2024 - 2025 Supreme Court Term In Review
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It's Live in the Bream with the host of Fox News Sunday, Shannon Bream. This week on Live in the Bream, it is Super Bowl week here because it is the end of the Supreme Court term, one of my favorite times of year. Although I would say I've probably developed a new ulcer because that happens the last week of June every year as we wait for the biggies.

to see what the court gives us and to break down the analysis. I've got two experts here, though. So don't worry. You're not just hanging out with me. We've got Tom Dupree, former principal deputy assistant U.S. attorney general, and Jonathan Turley, who's a Fox News contributor, a George Washington University law professor and constitutional law expert. Gentlemen, thank you for your time. Thank you. And I'm excited to be here.

Okay, so as you and I are talking right now, we are still awaiting some of the big decisions. So let's start with nationwide injunctions because this is kind of the whole ball of wax for the Trump administration. You've got 680-ish people.

federal district judges across the country at any one time. And the debate is now can a single one of them issue a decision that shuts down a policy for the entire country? Jonathan, you heard the arguments. Which of the justices will you be watching for as we await this decision? Well, this was a perplexing argument in Trump versus Casa. Many people expected for the debate or the argument to be focused on birthright citizenship.

But in reality, the focus is on that injunction question. And the justices seem to struggle with it. There was, I think, some uncertainty, particularly on people like Barrett and others as to where they may ultimately land. There's room here for nuance.

I would still bet with the administration on this. This is the most important case for the administration because it will have an effect across the country. These injunctions are continuing. And, you know, the administration has a valid objection that individual judges now can shut down the entire government.

And they have to essentially run the table if they want to get anything done. You've got to make sure that not a single one of these district court judges has an inkling to shut down the federal government on a particular question.

Yeah. And a lot of us have talked about the idea that this birthright citizenship case wasn't the best vehicle for this because it really isn't about that underlying issue. We don't expect the justices to make any pronouncement on the legality of what President Trump is trying to do to roll back this idea that if you're born on U.S. soil, you do automatically have citizenship.

So with that in mind, it does, though, bear a conversation as they had from the bench. Well, what happens then if we say that no single judge can do this? You've then got a patchwork of decisions across the country. If a baby born in New Jersey has a different shot at citizenship than a baby in Texas,

Say, I mean, what Justice Alito said during the arguments was this quote. The practical problem is that there are 680 district court judges and they are dedicated and they are scholarly and I'm not impugning their motives in any way. But, you know, sometimes they're wrong. Tom.

You know, that to me was one of the most fascinating aspects of the argument is that normally or often when the Supreme Court hears argument, they talk about great questions of law and the Constitution. But what the justices were focused on during this argument in large part were the practical consequences of how they were going to decide the case. And to your point,

Can we tolerate a world in which you literally would allow one single district judge anywhere in the country to shut down a nationwide program? And a lot of people, including I think some of the Supreme Court justices, kind of scratched their head and said, well, that just doesn't make any sense. Our system can't operate that way. But the next question that arises is the practical one. Well, if you're not going to allow that, what's the alternative?

And so we heard a lot of the justices during arguments saying, do we want a universe where you would have literally hundreds or even thousands of individual lawsuits filed? One idea that was floated was, well, maybe you could have class action lawsuits filed and resolve everything on behalf of a nationwide class.

And look, I mean, I'm not one ever to say that, you know, America needs more class action litigation, but it certainly was an idea or a concept that a lot of the justices were wrestling with. And then, of course, they also were just interested in what the practical consequence would be if they allowed the birthright citizenship policy to take effect, at least in some parts of the country, while the underlying merits of this question continued to be litigated. Would you have a universe in which

hospitals were struggling to figure out whether or not someone is a natural born citizen. Would you have a universe in which there might be some states that were following Trump's executive order and others weren't? So it's just fascinating to see the justices grappling with all the practical implications and consequences of how they decide this case. I would add also, if I may, that part of the interesting interaction was a rather sharp moment between Chief Justice Roberts and Justice Sotomayor in

on these questions. There is an underlying tension here. But Chief Justice Roberts kept on coming back to that point that Tom was mentioning, that when the other side was saying it's a very difficult challenge if you're going to require us to create a class action. And Roberts kept on coming back and saying, well, actually, there are ways to short

cut that system. And we've seen these cases move to the court rather rapidly. And Roberts kept on coming back to this notion that if you want a national injunction, then you need to establish a national class. Otherwise, stay in your lane.

