Behind The Scenes at SCOTUS
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This week on Live in the Brain, we have got one of my favorite people that I've ever worked with, one of my favorite people in the world. He is the brains of the operation, and I mean that literally. Bill Mears, producer extraordinaire and resident Supreme Court expert. Bill, great to have you on Live in the Brain. So happy to be here. Listen, on the days that we're over at SCOTUS, as we call it, Bill, let me ask you this. Before you came to Fox, how much had you worked over there? Tell us about your experience over there because it is very deep.

I've been doing this for about almost 20 years now, carrying the Supreme Court on kind of a full-time basis. But when I first started in this business years ago, I got to meet Justice Lewis Powell in like my third week. I just followed one of the Supreme Court correspondents at the time. I got to go wander up in the chambers and meet several justices. What?

So I've been interested in this little court for quite a long time. I feel like you can't do that now. They might shoot us. It's hard. They have guns over there. Security and the— You've got to get an invite. It's got to be a special invite to get in there. And we'll talk a little bit about behind the scenes because there's nobody who has better knowledge of what happens at the court and how it happens at the court. I feel confident in saying, and Bill Mears—

So when we are recording this, we're in the last couple of weeks of the Supreme Court. And how it works is the days that they're handing out opinions, people always ask, do you know what you're getting? We never know. We have to show up over there every time they're handing out opinions. Because at this point, we're getting to the end of the term, the last couple weeks of June. We know what we're waiting on. But listen, the cases that are still pending, they matter to parties to the cases and other people out there. We just have, you know, probably three or four that we're focused on.

But Bill and I will gather over there. Anna, our runner, also gathers over there. So if we get something, you send it to her. She runs outside. I try to make sense of it while you're inside making sense of it. It's a team effort.

It is, and it's so confusing because the justices themselves really don't know. Up until the last minute, these opinions are being written, rewritten. Votes sometimes change at the last minute. It's a crazy process that the court calls the flood season because it's such a rush to get all these opinions. And we have 20 opinions left in essentially about a week, a week and a half's time to get done. So the justices are working essentially around the clock with their clerks trying to figure all this out.

So let's give people a little bit behind the scenes. You know, they get thousands of appeals, I would say, up there to the court every year. And they have these secret conferences where they vote. And the clerks will read through a lot of the cases and the petitions, trying to flag the ones that may be of importance to the court. If the lower courts are split on something, if it's very urgent, you know,

There are all kinds of reasons they may take it, but you have to get four votes in these secret private conferences for it actually to get on the calendar. What are the odds of that happening? Very high, less than 1%. We get 7,000, 8,000 what they call cert petitions where they're asking the court to rule on the larger issues, the merits of the case where they can issue a precedent-setting ruling. And among those 7,000, roughly about 70 to 80 oral arguments are put on the calendar every

Sometimes a little bit fewer rulings that come out on that. So it's a high bar for the Supreme Court to take on it. And they decide among themselves. They meet almost on a weekly basis when they're in the session, just the nine of them, nobody else in their own conference room. And they essentially vote on which cases to accept. It takes four to put their case on the calendar and five to win, of course. And sometimes people will say, gosh, this issue is so important or it's really teed up. Why aren't we doing this? Right.

And even if you think there are a handful of justices that want to tackle that, we know a lot of times they won't vote yes on hearing it because they think it's not going to be the right vehicle. Like they can't, quote, win or they can't get to the point they're going to want to get to. So even if it's an issue they care about, whether it's abortion or guns or regulations, whatever it is.

