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--:-- Host: John Bickley: The Supreme Court ended its term with a series of significant rulings that addressed everything from judicial overreach to protecting parental and religious rights. In this episode, we speak with legal expert Kerry Severino about the court's final flourish of rulings and how they affect the Trump administration's goals and change the legal landscape. I'm Daily Wire executive editor John Bickley with Georgia Howe. It's Sunday, July 6th, and this is a weekend edition of Morning Wire. Joining us now is Kerry Severino, the president of the Judicial Crisis Network and co-author of Justice on Trial.
--:-- Kerry Severino: First of all, thank you so much for coming on. Great to be here.
--:-- John Bickley: So we had a series of precedent-setting rulings come out on Friday last week. We've had a bunch of Scottish rulings over this term that have been huge. We wanted to start with arguably the biggest one from last week. That's Trump versus CASA. This relates to birthright citizenship, though the meat of the ruling is actually not on that issue.
--:-- Kerry Severino: Yeah, now this was an exciting case to get at the end of the term, first out of the bat on Friday, because normally I'm used to June being a depressing month in a lot of ways. You lose a lot of cases by a bit. This is a 6-3 solid win. And what the majority said was basically it slammed the door on the idea of using universal injunctions to block presidential initiatives. This is something that has dramatically increased. It's a novelty in federal law overall, but it is super expansive under Trump in particular, where instantly everything he does gets enjoined nationwide.
--:-- John Bickley: What the court said is you can have an injunction. And this is remember, this isn't even the case hasn't even been decided yet. They just said, what do we do in the meantime while the court is looking at this? You can block the executive order as to the actual plaintiffs in the case. In this case, that would be a couple states and that would be some immigrant rights groups. So their members, it might be blocked as to them. You can't just say no enforcing this in order anywhere at all times in all places. And that's a huge win for constitutional governance and the separation of powers.
--:-- Kerry Severino: Now, you said this is a novel interpretation or novel use of judicial authority, this idea of these universal injunctions. Can you unpack that a little bit more for us?
--:-- Kerry Severino: Yeah, so Justice Barrett, in her decision, really did a masterful job of showing the history. And you can really see she clerked for Justice Scalia. He's her mentor. It was an originalist, historically based opinion through and through. She looked way back to English common law and said, what are the authorities of a judge that we thought we were giving to judges in the Judiciary Act of 1789? And it's very clear this was never understood to be part of the judicial authority and, in fact, wasn't ever part of the judicial authority until the 1960s.
--:-- John Bickley: So this is something that's very new in history. And, again, almost all of the historical examples of all time of this kind of thing happening have just been over the last few presidencies. And the vast, vast majority have been specifically under President Trump. That doesn't read like it's an actual judicial thing. It reads like this is more an example of judges who are letting their politics get in the way of what their their actual judicial role is which is deciding cases by the parties in front of them Trump has been the most aggressive president ever in terms of use of executive authority I think it's 142 executive orders in the first 100 days.
--:-- Kerry Severino: How does this change the landscape for his administration going forward?
--:-- Kerry Severino: Yeah, now this is not to say that he's not going to still have to defend a lot of those orders in courts. Then he's, of course, getting challenged on them left and right. But it does mean that those orders actually have a chance to take effect while the litigation is going on. So instead of immediately hitting the pause button on every single one of those and just praying you can get through the litigation within the four year presidential term. Now, actually, he can move forward and not have to be fighting that on those multiple levels at once. The long road is finding all of these, getting looked at in detail by the courts. But in the meantime, he's not going to be hampered by activist judges.
--:-- John Bickley: So in this particular case, we have birthright citizenship, a very thorny topic to say the least. Where do you think this goes? I mean, do you think that ultimately this is going to come back to the Supreme Court and we're going to have a ruling in Trump's favor? Or is this really a difficult case to argue?
--:-- Kerry Severino: 100 percent this comes back to the court. I don't think it's clear yet where the court will come down in it. You know, we've got language in the 14th Amendment that governs birthright citizenship, but you have to read it within the context of those who are under the jurisdiction of the United States. And that's the tricky language. The court's going to have to take a look at it. But what this means is in the meantime, the order does go into effect and there's going to be a lot more litigation in the lower courts. At the end of the day, the Supreme Court's probably going to have to step in maybe more than once to keep the other courts on track. And we'll get a decision from them. We're just not going to force them to do it right out of the gate day one.