Yeah. And there are questions about, OK, do they decide to narrowly tailor this in some way? OK, it's got to be class action or a judge can only decide for the parties then in front of him for a particular case or for just the geographic region that he covers. I'll be really interested to see where this comes down. And we've just got a matter of days until we find out.

One of the other cases that we're watching is one, if you live in the D.C. area, it's local. It's a Maryland school district. And it has to do with this idea of whether students and their parents can opt them out of lessons that involve books that may be in conflict with the parents' religious beliefs. And so there used to be this opt-out program in Montgomery County, Maryland.

But the interesting thing is, is they said it became difficult to manage because so many people were opting out. And it's a coalition of parents from different religious backgrounds. It's not just one denomination. It's different religious backgrounds who are saying, listen, if you have my child exposed to a book that talks about same-sex marriage or

or transitioning or other things that don't line up with our religious beliefs at home, we should have an opportunity to know that and say, "Hey, maybe we're not ready to have that conversation with our elementary school child 'cause we're talking about young kids here." Justice Jackson though, during the oral arguments did say this, she said,

I guess I'm struggling to see how it burdens a parent's religious exercise if the school teaches something that the parent disagrees with. You have a choice. You don't have to send your kid to that school. You can put them in another situation. You can homeschool them. How is it a burden on the parent if they have the option to send their kid elsewhere? Tom, kick this one off.

Sure. Well, Shannon, the Supreme Court has a lot of tough cases on its dock at this term, but I'm not sure this case is particularly tough for at least this Supreme Court to decide. During the argument, they expressed support, the justices, a majority, for the position of the parents here to basically say that, look, it undermines the values, the religious values that we're trying to instill in our kids at home if they go to school and they're enrolled in courses. These are, again, elementary school kids, but that they hear things from their teacher that

contradict or undermine the religious lessons and moral values that they're trying to instill in their kids at home. And look, Justice Jackson and some of the other liberal justices did ask questions along those lines saying, look, you know, kind of, is it really that much of a burden on religious rights? Or, you know, couldn't the parents send their kids to a different school or things like that? But to be honest, I thought that some of the conservative justices had fairly good questions from their end. They said, look,

Is it really asking too much just to allow the parents to opt out of that particular class or that particular lesson? Schools allow for opt out rights all the time. In fact, in this case, as you noted, Montgomery County, Maryland, of which I should say I am a resident, our family lives in Montgomery County,

But they used to allow parents to opt out of this sort of thing. But they decided that it was for some reason no longer administratively feasible to allow the parents to have their kids kind of go to a different classroom when this material was being taught. I think at the end of the day, this is a court that is very strongly supportive of First Amendment free exercise rights.

I think they are not particularly tolerant of arguments along the lines of administrative feasibility that they were hearing from the school board in this case. And so if I had to predict an outcome, always hazardous, but if I had to predict an outcome, I say the court's going to side with the parents on this one. Yeah. And Jonathan, how helpful or crucial or does it matter, do you think it was to the case that it's not just, say, a group of Catholic or Christian parents? There are Muslim parents and other Orthodox parents who got involved with this case.

Well, I think it is crucial. This is Mahmoud versus Taylor, and it has a collection of parents from different religious backgrounds. It's probably my two favorite cases of the term. I do think that the court will rule with the parents. I was frankly shocked and a little bit miffed as a parent by Justice Jackson's statement, this sort of dismissive statement.

comment that, well, you don't have to go to public schools. Well, a lot of people do have to go to public schools. And they would like to be able to send their kids to public schools without having lessons that go so fundamentally against their moral or social views that they're instilling within these schools. And the liberal justice has kept on coming back to, well, you know, but this is part of the function of the school, essentially to make

better citizens. And that didn't sit well any better with the conservative justices. It does appear that the school district made this change because too many people were opting out and that it was a false choice. You know, they said, oh, well, you can opt out. A lot of people did. And so they said, we're not going to let you opt out anymore.