You may have four that are very interested in moving on it, but if they don't think that they can pull over a fifth to actually give them a winning vote, they won't vote yes to hear it or even get it on the calendar. Yeah, I get asked all the time why the court takes this case and not this case and why they seem to be going so slow. And I point them to the lampposts outside the Supreme Court Plaza. If you look at them, you will see that there are little carvings of little turtles there.

around the lamppost. It's true. And it's the sign that the court shows that they are a deliberative body. They tend to go slow. They don't want to get ahead of an issue. They tend to like to have the political branches, the legislative and executive branches mull these issues over before they come to them. That way they...

and the lower courts to decide these issues before it comes to them, because they know that they're the final word on all of these. And they don't want to be ahead of the law. They don't want to be ahead of society when it comes to making these very important issues. And they do like to let this kind of, quote, percolate, I think, is what they like to see happen in the lower courts, so that these things are heard by different circuits. Those are the lower courts, different judges. So there are different viewpoints. And again, if there's a split, then that's teeing it up for them. If you have

one section of the country that's under one ruling, another section of the country under another ruling. But this term, they've had a lot of these emergency petitions or requests like, hey, we want the court to get involved in something, whether it's DACA or something else, before these lower courts even rule on something. They don't tend to like to get involved with those things, but they will sometimes.

Yes, and it's a consequence in part of the Trump administration, which has urged the Supreme Court to get involved in a lot of these important issues before they've had a chance to be fully vetted or fully decided in the lower courts on DACA, on the immigration policy, on certain environmental policies. They want the Supreme Court to get involved now. And there's some concern about whether that would set a bad precedent, whether the Supreme Court would essentially be the first place that you go to if you have a problem

with the law or the Constitution as opposed to the last place. So that's an issue that's being debated, I know, both in the public and internally with the Supreme Court among the nine justices. Yeah, there's also this issue of these nationwide injunctions. So you've got 700-some, roughly, district court judges. That's the lowest level of federal court judge.

But listen, if people want to object to a policy, they don't like something. They're not dumb. They know where to file these cases. They know where to go, where they're going to have a friendly judge that may block it. And we've gotten to the point now where, you know, people agree that it seems like there's no prohibition on it. It's been done over time. It's just gotten a lot more popular in recent years where a single federal judge can shut down a policy for the entire country instead of just the geographic region that they oversee.

And it seems like that kind of forces the Supreme Court's hand to get involved with things maybe more earlier than they would if you've got a single federal judge shutting the whole thing down. Then the administration goes to the court and says, wait a minute, this one judge shouldn't be able to shut down the whole policy on DACA or asylum or anything else. Yeah.

Yeah, and the person who's been really leading the charge for the Supreme Court to take on this issue is Justice Clarence Thomas. He and a number of rulings has urged his colleagues to try to put a stop to these nationwide injunctions, saying they set a bad precedent that, as you said—

one judge essentially creating national policy or putting a national policy on hold. The Supreme Court, again, has been kind of reluctant to take on this issue. They're looking for the right case to take on. And the administration, too. They said that they're going to launch an aggressive effort to find that right case to bring it to the Supreme Court to decide. So...

I don't think it's going to be decided in the next year or so, certainly during an election year. But I know this administration has made that issue a high priority. Yeah, the attorney general's talked about it. The vice president, they've been really itching to do something about that. Okay, so a normal case, it gets on the calendar, it gets those four votes. Very tough to get there. They assign an hour for oral arguments for both sides to come in and argue, although...

In cases like, somebody asked me about the Affordable Care Act the first time that it went to the court a few years ago. It was two and a half days of arguments. That's super rare. I mean, nothing else I've ever covered at the court has been like that. So generally, it's an hour of arguments.

And this is one of the most fascinating things. I don't know about you, but I feel really like it's a privilege to be in there because there are no cameras allowed in court. I don't know that that's going to change anytime soon. You know, when you get the newer justices that are more comfortable technology, some of them will say, oh, we'll see. But it seems like they'd all agree that they unless the nine of them want it, they're not going to do it. So then we're tasked with coming out and telling people what was said.

The audio recordings do come later in the week unless we request them same day. And we do a lot of times and they say no a lot of times. Once in a while they say yes. But they argue for about an hour. Both sides have equal time. Then the Friday after they've heard these cases, what happens?

