues have been in play, i think, the First Amendment is Going Forward is going to be a big one as people begin to argue that the First Amendment should give weight to things like speech in the last term Justice Gorsuch in one of interesting he said he would like to revisit Fourth Amendment on searches and seizures. He thinks its unclear. The court ought to do housecleaning there. Its a little hard to predict other than what james suggest probably the next nominee will align with conservatives, almost certainly. Paul alyysia, lets talk about politics, we have seen democrats react with horror, they are still sore over Merrick Garland approved in president obamas last year in office. Congress confirm maryland judges in midterm years. I think thats right. Kagen, justice scalia, several nominees from both parties had confirmed during midterm year. Paul filibuster is no you can blame harry reid for that in 2013 because he we wanted to pack the dc circuit so that they could reinforce the obama regulations. Paul that was for Appellate Courts. Thats right. Paul with gorsuch nomination, the republicans decided to get rid of it for Supreme Court nominations but thats in part because the democrats opposed gorsuch. They didnt want to allow confirmation, you saw manchin, three democrats did vote but they would not have allowed trump to get any nominee on to the court. Paul they supported gorsuch and they wouldnt have unless the republicans had shown an advance that they had the votes to confirm. Thats right. Paul democrats would have been a lot smarter to support gorsuch and retain filibuster for this nomination. Absolutely, they have nothing going in. Couple things, the fact that they are reacting so strongly tells us the Supreme Court looms too large in our life. Paul could not agree more, bill. Personal believes for the law, thats a problem whichever side comes out. I think one of Justice Kennedys great contributions, though, in those decisions where it went south was Justice Scalias greatest memorable phrases about fortune cookies and so forth. But i think that the reason the Supreme Court, especially large for the left, their preferred legislature. They would rather work through and get 5 justices to put something through that couldnt make it through the democratic system especially on state by state basis and thats why they are so very upset at this. Paul james, our friends on the left are already saying this is going to be the end of abortion rights, the end of gay marriage, but i really do not see that happening even with a fifth conservative vote. I think certainly chief Justice Roberts will be very cautious about overturning any of these those precedents. I think gay marriage is here to stay. How would you undo all of the marital contracts entered into by the people all over the country. On abortion its quite possibly that eventually roe versus wade will be overturned, it would take at least 6 justices, they will proceed cautiously. Paul im not sure conservatives on the court will overturn roe v. Wade, it would be disruptive. Dan, what do you think . I think thats right especially whereon roberts being chief justice, hes aware of the courts reputation, i think that part is overblown. Make no mistake, the liberals are going to elevate this issue during the battle over abortion rights, womens rights, minority rights, health rights, they will try to make it a big political issue, problem is that could animate conservatives and republicans to turn out in november. I think the democrats are in a very, very tough spot with this nomination politically. Paul all right, thank you all, when we come back from free speech, a look at kennedys legacy and how Supreme Court likely to change with his retirement. Alice is living with metastatic Breast Cancer, which is Breast Cancer that has spread to other parts of her body. Shes also taking prescription ibrance with an aromatase inhibitor, which is for postmenopausal women with hormone receptorpositive her2 metastatic Breast Cancer as the first hormonal based therapy. Ibrance plus letrozole was significantly more effective at delaying disease progression versus letrozole. Patients taking ibrance can develop low white blood cell counts, which may cause serious infections that can lead to death. Before taking ibrance, tell your doctor if you have fever, chills, or other signs of infection, liver or kidney problems, are pregnant, breastfeeding, or plan to become pregnant. 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Paul Ronald Reagan appointee Justice Anthony kennedy was at the center of many courts biggest decisions over the last 3 decades casting the key vote in landmark cases involving abortion, affirmative action, gay rights and guns and Campaign Finance. Editorinchief of the cato and i spoke with him about the kennedy legacy. Welcome. Lets talk about Justice Kennedy and legacy, you wrote this week while you end up agreeing where justice came out on a lot of cases, you disagree with the way he got there, explain that. Part of the rule of law isnt just getting the right results but the reasoning matter, thats why the Supreme Court explained itself, so people can follow how the law develops, what it means, what the constitution means and Justice Kennedy didnt follow kind of conventional juris methods, the purpose of given law or anything in particular, people tried to evaluate, i certainly did how he got to the answer in a lot of different areas of law but often there was simple inscrewedability or the idea that Civilized Society doesnt pass laws that harm people, for example, rather than importing national right theory of the law or involving constitutionalism. I agree with him a lot. Probably the most libertarian justice, thats allow bar, a bit of a black box as well. Paul i agree with you on the racial Juris Prudence, he didnt give clear guidance even though he was swing vote on University Racial preferences but on the First Amendment, for example, i think that he had actually a very clear sense of what was legal and constitutional under the First Amendment, he provided the key vote, for example, he wrote the opinion on Citizens United and had a lot of the firstamendment cases gone the other way, we would have a diminished free speech right. Yeah, thats one of the exceptions that proves the rule that i was talking before absolutely, Justice Kennedy was not the swing amendment on First Amendment cases, Citizens United or other. The most free speech justice that weve had in quite some time, maybe ever. You saw that in several opinions that term this past week whether with the compelled speech with Public Sector unions or Pregnancy Centers. Paul let me push back again, if you want to describe kennedys Juris Prudence, personal liberty that led him to social left on abortion rights and gay rights, on free speech and gun rights and Property Rights the right. That was consistency