So I do think the court's going to come down on this one. One of the things we're looking for, and in favor of parents, one of the things we're looking for is the degree to which they beef up parental rights. I've long been an advocate for parental rights. I've always felt that the Supreme Court gives

Sort of short shrift to it did they recognize that parents have some footing in the Constitution to protect their rights? But it never seems to be The the thrust of an opinion it's always sort of the bridesmaid and never the bride at the wedding and some of us would really like to see a robust statement in favor of parental rights coming out of Mahmoud versus Taylor and

And that's become a heated issue. I think it really began to surface during COVID when parents became much more dialed in to curriculum and watching over Zoom and what was going on with their kids. And it really seemed to be something that, for example, I think a lot of us believe that it turned potentially the Virginia gubernatorial election upside.

in the direction of Governor Glenn Youngkin because of a conversation that they had during one of their debates where Terry McAuliffe suggested, oh, no, it's up to the schools to decide what's good for the kids and not the parents. So this is one of those cases that I do think is going to be very interesting when we finally get a decision. There is also this case out of Texas that hasn't gotten as much attention.

of the headlines but I think is really important and it's about online porn and access for kids so there was this bill passed in Texas where the governor signed it into law required users to upload a photo of government ID in order to access a pornographic website the idea being that you keep kids

out of the mix and there's been a lot of pushback from the porn industry. The VP at ALO, which is a, this is a company that is part of PornHub, is their parent company based in Canada. And the VP said, unfortunately, the Texas law for age verification is ineffective, haphazard and dangerous.

not only will it not actually protect children, it will inevitably reduce content creators' ability to post and distribute legal adult content and directly impact their ability to share the artistic messages they want to convey with it. And Jonathan, part of the argument has been it's a violation of privacy to require some kind of ID before accessing this material. This is a fascinating case, Free Speech Coalition versus Paxton.

And it is more difficult than many citizens might anticipate. The Supreme Court has struggled with pornography as a legal category for decades. And it went through one period that took it down the road to absolute madness. That's when one justice said, I can't define pornography, but I know it when I see it. And the result was that

they would have to watch pornography. They had a room where they would watch pornography in the Supreme Court. It was absolutely absurd. And the court has never really wanted to get back into the pornography business.

But this is different in the sense that they're not really defining what pornography is, but access to what may be pornography that raises free speech issues of whether the government can force people to identify themselves.

Because some sites that might be viewed as pornographic or requiring that I.D. would force people to say, yeah, I here's my I.D. I'm I'm gaining access to this site. The court has always been skeptical of those types of threshold entry requirements.

And this law sweeps pretty broadly. And I think that the court had a real struggle with this one. Tom, what do you think here? Because, you know, Texas at some point said, OK, Pornhub has decided to pull its business from Texas because they don't want to comply with this law. And there's been some back and forth and some parsing of the law by the lower courts. But, you know, there are some people, I'm sure, in Texas who would still like access and they're awaiting this decision.

Yeah, I think this is one of these tough cases that you can really see the kind of reason why conservatives would have different views. Because look, on one hand, you don't want a universe in which the government demands to see identification before you can access things on the internet, right? You could imagine a situation where the government says, well, we think this political content is very dangerous. And before you read it, we need to see your identification. There's obviously a problem with that.

On the other hand, I think we all can recognize that there is a problem with underage kids accessing pornographic material. One of the themes during the argument was just the way that the nature and the availability and accessibility of pornography has changed dramatically in the last 10 years, certainly in the last 30 years. And there is a need for states to take action, to do whatever they can to limit pornography.

uh kids access to this material and so the challenge for the justices here i think is really just reconciling those two imperatives and trying to come up with a rule that doesn't infringe on legitimate first amendment rights of adults to access content that they want to see on the internet but at the same time give state legislatures texas in this case the freedom to do what they need to do to prevent kids from accessing this material

The interesting thing about the case is that I think a lot of it is going to turn on what legal standard applies here, whether it's the so-called strict scrutiny standard, which is just a rigorous version of constitutional review and often results in a law being invalidated, or whether the court's going to take a look at this law under what's called the rational basis standard, which is far more relaxed and is

Not quite an anything goes standard, but probably a lot closer to it. And so one possible outcome is they could basically say this is what the correct governing legal standard is, but then send it back to the lower courts in Texas to decide whether or not this Texas law actually satisfies that correct standard. Live in the Bream continues in a moment.

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Tom, you set us up perfectly for I want to get some reaction from both of you on a case that was already decided. We thought it might come the last week, but we have this Scrimeti decision out of Tennessee, and it does get at what standards should apply to a state law here. This was involving a ban in Tennessee on certain transmedical treatments for minors who were seeking those, whether it's hormones, drugs.

