A Beginner's Guide To Supreme Court Cases
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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 my favorite time of year. It is the most stressful, I'm not going to lie, but the most challenging and exciting part of my job, too. It is the final week and plus a day of the Supreme Court term where we get all of the big contentious decisions we've been waiting for. And it's the most challenging and exciting part of my job, too.

You know, there are a lot of 9081 decisions. That is true. Most of them do not come the last week or so. So here with me, I've got an expert to join this conversation. Carrie Urban is the legal editor for Fox News. You may remember she also was the director of public affairs for the DOJ under Attorney General Bill Barr.

She had a lead role in the Kavanaugh confirmation process as well. She has been involved in all kinds of legal organizations and at the forefront of a lot of hot topics. Carrie, thank you for joining us on Live in the Brain. Thank you for having me on.

Okay, so let's do this. Let's talk about some of the cases we got in this, what would normally be the final week, and then we will talk about what to expect with immunity, what we think may be coming. But let's start with a couple of other cases. The Chevron deference case, I've talked about it before. It's a little wonky, but people, you must know that thousands of federal regulations touch your life every day, from the shampoo you use to the car you drive to the gas you put in it.

All of it out there, the environment, food, transportation. And what the court said today essentially was federal agencies who have to now gotten complete deference if a law is ambiguous from Congress, they get to interpret it. The court said, actually, no, that you will be able to go to court to challenge this, that courts can weigh on whether these federal agencies got it right or not. Feels a little wonky, but Carrie, why is it important?

big win for the little guy. And the story behind this case, and some of your listeners may remember this, the fishermen, the lobstermen, the fishing industry is something that's so specific, I think, to the U.S. It's part of our nation's founding. And

And this industry was apparently somewhat on the brink of collapse, given the regulations from the federal government that were being imposed against them. And so this group of fishermen, lobstermen got together to fight back against really what they would say is Big Brother and specifically against a rule.

that required them to carry essentially government babysitters, monitors on their boats to make sure that they were complying with the rules. Now, the problem with that is how expensive they were. My understanding, it was it cost upwards of seven to eight hundred dollars a day.

which obviously, if you're out there fishing, that significantly would cut into your profits. And some people have likened it to, you know, forcing a taxi driver to pay for a police officer in his car to make sure that he's driving the speed limit. So as you can imagine, these fishermen were incensed about what was happening. They took this case all the way to the Supreme Court, and today they won. So as you said, Shannon, really, it affects...

so many regulations that affect people in their everyday lives. And interesting, the spokesperson, Megan Lapp, for one of these fishing groups, we asked her, why do you think the government was so insistent upon imposing this regulation with you all? And she said, because they could. We're too small. You know, we don't have a lot of power. She said, we thought they didn't think we'd fight back. And we did. And here we are.

Yeah, and it's not an inexpensive proposition to fight back. So a lot of small businesses sort of feel like they crater under the weight of this. Now, she said today we have finally got a level playing field. We're in the same rights as the United States government. That is huge. It will make a huge difference in our industry and every industry going forward. Now, Justice Kagan led the dissent in this case, and she said in every sphere of current or future federal regulation expected,

courts from now on to play a commanding role. She says it's not a role that Congress has given to them. She said at one point, the court, meaning the majority, has no restraint. And essentially, this is just a big power grab by the court because now they will be interpreting the laws. If somebody challenges what the federal agencies have done, she says, listen, Congress never intended for you guys to have this power, us as courts.

Mrs. Kagan's point was not unreasonable, both in the dissent, but also in arguments. Shannon, you remember how she was questioning the role of experts.

And she talked about how we have these experts in government agencies who can make these nitty gritty decisions about environmental policy or health policy. And to effectively take that away from them would, as she said today, it's putting in the hands of the court. And so we wonder how much litigation is going to ensue because of it. Now, of course, though, it wasn't so much, I think, the expert decision.

That was the issue. It was more the deference that was given that when in doubt, the unelected government bureaucrat was given the authority to make the decision. And the little guy, so to speak, or the people who are actually being affected by these regulations really had little to no recourse. So I think people like the fishermen are happy now that they have at least an opportunity to push back in the court in a process, whereas before it was, you know, the government said so and therefore it was.