They sit down as a group again in the conference and they essentially vote on the cases and they do it by seniority. So the chief justice goes first because he's top and the junior justice, in this case, Justice Brett Kavanaugh, he's the last to vote. So sometimes he's the one that they're all waiting for to see if he's going to be the one to vote on them. And after that, the chief justice, if he's in the majority, will assign the opinion writing. That's all important because that's how the court really speaks. It's through its opinions. And you talked about the oral arguments. It's been

We've seen quite a change over the years, I know, in the dynamics of it. When I first started it, the justices rarely said anything. They hardly asked any questions of counsel who essentially had the full time that they were allotted to present their case without very much interruption. And that's all it is now. It is. It's rapid fire. It's them talking over each other, over the advocates, the lawyers.

It's hard. I see some of these lawyers sometimes they can't even get there. Like, we've got three points in our case today, 0.1. And then jump in with a question. I'm like, this person's never going to get to 0.2 or 3. It is. Argument is something of a misnomer. They call them oral arguments, but it's more of a Q&A rapid fire argument.

a session where the counsel has to be really on their toes and prepare for almost any kind of hypothetical, any kind of question that the justices might ask. And they frequently talk over each other, interrupt each other. The counsel can hardly get a word out sometimes at the beginning of an argument before a justice will come in and start asking questions.

And it's frustrating. I know the chief justice has expressed some frustration about it, wanting to allow to hear more from counsel. And that's one reason I know that Justice Clarence Thomas does not ask any questions because he thinks oral argument should be for counsel, for them to present their case and the justices to do a lot more listening and a lot less talking. Okay.

And so people know. I mean, they have read scores of documents, the record, briefs that are filed. I mean, they're not at a loss of information when they go into those arguments. You would think that most of the justices, absent something really miraculous happening, they pretty much have an idea of where they're going with where they think the case is going to be rightly decided one way or the other.

Although I've asked them, I'm sure you have too many times, has an oral argument ever changed your mind? And they'll say yes. But I think that's the exception rather than the role. It is. Most justices have told us privately that they go into an oral argument, pretty much decided how they're going to vote. And oftentimes we'll use the oral argument to kind of...

Try to persuade their colleagues. Yeah, the public layout to raise issues that they may not have thought out, essentially giving their colleagues something to think about, laying out some markers that can be considered when they go through the opinion writing process. And it's a back and forth in that opinion writing process where notes, suggestions, or exchange, it's

It's a process that can go on for many, many months. We've had cases from the October sitting that still have not been decided, and so it shows...

The internal dynamic and how much back and forth. I wouldn't say negotiation, but there's a lot of exchange of ideas. I think that sometimes we would say negotiation. I think sometimes. Because, listen, we talked about the Friday after they hear a case, they take this initial vote. Everybody is senior to most junior. And by the way, the junior person has to open the door. They have to take notes.

Like they have to do all of the stuff that they're happy to hand off to the next person when they come along. They get to speak last. But after that, the opinion writing has been assigned. You're going to do this. You're going to write the, you know, they can decide on who's going to write the dissent. But even still votes change. We know that. You and I have both reported on cases, including really big ones like the health care case, the first affordable care case that we know votes changed.

So it happens behind the scenes. I would say our guess, because we don't really know, is I think it's probably uncommon. But it does happen because as they start to write drafts of their opinions, they circulate them. They're always looking to pick up another vote or two or three or whatever they can do to get somebody to sign on to their opinion. And sometimes that changes the outcome of the case. Exactly. And I know Justice Scalia for years had expressed some frustration that that the.

that when votes are changed at the last minute, it makes it very difficult because you're laying out your majority opinion and then you have a justice who may not agree with that. So you have to sometimes modify or change your language in order to keep that crucial fifth vote on your side. And it can be a frustrating process when you think that you have the right answer when it comes to these tough cases and then to have a justice kind of

raise some doubts about that. The justices have big egos and they don't like to be told that what they think about the law and the Constitution is not what their other colleagues think. Well, and especially if they're getting to the end of the term like this, then it can require a serious rewrite of the majority or the dissenting opinion because now new issues have been raised, votes have been changed, and I think that

tends to really jam things up at the end. Now, I want to talk about the cases that we have left and the moments that we have left. We're watching. We've got our eyes on a big three or four. What is the most interesting case that you're kind of keeping an eye out for? Because as you and I are recording, we're waiting to – the next day they're going to be releasing opinions again. We're in the middle of the midweek of June. But the last couple of weeks, we'll get everything that's left –