That was primarily the discussion at the Supreme Court, but the law also does mention surgeries. So in deciding 6-3 in favor of Tennessee and upholding this law, I want to read a bit of the majority opinion written by the chief justice. He says,

only to ensure that it does not violate the equal protection guarantee of the 14th Amendment. Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process. And so, Tom, there was a discussion of what scrutiny, what level should be applied to this Tennessee law.

Exactly. And look, the court said that a more relaxed standard of review is appropriate here. They said that they have not recognized transgender individuals as a suspect class that would warrant a higher standard of review. And they also said that they didn't think the law discriminated against.

on the basis of gender or sex, which also can trigger heightened review. When I read this opinion, Shannon, the first thing I thought of was that there's some real echoes of the Dobbs decision in here. You'll remember, you know, when the Supreme Court overruled Roe versus Wade and deciding the Dobbs case, they had a lot of similar language about noting that this is a very complicated issue on which there are, you know, strong debates in both the scientific community, also just, you know,

religious communities and people of good faith kind of arguing all sides of this issue. And the court basically said the Constitution really doesn't extend that far, that this is an issue that is properly resolved, not so much as a matter of constitutional law, but through the democratic process. And that's what the chief was saying here. He said that, look, this is complicated. The medical science is evolving. We're not really sure. Our role is simply to ensure that there's no equal protection violation.

And once he said there's no equal protection violation, the issue then gets kicked back to the state legislatures to be resolved through the democratic process. Well, and Jonathan, I saw a lot of coverage of this that was pretty hyperbolic and I didn't think accurate to what the court actually said. So what does it mean? Well, you're absolutely correct. And some of us immediately countered some of that because particularly on the left,

People were saying that this just basically gutted any transgender arguments that can be brought. That's clearly not true. The majority opinion by Chief Justice Roberts leaves open the possibility of precisely that type of challenge because what the court said was that there's no evidence here of animus or targeting of transgender people as a class, the transgender class itself,

This is not focused or targeted in that sense. So Roberts removed it from that area. So it is possible to bring a case that is suggesting that. But there's a couple of aspects that Tom touched on, which is going to leave a mark. One is for the court to once again say, we have never said that transgender people are part of a suspect class.

That was then amplified in a surprising way by Justice Barrett, who came out in a concurrence with Justice Thomas.

and just laid waste to the argument that transgender individuals as a class could get a higher or intermediate scrutiny. And she just said, you know, this doesn't meet any of the definitions of a discrete group. It is not going to be, in her view, subject to a higher scrutiny.

level of scrutiny. Now, the reason I mentioned that is there's a number of cases in lower courts, including one that was just decided before the opinion came out in Boston, and that involved an injunction. So it ties together this with the Trump-Vicasa case, where the district court judge in that case, Justice Julia Kobach,

a change to the U.S. passports that returned them to a binary choice of male or female for people to designate. And she used an intermediate level of scrutiny in her analysis. That's exactly what the court declined to do. But she also, in that opinion, found animus. She said, this is targeted. This is hostile towards

this population. So that case fits perfectly the gap left in the Supreme Court decision. So it could very well be the vehicle in which these justices, particularly Barrett, will get another shot at this.

Yeah, it's definitely I always think the concurrences are in dissents when you have time and the dust kind of settles really important to go through those as well, because she does talk about whether or not the trans population fits these ideas of immutable characteristics. She talked about detransitioners and people who may not view this as a permanent characteristic of.

that they as a human being are wedded to. And that will stand the test of time. So yes, a very thorough vetting of we know exactly where she stands on that issue when it potentially comes back to the court. Okay, guys, this has been so helpful. It has definitely just been a joy to my wonky soul. And I appreciate you both always lending us your expertise. It really is so valuable and so appreciated. And I'm sure it will be by the listeners of this week's Live in the Bream as well. Gentlemen,

Thank you. And now go enjoy your summer. Thanks, Shannon. Bye-bye. Thanks, Jonathan. Listen ad-free with the Fox News Podcast plus subscription on Apple Podcasts. And Amazon Prime members can listen to this show ad-free on the Amazon Music app.

Listen to the all-new Bret Baier podcast featuring Common Ground. In-depth talks with lawmakers from opposite sides of the aisle, along with all your Bret Baier favorites like his all-star panel and much more. Available now at foxnewspodcasts.com or wherever you get your podcasts.