Yeah, we also got this case on homelessness, which a lot of communities out west have been dealing with this. And this case came to us through Oregon, through Grants Pass, the city there. And essentially what they had been doing is using various ordinances against public camping and public sleeping to try to break up homeless encampments that had sprung up in neighborhoods and in places that people said, you know, this is getting out of control. I don't feel safe. I don't want to walk my kids by here. There's a school nearby.

In some cases, there's drug use or other trouble going on. And essentially, the people challenging this, that people could be ticketed or fined or even jailed under potentially some ordinances local in nature.

is that it violated the Eighth Amendment's ban on cruel and unusual punishment. But again, the court came back, at least the majority, and said, we're not going to get into this. Localities have to figure out how they manage these problems and didn't apply the Eighth Amendment, essentially, to these criticisms about it being cruel and unusual. But a lot of deference.

Even getting praise from Governor Gavin Newsom out in California who said, listen, we have to have tools, states and localities, so we can make sure our communities run safely and with order. But another big decision in coming down the home stretch from the justices.

I think this is one of the more significant decisions of the term, mainly because we all know what these homeless encampments look like. You know, I live right outside of Washington, D.C. for a while. Shannon, you remember there was an entire encampment of tents outside of Union Station all over Washington. We've seen this all over the country. And

You know, these tend to be places where there's a lot of drug use, there's crime, people feel unsafe. And also, it's just on its face. It's not really fair to the people, say, who have to pay rent, have to, you know, get a permit if they want to stay camp in a state park.

The average person can't just pitch a tent on the side of the road and be okay. They can't. It's against the rules. It's against local ordinances. Yet for some reason, this has been allowed across the country with very little repercussion. And so the Supreme Court today said, look, it's okay for towns and cities to ban these things. They have the authority to do so.

And I did think, Shannon, though, it was interesting that Justice Sotomayor read her dissent from the bench, which we know usually indicates they're pretty fired up and they want to get their opinion across.

And, you know, one of her lines was that sleep is a biological reality. And this ban basically takes away the ability for people to sleep who don't have an opportunity to do elsewhere. Feels a little thin given all the resources that are available from homeless shelters to nonprofit organizations. But certainly at a minimum, people who, whether they're governing their state or they're a mayor of a town, they're responsible first and foremost for safety of all

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Yeah, we're talking to Kerry Urban, who's legal editor for Fox News, and breaking down what we've gotten from the court, what we're going to get from the court. You mentioned Justice Sotomayor reading her dissent. So people know on the days we get opinions, they're actually on the bench. There can be people in the courtroom and they're not hearing a case. They're not what they're doing is telling us what they've decided in these cases. So from the bench, the person who wrote the majority opinion will summarize that will read part of that opinion.

It is more rare that somebody would read their dissent, but it's completely allowed. It does happen. And it happens more towards the end of the term, because, again, we're talking about the most contentious cases. So we've had justices Sotomayor and Kagan this week both read their dissents from the bench. And it's when they really want to make a full throated point. Like, I want you to understand why I think the court got this so wrong.

And so we have heard some of those dissents from the bench, and some of them have been very lengthy. So it's not something that normally happens, but it has been happening as we get to the end of the term. Another big case that came in this week dealt with January 6th defendants. They were charged under this statute that was promulgated in the wake of Enron. It was tied to financial scandal. But what the...

18 USC 15 subsection C2 for those who are taking notes as if this is a law school class and you don't want me to be your professor but maybe Carrie can be your professor here. What we found out from the court is listen the application that the Justice Department did in using this particular statute and there's nobody who was charged only with this statute but it was put into many cases hundreds of them along with other charges

What the court found when one of these January 6th defendants challenged it is that the application of this had some flaws, the way that the Justice Department had used it.

now means essentially that hundreds of these people will be able to potentially go back to court, say they have been sentenced but they're not serving yet or they're serving time, or even if they haven't been tried, maybe they're in talks about a plea deal, they will be able to go back and challenge that and say, hey, the Supreme Court has said the way it was applied in this particular case was done incorrectly. Not to say they couldn't use the statute, but Carrie, this has potential impact for hundreds of January 6th defendants, including President Trump.