of the court of Juris Prudence, what do you think about that . Youre trying to make consistent claims and i dont think it holds up. You mentioned Property Rights, he was one of the votes for the government, for the Development Agency that you can take property from a private business, individual and give it to another private actor and so, again, its part of the contextualize issue areas, certainly he was for personal liberty in many ways but not in the way that libertarian, not in the way that cato or institute or scholars might like. He didnt apply National Rights theory or any other way that you might describe like gorsuch, neil gorsuch, i think is dedicated to and so it really depends on how it fit into his view of the world in certain cases the structural protection be that federalism, separation of powers was important and he was a key vote on the obamacare case, for example, fully in line with striking it all down but in other examples, race versus gonzalez, the federal government can regulate plants that you grow in your own backyard, medical marijuana. Paul all right, fair enough. Theres inconsistency there. In the balance i would say he did strike he did tend to support cases that helped a clear definition of the separation of powers. But i want to talk about nile gorsuch, first year on the court, very important term. Howhow do you think he did . I think he did really well. He very quickly has become my favorite justice. Hes the only ph. D on the court and his approach is very philosophical, First Principles oriented. You sauna his opinion in carpenter versus United States relating to whether the police need a warrant to get cell phone location data and although technically gorsuch was descending from the ruling against criminal defendant for the government, that was concurrence in all but name. He had technical reasons there but calling for a fundamental rethink of Fourth AmendmentJuris Prudence not to be tied to 50yearold precedent of reasonable expectation of privacy which after judge. He focused on property right aspect of Fourth Amendment, gorsuch looked at have you taken steps to protect your personal effects and papers, whether thats digital, contractual, property or otherwise. You can see that again and again in textual and first principle constitutional cases, he really wants to go back to that well. Paul one question about the future of the court after Justice Kennedy, a lot of people on the left are saying that roe v. Wade, abortion rights in jeopardy. Not roe v. Wade. With john roberts becoming the median justice, which is the case we have another gorsuch, hes incrementalist and minimalist, i doubt that he would want sweeping overrulings of a whole slew of controversial precedents but he would be more likely to uphold restrictions, so some of the restrictions that have been overturned or struck down in the last little while on abortion and other things would be upheld without necessarily overturning some of these longstanding precedents. Paul gives state a chance to regulate a little more but upholding the fundamental right. Thank you very much for being here. Appreciate it. My pleasure. Paul still ahead blockbuster this week to banner Supreme Court term, from First Amendment rights, public Union Workers to President Trumps travel ban, our panel looks back at justice nile gorsuchs first year on the court and Anthony Kennedys last. Come here, babe. Ok. Nasty nighttime heartburn . Try new alkaseltzer pm gummies. The only fast, powerful heartburn relief plus melatonin so you can fall asleep quickly. Oh, what a relief it is you might or joints. Hing for your heart. But do you take something for your brain. With an ingredient originally found in jellyfish, prevagen is the number one selling brainhealth supplement in drug stores nationwide. Prevagen. The name to remember. Paul even without kennedy announcement the Supreme Court this week wrapped up what can only be described as blockbuster turn. Justices handing President Trump a big one in travel ban an Public Sector a big defeat in order to complect fees. Back with dan henninger, james taranto. Janus alone is a big one. This is a huge victory. Victory substance subsequently for the First Amendment but its a huge defeat for a lot of the democrat Interest Groups because theyve used this money that they were able to coerced from people in politics. I think like wise the First Amendment case in Pregnancy Centers in california not compel today give out information. The travel ban, i think the travel ban is separate category. Anyone but President Trump that wouldnt have been an issue. Whats interesting about this with kennedy, normally hes known to be the fifth guy voting with the liberals on a case. 1954 decisions and none of this paul any other cases that you cite this year . I think the carpenter decision which came out last week where Justice Roberts sided with liberals in expanding basically Fourth Amendment to cell phone records and cell phone data and the way he did so was easy and will be extended and Fourth Amendment has never applied to thirdparty data, could make it harder for Law Enforcement and National Security to do their job. Paul dan, what do you make of nile gorsuchs first term . I thought gorsuch began to establish himself as a clear and independent voice and as shapiro was suggesting in interview, nile gorsuch, a young member of the court, probably he will be joined by another young member of the court and some of these younger judges, i think feel that over the years the Supreme Court has become a lot of the law is unclear in areas like the Fourth Amendment, possibly in the First Amendment as well and i think hes going to spend a lot of his time Going Forward being the voice of clarity about the constitution on the court and i wouldnt be surprised if the new judge joining him say amy, for instance, from notre dame if shes the nominee, Appellate Court in dc, will join him in that effort. Paul james, what about the liberals this year . They won a couple of cases certainly with carpenter, what do you make of the divide that i think you see emerging between brier and kagen and sotomayor. We have seen it for a while. In the obama case 2012, kagen and brier joined conservatives in striking limiting the medicate expansion. This is something that we have been seeing for a while. Sotomayor and ginsburg, seem to be about issuing creed in favor of vision of quality or what have you and it is an interesting divide, its not entirely homoagain homogeneous. Paul she goes with chief justice to form majority as long as narrow decision. The baker got the right not to bake the wedding cake for or the Administrative Law case which she wrote 63 ruling with three liberals on the other side. Paul thats correct. In both cases you had narrow ruling, not a landmark ruling on the fundamental constitutional principle, do you agree with that . Yes, master p