--:-- John Bickley: That's where I think the dissenters got a little out over their skis. They wanted to just decide the birthright citizenship thing. And you've got Justice Sotomayor going on and on about what her opinion of the merits of the case is. That's not the decision for today, folks. We'll get it soon enough.
--:-- Kerry Severino: There has been a lot of attention paid to Justice Coney Barrett's response to Ketanji Brown Jackson's dissent. What drew her particular attention? And is there something notable there in terms of legal arguments?
--:-- Kerry Severino: Yeah, I think that's another way that her opinion was Scalia-esque in a way. We all remember some of the great rejoinders that Justice Scalia had to sloppy or silly reasoning in the dissents. And that's what Justice Barrett was calling out with Justice Jackson today. Her opinion was really just full of rhetoric about how could a court ever allow anyone to do anything that's contrary to the Constitution? And it just missed the whole concept of limited powers. And so that was one of Justice Barrett's comebacks on that is, look, you may not believe in an imperial executive, but you believe in an imperial judiciary. That any time just roving around, you see anything that looks wrong, you've got to smack it down. It doesn't matter if they're before you. It doesn't matter anything else. Just do justice. That's not how a government of limited powers works.
--:-- John Bickley: Now, in terms of the merits of the case with the argument from the Trump administration's side that the 14th Amendment actually limits this idea of citizenship based on birth origin, what is the Trump administration's argument in this case?
--:-- Kerry Severino: So what they're saying is there are certain people who are obviously if you're the child of an American citizen and the child is born, they're clearly a citizen. Right. But their question is who are the people that are not subject to the jurisdiction of the United States whose children are not automatically citizens even though they born in America Everyone agrees that includes people like you know the children of ambassadors or the children of an invading army I don't know how many invading armies bring pregnant women with them, but that if they did and those women gave birth, they clearly would not be American citizens.
--:-- John Bickley: The line that President Trump is trying to draw is he says, look, illegal immigrants in many senses are not subject to the jurisdiction of the United States. They're violating U.S. law to get here. Um, that is a group that shouldn't be included. And then a little bit harder argument, but, but one that also, you know, I think needs to be explored some more is people who are here just temporarily. You know, if you're, it's, it's one thing if you're a green card holder, you, you, you know, you have permanent residency, but what if you're just here on a student visa? What if you're just here for, as a tourist? And we know there are a lot of people that get citizenship under those circumstances. Are those people properly subject to the jurisdiction of the United States or are they really subject to their countries that they just were here visiting from.
--:-- Kerry Severino: So that's something the court's going to have to look at. They'll look at the history and all of the background on these things. And I think it's we have to be careful not to just jump to the conclusion that we we hope is true because we we want that to be what the Constitution says. We need to look at what the Constitution actually means.
--:-- John Bickley: Now, another significant ruling handed down Friday lines with the Trump administration's stance on parental rights and religious rights, particularly as it relates to the LGBTQ agenda. Can you lay out the majority opinion in Mahmood versus Taylor?
--:-- Kerry Severino: Yeah, that case had to do with a Maryland school district that was refusing to allow parents an opt-out when they introduced books that were advancing the LGBTQ agenda. And what the parents were saying is, look, everywhere else, this is very unique in the country to not allow an opt-out. I remember opt-out when I was a kid from health classes where they were teaching things, etc. But this school said, no, this is too important. And ironically, they even said when we did have an opt out, too many people were opting out. So instead of taking the subtle hint that the parents are not interested in the school giving this values education on these issues that might differ with their own values, the parents want to be the ones to introduce these very sensitive and important topics. The school just plowed ahead and said, nope, we're not letting anyone opt out.
--:-- John Bickley: The majority opinion said that is not going to fly, that the First Amendment really protects religious freedom and if parents have a right to direct their children's education, doubly so when it comes to their religious education. Justice Sotomayor, in her dissent, tried to say, oh, no, these are just books talking about like being nice and tolerance. But I think Justice Alito was very clear in his opinion. These are books trying to promote a philosophical and in some ways a religious agenda that is at odds with these plaintiffs who span a lot of different traditional religions and Muslims and Jews and Christians across the spectrum.