interesting cases of the term to me. And the statute at play, this idea that obstructing an official proceeding was effectively carte blanche for whatever the government wanted to make it to be, was, I think, at the heart of this case. Because as you said, Shannon, historically, because it was passed, it was enacted in the wake of Enron, it was understood to mean things like document shredding, evidence tampering, witness intimidation, things like that.

not people trespassing in the Capitol and thereby impinging upon a process that was going on there. And because if you take that to its logical end, think about it, we see a lot of these anti-Israel protests going on across the country. And certainly some have happened outside of, say, a congressional hearing. And so in theory, you could have anti-Israel protesters congregating outside of the Capitol if there was an Israel hearing going on.

And under the government's logic, under the Department of Justice's argument, all of those protesters could be charged under obstructing an official proceeding under the statute. So the Supreme Court said, whoa, whoa, whoa, this was not how this was meant to be applied. It was, you know, this is it's about documents, about evidence, about witnesses. And like you said, Shannon, really, I think it looks like it could be a significant impact for the January 6th defendants and probably President Trump as well.

you have to remember this was a felony this is it's a felony to commit this crime under the statute and so for a number of these defendants this was one of the only felonies or the only felony they were facing so take that away and now you're looking at misdemeanor disorderly conduct charges and the like and for the former president this was one of a handful that he is facing in the jack smith january 6 case so if this goes away those charges remain but the case becomes a little

I don't want to say it goes away altogether because those charges are still going to be brought.

One more point on this. I was talking to former Attorney General Bill Barr today about this, and we were chuckling because if you remember, if you go back in time when he was up for confirmation to be Attorney General, there was some controversy because he had sent an unsolicited 19-page memo to basically anyone in Washington, D.C. who would listen to him. This was before he became AG, where he argued that by

Bob Mueller, in his consideration to bring this charge against Donald Trump under the statute when he fired James Comey, that basically Donald Trump was obstructing an official proceeding, obstructing justice by firing James Comey. Barr said, no, no, no, that is not at all how this statute was meant to be applied. He gave the Enron examples as well. So I have to tell you, he feels pretty vindicated today over that memo.

And I wanted to make sure I got that in there. That is so interesting and such a good reminder. He was ahead of the curve on that one. Okay. Yeah. I mean, gosh. And there have been warnings about using this statute.

out of context of the financial scandal that was Enron because years ago the late Justice Ruth Bitter Ginsburg wrote in a case that was using another part of the statutory framework saying you know we really should not get too far away from the the underpinnings of this which were financial scandal and those kinds of crimes like you can't just use it to shoehorn in anything else but

You know, that's where the court ended up today. Now, to me, this was so interesting, too, that the dissent ended up being led by Justice Barrett. While Justice Jackson went over and had a concurrence with the majority, Justice Barrett, though, writing for the dissenter, says the court has done textual backflips to find some way to narrow the reach of this section. So she clearly did not agree.

But it's interesting, you know, if people think that everybody on the court is always in sort of ideological lockstep, we've seen some really interesting pairings and, you know, groupings the last few days.

You know, I think why she says that is because the statute on its face is pretty broad. What does it mean to obstruct an official proceeding, right? A government proceeding. You could insert a lot into that. And I think the Supreme Court was wise to limit it to its original understanding of why it was passed in the first place.

But I remember during argument, we heard DOJ make a lot of argument just about the fact that, well, if you read the text on its face, it could mean this because there aren't these caveats. But I think that given how it could be, it was being read and applied like a blank check. I think it was smart for the Supreme Court to go back to its original intent and apply it in that way.