What are you looking for? Well, typically the big cases, the really big cases are issued on the last or the penultimate date. So we may have a few days before we hear about those. But the one that I'm watching most is a case involving the 2020 census and plans by the administration to add a citizenship question on it. The administration says it's needed to help to enforce voting rights. Opponents, including 17 states and a coalition of civil rights groups, say it's

clearly designed to discourage minority, particularly Hispanics, from participating in the census, leading to perhaps an undercount that the Census Department has said could be as many as six, seven million people. So that's an issue on executive power that we're watching closely. Yeah, and that one can impact, I mean...

Federal funding, congressional voting districts, the lines, the representation, everything. I want to ask you about a case that they have not taken, one that they sent back down. This is the case of the couple in Oregon that had a bakery. They are devout Christians and they say they will serve and sell to anyone. But when they were asked to do a custom creation for same-sex commitment ceremony, this is prior to the Supreme Court's decision legalizing gay marriage in all 50 states.

and U.S. territories and all of that. They declined to do this cake. They were fined $135,000 and essentially went out of business. They had appealed their case to the Supreme Court, which turned it away, but it vacated the lower ruling against them, essentially threw out the lower court rulings against them and told the state court, take another look at this. And people will say to me, well, didn't they do that masterpiece cake?

case last year with the Colorado baker. And we have to remind people they didn't make the real decision on the merits of this about where the line is drawn between religious business owners and the rights of the LGBTQ community. What they did find in the Colorado case is that there was impermissible hostility towards that baker's religion because of some of the comments that were made by the commission. So that case goes back down. We know that there's another one with the Washington state florist, a very similar case.

Do you think the court in the next term or two is going to take up one of these cases and finally settle that question? I don't think they are going to take up the issue. It was almost inevitable four years ago when the Supreme Court essentially legalized gay marriage across the country that similar issues involving LGBTQ rights were going to come up, particularly when state laws against discrimination laws would apply to them.

And we've seen that in the employment context, and now we're seeing this in the business context. Justice Kennedy had an opportunity before he retired last year to kind of articulate a clear standard about when the –

About the rights that... Yeah, the intersection there. Exactly. But the court could not command a clear majority on this. So several more cases have been building up over time. I don't think the justices are going to take that on. But they are going to take on two big cases next term that deal with job discrimination for the LGBTQ community and deciding when

when it ever, whether the LGBT community essentially can be put in the same category as racial discrimination, gender discrimination on the job. Yeah, all of that. Exactly. And that's the next big test for the Supreme Court to decide whether a person's sexuality matters when it comes to job discrimination and job employment. So the court will take on two cases next year on that. All right. We're out of time, but I have to ask you, I think you agree with me, we're not getting any retirements this year. I don't think so. I don't.

think anybody's ready to go. In fact, they've been batting down the rumors among themselves and things that are floating around publicly. You and I would be shocked. Not to say it couldn't happen, but I think we'd both be shocked. No, we've had three nominations in the past three years, so we will see, but I can't see it this time. I think the justices want to have a little period of calm, and I think the

The ones that are on the court right now are enjoying themselves. Despite the hard work and the internal tensions that sometimes happen, they like the work. They like their colleagues. And they're going to continue on, it seems, for a little while. Okay. So that's it for this episode of Live in the Bream. But, Bill, you and I could talk about this for hours, and we didn't even get to some of the really meaty behind-the-scenes stuff. You know everything. Will you come back? I will. See, I asked you on the air, so you have to commit to it. I have to now. Thank you. Thanks, Bill.

From the Fox News Podcast Network. I'm Janice Dean, Fox News Senior Meteorologist. Be sure to subscribe to the Janice Dean Podcast at foxnewspodcast.com or wherever you listen to your podcasts. And don't forget to spread the sunshine.