--:-- Kerry Severino: There are a lot of people probably of no religion that want to be their own children's educator on this and want to address it the way they want. So this is a great victory for parental rights and for protecting children from becoming hostages in the culture wars.
--:-- John Bickley: How consequential is this ruling? I mean, is this going to change the landscape across the country? The Maryland school district, luckily, was really on the leading edge of trying to deny these rights. I think the real danger is if the Supreme Court had gone the other way, I worry that you would have seen even more school districts across the country trying to push the envelope on how far they can wrest control of children's religious and values education from their parents.
--:-- Kerry Severino: This is a great reset to remind them it's the parents that are that are doing this. The parents are the ones paying the bills anyway. It their taxes that you doing this with instead of having the schools kind of think that they are more important and that ultimately they know better than the parents about how to raise the children
--:-- John Bickley: So in many ways Maryland was trying to be a forerunner here on this issue I would assume there's some districts in California that would have some similar policies. I'm curious to see if there's other cases that come up in some other states. At this point, they would be on very bad legal footing if they tried it, but that's not going to prevent them. There's a lot of people who try crazy things.
--:-- Kerry Severino: To what extent can public schools require exposure to LGBT-themed content after this? Is it going to be that they have to have opt-out requirements? Is that what you foresee?
--:-- Kerry Severino: Yeah, I think they'll at a minimum have to have opt-outs available for families. And remember, this is particularly egregious. This isn't like high schoolers even. We're talking down to kindergartners who are being presented with this really inappropriate for their age level. Even if it's coming from your own perspective, do you really want your kindergartner being exposed to this and having that be their entree to this complicated topic?
--:-- John Bickley: So I think a lot of schools are going to hopefully take the memo and say, you know, maybe this is something we can put off until kids are a little bit more mature and able to address these issues. But at a minimum, they will need to provide an opt-out. They can't just push it into the broader curriculum as they were trying to do because the parents ultimately have that right over the children.
--:-- Kerry Severino: Final question, another ruling that came down last Friday. How does the Supreme Court balance adult access to legal pornographic content with state interests in protecting minors? This is a case out of Texas. Can you tell us about this ruling and what it means?
--:-- Kerry Severino: Yeah, this is important because every time you get a new technological development, the court has to kind of catch up and make sure we understand how does the First Amendment still apply here? How does the Constitution work with this? And the Constitution has, in the First Amendment, it has been determined that under obscenity law, there are certain materials that may be obscene as to children, but are not technically obscene as to adults. And so the adults have a right to view them. But the state still has a compelling interest to protect children from that material.
--:-- John Bickley: Texas was trying to navigate that by requiring porn sites in their state to do some kind of age verification. And the sites were pushing back, saying, no, no, no, this is going to create a hurdle for adults who want to view it.
--:-- Kerry Severino: I think at the end of the day, what the court said is, well, yes, it may create a hurdle, but we're not doing that to try to quash the adult speech. We're doing that to try to protect the children and when the state has such a compelling interest in that protection. And really the hurdles, we all know if you wanted to buy cigarettes or alcohol, you have to do the same kind of age verification. This isn't impossible to do. It's commercially available.
--:-- John Bickley: So the court simply said, you know, on the balance, the state's interests outweigh the interests of the adults that want just unfettered access to porn. I think that fits in a pattern with the Mahmoud case of the court protecting children. And also with the previous case that was decided, the U.S. versus Scrimetti case, that said Tennessee may protect the children within its borders from being mandate, having mandated access to long term effects of these experimental transgender surgeries and treatments. So the court really does want to preserve the government's ability to protect children. That's a great takeaway from this term.
--:-- John Bickley: Well, definitely big wins for the agenda of the Trump administration and pretty decisively most of these six three rulings. Thank you so much for joining us. Appreciate it.
--:-- Kerry Severino: Great to hear. That was Kerry Severino, president of Judicial Crisis Network. And this has been a weekend episode of Morning Wire.