Okay, so now we wait for the biggie. Because it's not only a big deal for President Trump, what happens in his claim for immunity or presidential immunity for some of his actions taken during his time as president. I mean, this is, as Justice Gorsuch said, they're writing a rule for the ages. This is something that probably a long time after you and I are done walking this planet, this is a case that's going to be cited for application to other future presidents. So this is something that is momentous.

momentous for the court not that every case they hand down isn't important because they are the final judicial word in this country but this has so many far-reaching implications in the immediate 2024 election the cases against president trump in the future as well and we heard during arguments you know some of the justices saying listen if somebody comes into office and knows there's no possible criminal liability for them at all they could go crazy as president

President Trump's team has argued, listen, you limit the commander in chief. They're always going to have to worry about what they do, a drone strike or some decision that impacts life and death scenarios and other things. And that presidents have to have some measure. They were arguing for complete immunity. I think what the court will do, and I'm interested to get your take, is say there is some level of immunity for presidents here.

based on their official acts, but then maybe they're going to give us the definition for official acts and whether they go through the Jack Smith decision or indictment and say, okay, these qualify, these don't, or they say, okay, lower court, here's your guidance now. You decide what's an official act. I don't know. What do you think?

If you it's important to remember, as you mentioned earlier, this is a case of first impression. The Supreme Court has never addressed this issue before. The president can be immune from criminal prosecution for acts conducted, committed during office. We certainly know the rule regarding civil liability where a president is is afforded

a lot of immunity, how do they say it, to the four corners, to stretching it out. Basically, a president is, I'm trying to remember the precise language in that, but basically a president does have almost absolute immunity in the civil context and they defer as far as they can to the president, but criminal has never been looked at before.

And I think it's tricky. Both sides, I think, have staked out pretty extreme positions. You have President Trump who says absolute immunity always. You have the Department of Justice who says no immunity ever. Right. No one's going to get everything they want. Right. And so I see the Supreme Court falling somewhere in the middle, splitting the baby somehow. I have a very hard time believing that they are going to side with the lower courts in this case.

no immunity, which was the sweeping decision of the DC Federal Appeals Court. It's just not realistic. It's not practical given that the decisions that a president of the United States have to make in the real world would not often be legal.

and we can go through all kinds of examples of that you know drone strikes and the like and things that but are completely not just permissible but must happen when you're the president and the concern of former president trump and others is that a decision that says no immunity would hamstring a president and that and it also would allow for political enemies to prosecute each other as soon as they get out of office so that's not sustainable it's just not realistic from a common sense perspective

On the other hand, there are certainly circumstances where a president could do something that objectively is not okay. It's criminal and does not fall within the bounds

of what they have taken an oath to do as president of the United States. So the devil will be in the details, right, Shannon? And the reason that matters is because however they decide will directly affect Jack Smith's case and will be likely sent back to the lower courts. And there will have to be a new briefing in any scenario that's not complete agreement with the lower courts, which said there's no immunity. And I just don't see that happening.

Well, yeah, the net result. And we don't know until we get this Monday and we can parse through what could be a very confusing, lengthy, fractured decision. We don't know. I mean, the Chief Justice could be working to something very narrow that would, I think, he thinks...

in this moment in time you want to get as many people into the majority if he's writing it. To kind of speak with one voice even possibly what we call a per curiam opinion where it's not really signed by any one author but the whole court speaks with one voice essentially.

I got to think that's his dream scenario, that everybody is on the same page with something that they can send to the public so it doesn't look political in nature. But it could be a 6-3, a 5-4, 7-2. We just don't know until Monday. But, Carrie, thank you for helping us to prognosticate a little bit.

and to work through what we've gotten so far. Carrie Urban is our legal editor here at Fox News. And as we touched on, also was head of public communications during the Barr administration, I guess you could call it, his term over at the Justice Department. She brings a lot of deep knowledge on all of these things, legal, legal. So thank you for joining us to nerd out a little bit. Carrie, I won't speak for you. I do call myself a nerd. I completely nerd out on Supreme Court topics as well. Thank you for having me on.

Carrie, thank you. That's it for this week's Live in the Bream. 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. From the Fox News Podcast Network. I'm Ben Domenech, Fox News contributor and editor of the Transom.com daily newsletter. And I'm inviting you to join a conversation every week. It's the Ben Domenech Podcast. Subscribe and listen now by going to FoxNewsPodcast.com.